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Grypd: Whats your source for this legal opinion that the OST can be circumvented by this kind of transnational finagling?
The way I read it the Isle of man (or some other hypothetical non-signatory state) would need to make a territorial claim on the moon first and THEN grant property rights to the private party. The US or any signatory state would then be recognizing the Isle of man's territorial claim to the moon not the private parties property rights and this recognition MIGHT be permissible under the treaty but it would not bind any other nation either signatory or not to recognize the Isle of mans claim. I don't see the major Space faring nations going out of their way to aid 'flag of convenience' nations in laying claim to space while refraining from making their own claims. If the US, Russia or China wanted to get some of the Moon they would simply withdraw from the OST which is allowed for in Article XVI and proceed to 'appropriate' the Moon via the established methods of occupation, defense and seeking to have their claims recognized by other nations.
But it is even arguable that the OST is now part of 'customary international law' and can be considered a "Peremptory Norm" from which no withdraw or is possible, much like the Geneva convention which every nation can be held to account for violating regardless of signatory status. The standard for for Peremptory Norm is very high but the OST arguably fulfills most of the requirements (duration & broad near universal adoption), all that's lacking is the accumulation of more strong enforcement precedents such as multiple nations reaching the Moon and forgoing territorial claims or signatory governments prohibiting non-governmental activities under Article VI grounds. Neither of these has been possible due to the NASA monopoly of manned lunar landing but once these precedents are set I'd think this would cement the OST.
http://www.thespacereview.com/article/2058/1
The fact that this loophole exists is actually a good thing for those of us who wish the OST to be revised and allow a limited claiming of land in space. Especially if it gives Mineral rights. What we have on these forums is the continual chicken and egg scenario. We need cheap lift to space to colonise and utilise space for profit but we cant get anyone to invest in this until we can show that we can profit from space.
Chan eil mi aig a bheil ùidh ann an gleidheadh an status quo; Tha mi airson cur às e.
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Claims of sovereignty are quite different from recognition of limited or even perpetual exclusive-use rights (aka, "property").
Your definition of "benefit of all mankind" is grossly limited. What you are arguing is more like what is the case in Antarctica, which has drastically different language in its treaty.
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Mark Friedenbach wrote:Impaler, you appear to have a good understanding of legal principles, but not this particular law and the later ratified treaties which clarified or expanded it (such as the Space Liability Convention) or the many existing legal briefs about them. There is, for example, a huge distinction between claims of sovereignty and property. For example, under the U.S. government's current interpretation of the OST, if a U.S. company launches a mining operation on the moon, Mars or asteroid, that facility of sovereign U.S. territory, and the resources which pass through that facility become the legal property of the individual or organization which owns the facility. The U.S. government reserves the right at its option (if it had the capability) to send a hypothetical "Space Coast Guard" to protect the private activities of its citizens in space, and enforce rights of ownership and contract. This is unambiguously true in the current interpretation of the law.
The U.S. government also reserves the right to recognize private land claims, and to similarly enforce them. Note that this is demonstrably different from claiming sovereignty, which is what is prohibited by the OST! This would require an act of congress, but would not require renegotiation of any international treaties.
Mark claims of sovreignty are not allowed we all apart from louis understand this. But the problem in your scenario is that International law differs on just what you use those resources that are mined for. If it is to help fuel a vehicle to further a mission then it comes down to the benefit of Mankinds knowledge. If though it is to garner resources for making profits then there will be court cases and since they will use existing similar law (The law of the sea as an example) to inform the case. The likehood is that the US would lose.
#Grypd, please don't misrepresent what I am saying. I am not saying claims of sovereignty on celestial bodies are allowed under the OST. I am saying commercial activity and rational licensing of land use are not prohibited and are implied by the fact that the signatories have to take responsiblity for the actions of private persons including businesses.
More generally, I think the OST is quite unfit for the task of regulating the exploration of space. It was of its time when the military use of space was a pressing concern. That's what it was about really.
HOwever, I don't think the UN or anyone else is up to the task of producing a good successor treaty. The best outcome will be a Space X led consortium leading the way and setting good precedents.
