Global warming may be the first threat to humanity that comes to mind when considering the problems our generation has to grapple with over the course of the next 50 years, but our generation is also facing a cataclysmic energy shortage. It is estimated that in 2050 the world's population of humanoids will be 9 billion. A population of that size would have to generate 102.2 terawatts to maintain the use of energy at the rate enjoyed by today's population, which is a mere 13.5 terawatts of energy. Producing the necessary amount of energy for the world's future population is not possible through terrestrial means alone. The energy that will sustain our future on Earth is to be found on the moon, or that's what Buzz Aldrin and Taylor Dinerman argue in a recent article entitled, "Let's Go Back to the Moon."
Last December the United States unveiled its intentions to return to the moon by 2020 and to build a permanent base by 2024. “Our objective is to create a enduring sustainable human and robotic presence that will open up vastly greater opportunities for science, research and technological development,” Shana Dale NASA’s Deputy Administrator explained. An estimated 13,000 terawatts of solar energy hit the moon, and once a base has been established, power plants can be built that harness the energy and send it back to Earth. The article by Alrdin and Dinerman stresses the importance of privatizing the moon. An interesting article at the Volokh Conspiracy Blog points out that an appropriate property rights regime should be established prior to building a base and extracting resources. The Volokh Conspiracy Blog argued:
While some government-owned facilities in space and on the Moon are probably inevitable and desirable, imposing government ownership on all property beyond Earth orbit, as the conventional interpretation of the 1967 Outer Space Treaty seems to do, is a recipe for disaster. A vast socialist empire in space is no more likely to be a good idea than earthbound socialist empires have been.
The Outer Space Treaty (OST) was signed and ratified by the US, making it binding federal law under the Supremacy Clause, and it states that the moon is community property and not the exclusive property of any particular nation. Under the treaty, any benefits derived from outer space or the moon are to be reaped by all nations. It is unclear how this has been changed by the US's new space policy, which declares sovereignty over the entirety of outer space and the moon, but it would appear that any benefits derived from a moon base would have to be shared with everyone on Earth. If the US wanted to change this fact, then it would have to extract itself from the OST.
The Constitution describes how to enter into a treaty but it is silent about how to terminate a treaty. Depending on the mood of the Supreme Court, the President could unilaterally terminate the treaty under the precedent set in Goldwater v. Carter, 444 U.S. 996 (1979). The Court held in Goldwater that a dispute between Congress and the President arising from the President's unilateral decision to terminate a treaty with Taiwan was not reviewable because each branch had not taken action to assert its full constitutional authority. The other option for terminating the OST, which is much less controversial, is to legislate federal statutes that would supersede the OST according to the last in time rule.
Of course, all of this assumes that the US would want to extract itself from the OST. The article by Aldrin and Dinerman posited another option; namely, private entities could lease land long term and pay rent to the UN. The Volokh Conspiracy Blog seemed to argue that the long term leasing scheme would not work and that such a "socialist empire" is a "recipe for disaster." However, long term land leases seem to be working just fine in China (if you ignore the illegal takings), and it is very probable that such a scheme would work on the moon.
Whatever scheme is adopted for property rights on the moon, the exploitation of outer space and celestial bodies is inevitable, and it will fall upon transnational law to sort out the messy details. Would the moon be considered a territory of the US not unlike Puerto Rico and Guantanamo Bay? If so, would the rights and privileges of the Constitution apply to people on the moon? Could the US military detain enemy combatants on the moon in an attempt to take them out of the reach of the Supreme Court's jurisdiction? If a tourist is injured while vacationing on the moon, what tort laws apply? Traditional transnational law in the US says that the law of the place where the tort occurred would apply (lex loci delicti), but what are the laws of the moon?! Does this make an analogy to Puerto Rico even more relevant? The hypotheticals are infinite, but it brings the discussion back to something mentioned in the Volokh Conspiracy Blog article: should these laws be established before humans begin settling on the moon? The obvious answer seems to be yet another question: have the laws ever been established prior to humans setting out to homestead?