Before stepping one foot out of Earth’s door, the space industry still has no way of knowing whose governance they might be swept off to. Investors may exhibit reluctance due to fear of an ambiguous legal environment. Therefore, if rules can be clarified on the jurisdiction allocation in this multinational community, then industry investment will gravitate towards this venture. In this respect, the Intergovernmental Agreement, signed in 1998, on the International Space Station (ISS) could provide an example; it deals with jurisdiction among parties in Art 5.2 and Art 22. Now 20 years have passed and legal theories and jurisprudence have advanced greatly. The Moon village will give rise to much more complicated activities than ISS. Humans, robots, rovers, scientific activities, business, tourism and mining will all take place at one location.
Traditionally, jurisdiction is related to sovereignty and is primarily territorial, as we can see from the authoritative Lotus judgment mentioned below. However, on the Moon, no country can assert sovereignty. So we may have to develop a new appreciation of jurisdiction with regards to celestial bodies. The issue we face is either a ‘jurisdiction vacuum’, where no country exercises control, or a ‘jurisdiction conflict’, where more than one country exercises control. These two problems have existed on Earth for centuries, so we can gain knowledge by referring to those theories and precedents.
In practice, legislative/prescriptive jurisdiction and adjudicative jurisdiction often go hand in hand: when States adopt legislation with extra-territorial applicability, they generally allow their domestic courts to adjudicate on claims based on that legislation.
The vintage international law case, ‘Lotus’ (1927), placed emphasis on territoriality due to sovereignty concerns, but it leaves open the issue of jurisdiction – ‘as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable’. It is not clear whether the Moon Village can qualify as ‘other cases’. We could argue that such a case of res communis omnium may demand different rules.
There are a range of rationales for establishing jurisdiction. Ratione Loci and Ratione Personae generally carry more weight. We are able to develop arguments to support each of them. This is how potential tension arises between the Outer Space Treaty (OST) and the Cape Town Convention.
One interpretation of Article VIII OST is that only the State of Registry has jurisdiction of any kind over a space object and any judicial disputes about that space object. This could mean, the State of Registry has exclusive jurisdiction to regulate the space object, and exclusive jurisdiction to adjudicate disputes concerning that space object. If this approach is adopted, then Article VIII will sweep away all jurisdictional provisions in the Cape Town Convention and Protocol.
A narrower interpretation is that Article VIII’s jurisdiction is non-exclusive, thus enabling other states to assert jurisdiction under proper sources of international law, treaty and/or customary international law. This is a literal interpretation.
Another narrow interpretation, by referring to the context, is that Article VIII only grants prescriptive jurisdiction. This is a contextual interpretation – “jurisdiction and control” as written in OST. So maybe there is no conflict? OST is for prescriptive jurisdiction, whereas Cape Town is for adjudicative jurisdiction.
In reality, in judicial practice, there have been two notable cases that adopted different tests. In Akpan v Shell, a Nigerian sued Shell NL and its subsidiary Shell Nigeria for environmental damages. Shell Nigeria was incorporated as an independent legal entity in Nigeria, the damage occurred in Nigeria and the plaintiff is Nigerian. The difficult question is, with so many Nigerian elements isolated from the Netherlands, can a Dutch court assert jurisdiction? The Court clarified its decision by stating that it was foreseeable that a Dutch could have jurisdiction, given the connection between Shell Nigeria and its parent company in NL.
So we are left to think: what can we foresee with regard to the Moon village? The connection between Moon personnel/objects and the home country may vary from case to case. How strong will such a connection need to be to satisfy the ‘foreseeability’ test?
In contrast, the US Supreme Court used a different approach and rejected such jurisdiction in the case Kiobel v Shell. Again, this concerned a foreign plaintiff suing a foreign defendant for acts or omissions occurring completely outside the US. The Court held, ‘[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.’ What “touch and concern” and “sufficient force” may be, is not clear. The Court further held, that in upholding extraterritorial jurisdiction, it depends on how much a court may interfere with its government’s foreign policy.
So it all seems to boil down to the same old cliché again: it all depends on the development of international relations. The same was said in the early PCIJ advisory opinion, Nationality Decrees in Tunisia and Morocco (1923), and was underpinned by the doctrine of domaine réservé.
My conclusion is that States may want to negotiate on the rules of jurisdiction in the Moon village to stay ahead of conflicts. Bargaining chips can include the level of control over personnel, space, the link with the home country etc. As Madame Haigneré said, ‘C’est un projet de civilisation. C’est le devenir de l’humanité.’ I too am confident that we can, and will, solve this in a civilized way.