Let's Go to Mars...Google on: Fast Track to Mars blogspot.com
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louis, what exactly do you mean/envision by "consortium"? Or "Consortium" (big-C)?
Last edited by Mark Friedenbach (2012-05-15 19:01:38)
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louis, what exactly do you mean/envision by "consortium"? Or "Consortium" (big-C)?
Ideally, I think it would have NASA-Space X at its core who would joint with other partners - perhaps Bigelow, ESA, Jaxa, ISA and others, and would maybe also bring in some big name philanthropists who could stump up a billion or so. You'd be looking for a division of labour: NASA providing coms, rovers and general consultancy, Space X providing rockets and landers, Bigelow providing habitats maybe ESA doing Mars satellites.
I'd like to see a Consortium Board set up who would oversee a mission aimed at establishing a permanent human presence on Mars.
The Consortium Board in turn would appoint a Mission Directorate and approve a mission plan, which might focus on establishing a permanent base of perhaps 200 people within 20 years.
Let's Go to Mars...Google on: Fast Track to Mars blogspot.com
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Ok, thanks for clarifying. I agree that would be a workable path forward, and certainly better than the current plan (or lack thereof). Still, it is a bit too socialist for my libertarian tastes; the free market can get us there just as quickly and more reliably. Let me frame that a bit less ideologically:
What you're talking about would be a complete restructuring of the current space industry (Old Space and New Space). A centralized “Consortium Board” would require buy-in from a great number of stakeholders with conflicting interests, and would be an active target for lobbying by groups vested in the old way of doing things. A quote from Machiavelli is appropriate:
There is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things. For the reformer has enemies in all those who profit by the old order, and only lukewarm defenders in all those who would profit by the new order, this lukewarmness arising partly from fear of their adversaries, who have the laws in their favour; and partly from the incredulity of mankind, who do not truly believe in anything new until they have had the actual experience of it.
If we want to change the space program, I see three fundamental ways we can go about it:
1) Reform/restructure by fiat: your Consortium is a reasonable and otherwise workable example of this;
2) Redirect current efforts, for example: lobby NASA to make settlement of Mars its long-term Exploration goal, and adopt a sensible and affordable strategy and set of objectives for getting there; or
3) Incentivise the desired outcome, allowing the invisible hand of the free market move us to where we want to be. For example, Jeff Greason's “Planet Hopping” strategy of using NASA to provide an initial market for resources in space, gradually expanding our economic sphere of influence in the direction of Mars.
In absence of a sudden outbreak of common sense in Washington D.C., I think you'll find the free-market approach far more reliable and less error-prone.
Just saying that there are easier, cheaper, more reliable ways to achieve what you're seeking. That's all.
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Ok, thanks for clarifying. I agree that would be a workable path forward, and certainly better than the current plan (or lack thereof). Still, it is a bit too socialist for my libertarian tastes; the free market can get us there just as quickly and more reliably. Let me frame that a bit less ideologically:
What you're talking about would be a complete restructuring of the current space industry (Old Space and New Space). A centralized “Consortium Board” would require buy-in from a great number of stakeholders with conflicting interests, and would be an active target for lobbying by groups vested in the old way of doing things. A quote from Machiavelli is appropriate:
Niccolo Machiavelli (1469 - 1527) wrote:There is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things. For the reformer has enemies in all those who profit by the old order, and only lukewarm defenders in all those who would profit by the new order, this lukewarmness arising partly from fear of their adversaries, who have the laws in their favour; and partly from the incredulity of mankind, who do not truly believe in anything new until they have had the actual experience of it.
If we want to change the space program, I see three fundamental ways we can go about it:
1) Reform/restructure by fiat: your Consortium is a reasonable and otherwise workable example of this;
2) Redirect current efforts, for example: lobby NASA to make settlement of Mars its long-term Exploration goal, and adopt a sensible and affordable strategy and set of objectives for getting there; or
3) Incentivise the desired outcome, allowing the invisible hand of the free market move us to where we want to be. For example, Jeff Greason's “Planet Hopping” strategy of using NASA to provide an initial market for resources in space, gradually expanding our economic sphere of influence in the direction of Mars.
