My friend Kathleen Grant brought to my attention an NPR segment that aired yesterday, October 7th. In the story, the reporter interviewed one Sue Williams of MoonEstates, a company based in Cornwall, England. In the course of the interview, Williams discussed the legality of owning property on the Moon, noting:

Well, basically a very bright chap in America called Dennis Hope actually realized that there was a loophole in the United Nations Outer Space Treaty. That basically says that no country or government can lay claim to the land on the moon, but they forgot to say that a person couldn't do it. So Dennis actually made his claim with the United Nations back in 1980. We bought some land from Dennis and that's how we sell land on the moon.

On the FAQ on MoonEstates website, the company explains:

With regard to extraterrestrial property sales, two treaties exist today.

These treaties do not refer to "ownership" as such, they more commonly refer to the "exploitation of the Moon and other celestial bodies for profit purposes", and extraterrestrial property sales distinctly fall under that section. The treaties are, The Outer Space Treaty of 1967 and the Moon Treaty of 1984.

The Outer Space Treaty of 1967 explicitly forbids any government from claiming a celestial resource such as the Moon or a planet.

What does this mean? Well it means that governments can not appropriate the Moon or other celestial bodies. Effectively, governments have signed to the fact that they have no rights to these bodies at all. What is actually important here is what the Outer Space Treaty does not say. It explicitly does not say whether commercial enterprises or private individuals can claim, exploit or appropriate the celestial bodies for profit. (Note that the Lunar Embassy is not a government body.)

The United Nations and all countries that signed the Outer Space Treaty became aware of this vital omission almost immediately after the treaty was ratified in 1967. In fact, the United Nations have expended a large amount of time trying to ratify an amendment to the treaty ever since, that would explicitly include corporations and individuals. All attempts at ratifying such an amendment failed because member states did not agree with it. So, in the end, all the ratification attempts were summarized into the famous Moon Treaty some 15 years later. This information is a well documented fact today.

.   .   .

The Moon Treaty, had it been ratified, would have forbidden the exploitation of Space, the Moon and other celestial bodies for profit motives. According to the Moon treaty, individuals may not claim the Moon and other celestial bodies.

But, of all the 185 or so member states of the UN only six states supported it. All others, including all space faring nations (USA, UK, Russia, China etc) refused to sign it. This is something that does not seem to be well known. The USA explicitly refused to sign it as it would inhibit the exploitation of Lunar and other celestial resources for profit by corporations and individuals.

Without deconstructing every aspect of these statements, I would make a few comments:

First, the 1967 Outer Space Treaty provides in part:

Article I

The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, 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, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.

Article II

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.

While the Treaty does not explicity refer to claims by "individuals." under international law, only states could claim sovereignty over land territory. Moreover, it would seem clear that the drafters in 1967 would have assumed that an individual would not be able to get to the moon by himself or herself in order to make any kind of claim--in 1967, only states were engaging in space flight. And under well accepted principles of territorial acquisition, some level of occupation is required for claiming land territory on earth.

Second, the Moon Treaty provides in part:

Article 11

1. The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.

2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.

4. States Parties have the right to exploration and use of the Moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement.

Here the Moon Treaty draws a distinction between claims of "sovereignty" and "property" ownership and would, as the MoonEstates website notes, close the so-called loophole. While it is true that the Moon Treaty has not been widely ratified and could not in toto be considered customary international law, it seems clear to me that the notion that individuals cannot claim ownership over portions of the Moon can be considered customary international law. As suggested earlier, I believe the drafters of the Moon Treaty assumed they were covering all possibilities when they prohibited claims of national sovereignty. And I also believe that the references to the Moon being used for "the benefit of and interests of all countries," preclude any notion of individual ownership.