After a long period of subdued interests in the Earth’s single celestial companion, plans to send humankind back to the Moon are hatched in abundance again, and one major difference is that this time many of those plans focus on remaining there and ultimately build semi-permanent or even permanent habitats. This obviously raises a number of issues that the short visits to the Moon by humankind so far, manned as well as unmanned, did not raise. Most fundamentally, the absence of exercise of jurisdiction on a territorial basis (as per Article II of the Outer Space Treaty) may no longer be sufficient to guarantee the baseline freedom of exploration and use (as per Article I of the Outer Space Treaty). Questions now arise as to how far the quasi-territorial jurisdiction over registered space objects (as per Article VIII of the Outer Space Treaty) can continue to exclude access to such space objects once transformed to or included in permanent habitats on the Moon in spite of the requisite free access to all areas as well as all stations and installations there (as per Articles I and XII of the Outer Space Treaty) and the similarly foundational understanding that activities on the Moon should be for the benefit and in the interests of all countries (as per Article I of the Outer Space Treaty). At what point would (hu)mankind settling on the Moon effectively become ‘Moonkind’, and what changes would, or should, that give rise to? These are the overarching questions the present paper will tackle.

With the shortage of space and resources on earth to support increasing human population, plans are devised for human habitation on the moon and other celestial bodies. While the State agencies of the developed States are involved in implementing such plans from a long period of time, the private space players are not far behind in involving themselves in such endeavours. Rapid scientific and technological innovations are indicating the fact that the idea of human settlement on the moon and other celestial bodies is not a far-fetched dream. However, the possible legal impediments under the international space treaties as well as under conflicting municipal laws seem to be the major concerns in the practical implementation of such a fascinating idea. To start with, it is significant to bear in mind that the international space law has developed on the basis of the principle of common rights as against individual rights. In furtherance of this spirit of common rights, one of the fundamental principles of international space law is the principle of national nonappropriation enshrined under Article II of the Outer Space Treaty 1967. The idea of celestial settlement is seen as a threat to this fundamental principle as human settlements might lead to the claim of State sovereignty and consequently national appropriation in contravention of Article II. An incidental question that arises out of such settlements is also the possibility of private property claims and rights for resource exploitation by the settlers, which again brings forward debates under Article II of the Outer Space Treaty and Article 11 of the Moon Agreement 1979. Protection of celestial environment is another area of concern arising out of celestial settlements. While the celestial environment is known to be fragile, the current treaty norms under Article IX of the Outer Space Treaty and Article 7 of the Moon Agreement are grossly inadequate to regulate environmental pollution. Added to this, the liability norms under the space treaties are human-centric, and hence, they don’t fix any liability for damage caused to celestial environment. Another limb of concern in celestial settlements stems from the need for regulating the activities of settlers. While there would be concerns about the applicable law governing the human activities, exercise of jurisdiction and law enforcement would become much more complicated in the absence of judiciary and executive machinery on the celestial bodies. Hence, the celestial settlements need to be organised and well-planned to avoid the situation of costs outweighing the benefits in economic, social and legal sense.

Moving from the premise that future Moon and Mars settlements shall not take place in a lawless space, this paper addresses the question of how to develop and manage them in accordance with international space law. To this end, it conducts a systematic analysis of the Outer Space Treaty (OST), with the goal of assessing the scope of the freedom to use celestial bodies under international space law. Based on this analysis, and building on the successful experience of the International Space Station, the paper proposes the development of open international settlements made of shared modular facilities. In accordance with the principles of adaptive governance and subsidiarity, the paper argues that the regulation of such settlements should be based on a multi-level framework integrating international recommendations and bilateral arrangements. Under the proposed governance scheme, international recommendations should provide a general framework enabling the development of the settlement, while leaving its management to the mutual agreement of the parties.

The conception of space exploration and use as the province of all mankind is a founding principle of space law, enshrined in the Outer Space Treaty (OST) to ensure peace in outer space. In the years since the OST was drafted, the principle has retained its relevance over the years and finds expression in the Principle of Non-Appropriation, which prevents states from appropriating any celestial body in part or as a whole through claims of sovereignty, occupation or any other means. As settlements on celestial bodies move closer to reality, space law must find a place for these settlements or risk obsolescence. This paper argues for a rethinking of property rights, and eventually of sovereignty itself, in relation to the Principle of Non-Appropriation. It will explore what shape, if any, private property could take in a system where states are prohibited from claiming territory. It recommends a fresh look at the term ‘celestial body’ to apply only to larger bodies like planets and moons while excluding smaller bodies like asteroids and comets. Settlements on the newly defined celestial bodies could be defined as space objects to allow the launching states to maintain control over them. No existing state shall exercise jurisdiction over the settlements; rather an international body could grant private rights over plots of celestial bodies stopping short of absolute ownership. The paper further argues that in such a situation, the possibility of larger settlements declaring independence would have to be considered a legal possibility.