In absence of a sudden outbreak of common sense in Washington D.C., I think you'll find the free-market approach far more reliable and less error-prone.
Just saying that there are easier, cheaper, more reliable ways to achieve what you're seeking. That's all.
No, there are definitely several ways to skin this rabbit. I am not against free enterprise. I think Space X are key because their founder and CEO is probably about the most committed Mars settlement activist on the planet, not excepting Zubrin. It's not a coincidence of course, since the reason he got into the business was his dismay at NASA's lacklustre approach (though he has to be diplomatic about NASA these days so you won't hear him say that).
The reality is that even the supposedly Wild West was highly bureaucratised. There were plenty of governors, generals, state officials, land surveyors, laws, and restrictions in operation - the ideal of
free individuals pursuing their goals without state interference has always been a myth, though as myths go a fairly benign one. We need a reasonably light touch rational administration for Mars in the early stages. But for me I would like to see self-governance from the outset in some form .
Let's Go to Mars...Google on: Fast Track to Mars blogspot.com
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http://www.thespacereview.com/article/2058/1
The fact that this loophole exists is actually a good thing for those of us who wish the OST to be revised and allow a limited claiming of land in space. Especially if it gives Mineral rights. What we have on these forums is the continual chicken and egg scenario. We need cheap lift to space to colonise and utilise space for profit but we cant get anyone to invest in this until we can show that we can profit from space.
I'm not surprised the pro-loophole position is advanced by a conservative think-tank, theirs even the association with a "Tea party in Space" group which proves my point about libertarian fantasy to the hilt. Fortunately the article you sight also has a rebuttal from someone who actually works with and knows space law so the existence of this loophole is very much in doubt. The rebuttal basically goes into much the same problem I anticipated, the claiming mission would need to originate ENTIRELY from the resources, facilities and nationals of non-signatory nations and THEN be recognized by all the Nations of the world to be effective, an absurd scenario.
The rebutting side extols the virtues of reasonable near term regulation both national and international based off the Law of the Sea (as I said its the best analogy for Space). He proposes private space companies salvaging satellites and receiving compensation for the "removal of navigational hazards" would be an excellent way to immediately create a viable business model which would promote technology development in rendezvous/robotics/navigation/orbital mechanics/ion engines etc. This is an excellent example of how appropriate regulation CREATES business ware none was possible before.
Read it Here http://www.wired.com/wiredscience/2012/ … ty-rights/
Last edited by Impaler (2012-05-16 06:12:05)
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With regard to the proposed Consortium, it would absolutely be bound by the OST and if American companies like Space X are involved it will be subject to NASA oversight regardless of NASA's membership in it. The only way a for-profit consortium for space development can exist is if their is a legal regime for them to operate under, conducting business in legal gray areas is simple the harshest environment possible, its worse then outright illegal business activities like smuggling because at least their your competition is being suppressed by government.
The 'myth' (I think delusional ant-social fantasy is the better term) of 'free individuals pursuing their goals without state interference' is most definitely NOT harmless when it comes to Space exploration for several reasons.
First because the people who have these fantasies are invariable engaged in techno-fantasy as well and over sell the pace of Space development to the public.
Second this individualistic mindset invariably promotes Jingoism and isolationism on a national level which hurts the necessary international cooperation.
Third all this talk of space settlement/colonies being sovereign and independent states on near term timelines provides no guarantee of the Earth recouping it's costs.
Forth public pressure and enthusiasm for the realistic near term regulation which would promote space is squandered on fantasy libertarian propaganda.
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With regard to the proposed Consortium, it would absolutely be bound by the OST and if American companies like Space X are involved it will be subject to NASA oversight regardless of NASA's membership in it. The only way a for-profit consortium for space development can exist is if their is a legal regime for them to operate under, conducting business in legal gray areas is simple the harshest environment possible, its worse then outright illegal business activities like smuggling because at least their your competition is being suppressed by government.
The 'myth' (I think delusional ant-social fantasy is the better term) of 'free individuals pursuing their goals without state interference' is most definitely NOT harmless when it comes to Space exploration for several reasons.
