Nathan Donnelly, Staff Member

On February 21st, 2019 SpaceIL, an Israeli nonprofit organization, successfully launched what could become the first private spacecraft to touchdown on the moon.[1] Although SpaceIL is currently the only private organization to successfully launch a moon rover, it is not alone in this endeavor.

In 2007, the Google Lunar X Prize competition spurred the creation of thirty-four teams[2] (including SpaceIL) boldly competing to catalyze the commercial viability of space.[3] Contests such as Lunar X and the recently announced Moon Race[4] indicate that a radical new form of entrepreneurship (formerly the exclusive domain of science fiction) may be just beyond the horizon—space entrepreneurship. That being the case, it is important to consider the legal implications that such a development may hold. If space entrepreneurship takes off, how exactly will it be regulated?

Just as nature abhors a vacuum, so too does the law.[5] It’s no surprise then that, with the space race reaching a frenzied pitch in the late 1960’s, the international community implemented a treaty to fill the legal vacuum of space.[6] The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, dubbed the Outer Space Treaty, comprises the backbone of Space Law.[7]

Currently 107 States, including the United States, are parties to the Outer Space Treaty.[8] Articles I and II are generally accepted as customary international law,[9] and establish rules for the peaceful exploration of space.[10] The Treaty firmly establishes space as the “province of all mankind.”[11] In keeping with this ideal, the Treaty prohibits any State from subjecting the Moon or any other celestial body to its sovereign control.[12] This non-appropriation clause has garnered significant contention over the legality of the exploitation of space resources.[13] The United States and Luxembourg have apparently interpreted this clause in a way that allows for commercial space exploitation.[14]

Both the United States[15] and Luxembourg[16] have recently enacted legislation allowing private citizens to join the fray towards the commercialization of space. Heeding the call of the U.S. Commercial Space Launch Competitiveness Act of 2015, several United States companies have formed with the objective of mining the moon and near-Earth asteroids for precious resources.[17] It remains to be seen how the international community will respond in the event that these companies do succeed in breaking extraterrestrial ground.

[1] Oren Liebermann & James Masters, Israel’s Privately funded moon mission lifts off, CNN (Feb. 22, 2019, 6:11 AM), https://www.cnn.com/2019/02/22/middleeast/israel-moon-spacecraft-beresheet-launch-scli-intl/index.html.

[2] The New Space Race, Competing Teams, X Prize Foundation, https://lunar.xprize.org/prizes/google-lunar/competing-teams.

[3] See The New Space Race, Overview, X Prize Foundation, https://lunar.xprize.org/prizes/google-lunar (“The Google Lunar XPRIZE was created with two goals in mind. To spur affordable access to the moon and give space entrepreneurs a legitimate platform to develop long-term business models around lunar transportation and to inspire the next generation of scientists, engineers, space explorers and adventurers to enter the STEM fields.”).

[4] The Moon Race, MoonRace.org, https://www.themoonrace.org/en/challenges/themoonrace.

[5] Daniel Bodansky, Non Liquet, Max Planck Encyclopedia of Public International Law, MPEPIL 1669 (“Lawyers and courts, like nature, tend to abhor a vacuum, and many view the concept of non liquet as tantamount to heresy.”).

[6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), Jan. 27, 1967, 18 U.S.T. 2410; 610 U.N.T.S. 205; 6 I.L.M. 386 (1967).

[7] Michael Viets, Piracy in an Ocean of Stars: Proposing a Term to Identify the Practice of Unauthorized Control of Nations’ Space Objects, 54 Stan. J. Int’l L. 159, 166 (2018).

[8] Abigail D. Pershing, Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today, 44 Yale J. Int’l L. 149, 152 (2019).

[9] Viets, supra note viii, at 166.

[10] Pershing, supra note ix, at 152.

[11] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), art. I, Jan. 27, 1967, 18 U.S.T. 2410; 610 U.N.T.S. 205; 6

[12] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), art. II, Jan. 27, 1967, 18 U.S.T. 2410; 610 U.N.T.S. 205; 6 I.L.M. 386 (1967).

[13] Pershing, supra note ix, at 150.

[14] Justin Parkinson, Can Anyone ‘Own’ the Moon?, Bbc News, https://www.bbc.com/news/science-environment-46877417.

[15] U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704 (2015).

[16] Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace [[Law of 20 July 2017 on the Exploration and Use of Space Resources], Journal Officiel Du Grand-Duchie De Luxembourg [Official Gazette Of The Grand Duchy Of Luxembourg], No. 674 (July 28, 2017).

[17] See Moon Express, http://www.moonexpress.com/about-us/; Planetary resources, https://www.planetaryresources.com/; Bradford Space, http://bradford-space.com/about-bradford-company-profile.php.