Who owns the moon? Space-X, Musk and international law

Features of the space law

The material was prepared in collaboration with Anistasiya Kiyashko, a legal assistant.

With the launch on May 30 of SpaceX in collaboration with NASA of the manned spacecraft Falcon 9 with the Crew Dragon capsule and the successful arrival of the crew to the International Space Station on May 31, we see a revival of romance and imagination as we explore the unknown and mysterious further.

The beginning of the implementation of the NASA program is called Artemis, which is a continuation of the famous program Apollo, program start “March 2020 ”, activities from the European Space Agency (Further – ESA) in the field of exploration of Mars, the United Arab Emirates and China’s plans for the exploration of the moon – all these trends in the field of space exploration raise the question: what is the legal regulation of activities in space and who will own future space deposits?

The normative regulation of activities in space at the international level began at the same time as the launch of the first artificial body in that of humanity – 1957. In the future, in international space law, everything was no less turbulent than during “Place racing “The United States and the Soviet Union. At present, space law is a combination of customs and treaties aimed at ensuring humanity’s free, unhindered and non-discriminatory access to space.

The moon belongs to everyone and no one

The main treaty that regulates space research and recognized as a codification of international customary law is the Treaty on the Principles of States’ Activities in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. (Further – Outer Space Treaty.

In accordance with space treaty, Outer space, including the moon and other celestial bodies, are not subject to national appropriation, either by asserting sovereignty over them, by use or occupation, or in any other way. Outer space is open to the exploration and use of all states without any discrimination on the basis of equality and in accordance with international law, with free access to all areas of the celestial bodies.

And here’s another international legal document – Agreement on the activities of states on the moon and other celestial bodies (1979 d.) – expressly prohibits not only the establishment of ownership of the moon and its surface, but also any use of it (Except scientific) and the appropriation of the results of such activities. In accordance with this Agreement, the surface, subterranean or natural resources of the moon and other celestial bodies may not belong to any state, international, national organization or individual. States may collect samples of substances on the moon and other celestial bodies and take them from there when conducting scientific research. These samples remain available for each state. Placement on the Moon’s surface or in its subsoil by personnel, spacecraft, equipment, installations, stations and structures is not a basis for determining ownership of the Moon’s surface, subsoil or their sections. However, this agreement has only been ratified by 14 states and is consequently not a customary rule adopted by the international community.

So, outer space, the moon and all other celestial bodies can not be under the sovereignty of any country.

Objects launched into space belong to those who launched them

Article 8 of the Outer Space Treaty stipulates that objects, including spacecraft, which are launched into space and consequently registered in the corresponding State, belong to the jurisdiction of the country in which the object is entered. Such countries control their spaceships and crew when they are in outer space, including on a celestial body. Ownership of space objects launched into outer space, as well as objects delivered or built on a celestial body, and their constituents, remains intact during their stay in outer space or on a celestial body, or upon return to Earth.

So all objects that are built on earth or in space and that are included in the appropriate register are owned by the people who launched them.

What about owning the International Space Station? (ISS)?

The International Space Station was established under the Intergovernmental Framework Agreement for Cooperation on the International Space Station, which was signed by fourteen governments: the governments of the United States, Canada, Japan, the Russian Federation and 10 Member States of the European Space Agency. (Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain, Sweden and Switzerland; Great Britain, Hungary and Luxembourg, as well as a state that is not a member of the European Space Agency, but ESA cooperates with it – Slovenia).

Each partner retains jurisdiction and control over the objects it registers and over personnel located on or on the ISS. This means that the United States, Canada, Russia, the European Union and Japan are owners of the ISS. They are legally responsible for the facilities they provide for use on the ISS. The states of the European Union are treated as one entity, which is called the European Space Station Partner. However, any of the European states may adopt appropriate national laws that will apply to facilities, equipment and personnel that will be sent to the ISS from ESA.

So ISS belongs to the partner states in the intergovernmental framework agreement on cooperation on the International Space Station.

But what about “private” commercial actors?

