No, Newt, the U.S. Cannot Make the Moon a State. That's Illegal Under International Law.





1-30-12

Daniel S. Margolies is Professor of History at Virginia Wesleyan College and the author of "Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality in the Borderlands and Beyond, 1877-1898" (University of Georgia Press, 2011).

Leaving aside the technological challenges, fiscal unreality, and sheer oddity of Newt Gingrich’s proposal to build a “permanent base on the moon” by the end of his theoretical second term, historians might wonder: would such an American moon base or colony even be legal to construct under international law? Is Gingrich’s call for “putting a marker down” on the moon merely futuristic neo-colonialism or would such an act demand novel extralegal approaches to the projection of American power?  

Gingrich’s idea for a “Northwest Ordinance for Space” carving a route to statehood for a moon colony when the population reached 13,000 also should raise eyebrows among historians. The original Northwest Ordinances signaled a vision of state development and imperial expansion within United States sovereign territory. The nation replicated its authority and system via a combination of spatial rationalization and population growth and migration. The legal status of the moon for similar structures of expansion—and broader questions of extraterrestrial sovereignty—require serious scrutiny if any nation, even an “indispensible one,” is to lay claim to celestial bodies and space for the unilateralist purposes Gingrich supports. 

Space is considered a commons under public international law. Space remains a neutral area open for exploration, experimentation, and peaceful uses, a standing which is secured by a wide array of treaties variously signed by 179 countries since the beginning of the space law era in the mid-twentieth century. As James Kraska wrote in a recent study of the idea of “the global commons” in modern international relations, “freedom of space is the cornerstone of space law.” A variety of international organizations grouped under the United Nations govern various aspects of activity in this space commons, such as the Office of Outer Space Affairs. Other aspects of the uses of space are governed by commercial space law regimes within individual nations, but it is the international agreements and institutions which govern the commons and which shape state action within them.

Many space treaties have reaffirmed the nature of the commons as the uses of space have expanded and grown more complex as the number of nations actively engaged in space exploration and exploitation has expanded dramatically since the end of the Cold War. Technological change and intensifying global competition for terrestrial resources, as well as the use of space for communication and surveillance, have put increasing and novel pressure on many of the seemingly settled issues of space law. Yet international agreements signal quite clearly that space is not open for colonization and unilateral absorption. Experts on space law emphasize, as do Francis Lyall and Paul B. Larsen in their recent Space Law: A Treatise, “law is law. In space we seek the ‘rule of law’ not ‘rule by law’ where the rules are simply adhered to when convenient to the powerful.” 

The principal agreement that frames modern space law for the United States is the 1967 Outer Space Treaty. It underlies the entire existing regime for legitimate action in space and remains the major governing treaty “on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies.” The treaty clearly states that lunar and other space exploration should be based on peaceful use and free international access for scientific exploration resting on and “promoting international cooperation and understanding.” Article I called outer space “the province of all mankind” and states that space and the moon “shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law.” Article II states clearly that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Article XII establishes that “all stations, installations, equipment and space vehicles on the moon and other celestial bodies” would be open to all states and run “on a basis of reciprocity.” The U.N. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which was adopted by the General Assembly in 1979, does allow “manned and unmanned stations on the moon” to be established as long as free access for all is maintained. But its Article 11 uses the same language as the 1967 treaty to deny “any claim of sovereignty” on the moon.

Clearly there is no legal basis for Gingrich’s idea of a moon colony achieving eventual statehood under U.S. sovereignty. Of course, the United States has demonstrated a willingness in the past to ignore limits on its sovereignty in pursuit of unilateral and expansionist ends. But one might assume no signatory nation would lay claim to the moon to avoid violating long settled treaty arrangements and overturning international law, not to mention perhaps even provoking competition or war over the resources of the moon. The Bush-Obama era has featured strident assertions of extraterritorial power and jurisdiction, but it is also a time of rising Chinese space power and renewed competition with Russia for resources, power, and influence. These realities would almost certainly check any rash state actions in space.

As an alternative to official acts, one might imagine that American authority on the moon could be established over time through private forces in pursuit of lunar enclosure. Gingrich raised the idea of a prize for lunar exploration to encourage such private development and exploration as a way to prime the pump of official American lunar expansion with corporate action. It is not impossible to imagine American corporations seeking extraterrestrial dominance of the mining resources on the moon and other celestial bodies, and U.S. sovereignty following in the wake of capital. The United States might legally encourage private interests to pursue congruent acts in service to long-term U.S. imperial interests, as businesses since United Fruit have done and as companies like Scaled Composites and SpaceX have begun to do in space. 

And there is already a long, if checkered, history of private efforts to control and exploit the moon itself.  In the modern era an eccentric group of people have claimed ownership of the moon. Space law scholar Virgiliu Pop, who has written a book on these efforts, has himself claimed the sun while a Ph.D. candidate at University of Glasgow in 2002 to demonstrate the ease with which such claims can be made. Perhaps the most vigorous and well known of the self-proclaimed moon owners is Dennis M. Hope, who created the Lunar Embassy in 1980. The Lunar Embassy is still operative and offering parcels for sale at $19.99 an acre, or $22.49 if one wants their name printed on the lunar deed.

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