First because the people who have these fantasies are invariable engaged in techno-fantasy as well and over sell the pace of Space development to the public.
Second this individualistic mindset invariably promotes Jingoism and isolationism on a national level which hurts the necessary international cooperation.
Third all this talk of space settlement/colonies being sovereign and independent states on near term timelines provides no guarantee of the Earth recouping it's costs.
Forth public pressure and enthusiasm for the realistic near term regulation which would promote space is squandered on fantasy libertarian propaganda.
I don't know where you get these ideas from. Space X is already in space making a commercial profit. It isn't "subject" to NASA oversight. It's in a contractual relationship with NASA.
Of course one would expect that a US based consortium, the most likely way forward, would probably benefit from some enabling legislation in the US.
But there is no evidence that private companies operating in space are going to face legal restrictions beyond the normal aerospace laws and so on.
Let's Go to Mars...Google on: Fast Track to Mars blogspot.com
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Every Airline company is subject to the FAA when they fly a passenger, if the government wants to be a customer then their is IN ADDITION a contractual relationship, but oversight is always present regardless. This is the analogy with Space-X and ANY launch service company, they are a commercial provider that can sell services to both governmental and non-governmental customers but are always under government oversight (and frankly the nature of the COTS program grants NASA a whole lot of additional oversight of the development/validation process).
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Impaler is the worst kind of space enthusiast, a true believer. Cold rationale, logical, and absurdly realistic- the dream of mars is several decades away, if not a century or more. Faced with that reality, only a true believer persists in light of the fact that they will never see their dream come to fruition.
I for one salute you vlad.
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Impaler, NASA is not a regulatory agency. The FAA has made clear that launch and reentry falls under their jurisdiction, and obviously spacecraft comms are regulated by the FCC and ITU if there's a chance they could interfere with other space-based assets. Other than that there is no special regulation of space enterprises.
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Have faith, guys. As the missions have gotten more demanding, the law has been developed to make it happen. That process will continue.
It will be messy, it will be strident in its arguments, and it may not be very timely. Or even the best we could do. But it has been, and will continue, to happen that way.
That development of the law is driven by people wanting to do new things. Always has, always will. Never the other way round.
GW
GW Johnson
McGregor, Texas
"There is nothing as expensive as a dead crew, especially one dead from a bad management decision"
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Impaler, NASA is not a regulatory agency. The FAA has made clear that launch and reentry falls under their jurisdiction, and obviously spacecraft comms are regulated by the FCC and ITU if there's a chance they could interfere with other space-based assets. Other than that there is no special regulation of space enterprises.
Exactly. I think the most one can say is that the OST implies a regulatory role for the state in which the company is registered. So, one can probably say the US has a duty under the treaty to ensure that Space X does nothing to violate the treaty. But Space X has done nothing to violate the treaty, so there is no problem.
Let's Go to Mars...Google on: Fast Track to Mars blogspot.com
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I find the bickering, yes- there, I said it, laughably kafkaesque. For those new to the reading club, it means to have kafka like qualities. Oh, I know, bemoan the bastardization of our poor english somewhere else and simply go with it, alright?
So my point? My point is that regulatory oversight arguments are tedious at best and boorish at worst. We can debate the technical loop hole merits of a piece of paper several decades our senior and devolve into separate camps that chastise and vilify the other over things like "intent" and "spirit" and "meaning" and the "derived from the Latin derivation of to whit...", until someone cries foul or we all bask in the local brilliance of a misunderstood and overlooked amateur legal scholar. Remember, every point that you prove must necessarily follow with... and so?
And so. Regardless of how you feel about the current legal mumbo jumbo of space ownership, it doesn't matter. It is paper written almost 50 years ago to address an issue that really didn't exist, but looked like it might. Reading your history books will give you more context. Reading your history books will also tell you that treaties can change, be ignored, or completely thrown out. It's like magical make believe- treaties, laws, regulations, all contracts are make believe. They have as much power as we believe they have, and as little as we say they do.