Existing international norms mainly regulate the activities of states, as they were developed at a time when the main subjects in the field of space exploration were states, and the purpose of such research was reduced to politics, military hegemony and science. The only common rule that applies to private economic entities is the obligation for states to be responsible for “national activities in outer space, whether performed by government agencies or non-governmental entities. The activities of non-state legal entities in outer space must be carried out with the permission and under the constant supervision of the relevant State party to the Treaty.

But public interests are changing, and scientific and technological progress is not stagnant. If previously only states participated in space activities, the main actors in the international space arena today are companies that want and have the opportunity to engage in commercial use of space – “space tourism”, space transport, space mining and other types of business in space.

Just a few weeks ago, Musk sent astronauts into space for the first time in a private jet and an international NGO “Association Lunar Settlement ”is already developing the principles of joint activities on the moon to use the still non-existent Lunar Settlement. And what will happen next? Interplanetary flights, hotels on the moon, mining from asteroids and the moon, races on lunar rovers and rovers, souvenir shops with particles of asteroids or the moon’s surface, anti-gravity re-jumping – everything that seemed fantastic to us may soon become a reality. Such a new reality will require new legal regulation, as many legal issues arise immediately. And what will be the rules for space travel? How to lease the lunar surface? Is there a register of lunar users? Do I need a license to run a race? Is it possible to sell souvenirs from space and if so where?

Therefore, the reality of today and the reality of the near future, the active commercialization of space, new challenges require a review of existing “cosmic” rules to enable the further development and use of outer space for commercial purposes.

Are there any draft international treaties dealing with the commercial use of outer space?

No. At present, international governmental, non-governmental, governmental organizations in space law only develop draft resolutions and principles that are norms “soft” rights which are of an advisory nature and do not create an obligation to comply with them. Yes there is “soft law ”has been developed to explain and update the provisions of the main ones “cosmic” treaty, in particular the Outer Space Treaty. The only draft of a new international treaty that will deal in part with the space industry and the commercial use of space is the draft treaty to prevent the proliferation of weapons in space (PAROS treaty).

The main trend in the modernization of space rules is the international community’s encouragement of countries’ adoption of domestic legislation that would regulate private commercial activity in outer space and at the same time would not contravene the basic principles of current international space law. .

Thus, in 2013, the UN General Assembly adopted a resolution describing the main requirements of national legislation that will regulate the scope of commercial exploration and use of outer space. This resolution emphasizes the continued use of resources in outer space and once again reminds countries of their responsibility to exercise control over all space activity taking place from their territory.

The United States was the first country to adopt national legislation in accordance with this resolution. (Law US Commercial Space Competitiveness 2015) and Luxembourg (Law on exploration and use of space resources, 2017). The laws enacted by these states allow private companies that have received the appropriate state permission to conduct mining on the surface of the Moon and other celestial bodies.

What are the general trends and opinions of lawyers regarding the further development of international space law?

The main international body that studies general trends in space law is the UN Committee on the Peaceful Use of Outer Space. (UNCOPUS UN Committee on the Peaceful Use of Outer Space). In its reports, the Committee points to the incompleteness of the existing international treaties in the field of space law. For example, the following issues remain to be resolved:

• determining the role of the private sector in space;

Revision of the existing scheme for international liability to protect not only astronauts but also space tourists in the event of accidents involving spacecraft.

• problems with combating space debris, as well as cleaning the space from pollution;

• Protection of space assets;

• Legal order for anti-satellite weapons.

Unfortunately, the Committee points to the fact that there is still no individual view on the issue of regulating activities in outer space.

Some delegates talk about the need for further adherence to the principles set out in the current Treaty on Outer Space and the possibility of developing its provisions through the adoption of acts soft layer. Other delegates point to the need to amend the Outer Space Treaty. Still others insist on the adoption of a completely new treaty that would regulate the commercial activities of private individuals in space.

One way or another, but stopping the commercialization of space would be stupid and impossible. Therefore, the only way out of this situation is to adapt the current standards of international space law to today’s reality, taking into account the environmental sensitivity of space bodies and the sustainable use of outer space.

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