My Romanian space lawyer (and improbably-named) friend Virgiliu Pop has made the front page of Space.com today in a great interview with leading space journalist Leonard David about his new book Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership.  Virgil slams the “Common Heritage of Mankind” socialism behind the 1979 Moon Treaty, which was killed in the U.S. Senate by the free-market space movement, which later gave birth to the Space Frontier Foundation (which I chair).

Virgil once famously claimed ownership of the sun to demonstrate the absurdity of serious assertions made by a number of charlatans to ownership of lunar territory (Dennis Hope) or the entire Eros asteroid (Greg Nemitz).  Virgil’s point was “to show how ridiculous a property rights system in outer space would be if it were to be based solely on claim unsubstantiated by any actual possession.”

I’m looking forward to reading Virgil’s book–and to writing a proper review.  For now, I’ll just say that I think Virgil and I see eye-to-eye on three key premises (something of a rarity among space lawyers on the ultra-contentious issue of property rights):

1. The Outer Space Treaty of 1967 prohibits nations from appropriating territory in space and also prohibits individuals from asserting any territorial claims (generally accepted) except to a narrowly-limited area under actual use (not accepted by all space lawyers).
2. The Outer Space Treaty, properly understood, does not bar claims to ownership of movable objects such as extracted resources or even (if they can be moved in a meaningful way) entire asteroids or comets.
3. Securing such property rights is essential to the economic development of space.

Here are a few choice excerpts from Virgil’s new book on the big picture of property rights in space:

Outer space needs to be spared the painful experience of the former Eastern Block. Despite the noble ideals of equity and care for the have-nots, the CHM paradigm has more faults than merits. A refutation of the Common Heritage principle does not mean, however, that the developing world will, or should, be left behind in the space era. China, India and Brazil are living proofs that a developing country can, through its own effort, join the spacefaring club. Instead of freeloading on the efforts of the older spacefarers, the have-nots should pool their meagre financial resources into a common space agency or into regional ones, and proceed at exploiting the riches of outer space for themselves. The rallying cry of Marxism – “Proletarians of all countries, unite; you have nothing to lose but your chains” should evolve into “Countries of the world unite – you have nothing to lose but the chains of gravity”. The skies are open. “

…

The frontier paradigm has proven its worth on our planet, and it most likely will do so in the extraterrestrial realms. Homesteading is likely to transform the lunar desert in the same manner as it transformed the 19th Century United States. Space is indeed a new frontier calling for individualism rather than collectivism, and its challenges need to be addressed with a legal regime favourable to property rights. Such a regime is seen by many authors as not only useful, but also as the only means of opening the extraterrestrial realms to settlement, given the reluctance of most industrialists to invest money in an endeavour without having the security that they will enjoy the benefits. It may also occur that a minority of investors, with a bigger tolerance to risk, would adopt an anarcho-capitalist approach and “cross the Alleghenies” without backing from a sovereign State.

Given the abundance of extraterrestrial resources, it would be nonsensical to forbid their private appropriation. Securing property rights would be a small price to pay, and more beneficial to humankind, compared to the alternative of keeping the extraterrestrial realms undeveloped. The practical arguments against the Frontier paradigm may have merit, but the issues raised can be tackled. The ideological arguments, nonetheless, are emotional rather than rational.

Whereas the frontier paradigm is outlawed in the current incarnation of the international law of outer space, law is a dynamic phenomenon and it may evolve towards a regime supportive of property rights in outer space. A shift from the res publica approach may be in the cards, given the official support of the Aldridge commission for property rights. Until this shift happens, the non-appropriation principle remains nonetheless the lex lata in the extraterrestrial realms.

The Space Frontier Foundation issued this press release today, following our earlier call for NASA to fund its COTS-D program for demonstrating commercial human spaceflight capabilty.  

The Space Frontier Foundation today called on President-elect Barack Obama to use the innovation and drive of American entrepreneurs to “close the Gap” in U.S. human spaceflight after the Space Shuttle is retired in 2010.

President-elect Obama has promised $2 billion in additional funding for NASA to address the Gap, when the U.S. will be dependent upon Russia’s Soyuz for crew access to the International Space Station.  But two of the options proposed – extending Space Shuttle operations or accelerating the Constellation program – wouldn’t reduce the current estimate of a five year gap by much.

“Space leaders are considering three or four options for reducing the Space Gap, but only one reflects the spirit of positive change that Senator Obama campaigned on,” said Foundation Chairman Berin Szoka.  “According to NASA’s own estimates, flying the Shuttle beyond 2010 will cost at least $2 billion  per year, so that only cuts the Gap by one year.  And $2 billion is a drop in the bucket for Constellation, at best helping to address shortfalls that the Congressional Budget Office just predicted will add another 18 months to the Gap.”

A third option is being considered by some at NASA, according to published reports:  Strip the Orion Crew Exploration Vehicle of the capability to support Lunar exploration, making it simpler and lighter, and supposedly easier to complete sooner.

“This idea is crazy, because it will strand NASA in low Earth orbit, instead of exploring the solar system,” said Foundation co-founder Rick Tumlinson.  “The whole point of the Vision for Space Exploration was to send NASA’s Lewis & Clarks further out into the frontier, to the Moon, Mars, and near-Earth asteroids, while the private sector takes over Earth orbit.  Cutting Orion back gives us ‘Gemini on steroids’, which would be a change for the worse.”

“The only option that makes sense is to use President-elect Obama’s promised $2 billion to catalyze as many as five new commercial human spaceflight companies that will compete to close the Gap using the safest, most capable and affordable system they can develop,” said Will Watson, Foundation Executive Director.

“Let’s not put all our eggs in one basket by pouring even more money into the Shuttle, an old system that’s on its last legs, or a controversial new program that’s already behind schedule,” Watson said.  “If we’re serious about closing the Gap and about making humanity’s presence in space economically sustainable, we need real change in how we put humans in space.  Let’s use this $2 billion to stimulate multiple entrepreneurial systems that will not only slash costs, improve safety, and close the Gap, but also help create a whole new space industry with new jobs here in America.”