Legal and Political Issues
Section 3.5.
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Ocean Law and the Moon

The Moon is a venue of "lex nullus"; that is, it is identical in legal status to the high seas, meaning that nobody can own it and everybody can go there. The oceans are mostly territory that cannot be owned. That is to say, the UN Law of the Sea, signed by Reagan in 1988 and ratified by Congress, establishes that territorial waters may be claimed out to not more than 12 miles from shore.

Within those 12 miles, vessels flying the flag of another nation are under the jurisdiction of that other nation, with the exception of a wide list of situations which are considered of overriding importance (bearing weapons of mass destruction; carrying contraband cargo; broadcasting on unlicensed frequencies; engaging in criminal acts that may affect those on shore; etc.). The coastal state cannot prohibit "free passage" but the foreign vessel has to be passing through and cannot anchor for an excessive period.

Within 200 miles, no claims of sovereignty are valid, but certain sovereign rights are provided. For example, the establishment of regulations protecting the environment are the purview of the coastal nation. These can and have included limitations on fishing, oil and gas exploration, seabed mining, and pollution. The 200-mile zone is considered the "exclusive economic zone" of the coastal nation.

Beyond the 200 mile limit are the "High Seas." It is a long-established principal, dating at least to the 1958 Geneva Convention, and carried on in the Law of the Sea, that no one may claim sovereignty over any portion of the High Seas.

However, it is equally well-established that the High Seas are NOT a place where "everybody" can go. Rather, the High Seas are the domain of free transit _only_ for vessels flying the flag of one nation state or another. Vessels without flag can be seized by any flag vessel as a pirate ship. Vessels which show more than one flag can be denied the protection of either. Vessels falsely flying one flag while in reality being a vessel of another flag may be boarded by a warship of the "true" flag nation with impunity. Vessels exploiting the resources of the open ocean fall under a special jurisdiction.

In the case of fishing or whaling, no significant effort has been made to implement the Authority provisions of the Law of the Sea. However, any vessel engaged in sea-bed mining in international waters is directly subject to those provisions. The "common heritage" language of the Law of the Sea (upon which the Moon Treaty language is based) establishes the authority to tax over 30% of the revenues of a sea-bed mining operation in international waters in order to provide benefits from the "common heritage" to those nations which cannot currently exploit the sea floor. The Authority is also empowered to force sharing of technology from nations capable of exploiting the sea floor with nations which cannot.

The sea bed, however, is considered an enormous opportunity for obtaining mineral wealth stored as "nodules" which may precipitate out of sea water, but are verifiably present on the sea bed in large quantity. The available reserves of gold and magnesium in the form of sea bed nodules is many times that from land sources, and the estimated reserves are orders of magnitude higher.

However, the language of the Law of the Sea, especially as it relates to the Authority, has severely limited investor interest in sea bed mining. Sadly, the Moon and other celestial bodies have the same legal status as the High Seas. It is a legal status that seems to preclude property development by failing to provide adequate certainty as to ownership.

Of course, it is a problem of entirely human manufacture, and therefore it can be resolved by human intervention. We will probably find many workable solutions to implement and work around this problem. But it is quite significant in the overall scheme of things. For the short term, owning our base on the Moon isn't essential to producing an entertainment product; in the long term the issue must be resolved in order to see the escalation of human settlement that will bring the opportunity to live on the Moon within the reach of those of us working on the project.

Legal and Political Issues

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