How strong will such a connection need to be to satisfy the ‘foreseeability’ test? 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. 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. Shell Nigeria was incorporated as an independent legal entity in Nigeria, the damage occurred in Nigeria and the plaintiff is Nigerian. In Akpan v Shell, a Nigerian sued Shell NL and its subsidiary Shell Nigeria for environmental damages. In reality, in judicial practice, there have been two notable cases that adopted different tests. So maybe there is no conflict? OST is for prescriptive jurisdiction, whereas Cape Town is for adjudicative jurisdiction. This is a contextual interpretation – “jurisdiction and control” as written in OST. This is a literal interpretation.Īnother narrow interpretation, by referring to the context, is that Article VIII only grants prescriptive jurisdiction. If this approach is adopted, then Article VIII will sweep away all jurisdictional provisions in the Cape Town Convention and Protocol.Ī 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 could mean, the State of Registry has exclusive jurisdiction to regulate the space object, and exclusive jurisdiction to adjudicate disputes concerning that space object. 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 is how potential tension arises between the Outer Space Treaty (OST) and the Cape Town Convention. We are able to develop arguments to support each of them. Ratione Loci and Ratione Personae generally carry more weight. There are a range of rationales for establishing jurisdiction. We could argue that such a case of res communis omnium may demand different rules. It is not clear whether the Moon Village can qualify as ‘other cases’.
Moon village free#
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’. 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. These two problems have existed on Earth for centuries, so we can gain knowledge by referring to those theories and precedents. 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. So we may have to develop a new appreciation of jurisdiction with regards to celestial bodies. However, on the Moon, no country can assert sovereignty. Traditionally, jurisdiction is related to sovereignty and is primarily territorial, as we can see from the authoritative Lotus judgment mentioned below. Humans, robots, rovers, scientific activities, business, tourism and mining will all take place at one location. The Moon village will give rise to much more complicated activities than ISS. Now 20 years have passed and legal theories and jurisprudence have advanced greatly. 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.
Therefore, if rules can be clarified on the jurisdiction allocation in this multinational community, then industry investment will gravitate towards this venture.
Investors may exhibit reluctance due to fear of an ambiguous legal environment. 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.
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