By 
July 13th, 2016
Earth’s Moon as seen from the International Space Station taken by ESA British astronaut, Tim Peake.
Credit: NASA/ESA
A senior Harvard astrophysicist is waving a cautionary flag about a loophole in the United Nations Outer Space Treaty that allows nations to exploit the Moon’s resources.
In particular, the scientist sees a race to claim the lunar “Peaks of Eternal Light,” bathed in near-perpetual sunlight and thus ideal for a photovoltaic power station.
Martin Elvis, Harvard astrophysicist.
Credit: Martin Elvis
Martin Elvis, a Harvard-Smithsonian Center for Astrophysics (CfA) researcher is co-author of a recent paper that says provisions in the treaty allow nations to exploit resources, including through establishing research stations, and bar others from disrupting such endeavors.
Lunar South Pole, 4 peaks are identified which are illuminated more than 80% of the time.
Credit: JAXA
De facto ownership
In some cases, this could amount to de facto ownership, Elvis points out. As China and Japan plan Moon landings, and corporate leaders eye their own space ventures, the loophole has gained in importance, he says.
Alvin Powell, Harvard Staff Writer for the Harvard Gazette, interviews Elvis on his concerns, available here at:
Posted in Space News
I read a paper on this that is supposed to be published in Space Policy. This Harvard professor doesn’t know what he’s talking about. There is precedence for occupying finite spaces in outer space that is entirely consistent with the res communis principle of the Outer Space Treaty.
I concur with Mr. Listner, although I will put it more factually: the Harvard astrophysicist is not a legal scholar. Although I have not read Dr. Elvis’s article, the very first sentence of its abstract is an egregiously erroneous statement:
“The Outer Space Treaty makes it clear that the Moon is the ‘province of all mankind’, with the latter ordinarily understood to exclude state or private appropriation of any portion of its surface.”
In fact, Article I of the Outer Space Treaty leads off with:
“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.”
Put more simply, it is the “exploration and use of outer space” which “shall be the province of all mankind,” not outer space itself. The distinction is important, in that this is a declaration of the right of all peoples to engage in lawful activities in outer space; it is not a claim of ownership of the entire universe as the common property of the sentient species of this one, small, out of the way planet, either to the exclusion of other species or to the exclusion of natural and juridical persons of our own species.
More specifically, the right to use outer space also includes the right not to be interfered with by another party, as provided in Article IX of the Outer Space Treaty as well as in Article 8 paragraph 3, and Article 15 paragraphs 1 and 2 of the Moon Agreement.
Some jurists infer from this a right of exclusion, which is one characteristic of property rights, over a finite space while an activity is in progress. The exact nature and dimensions of such exclusion are not settled law and should be addressed in the future development of a legal regime.