Who owns the moon?
At the moment, no one - and with the star that was once the U.S.-manned space program dwindling to but a flicker of its former glory, it doesn't look as though America's government will be able to stake a claim in the near future. NASA recently asked that any organization planning on landing on the moon steer clear of the Apollo landing site in order to preserve it for scientific and historical purposes, but the U.S. lacks both the technical capacity and clear legal authority to enforce such guidelines.
But the rise of private space companies and foreign space programs, combined with an interest in lunar mining, is likely to bring the issue into focus in the next few decades.
The seminal treaty governing the use of extraterrestrial bodies by governments is the Outer Space Treaty, adopted by 100 countries. Its signatories have agreed they will not place nuclear weapons in orbit around Earth and that they any exploration or usage of the Moon and other celestial bodies will be peaceful.
Some commentators have argued that since the Outer Space Treaty only prohibits nations from grabbing pieces of Venus or Mars, private companies or individuals could theoretically snatch up some galactic real estate. That leaves a loophole big enough for an outfit like SpaceX to blast a capsule through.
But Berin Szoka and James Dunstan of the think tank Tech Freedom said in a Wired opinion piece in April that loophole doesn't exist. They pointed out that Article VI of the Outer Space Treaty holds the signatory nations responsible for national activities in outer space, even if they're not carried out by government agencies.
And even if the U.S. withdrew from the treaty in order to allow American companies to grab land, that would set up a new kind of space race - for real estate.
What if the first time a Chinese probe lands on the moon, the moon could be claimed by the 'Great Wall Company,' owned by the People's Liberation Army? The United States would then be left to argue that our law should be followed, but the Chinese law shouldn't. That's precisely the kind of territorial jockeying the Outer Space Treaty was intended to prevent, Szoka and Dunstan said in their piece for Wired.
Space lawyer Wayne White has drawn up a proposal for a treaty dealing with jurisdiction and property rights in outer space that would piggyback onto Article VIII of the Outer Space Treaty, which allows countries to apply their national laws to its space objects - such as spacecraft or satellites - and personnel.
In addition to or as an alternative to a multilateral treaty, Wayne proposes that countries adopt a system akin to the homesteading policies adopted by the US in the 19th century to encourage farmers to lay down stakes West of the Mississippi River. Private entities would be required to maintain a facility in a fixed location for a certain period of time - one to five years - in order to gain rights to extraterrestrial property.
The real property regime is economically efficient, and will allow non-space-faring nations to participate in space development and settlement, Wayne wrote.