The legal quiet before the lunar rush
For decades, space law rested on a deceptively simple bargain. Outer space would not be subject to national appropriation; states would remain responsible for national activities in space; and exploration would proceed under a broad commitment to peaceful use and international co-operation. That framework was good enough when space activity was rare, expensive and overwhelmingly governmental. It is less obviously sufficient now.
The pressure is most visible around the Moon. Human missions are returning to cislunar space. Robotic landers are multiplying. Plans for resource extraction, long-duration habitats and scientific installations are no longer the preserve of speculative white papers. Yet the law governing these activities remains a patchwork of treaty principles, national legislation, technical standards and diplomatic understandings. It is a framework built to avoid conflict, not necessarily to manage congestion, extraction or competition at scale.
This is why the question “Who owns the Moon?” is legally useful, even if the short answer is “no one”. It forces a more precise set of questions. If no state may claim sovereignty, can anyone own extracted resources? Who is liable when a private lunar mission causes damage? Can one operator exclude others from a landing site for safety reasons? What counts as harmful interference with another state’s activities? And who decides?
Space law’s hardest problem is not access to the Moon, but managing use without sovereignty.
Those questions are no longer theoretical. They sit at the fault line between treaty language drafted in the 1960s and a much more operational lunar economy emerging in the 2020s.
The treaty that still anchors everything
The cornerstone of modern space law remains the 1967 Outer Space Treaty, negotiated under United Nations auspices at the height of the cold war. Its language is spare, durable and strategically ambiguous. Article I declares that outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all states without discrimination, and that there shall be free access to all areas of celestial bodies. Article II adds the famous prohibition: outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
Those clauses established the anti-colonial core of space law. No flag-planting can convert into territorial title. No state can carve out a sovereign zone on the lunar surface. That principle remains widely accepted, and it has done enormous stabilising work. It has helped prevent the extension of terrestrial territorial rivalry into orbit and beyond.
But the treaty also contains provisions that are growing more consequential as activity deepens. Article VI makes states internationally responsible for national activities in outer space, whether conducted by governmental or non-governmental entities, and requires authorisation and continuing supervision of private actors. Article VII links launching states to international liability. Article IX requires states to conduct activities with due regard to the corresponding interests of others and to avoid harmful contamination and harmful interference.
These articles were once background principles. They are becoming operational rules. The difficulty is that the treaty does not define many of its key terms with much precision. What, for instance, counts as “use” without becoming appropriation? What level of “continuing supervision” is enough for private missions? What exactly constitutes “harmful interference” near a scarce or scientifically sensitive site on the Moon?
Why the Moon Agreement never became the answer
There is, in theory, a treaty devoted specifically to the Moon: the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, usually called the Moon Agreement. It goes further than the Outer Space Treaty in framing the Moon and its natural resources as the “common heritage of mankind”, and it envisages an international regime to govern the exploitation of those resources when such exploitation becomes feasible.
The problem is legitimacy through participation. The Moon Agreement has attracted only a small number of ratifications, and none of the major spacefaring powers are parties. In practical terms, this means it has limited power to settle today’s disputes. It is part of the legal landscape, but not the operative centre of gravity.
Space law’s hardest problem is not access to the Moon, but managing use without sovereignty.
That matters because the Moon Agreement attempted to answer questions the earlier treaty left open, especially around resource exploitation and benefit sharing. Its failure to gain broad adherence did not eliminate those questions; it merely returned them to a less settled arena. In effect, the international system lost the chance to create a comprehensive lunar governance regime before the economic stakes became more immediate.
The result is a familiar pattern in international law: where multilateral treaty law is thin or politically stalled, states begin to shape practice through national legislation, bilateral arrangements and soft-law principles. That can generate useful experimentation. It can also produce legal fragmentation.
Can anyone own lunar resources?
This is the most contested issue in contemporary space law. Almost everyone agrees that no state may own the Moon as territory. The sharper disagreement concerns resources extracted from it. If a company or state removes water ice, regolith or minerals from the lunar surface, can those materials become property?
One school argues that resource ownership is consistent with the Outer Space Treaty because appropriation of extracted materials is different from appropriation of territory. The analogy is often drawn with the high seas, where no state owns the ocean but fish caught from it can be owned. Several states have adopted national laws recognising rights over extracted space resources, and legal scholarship has increasingly treated this distinction as plausible under existing treaty language.
Another school argues that this reading stretches Article II too far. In practice, it says, resource extraction could create de facto control over sites, especially where operations depend on continued access to scarce deposits such as polar ice. Without an agreed international regime, unilateral recognition of property rights risks normalising first-mover advantage under the guise of lawful use.
The dispute is not really about abstract ownership; it is about whether extraction can proceed before governance catches up.
