Is it time to sell the moon?

As nations and even private companies prepare to return humans to the moon on a grand scale, the question of how commercial activities can be managed on the lunar surface has become more crucial. One attempt to clarify that question has been published by free-market think tank, the Adam Smith Institute. The proposal, called Space Invaders: Property Rights on the Moon, is an attempt to facilitate private ownership of land on the moon. The paper suggests that private property ownership of parcels of the lunar surface will create wealth on Earth and even alleviate poverty.

The scheme would apportion the surface area of the moon to the nations of the Earth that would then rent, sell or give lots in some way to their citizens. As the economic development of the moon proceeds apace, companies would presumably pay for the use of lunar land, with income flowing through to Earth landowners. As an outside-the-box approach, the Adam Smith Institute plan is breathtaking. It has also come in for its share of criticism.

The laws regarding private property on Earth vary from country to country and, in the United States, from state to state. In the United States, private property is defended by both federal and state law but is also affected by the takings clause of the Fifth Amendment of the U.S. Constitution, according to the Lincoln Institute of Land Policy. Furthermore, the ability to develop or improve land can be affected by environmental regulations and the Endangered Species Act. Many local governments have zoning laws that restrict what can be built on privately owned real estate.

A vast change in international space law would have to take place for the Adam Smith Institute’s scheme to even be contemplated. Currently, the moon is governed by the Outer Space Treaty of 1967, which prohibits national appropriation of celestial bodies such as the moon. Since nation-states generally define the nature and regulation of private property, currently no framework exists to apportion the lunar surface to the nations of the world. A new treaty would have to be agreed to for the Adam Smith Institute’s scheme to take place.

Should each country apply its own land laws to the lunar real estate under its control or should there be a common framework of laws and regulations applying to the entire moon? Should sites of cultural and historical significance, such as the Apollo landing sites, be excluded, as an organization called For All Moonkind advocates?

The task of persuading the Earth’s nations, some of which are hostile to each other and have differing perceived interests, to agree to a lunar land treaty is likely to be a formidable one. Imagine trying to craft a treaty that both the United States and China, just two of the major space powers, would agree to.

The Adam Smith Institute’s proposal has come into some criticism. Sen. Bernie Sanders (I-Vt.) tweeted in response, “Hear me out, because this is a far-out concept… what if instead we just made the wealthy and huge corporations pay their taxes here on earth?”

Columnist for the Guardian Arwa Mahdawi suggested “Privatising the moon may sound like a crazy idea but the sky’s no limit for avarice.” The column went on to suggest that the Outer Space Treaty should be updated, not to facilitate the economic development of the moon and other celestial bodies but to discourage it. The Moon Treaty of 1979 was one attempt to stop commercial development of space by declaring “that the Moon and its natural resources are the common heritage of mankind.” No major space power has ratified the Moon Treaty.

In the meantime, some countries have passed laws encouraging extraction of lunar resources while complying with the Outer Space Treaty. According to Space News, Japan is the latest nation to enact a law granting its nationals permission to mine space resources and hence ownership of those resources. The United States, Luxembourg and the United Arab Emirates have passed similar laws. The Artemis Accords notes that resource extraction will be critical for future space exploration and development.

Other countries, such as Russia, oppose this approach and demand that an international system of regulations be adopted governing space resource extraction. The issues of private property and ownership of resources in space is likely to be a thorny one for quite some time to come.

Mark R. Whittington is the author of space exploration studies “Why is It So Hard to Go Back to the Moon?” as well as “The Moon, Mars and Beyond,” and “Why is America Going Back to the Moon?” He blogs at Curmudgeons Corner.