And so, the outer space treaty is a bunch of pretty words that really don't mean a thing. You can't actually violate it, because to do so it to invalidate yourself as a signatory, which means that as a non-signatory, you are not bound by it, which means you can't violate it. Viola, absurdum! Yes, a joke.
But I digress; I am more personally fascinated every time I watch someone cross the street on a busy intersection. To think, a light, a certain color, makes everyone act a certain way, and everyone expect a certain outcome. There is a lesson there folks, just wish I saw it.
Last edited by clark (2012-05-16 16:48:09)
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I find the bickering, yes- there, I said it, laughably kafkaesque. For those new to the reading club, it means to have kafka like qualities. Oh, I know, bemoan the bastardization of our poor english somewhere else and simply go with it, alright?
So my point? My point is that regulatory oversight arguments are tedious at best and boorish at worst. We can debate the technical loop hole merits of a piece of paper several decades our senior and devolve into separate camps that chastise and vilify the other over things like "intent" and "spirit" and "meaning" and the "derived from the Latin derivation of to whit...", until someone cries foul or we all bask in the local brilliance of a misunderstood and overlooked amateur legal scholar. Remember, every point that you prove must necessarily follow with... and so?
And so. Regardless of how you feel about the current legal mumbo jumbo of space ownership, it doesn't matter. It is paper written almost 50 years ago to address an issue that really didn't exist, but looked like it might. Reading your history books will give you more context. Reading your history books will also tell you that treaties can change, be ignored, or completely thrown out. It's like magical make believe- treaties, laws, regulations, all contracts are make believe. They have as much power as we believe they have, and as little as we say they do.
And so, the outer space treaty is a bunch of pretty words that really don't mean a thing. You can't actually violate it, because to do so it to invalidate yourself as a signatory, which means that as a non-signatory, you are not bound by it, which means you can't violate it. Viola, absurdum! Yes, a joke.
But I digress; I am more personally fascinated every time I watch someone cross the street on a busy intersection. To think, a light, a certain color, makes everyone act a certain way, and everyone expect a certain outcome. There is a lesson there folks, just wish I saw it.
Verbosity is not a synonym for eloquence.
Your post is fanciful. You might as well say the law of the sea is of no import because it consists of words on paper and some countries violate it. The OST may be as full of holes as a Swiss Cheese but it is still there. At the very least I think there is a general acceptance that no state may claim sovereignty over a celestial body and I think that also translates into a general recognition that there can be no sale of freehold.
To what extent the OST may influence the growing commercial sector is of serious importance.
Last edited by louis (2012-05-16 18:07:30)
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Ha, verbosity may not be a synonym, but rhetoric is a synonym to verbosity and a synonym to eloquence. Guilt by association, rhetorically speaking. Not quite six degrees of Kevin Bacon, but I'll take it for $200 Alex.
And flattery will get you every where louis. I think your eyes are lovely. No, really!
The "Law" of the sea is of no import. Just ask any pirate when he shivers his timbers. Oh wait, i forgot, it's a laaaaw! [smacks forehead] We are a society of laws. Of rules and customs and traditions and expectations of behavior based on shared history codified in written statements outlining accepted behavior... oh, wait. I get it now. Laws are merely an expression of accepted behavior.
Accepted behaviors change based on changing situations, which changes laws.
Any state can claim sovereignty over a celestial body- it just hasn't happened yet. OST is meaningless.
Last edited by clark (2012-05-16 19:32:06)
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Touché.
Last edited by Mark Friedenbach (2012-05-17 00:37:07)
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Wait... Celestial bodies are not subject to claims, but what if the land isn't claimed? We've already established that substances returned from such bodies can be considered property; surely that's enough for a mining company? Sure, the orebody you're working can be mined by other people, but if you're the only group there that's not such a big deal...
Similarly, with Antarctica, bases are considered private property, so a hotel, research station, house etc could be set up on such a body. It's entirely possible to envision a Lunar corporation that owns a Lunar hotel, research station, mine etc, all following the letter of the treaty - but if they try declaring the land theirs, they will violate the treaty.