Neither side has secured a definitive legal victory, largely because no international court has ruled squarely on the issue and state practice remains incomplete. For now, the law is moving through interpretation rather than adjudication. That makes politics especially important. The more states accept resource utilisation as lawful in practice, the stronger that interpretation becomes. But acceptance is not the same as consensus, and the gap between the two may widen as extraction becomes technically feasible.
Safety zones, interference and the shadow of territory
A related controversy concerns so-called safety zones around lunar installations or operations. The basic logic is straightforward. Space missions are fragile, hazardous and expensive. Landers, rovers, habitats and scientific instruments may require a buffer area to prevent accidental damage from plume ejecta, dust, collisions or electromagnetic interference. Article IX of the Outer Space Treaty, with its “due regard” obligation, gives some support to such protective measures.
The legal difficulty is where safety ends and exclusion begins. A narrowly tailored, temporary operational buffer may be defensible as a practical implementation of due regard. A broad, indefinite zone around a valuable resource site may look uncomfortably like territorial control by another name. Because the Moon contains areas of exceptional strategic and scientific value — notably regions near the poles with potential access to water ice and prolonged illumination — even modest exclusion claims can carry geopolitical weight.
Much therefore turns on design and transparency. How large is the zone? How long does it last? Is it based on demonstrable technical risk? Is it publicly notified? Is it open to consultation? Can it be challenged? These are governance questions more than doctrinal ones. The law’s broad principles are unlikely to resolve them on their own.
In effect, lunar safety zones may become a test case for whether non-sovereign co-ordination can work under conditions of scarcity. If they are used narrowly, they could reduce conflict. If they become instruments of strategic pre-emption, they could harden legal ambiguity into political resentment.
Private actors are changing the centre of gravity
The dispute is not really about abstract ownership; it is about whether extraction can proceed before governance catches up.
When the major space treaties were drafted, private commercial missions beyond Earth orbit were not the primary use case. Today they are increasingly central. That does not mean private operators sit outside public law. On the contrary, Article VI of the Outer Space Treaty makes states responsible for authorising and supervising them. But it does mean the practical burden on domestic regulation has grown sharply.
States now need licensing systems able to handle novel mission profiles, cross-border financing, in-orbit servicing, lunar landing operations and eventual resource extraction. They also need ways to co-ordinate among multiple national agencies that may share jurisdiction over launch, communications, export controls, environmental review and national security. The legal challenge is not only whether a mission is permissible under international law, but whether domestic institutions are capable of supervising it coherently.
This makes national space law a critical but underappreciated layer of the global order. In the absence of a comprehensive international licensing authority, each state’s domestic regime becomes a node in international governance. Weak supervision in one jurisdiction can create external risk for others. Conversely, robust domestic practice can help establish norms that later migrate into broader international acceptance.
That is one reason why questions of registration, transparency and accountability matter so much. The Registration Convention and related UN mechanisms were devised to make state responsibility legible. As operations multiply around the Moon, legibility becomes a strategic asset. Other states need to know who is doing what, under whose authority and with what safety protocols.
Liability law was built for accidents, not ecosystems
The second major pillar of space law is liability. Under the 1972 Liability Convention, a launching state is absolutely liable for damage caused by its space object on the surface of the Earth or to aircraft in flight, and liable on the basis of fault for damage elsewhere in space. This regime made sense for an era concerned above all with falling debris and interstate claims.
It is less well adapted to the complexities of sustained activity on and around the Moon. Consider some plausible future scenarios: a lander’s exhaust damages nearby equipment; a rover contaminates a scientifically sensitive site; communications interference causes mission loss; an abandoned asset obstructs access to a landing corridor; or multiple actors contribute incrementally to a degraded local environment. These are not necessarily neat one-off accidents with clear causation. They look more like governance problems in a shared operational domain.
The existing liability regime also channels claims through states, not directly through private parties. That was logical when states dominated space activity. It is more cumbersome when commercial disputes may proliferate. Contracts and insurance will shoulder some of the burden, but they cannot substitute for public rules where third-party harm and collective interests are involved.
Liability in space still assumes isolated accidents, while the Moon is heading towards a world of cumulative interactions.
This gap does not mean the regime is obsolete. It means supplementary norms are likely to matter more: technical standards, mission co-ordination protocols, debris mitigation principles, traffic management practices and perhaps eventually dispute-resolution mechanisms tailored to cislunar operations.
The environment question has finally arrived in space law
For many years, environmental concerns in space law focused on planetary protection and debris. Those remain important. The Committee on Space Research has long developed planetary protection policy to prevent harmful biological contamination, while orbital debris guidelines have sought to curb long-term hazards in Earth orbit. But lunar activity adds a new dimension: environmental stewardship of a place that is both operationally useful and scientifically irreplaceable.
