International Law

Can We Escape The Travails Of 2020 By Moving To The Moon?

The main treaty currently dominating the international space field is the Outer Space Treaty signed in 1967.

By Maya Cohen  
on

After a difficult year marked by the threat of nuclear war, a pandemic, and a nail-biting election, many Americans have begun to seriously consider whether they should move to another country. Others have taken note of the discovery of water on the moon and have started to consider leaving planet Earth altogether and moving to the moon. Disregarding whether science has progressed to the point that civilians can safely live on the moon, there is an underlying legal question of whether it is legally permissible to do so.

The main treaty currently dominating the international space field is the Outer Space Treaty (OST) signed in 1967. Since then, it has been nearly impossible to generate enough international consensus to create new and updated laws on the commercialization and property ownership of space and the moon. The relevant provision on whether we can move to space and start building a community far from the troubles on Earth is Article II of the OST. Article II 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.”

However, Article II leads to additional questions. What does “national appropriation” in the context of the moon mean? Does national appropriation apply to individuals and companies occupying parts of the moon or only to a nation claiming territory in space? Does appropriation by a company or an individual moving to the moon constitute national appropriation? Based on commercial space industry practice, the answer is simply, no. Private companies have been arguably claiming territory in space for commercial purposes for decades through satellites, without any objection from the international community.

Since the international community has been unable to agree on a subsequent international agreement governing the appropriation and property ownership of space and the moon, the answer may therefore be that until someone tries to live on the moon we may never know whether it is legally permissible to do so. When Sputnik entered into orbit over the U.S. in 1957, the world looked to President Eisenhower to see the United States’ response. Eisenhower chose instead to tacitly accept Sputnik and thus established the foundation of space law today that the rules of spacecraft are different to those for aircraft. The question of property ownership on the moon may therefore not be answered until someone actually attempts to live or build on the moon.

Overall, it seems that there is currently no answer as to whether we can pack up our bags and escape to a place far, far, away on another planet. But perhaps there is some solace in knowing that as the law stands right now, one day, we may be able to.

Maya Cohen is an associate at Balestriere Fariello and has a background
in international law and arbitration. She focuses her practice on
complex litigation from investigations to trials and appeals. You can
reach her via email at maya.cohen@balestrierefariello.com.

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