This contribution analyses the gap left by Article VIII of the Outer Space Treaty in matters involving ownership of objects created on celestial bodies and suggests leveraging the Roman law principle of specification to bridge it. Article VIII provides a clear provision: “ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and their component parts is not affected by their presence in outer space or on a celestial body …”. Ownership of an object created in space is therefore possible as long as its ownership was established on Earth. Unfortunately, it leaves open the crucial question for space activities of ownership of objects made of local resources like lunar soil, which have legally no owner. In this case, the specification principle, which has broad application through most national (terrestrial) legal orders, can provide a regime of ownership by stating that created objects belong to the creator when created out of another’s article.

This paper attempts to analyse how the law applicable to property rights over various things in outer space should be determined considering the framework of ‘jurisdiction and control’ provided by international law in the age of settling on the Moon and Mars. This thought experiment reveals current uncertainty and the need to embrace private interests in space law.

The advancing commercialization and democratization of access to space requires a reconceptualization of the foundational principles and values offered by international human rights law (IHRL) to the specific technical, physiological, and legal challenges of outer space. The notion of human rights seeks to establish and safeguard the dignity and value of every human being – it is inherent, broad, and aims to promote tolerance, equality and respect in reducing conflict across diverse and isolated human communities. Technological advancements have given rise to novel and unanticipated human rights concerns in an era where the development of the law lags behind technology. Human rights offer a multitude of benefits conducive to the advancement of prolonged human habitation and activities in outer space. Determining what novel fundamental human rights are required in the context of space requires and understanding premised upon human dignity, respect, and fairness – as underpinned by their relation to human health, safety, wellbeing, and dignity.

The planned creation of colonies on said celestial bodies implies the establishment of permanent human communities on them as well as the creation of permanent structures on (or below) their surface. Obviously, this will be a new phase in the context of space use and exploration. Although, in the light of international law and space law, there can be no colonies (in the traditional sense) in outer space, plans for inhabiting the Moon or Mars can be legally justified in the context of the freedom of exploration and use of outer space. However, the spirit and the provisions of the space treaties in force do not seem able to provide a robust legal framework for the creation of such “space communities”. Consequently, the adoption of a specific, ad hoc legal framework could substantially facilitate the functioning of permanent space settlements. Νo one, however, can rule out the prospect of these newly founded communities opting for an independent and autonomous course through the adoption of their own laws.

The stage has been set for humankind’s return to the Moon. This time, however, the purpose is different as the objective has been set for a permanent presence as opposed to the historic exploratory and scientific missions. A permanent presence may result in an intention that is more than purely scientific and thus conduct different from that of the historical missions. While international space law does in broad terms regulate human conduct on celestial bodies like the Moon, there have been differing interpretations of the types of conduct sanctioned by the law. There are of course also activities that might take place in breach of the law with total disregard of any international order. Irrespective of what may unfold in the future, states and other space actors that intend to participate in any Moon settlement will have to prepare themselves strategically for varying degrees of uncertainty and unfolding futures to ensure a state of situational readiness in the settlement process. This work endeavours to showcase the strength of futures methodologies to establish a range of possible futures that can inform the future status of the legal governance system applicable to the Moon landscape. This in turn can serve as the basis from which strategy can be devised that could contribute to a successful settlement mission irrespective of the unfolding future.

This paper addresses the limitations that conflicting approaches to celestial property rights place upon the development of settlements on the Moon and Mars. It does not seek to engage in the ongoing debate about the legitimacy of private property rights in outer space. Instead, the focus is on providing an alternative method of ownership that would enable the existence of private property, whilst protecting the right of all nations to be involved in the management of a territory seen by many as the “Common heritage of mankind”. It is argued this compromise would be best achieved through a modified version of Commonhold, a system of property ownership currently used within England and Wales. The premise of Commonhold being that although owners possess the freehold title to their property, there is a shared ownership of, and responsibility for, common areas. It is proposed that a comparable system could be constructed for use within this context, with representatives from each interested country able to discuss and vote upon a number of issues relating to the management of celestial territory. This model would also facilitate the inclusion of covenants, such as a stewardship covenant, ensuring owners used their land in a sustainable way. By guaranteeing that some areas remain commonly owned, it safeguards the right of all nations to use and benefit in some way from celestial territories. Further, the credibility of a model involving multinational cooperation and management would be demonstrated by a comparison between the management committee proposed here, and the European Council and Antarctic Treaty Consultative Meetings. Ultimately, it is concluded that Commonhold provides, if not a perfect solution, at least a base upon which to work.

There is currently a gap in space law that has had a detrimental effect on private activity in outer space. Article II of the Outer Space Treaty prohibits appropriation. The Moon Treaty includes a process for overriding that prohibition (an implementation agreement (IA) under Article 11), but most countries have not adopted it because it uses the term “Common Heritage of Mankind”. But the CHM has no independent legal meaning; it is whatever the implementation agreement says it is. Both the ban on appropriation and the concerns about the CHM are addressed by the Model Implementation Agreement. Without an IA, everyone fears the worst. But if the specific language of an IA is agreed to beforehand, then countries could adopt the Moon Treaty while being assured that they are protecting their national interests.