Some three years ago, I wrote a column on this issue in this paper. But plagiarising one’s thoughts is perfectly legal. The Indian Space Research Organisation has made every Indian proud, especially on August 23, 2023. There will be more beyond Chandrayaan. There are Mangalyaan and Gaganyaan and Venus and solar probes. Those of a certain vintage age will remember the Vikram Aur Betaal TV series or will have read Vetala Panchavimshati retold in growing-up years. Therefore, even if Vikram is the lander, their Pragyan will rove, and they will think of the outlandish Vetala. Accordingly, an opposition politician has told us a specific Indian company will soon have real estate rights on the moon. This is in part lunacy and in part science fiction.
Robert Heinlein was a great science fiction writer. The big three of science fiction are Heinlein, Isaac Asimov and Arthur C Clarke, though the last two probably have more popular brand recognition. Heinlein is more of a connoisseur’s favourite. In his Future History series in 1950, he published a novella titled The Man Who Sold the Moon (written in 1949). That man was a businessman named Delos David Harriman. In the novella, the fictional landing was planned for 1978, and the way Harriman went about raising resources is quite educational.And yes, there was the prospect of the Russians printing a hammer and sickle on the moon. In 2023, Chandrayaan will leave the Ashoka Emblem.
1949/1950 was a long time ago. But private claims on the moon aren’t new. German Martin Juergens claims that Frederick the Great gifted the moon to his ancestors in 1756. His claims were dismissed. However, the Lunar Embassy still hawks land on the moon and other parts of space, as did the Interplanetary Development Corporation before it closed shop. There seems to be an organisation called the International Association of Human Planetary Exploration (IAOHPE) and another known as the Lunar Registry. Accordingly, many business people and actors reportedly possess pieces of paper as evidence of their possessing lunar real estate. Registration of a sale deed establishes nothing about a title. If lunacy is the ego trip, why not?
Lawyers and legal maxims only impress in Latin. This one, enshrined in English common law since the late 16th century, states, “Cuius est solum eius est usque ad coelum et ad inferos”. As a property law principle, whoever owns the soil owns all the way to heaven and all the way to hell. That’s a rough translation. If you own land on earth, you own everything above and below, all the way to infinity. This was the maxim Harriman invoked in the fictional novella.
The world has moved on since then. There was air travel, starting with balloon flights. Later, there was space travel. Hence, since 1967, there has been an Outer Space Treaty (OST). The precursor to this was
the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (1963). Not every country has ratified it. (India has.) No matter.
Article II of the Treaty is unambiguous. “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.” Plus, there is Article VI. “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions outlined in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorisation and continuing supervision by the appropriate State Party to the Treaty.” When activities are carried out in outer space, including the moon and other celestial bodies, by an international organisation, responsibility for compliance with this Treaty shall be borne by the international organisation and by the States Parties to the Treaty participating in such organisation.
So much for the idea of Indian (or from other countries) private companies building commercial and residential real estate on the moon. But there is still a problem. The 17 brief Articles in the Treaty reflect the vintage of the draft, which focuses on peaceful space exploration and containing a Cold War in space. There is nothing wrong with the principles.
While one has added to the Treaty, such as the return of objects from space, liabilities and international registration, the core issue of property rights, such as the mining of extra-terrestrial resources, was never the focus. Activities like mining may be done not just by governments but by private parties too. In 2015, the USA enacted the US Commercial Space Launch Competitiveness Act. Why did it do this? “To facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions, and for other purposes.” This doesn’t override OST. Indeed, “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” Any change in OST through the UN is bound to be inordinately slow.
Meanwhile, India recognises private sector participation. There are the Indian National Space Promotion and Authorisation Centre (IN-SPACe), the NewSpace India Limited (NSIL), and Antrix Corporation. The fourth country ever to land a spacecraft on the moon need not wait for the UN’s lead. India has become a global superpower in space, and there will be more milestones. Therefore, India can draft its legislation on mining and extra-terrestrial property rights for the government and the private sector. As in the case of the USA, this doesn’t negate OST but adds to it in India’s interests.
“Nationalism should stop at the stratosphere!” It is a quote from the Heinlein novella. The average Indian’s reaction to Chandrayaan and the moon landing shows that nationalism does not stop at the stratosphere. The sense of pride, the dream and the aspiration are all palpable. There is a parallel with President John Kennedy’s speech in September 1962. India has chosen to go to the moon.
(bibek.debroy@gov.in)