Lucy Guest, Space Law LLM Student, Northumbria University

 

In recent years, it has become evident that when it comes to the Moon, the ambition of both State and Non-State actors alike is not only to put a person on the surface of this celestial body but to also utilise the resources found on and within it. Furthermore, the idea of establishing facilities on the Moon to act as bases for missions to celestial bodies further afield such as Mars, has become an attractive concept for space actors. For example, The National Aeronautics and Space Administration’s (NASA) Artemis Program, proposes the creation of Lunar bases to aid missions both on the Moon and on other celestial bodies.

With the advent of both Lunar resource exploitation and the potential creation of Lunar bases, questions arise as to how the current international legal framework that governs outer space would apply to these activities.

One such question concerns property rights over celestial land and whether an actor, who establishes a base on a part of the Moon, owns the land on which said facility is built upon? Property law terminology differs from jurisdiction to jurisdiction however, common themes regarding ownership can be identified.

In theory, a real right of ownership over Lunar land would allow actors to exercise rights to utilise the land and its resources, to transfer the celestial land to another actor, or prevent others from entering or taking away the land. Knowing whether these rights can exist under international space law is essential for regulating and facilitating the future of operations on the Moon and other celestial bodies.

This blog post cannot promise a definitive yes or no answer to the question of whether the creation of Lunar bases would create internationally recognised real rights of ownership over the land upon which they were built (to do so would be to literally promise the Moon). The sections below will highlight how complex this discussion is.

 

International Space Law

The Outer Space Treaty 1967 (Outer Space Treaty) sets the groundwork for international space law. This treaty was created by the Member States of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) and is signed by the major space States such as the United States. Therefore, any analysis of real property rights on the Moon, must begin with the examination of the principles articulated within the Outer Space Treaty.

Article II of the Outer Space Treaty states that:

‘Outer Space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means.’

At a glance, the Outer Space Treaty prohibits the existence of real property rights over the Lunar land where a base or settlement has been constructed, as to do so would amount to appropriation.

Furthermore, the Moon Agreement 1979 (Moon Agreement), another United Nations (UN) treaty, goes even further by explicitly stating in Article 11(3) that placing facilities on the surface of the Moon does ‘not create a right of ownership over the surface or the subsurface of the moon.’

However, the Moon Agreement was not positively received when it was created and to this date, it has only been ratified by seventeen States and possesses a notable lack of signatures from major spacefaring countries such as the United States.

Thus, although The Moon Agreement might reflect the UN position on the right of ownership over Lunar land, it does not reflect the principles that govern most major spacefaring States. It is the Outer Space Treaty that must be examined in order to answer questions of celestial land ownership.

Under the provisions of the Outer Space Treaty, actors cannot make outright claims of ownership over portions of the Lunar surface. However, this blog post concerns Lunar bases and Lunar settlements. The issue is not simply one of an individual arriving on the moon and claiming ownership over the land they stand upon. It concerns the creation of elaborate and expensive facilities upon the Moon’s surface. Article VIII of the Outer Space Treaty stipulates that ownership of ‘objects landed or constructed on a celestial body’ belong to the State to which they are registered. Article VIII allows for the creation of Lunar bases, but what it does not do is elaborate on what these objects ‘constructed on a celestial body’ should look like. Will these facilities be moveable or will they be affixed to the surface of the Moon? How large will they be? How long will they be allowed to exist for? Could they remain upon the Moon’s surface indefinitely? Could one actor sell its Lunar base to another?

The reason that it is important to ask these questions is to contemplate whether the creation of a large, difficult to move facility affixed to the surface of the Moon for an undetermined period of time would amount to the owner of said facility, also establishing de facto ownership over the land that the facility is upon.

To answer essential questions and create principles to govern property rights on the Moon, a degree of understanding and certainty is required especially regarding the immovability of facilities and how accessible they are. This might only be achieved once space actors begin establishing bases on the Moon, at which point precedent could be created.

 

Safety Zones

In 2020, NASA, alongside the US Department of State, created the Artemis Accords (AA). Described as a ‘practical set of non-binding principles, guidelines and best practices’, the AA exist to ‘ensure safe, transparent, and sustainable civil space exploration.’

Section 11(7) of the AA provides for the creation of ‘safety zones.’ Justified under the principles of non-interference and due regard found under Article VIII of the Outer Space Treaty, these zones allow actors to establish an area surrounding their operations (such as Lunar mining) if these activities ‘might cause interference to others if they came into the area’ or if other actors entering the area ‘might cause interference’ to the operations being carried out there. These zones are not intended to be exclusionary, rather they aim to create areas of notification and cooperation wherein actors will engage with one another regarding concerns of harmful interference.

