Tankmodeler, a friend and regular here at Selenian Boondocks, mentioned something in a comment to Ken’s last post that I think deserves some mention:
[T]he one absolutely key stumbling block is ownership of Lunar mineral rights. No-one is going anywhere unless they know, rock solid, that they will own what they find. If space advocates want to get us off this rock, the single best thing that they can do is lobby their local governments to recognize Lunar property ownership. Once that happens a lot of other things start to happen in very well-known ways.
Now, I’m not saying this to pick on Tankmodeler, but I think this is a common opinion. I also think it’s wrong.
First off, while the state of extraterrestrial property rights isn’t as solid as one would hope, they’re probably good enough. Basically, while property rights aren’t formally and intentionally recognized by international law, the law does informally create a regime that is close enough for practical purposes. You can’t own a deed to lunar property. But anyone who wants can land hardware there, and do whatever research or resource extraction they want. Anyone who has hardware in space can seek legal redress if someone tries to interfere with their operations. Anyone who harvests materials on the moon still owns them when they land.
Heck, using the exclusion principle, you might even be able to structure a deal that smells rather strongly of real estate. While you couldn’t say sell the right to the lunar land underneath a LOX extraction facility, you could sell the facility, and the right to exclude anyone from interfering with it…it ain’t perfect, but life is about taking what’s possible and running with it.
More importantly, while there is definite room for improvement when it comes to extraterrestrial property rights, there are no real obstacles that couldn’t be overcome if there were a sufficiently compelling business case to be made. As Jim Dunstan pointed out a while ago, there used to be all sorts of legal restrictions about oil extraction in the Alaskan wilderness. But, once the technological and economical case for extraction was solidified, the legal restrictions were overcome in short order.
I’m pretty much with Jim. The reason why we don’t see lunar mining ventures right now has little to do with legal ambiguities about property rights. It has a lot more to do with the immaturity, unaffordability, and to put it bluntly, non-existence of cislunar transportation systems. And our relatively limited knowledge of lunar resource concentrations, extraction techniques, and the lack of experience with technologies capable of long-term lunar surface operations. I may be biased, but I think it’s the transportation architecture and infrastructure immaturity that is the real obstacle. Once you have affordable, reliable, and consistent access to the lunar surface, doing the exploration necessary to get a good handle on the location of useful resource concentrations becomes feasible. Doing the development work of making equipment, spacesuits, and structures that can handle the abusive lunar surface environment also becomes more feasible. Etc.
That isn’t to say that we should just ignore space law, or that the situation is perfect. I’m sure there are several space law experts who can offer good suggestions for practical next steps, and things we can do to improve space property rights (Jim? Berin? Jesse?) What I am saying is that I think it’s really easy to lull ourselves into thinking that the main thing standing between us and space profits is those meddling socialists in DC and Turtle Bay, as opposed to more mundane things like creating solid business models and building reliable and affordable technology.