The Moon is not an empty legal stage. Certain regions contain unique records of Solar System history. Some sites have extraordinary scientific value because they are geologically undisturbed or radio-quiet. Others carry heritage significance, including the landing sites of early missions. Meanwhile, the lunar poles may contain resources crucial to future operations. The legal challenge is balancing use, preservation and fairness under a treaty system that says little about environmental baselines or protected areas on celestial bodies.
International discussion has begun to catch up. Scientific bodies and policy institutions have proposed stronger norms for protecting heritage sites and sensitive environments. Yet there is still no comprehensive, binding environmental regime for the Moon. This matters because damage may be effectively irreversible on operational timescales. Lunar dust, surface disturbance and contamination can persist for very long periods. Once activity intensifies, preventive governance becomes harder.
Liability in space still assumes isolated accidents, while the Moon is heading towards a world of cumulative interactions.
Here, as on Earth, law is confronting the limits of reacting after the fact. The Moon’s legal order will be shaped by what gets normalised early: open science or proprietary control, light-footprint operations or extractive sprawl, consultation or strategic ambiguity.
Why soft law is doing so much heavy lifting
In areas where binding treaties are hard to negotiate, soft law often fills the gap. In space governance this includes UN General Assembly principles, guidelines developed through the UN Committee on the Peaceful Uses of Outer Space, technical standards, transparency measures and non-binding political arrangements among participating states. Such instruments lack the formal force of treaties, but they can still shape expectations and state practice.
The Long-term Sustainability Guidelines adopted through COPUOS are a good example. They do not settle lunar property rights, but they promote responsible behaviour, information sharing and risk reduction. More broadly, soft law can help operationalise vague treaty duties such as due regard, consultation and avoidance of harmful interference.
Its strength is flexibility. Its weakness is asymmetry. States can endorse principles selectively, interpret them differently or ignore them when interests sharpen. Soft law works best when there is broad political buy-in and when it aligns with practical operational needs. It works less well as a substitute for resolving fundamental distributive questions, such as who gains from resource extraction or how scarce sites should be allocated.
Still, it would be a mistake to dismiss soft law as merely decorative. Much of international order depends on practices that are not fully judicialised. In space, where activities evolve faster than treaties, soft law may be the only way to prevent dangerous legal lag.
The geopolitics beneath the legal language
Space law is often presented as a technical field, heavy with treaty articles and institutional acronyms. But its underlying disputes are geopolitical. The argument over resource rights reflects wider differences about whether frontier development should be driven by first use, managed as a common pool or mediated through international institutions. The dispute over safety zones reflects anxieties about strategic exclusion. The debate over environmental protection reflects different views of whether the Moon is chiefly an economic domain, a scientific preserve or some unstable combination of both.
There is also a deeper institutional question: can governance remain state-centric when capability is increasingly distributed among commercial actors, scientific consortia and cross-border supply chains? International law still treats states as the principal units of responsibility. Operational reality is becoming more networked than that model assumes.
None of this means conflict is inevitable. Legal ambiguity can sometimes create room for pragmatic accommodation. But ambiguity becomes more dangerous when high-value sites are limited, prestige is involved and legal interpretations begin to harden into strategic doctrine. The cislunar domain is not yet crowded by terrestrial standards. That is precisely why rule-setting now matters disproportionately.
What a workable lunar legal order would require
A realistic path forward is unlikely to involve a grand new treaty in the near term. The politics are too difficult, and major powers are reluctant to sign up to detailed constraints before they know what their operational interests will be. More plausible is a layered system built from existing treaty principles, clearer domestic licensing, stronger transparency measures, technical standards and narrower multilateral agreements on specific problems.
Such a system would need at least five things. First, clearer public rules on authorisation and supervision of non-governmental lunar activity. Second, common expectations for notification, consultation and deconfliction around sensitive operations. Third, practical criteria for temporary safety measures that do not harden into territorial claims. Fourth, baseline environmental and heritage protections for especially valuable sites. And fifth, dispute-resolution channels that are faster and more specialised than general interstate diplomacy.
None of these steps would settle the philosophical argument over whether lunar resources belong to everyone or to whoever can extract them lawfully. But they could reduce the risk that the argument is decided by faits accomplis. That is often what law is for in frontier domains: not to eliminate competition, but to stop competition from undermining the very order on which future use depends.
The Moon will not be owned in the terrestrial sense. The more important question is whether it can be governed well enough that access, science, commerce and security remain compatible. The answer will depend less on dramatic legal breakthroughs than on whether states can turn old principles into credible operating rules before the grey zones become the real system.
