Francesca Giannoni-Crystal*
[This essay is available in PDF at this link]
Abstract
This paper explores the issue of defending national activities on the Moon—the first celestial body that will be subject to human activities. Concentrated resources, insufficient project coordination, and uncertainties in the international framework make the lunar surface a ripe arena for stakeholder conflicts. While commercial space companies may try to defend their activities with private security forces, governments will likely be called upon to protect lunar activities. This may include actions taken pursuant to the law of internationally wrongful acts; however, because of nature of space law and paucity of state practice, the legal framework for internationally wrongful acts is unlikely to resolve lunar disputes peacefully and nations may find themselves needing to resort to traditional forms of government protection—i.e., using a country’s armed forces—to defend national lunar activities. Such defense of lunar activities would be compliant with international law: the use of force in self-defense is not only allowed by the laws of armed conflicts (LOAC), including as applied vis-à-vis the Outer Space Treaty (OST), but it is also compliant with the OST itself. Furthermore, as this paper discusses, the most active spacefaring nations have also already signaled their acceptance of the legality of such defense in space. While this paper focuses on the Moon as the most urgent issue, the same conclusion applies to Mars, the asteroids, and other celestial bodies given the framework of reference (i.e., space law and the laws of war) is the same.
*Francesca Giannoni-Crystal is an international lawyer practicing with Crystal & Giannoni-Crystal LLC, with two JDs (University of Florence, Italy and Charleston School of Law) and an LLM in Space Law from the University of Mississippi School of Law. She assists companies in several industries, including aerospace and defense. The author extends her gratitude to Prof. Maj. Jeremy Grunert for his insights and suggestions during the early stages of this paper, and to her law partner, Prof. Nathan M. Crystal, whose support and encouragement make her scholarly work possible. Email: [email protected].