15.04.2026
Gernot Fritz
Space law has always been a discipline at the intersection of multiple legal domains. It combines elements of public international law, regulatory governance, contract law, and increasingly also resource and technology law. At the same time, it is one of the most internationally coordinated areas of law, shaped in particular by the five core UN space treaties.
Against this background, recent developments in lunar exploration – most prominently NASA’s Artemis programme and its renewed focus on human missions to the Moon – bring an old question back to the forefront: who owns the Moon?
The short answer is deceptively simple. No one.
The long answer is far more complex.
The Outer Space Treaty: No sovereignty in space
The legal starting point remains the 1967 Outer Space Treaty (OST), still the cornerstone of international space law.
Its central principle is clear: outer space, including the Moon and other celestial bodies, is not subject to national appropriation. Article II OST provides 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.”
This “non-appropriation principle” is often described as the constitutional rule of space law. It prevents states from extending territorial sovereignty beyond Earth. No flags planted, no borders drawn, no exclusive zones claimed in the classical sense.
At the same time, the OST is deliberately open-textured. It prohibits sovereignty, but it does not prohibit use. Quite the opposite: Article I explicitly guarantees the freedom of exploration and use of outer space for all states, on a basis of equality.
This creates a structural tension that is now becoming increasingly visible: if no one can own the Moon, how can anyone use it in a meaningful, economically viable way?
The Moon Agreement: a stronger, but weaker instrument
The 1979 Moon Agreement attempts to provide a more detailed answer. It introduces the concept of the moon and its natural resources as the “common heritage of mankind” and envisages the establishment of an international regime to govern resource exploitation.
In theory, this moves significantly beyond the OST. It suggests a framework that could resemble, at least in ambition, the regime for deep seabed mining under the UN Convention on the Law of the Sea.
In practice, however, the Moon Agreement suffers from a fundamental limitation: it has been ratified by only a small number of states, and none of the major spacefaring nations. This is widely recognised as the key reason why it has not become the operational backbone of space resource governance
As a result, its normative influence remains limited. It is often cited in academic discussions and policy debates, but it does not currently provide an operational legal framework for the emerging space economy.
This leaves the OST as the primary reference point – with all its deliberate ambiguities.
Commercial use: permitted, but not fully defined
A common misconception is that the non-appropriation principle prohibits commercial activity in space. That is not the case.
Neither the OST nor the Moon Agreement categorically exclude commercial use. On the contrary, the freedom of use under Article I OST has generally been interpreted as encompassing economic activities, including resource extraction.
This interpretation has increasingly been reflected in state practice. National laws in jurisdictions such as the United States, Luxembourg, and others explicitly recognise rights of private entities to extract and use space resources, without asserting sovereignty over the celestial body itself.
The Artemis Accords, a set of bilateral agreements led by the United States and signed by a growing number of partner countries, make this interpretation explicit. They affirm that the extraction and utilisation of space resources “does not inherently constitute national appropriation” under Article II OST.
The logic is subtle but important. The prohibition concerns territory, not resources. In other words, while a state cannot claim the Moon as its own, it may allow its nationals to extract and utilise resources found there.
This distinction mirrors, to some extent, concepts known from other areas of law, such as high seas fishing or the extraction of natural resources in international waters. Yet the analogy is imperfect, because the practical conditions in space are fundamentally different.
“First there, first right to use”? A de facto principle
This is where the legal debate becomes particularly interesting.
While the OST guarantees free access and use, it also requires that activities be conducted with “due regard” to the interests of other states (Article IX). It further obliges states to avoid harmful interference.
In a purely theoretical sense, this suggests a cooperative and non-exclusive use of space. In practice, however, physical and technical constraints create a different reality.
Consider, for example, water ice deposits at the lunar south pole. These are widely regarded as one of the most valuable resources for future lunar missions, as they can be converted into drinking water, oxygen, and even rocket fuel.
If a mission establishes infrastructure to extract and process such resources, it is difficult to imagine that a second actor could simply “plug in” to the same site without interfering with the first operation. The requirement to avoid harmful interference would effectively prevent such parallel use.
This leads to what is often described as a de facto exclusivity. Not based on sovereignty, but on operational control.
In this sense, a functional equivalent of a “first there, first right to use” principle begins to emerge. It is not formally recognised in the treaties, but it is increasingly reflected in how space activities are planned and executed.
The Artemis Accords introduce the concept of “safety zones” around lunar operations, intended to prevent interference. While framed as transparency and coordination measures, they also reinforce practical exclusivity.
Critics argue that this risks undermining the non-appropriation principle by creating quasi-territorial effects. Proponents respond that such mechanisms are necessary to ensure safety and operational viability in a hostile environment.
Emerging practice: law following technology
Recent developments illustrate how quickly this debate is moving from theory to practice.
NASA’s Artemis missions aim to establish a sustained human presence on the Moon, including long-term infrastructure. Private companies such as SpaceX and Blue Origin are deeply integrated into these efforts, blurring the line between public and private actors.
At the same time, countries like China are pursuing their own lunar programmes, including plans for a joint international lunar research station with Russia.
Beyond the Moon, companies such as Astrobotic and ispace are already developing commercial lunar landers, while others are exploring asteroid mining concepts. What was once speculative is now entering the early stages of implementation.
These developments put pressure on the existing legal framework. The OST was drafted in an era of state-led exploration, not commercial competition for scarce extraterrestrial resources.
Interim conclusion: stability at the top, uncertainty at the edges
The core principles of space law remain remarkably stable. Non-appropriation, freedom of use, and international responsibility continue to define the legal architecture.
At the same time, their application is becoming increasingly complex. The combination of commercial activity, technological constraints, and geopolitical competition creates situations that the original treaties did not fully anticipate.
The result is not a legal vacuum, but a gradual shift towards practice-driven interpretation. Concepts such as “due regard”, “harmful interference”, and “use” are acquiring new meaning in light of real-world operations.
What this means for the space economy
For companies and states alike, the key challenge lies in navigating this evolving landscape.
Legal certainty does not arise from clear ownership rules, but from a combination of treaty principles, national legislation, contractual arrangements, and emerging international practice.
This has several practical implications.
First, access to resources will depend less on formal rights and more on technological capability and timing. Second, coordination and transparency mechanisms will become increasingly important to avoid conflicts. Third, contractual frameworks will need to address allocation of risks, responsibilities, and usage rights in an environment without territorial sovereignty.
In other words, the space economy will not be built on ownership in the classical sense, but on controlled use.
Conclusion: from non-appropriation to managed utilisation
The question “Who owns the Moon?” may have a clear doctrinal answer. No one does.
But this answer alone is no longer sufficient.
As lunar exploration enters a new phase, the focus shifts from ownership to utilisation. The non-appropriation principle remains intact at a formal level, yet its interaction with commercial realities gives rise to new forms of exclusivity.
What emerges is not a system of territorial claims, but a framework of managed access, operational control, and negotiated coexistence.
Space law is not being replaced. It is being interpreted under pressure.
And much like in other areas of technology law, the decisive question is no longer what the rules say in abstract terms, but how they function in practice – when the first permanent footholds on the Moon are established.
No one owns the Moon. But if you plan to use it, you should know where you stand. Let’s talk.
