Law, College of
Date of this Version
Thirty years after the entry into force of the Outer Space Treaty most of its principles and concepts have not only found general acceptance as such, but also undergone considerable further development and elaboration. One of the most notable exceptions was the definition of the status of the moon (and other celestial bodies). This was partly due to the circumstances surrounding the drafting, conclusion, entry into force and then ultimate neglect by most states of the Moon Agreement, which was supposed to progressively develop and elaborate this issue. Now that an increasing interest may be discerned in returning to the moon - with the United States as most outspoken example - for its own sake, or as a jumping board for other celestial bodies, it seems worthwhile to revisit the issue of the status of the moon.
The concurrent trend towards increasing privatization of space and space-related activities provides further justification for such an analysis. For example, for any private entity potentially involved in the return to the moon one of the decisive elements for risking huge investments is the measure in which such investments can be guaranteed. This applies to any factual or legal obstacle to freely dispose as such of any physical objects owned or leased by the entity in question. Likewise, it applies to the factual and legal protection of their nonphysical rights in objects such as intellectual property rights.
In other words: which particular legal regime applies to these issues is of supreme importance for private enterprise. And which legal regime can apply, is in its tum dependent upon international space law, to some extent aided by principles of general public international law, as the most fundamental pertinent body of legal rules. How can laws dealing with the pertinent issue, providing for rights and obligations of private entities such as companies, apply when international space law is a body of law of almost purely public character, with rights and duties exclusively for states?
Here, the issue of the status of outer space and in particular of the moon comes in. Both the international legal regime applicable to outer space as an area, and the international legal regime applicable specifically to the sub-areas of the moon and other celestial bodies do exclude national appropriation and the exercise of sovereignty on a territorial basis. Yet, complications regarding the question of the international legal status of the moon have to be kept in mind. To some extent territorial sovereignty as a mechanism for providing legal regimes still provides a relevant point of departure, and other mechanisms exist as well which may be relevant in this context, such as jurisdiction over nationals and the issue of registration of space objects. In summary, as to the legal regime(s) applicable to the moon, for private enterprise a fragmented picture arises, with many gaps and many overlaps.
The conclusion therefore seems to impose itself that a rather dark side of the moon would lie in its lack of a generally acknowledged and agreed legal status on the international legal level. This results in obvious shortcomings on the level of national legislation, as the hitherto most appropriate tool for dealing with private enterprise. Neither does it look like the situation, either in general or for specific purposes such as intellectual property rights, will soon turn decisively for the better.
Published by von der Dunk in Proceedings of the Fortieth Colloquium on the Law of Outer Space 119-124 (1997). Copyright 1997, F.G. von der Dunk. Used by permission.