The concept of safety zones is a contentious one, with many commentators viewing safety zones as a potential means of appropriating areas of the Moon: NASA and the United States Office of Technology, Policy and Strategy have explicitly acknowledged this criticism. However, a frequently cited defence to this legitimate concern is the fact that safety zones are not exclusion zones, and that they are subject to several requirements under the AA. For example, safety zones must be scientifically justified and ‘temporary.’ Yet it is important to note that these requirements are somewhat vague: how long is ‘temporary?’  Safety zones are capable of being ‘adjusted’ so over time, could an actor simply find more and more justifications to maintain a safety zone indefinitely? Even if safety zones do not intend to amount to appropriation, there are salient concerns that said zones might create de facto property rights over Lunar land.

Note the similarities between discussions surrounding safety zones and the questions highlighted in the preceding section of this blog post, with regards to whether a Lunar base would grant the owner of said facility property rights over the land its upon. It is obvious to see that the implementation of safety zones will have a profound impact on the question of what rights are to be afforded to those in possession of a facility on the Moon. However, that is not to say that safety zones will be providing any clear guidance on this issue anytime soon. The discussions surrounding safety zones thus far have been purely theoretical and the way in which safety zones will operate in practice is unclear. Their operation will only be elucidated upon once they come into existence.

 

A New Regime?

The World Economic Forum estimates that by 2035, the space economy will be worth over $1.8 trillion. The world is entering a new epoch of outer space activities where commercial interests and private actors will be playing larger roles than ever before. Private actors will require some degree of certainty as to the rights they possess, if they are pouring vast amounts of money into Lunar mining facilities or Lunar bases to help facilitate missions to Mars.

The use of safety zones could offer guidance as to how bases on both the Moon and other celestial bodies can operate in a way which protects actors from harmful interference, without conferring upon them an ownership right. However, the reality of how safety zones will operate in practice remains ambiguous and does not create the type of legal certainty required.

There is an argument that a new regime should be created to regulate property rights on celestial bodies such as the Moon, before activities take place unchecked. However, establishing such a regime would be complex and several questions must be addressed, prior to its creation. Should it take the form of hard or soft law? Should the property law principles of this regime be grounded in principles derived from civil or common law jurisdictions? Which body (if any) should have the power to confer property rights over the land?

It is worth noting that two UN COPUOS Working Groups exist that are relevant to the topic of this blog post.

Firstly, the Working Group on the Status and Application of the Five United Nations Treaties on Outer Space is relevant to the question of Lunar land appropriation as this Working Group aims to assess the application of the UN Space treaties and has made reference in its 2023 Report to the AA. Said 2023 Report also stated that ‘some delegations’ believed that the Legal Subcommittee of UN COPUOS was the body that should create a set of rules to govern space resource activity. If the Legal Subcommittee did devise such a set of rules, this could shed some light on the issue of how Lunar bases should operate.

Secondly, the Working Group on Legal Aspects of Space Resource Activities exists to ‘exchange views on potential legal models for activities, exploration, exploitation and utilization of space resources.’ This Working Group did release a set of draft recommended principles earlier this year, which stated as part of Principle 2 that activities on celestial bodies ‘shall be conducted in a manner that preserves free access’ and that ‘space resource activities should be concluded’ in ways which do not amount to national appropriation. However, the draft principles do not elaborate upon how exactly States can conduct activities in such a manner. This, consequently, leads onto the discussion of an issue concerning both of the Working Groups; the fact that due to a lack of enforcement from the UN, obligations undertaken by States in relation to international space law are often vague and it is left to each State, as to how said obligations will be satisfied.

Both the aforementioned Working Groups possess the potential to address the uncertainty as to how to create and utilise Lunar bases in ways that do not amount to appropriation of the land said bases reside upon. As subcommittees of UN COPUOS, these Working Groups are afforded a large degree of legitimacy (the majority of discussions concerning international space law occur at the UN for this very reason), however, at present, there is no comprehensive regime in sight and even if such a regime did come into existence, questions would arise as to how States would interpret and implement their obligations.

Perhaps the questions surrounding whether the creation of bases on celestial bodies could amount to the creation of real property rights over the land upon which they are built, are as endless and uncertain as outer space itself. However, in the same way that humankind perseveres to map out more of the universe, international space law must endeavour to map out more governing principles that allow the law to navigate the complex realm of outer space governance.

 

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