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Lex Luna – The Law of the Moon

The rising interest in private space travel creates a variety of legal issues.

To the moon!  And back?  The dark side of moon law.  Writing about the legal issues of space travel is a task replete with possible idioms, but also a task far far away from the typical legal field.  However, as we head into the future, this area of the law will draw substantially more attention and require more legislation to deal with the issues involved.

Elon Musk is a central figure in the current world of space travel.  Known as the founder of Tesla, Space X, and co-founder of Pay Pal, Musk is one of the players who could end the government monopoly on space travel.  Currently, Musk is gearing up for a trip around the moon.  Next year, two tourists will take off on a week-long flight that will take them farther than any humans have traveled to this point.  The journey will follow a circumlunar trajectory, similar to the path followed by Apollo 13, swinging around the moon and using lunar gravity to fling them back home.  This trip is the starting point for Musk’s eventual plans to colonize Mars.

“The Outer Space Treaty (OST) was a creation of the United Nations Committee on the Peaceful Uses of Outer Space.”

Such an excursion, both around the moon and ultimately to Mars, brings a host of legal complications.  One such is due to the Outer Space Treaty.  The Outer Space Treaty (OST) was a creation of the United Nations Committee on the Peaceful Uses of Outer Space.  The OST was adopted by the General Assembly in 1966.  The main purpose of the OST was to prevent the Nations involved from using the moon or outer space for the strategic placement of weapons of mass destruction.  The OST has been followed by four subsequent treaties further expanding and specifying the responsibilities involved in space travel.

The OST was written specifically addressed to the Nations (“States”).  According to Article VI, the States bear responsibility for the actions of both governmental agencies and non-governmental entities.  Non-governmental entities must receive authorization and supervision from their host State regarding activities carried out in outer space.  While this might have worked in 1966 as Russia and the United States battled it out in a race to space and the moon, the current rise of privately funded space travel will place a strain on such provisions.

“One of the most important [issues] is choosing which law to apply.”

Professor P.J. Blount, in his article “Jurisdiction in Outer Space: Challenges of Private Individuals in Space”, discussed some of the numerous issues that will need to be addressed.  One of the most important is choosing which law to apply.  With the OST not specifically addressing jurisdiction and simultaneously restricting States from laying claim to any territory in outer space, future incidents could lead to substantial confusion.  The following paragraph perfectly identifies the muddle that comes from the possible different approaches to applying the law of the individual nations to space.

“If a person from state X were to mug a person from state Y on the moon, it is feasible that no state could assert jurisdiction.  The crime certainly occurs outside the territory of any state (and it would be absurd to claim that it affected the territory of either state) so the territoriality principle could not be asserted.  The nationality principle might be used by state X in order to punish a national, but only barring any limitations that [s]tate X might have on the principle.  For example, if state X will only use the nationality principle for serious offenses, then mugging may not rise to the level of seriousness required.  Or, if state X limits itself to crimes that are also illegal in the lex loci, then it cannot be said with certainty that mugging is illegal in the frontiers of space, as there is no lex loci in outer space as of yet.”

Currently, the rule of law at the International Space Station bases jurisdiction on where the injury is felt.  Thus, if a person from state X mugged a person from state Y, the laws of state Y would govern.  However, further applying this principle to Mars or even the moon could only come about if the OST’s framework for territory rights are reworked and settlers of Mars and other places were willing to submit to the laws of their host nation on earth in perpetuity.

“At this point, the area of jurisdiction is quite murky but is an area that will become absolutely necessary as outer space becomes more populated by tourists and citizens.”

Another possibility is to further expand the 1972 resolution, known as the Liability Convention.  The Liability Convention was designed to “elaborate effective international rules and procedures concerning liability for damage caused by space objects.”  The resolution created a statute of limitations and rules on indemnification, as well as essentially providing an arbitrator, in the form of a claims commission, for all liability disputes.  At this point, the area of jurisdiction is quite murky but is an area that will become absolutely necessary as outer space becomes more populated by tourists and citizens.

According to Robert Walker, the jurisdictional questions are ones that could be remedied very quickly by the UN passing new laws.  His concern is that the very nature of the act of space travel could very likely create problems.  Ones that are not simple to overcome.  Article IX requires each Nation to avoid any act that “would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies.”

The UN resolution of 1979, titled the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (also known as “Moon Agreement”), further stressed this point by stating, “In exploring and using the moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise.”  One such practical way most nations have sought to abide by this provision is through the sanitation of their space vehicles.  A fear exists that any contamination on, for example, Mars could ruin any chance of future findings of life.

“While requiring as much of private space travel companies would only involve supervision, help might be unavailable if a spacecraft cannot be properly landed.”

While requiring as much of private space travel companies would only involve supervision, help might be unavailable if a spacecraft cannot be properly landed. According to Walker, the atmosphere on Mars is too thin for parachuting while the gravity is too heavy for lunar-style landings.  Instead, Musk must use supersonic retropropulsion. “The rocket lands on the Mars surface in reverse. It has to use the atmosphere for aerobraking, and simultaneously fires its rockets to bring it to a standstill on the surface.”  However, this technique only has about a 50% chance of landing without a repeat of the Columbia space shuttle.  Such an incident could end any possibility of finding life on Mars.  An issue only expounded as Space X and other private companies race to be the first on Mars.

Such are the issues that face Elon Musk as he seeks to populate the great beyond.  Maybe years from now we will be writing about immigration law for Martian-Americans.  Now our only hope for making this giant leap is through updating our space law and advancing the technology to make life on Mars a possibility.

Taylor Dougherty
About Taylor Dougherty (5 Articles)
Taylor Dougherty is a second year law student and serves as a Staff Writer for the Campbell Law Observer. He is originally from Raleigh, but lived in Wake Forest for 10 years prior to coming to Campbell. Taylor graduated from Thomas Edison State University with a BA in History. He currently works at the Law Office of Christopher Mann.