ORCID (Links to author’s additional scholarship at ORCID.org)
Outer space is rapidly becoming the domain for industrial-scale private-sector innovation and entrepreneurship. By developing and maturing the unprecedented technology for vertical landing and partial reuse orbital-class rockets, Space Exploration Technologies Corporation (SpaceX) has reduced the cost of access to orbital space by a staggering factor of magnitude, i.e., to one-tenth the previous rate. SpaceX is now on the cusp of launching its next-generation launch system called Starship to orbit. Starship is designed to be fully and rapidly reusable (land, refuel, and fly like airplanes) and expected to decrease the cost of access to orbital space to a level comparable to air travel— whereby private-sector industry in outer space would become economically viable.
SpaceX is developing Starship at a breakneck speed, planning for an orbital launch in April 2023. Starship would function as the Earth–Moon transportation infrastructure for private-sector lunar activities like tourism, hospitality, mining, research, entertainment, construction, health, agriculture, and manufacturing. And the Moon is just three days away. Assuming a large fleet of reusable Starships would take flight to the Moon in the coming years, lawyers have an urgent and exciting task of laying the legal groundwork on the Moon for the complex modern governance and economy. But the legal discussion on the future of the law of the Moon has not even begun. This Article aims to fix this lacuna by first presenting specific and realistic parameters for discussion: namely, SpaceX would likely give the United States the exclusive, economic, and scalable access to the Moon within a few years, enabling a sizable private sector presence (persons and property) on the Moon engaged in commercial ventures within a decade.
A commercialized Moon would require the United States to assert legislative jurisdiction (U.S. federal law taking effect), exercise adjudicatory jurisdiction (personal jurisdiction over persons and property and subject matter jurisdiction regarding controversies that arise), and install a governing body physically on the Moon. After a brief introduction of today’s space industry, Part II surveys the history of U.S. regulation of commercial space exploration. Part III summarizes the current regulatory framework that governs only the launch and landing of space vehicles on Earth. Part IV is a more detailed analysis of the space industry and the economics of space exploration. Part V shows the possibility of domestic jurisdiction in outer space, delimited by binding international space treaties and customs. Part VI focuses on two treaties as providing the foundation of domestic jurisdiction in space. As an example of the governing body, in Part VII, this Article introduces the U.S. Lunar Court and sketches the legal contours of this new adjudicatory body. The Appendix shows detailed calculations of Starship’s expected capabilities and economics based on Falcon 9’s historical data.
Andrew Y. Lee, The Future of the Law on the Moon,
J. Air L. & Com.