That is why they shouldn't do so until they're properly self sufficient and don't need anything from Terra to thrive.
Example: Cererean Labs has decided to establish a "research station" on Ceres, as well as a refueling station selling hydrogen and oxygen. To support these, the place has to be made self-sufficient, so they have established farms out there. As the equipment needs to be replaced, and it is expensive to haul it out from Terra, a small industrial base is required. Once Ceres is capable of operating as an Autarchy, they declared independence.
What is the Terran response? They immediately freeze Cererean Labs Terran assets, and bar any Terran company from trading with Ceres. Do the Cerereans care about this? No. If they still want Terran goods, they will have them smuggled out under the pretext that they're needed by a research station on a nearby asteroid that is still nominally under Terran control. Now *there's* an excuse for having smugglers IN SPACE.
Once you're in space, the treaty doesn't apply. Unless the Terran Empire is going to invest in some decent Battlestars, that is...
The trick is to not claim the land. That means no recognising land claims, either.
Use what is abundant and build to last
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Wait... Celestial bodies are not subject to claims, but what if the land isn't claimed? We've already established that substances returned from such bodies can be considered property; surely that's enough for a mining company? Sure, the orebody you're working can be mined by other people, but if you're the only group there that's not such a big deal...
Similarly, with Antarctica, bases are considered private property, so a hotel, research station, house etc could be set up on such a body. It's entirely possible to envision a Lunar corporation that owns a Lunar hotel, research station, mine etc, all following the letter of the treaty - but if they try declaring the land theirs, they will violate the treaty.
That is why they shouldn't do so until they're properly self sufficient and don't need anything from Terra to thrive.
Example: Cererean Labs has decided to establish a "research station" on Ceres, as well as a refueling station selling hydrogen and oxygen. To support these, the place has to be made self-sufficient, so they have established farms out there. As the equipment needs to be replaced, and it is expensive to haul it out from Terra, a small industrial base is required. Once Ceres is capable of operating as an Autarchy, they declared independence.
What is the Terran response? They immediately freeze Cererean Labs Terran assets, and bar any Terran company from trading with Ceres. Do the Cerereans care about this? No. If they still want Terran goods, they will have them smuggled out under the pretext that they're needed by a research station on a nearby asteroid that is still nominally under Terran control. Now *there's* an excuse for having smugglers IN SPACE.
Once you're in space, the treaty doesn't apply. Unless the Terran Empire is going to invest in some decent Battlestars, that is...
The trick is to not claim the land. That means no recognising land claims, either.
I think you've got it right. Essentially no one state or private corporation can claim freehold of a celestial body.
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A universe full of squatters. I for one look forward to Shanty base zubrin.
Last edited by clark (2012-05-17 07:42:36)
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Squatters? I prefer the term homesteaders; that is, people applying the homestead principle to property.
louis, my point is that no-one is allowed to actually claim the land they're using, and as such, no government can lease them the land. I can't lease to you a house that doesn't belong to me...
Use what is abundant and build to last
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Won't work.
I build a base on land I can't own. You build a tunnel under the base on land you can't own. Our interests are in competition if my base prevents your tunnel from being built or your tunnel endangers my base. Squatters usually solve this kind of thing with lead pipes.
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Except that the only reasons one would have to do that would be spite...
Hasn't this matter already been solved re. the integrity of bases? I'm pretty sure you're not allowed to jeopardise other groups bases. For example, Article IX:
"In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding
interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct
exploration of them so as to avoid their harmful contamination and also adverse
changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment
planned by it or its nationals in outer space, including the Moon and other celestial
bodies, would cause potentially harmful interference with activities of other States
Parties in the peaceful exploration and use of outer space, including the Moon and
other celestial bodies, it shall undertake appropriate international consultations before
proceeding with any such activity or experiment. A State Party to the Treaty which
has reason to believe that an activity or experiment planned by another State Party in
outer space, including the Moon and other celestial bodies, would cause potentially
harmful interference with activities in the peaceful exploration and use of outer space,
including the Moon and other celestial bodies, may request consultation concerning
the activity or experiment."
Use what is abundant and build to last
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