“Navigating The Fragmented Frontier: Reconciling Lunar ‘Safety Zones’ And Commercial Resource Extraction With The Non-Appropriation Principle In 2026 EPOCH”

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Author(s): Manaswee Mavuduru Pattanaik

Paper Details: Volume 4, Issue 4

Citation: IJLSSS 4(4) 14

Page No: 128 – 136

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I. INTRODUCTION

Today’s time marks a definite departure from previous epochs where outer space exploration was solely carried out for scientific research purposes to an era where exploitation of the moon surface takes place, meaning that 2026 will mark a new period where the 1967 Outer Space Treaty, also considered the space regime constitution, faces a huge challenge. This challenge is mainly because of how to reconcile the prohibition of national appropriation as per Article II with that of safety zones and resource extraction. As 2026 comes, the trend of ‘minilateralism’ has escalated by the signing of the Artemis Accord which has 56 signatories[1] and promotes the principle of deconfliction zones and resource extraction with competitors like the ILRS from China-Russia coming up with a different governance regime altogether[2]. This essay explores the conflict between these two regimes and how they relate to PIL.

II. LEGAL AND CONCEPTUAL FRAMEWORK

II.1 OST PARADOX: ARTICLE II VS. ARTICLE VIII

The inherent conflict of lunar rule lies in the contradiction in structure between non-appropriation and jurisdictional control. Article II of the OST categorically declares that outer space and celestial bodies are not subject to nationalization through claim of sovereignty, use, occupation or any other means.[3] Article VIII however gives states jurisdiction and control over its registered space objects and its personnel.[4] This leads to a problem of Legal Enclave: a state cannot claim possession of lunar land, but it has a special claim to the infrastructure it installs there.[5] In 2026 when infrastructure is semi-permanent, the physical space a lunar base is in, effectively excludes others. This first-come, first-served fact, makes possible a kind of creeping sovereignty where the province of mankind is made the province of whoever gets there first.[6]

II.2 THE FREEDOM OF USE DOCTRINE

In their argument, the advocates of mining (headed by the United States and Luxembourg) propose that Article I of the freedom of use allows mining of resources with a commercial purpose[7]. They insist that so long as the celestial body in itself is not privatized, then the mining of what they call mobile minerals (in-situ resource utilization or ISRU) is a valid exploitation of the global commons. The 1979 Moon Agreement, on the other hand, that defines lunar resources as the common heritage of mankind, demands the international regime to control the exploitation and share of benefits[8]. Having only 18 ratifications and no significant spacefaring signatories, the Moon Agreement is still on the periphery in 2026 leaving a regulatory gap that heterogeneous national laws are trying to fill.

III. CRITICAL ANALYSIS: 2025-2026 REGULATORY SURGE

III.1 ITALY’S STRATEGIC OVERSIGHT MODEL (LAW NO. 89/2025)

Law on Space Economy in Italy (Law No. 89/2025) that comes into force on June 25, 2025, is a complex effort to balance the national commercial interests with international requirements[9]. Space activities are defined as one of the strategic national interests in the law, and an authorization regime is obligatory governed by the Italian Space Agency (ASI) and the President of the Council of Ministers[10]. More importantly, Article 4 of the law allows the utilization of resources but not property ownership of resources in-situ.[11] Rather, it embraces a model in which ownership is granted upon extraction of resources, and this authorization is under the state[12]. To assist the Global South and smaller participants, Italy has established a Space Economy Fund, which will amount to 160 million euros in 2025, and lowered insurance limits on startups to as little as 20 million euros, making the market more accessible to all[13].

III.2 US DEREGULATION AND DOMINANCE OF MINERALS

Unlike the centralized control in Italy, the United States has followed an aggressive deregulation policy and mineral dominance policy. In early 2026, the administration published executive orders declaring “Immediate Measures to Increase American Mineral Production” based on a geostrategic need to gain some independence in critical mineral sourcing not dependent on China[14]. An example of this is the 2026 “Domestic ORE Act” (H.R. 7458), which increased the maximum disturbance allowed during exploration to 25 acres (previously it was 5 acres)[15]. Simultaneously, with this, the announcement of NASA’s Ignition in March 2026 changed the Artemis rhythm to every six-month mission with a focus on long-term surface operations rather than on orbital infrastructure.[16] This one-sided drive to American mineral production has further eroded the cohesiveness of space law as the US is the one that categorically opposes the principle of common heritage to a lenient interpretation of the OST.

II.3 SAFETY ZONE DILEMMA: CO-ORDINATION OR APPROPRIATION?  

Article IX of the OST comes into force in Section 11 of the Artemis Accords,[17] making us have safety zones to avoid harmful interference[18]. Although the Accords interpret them as temporary, so-called coordination mechanisms, opponents claim that they have no defined legal limit when it comes to size and time. The salient issues are that these areas establish de facto property rights to strategic lunar property like water-rich craters at the South Pole. In response to this, in 2025 the UN COPUUS Working Group issued an Initial draft set of recommended principles of space resource activities[19]. Principle 4(C) permits “temporary safety [coordination] zones but suggests that should take place only after giving notice but has the requirement that such actions should not hinder free access to celestial bodies by other operators.[20] This change in abstract entitlement to a model of conditional legitimacy is an indication of a maturing trend that legitimacy should be achieved through multilateral transparency and not unilateral proclamation.

III.4 DUE DILIGENCE AND THE ICJ 2025 ADVISORY OPINION

The July 23, 2025, ICJ Advisory Opinion on “Obligations of States in Respect of Climate Change” is a major advance towards space environmental law. The Court made it clear that the obligation not to cause serious transboundary harm is an international law rule of customary international law that extends to spaces that are not under the national jurisdiction, such as outer space[21]. The ICJ has created a very strict criterion regarding due diligence and it is required that states apply all the means available to them to avoid inflicting any environmental damage.[22] To operators of spacecraft, this would require Environmental Impact Assessments (EIAs) of large constellations and mining missions.[23] States have now been subject to legal liability in case they fail to exercise control over the activities of private actors within their control whose operations, such as high cadence launches or lunar extraction, involve a high risk of causing atmospheric ablation or debris generation.[24]

III.5 GEOPOLITICAL FRAGMENTATION: ARTEMIS VS. ILRS

In 2026, there is a lunar jurisdictional trap between the Artemis and ILRS coalitions.[25] Russia and China criticize the Artemis Accords as an Americanization of the Moon outside of the UN procedures.[26] The policy of China is based on the concept of lawfare, in which the Chinese employ the due regard clause of Article IX to question the US-led safety zones on the grounds that they are exclusionary.[27] The US on the other hand, presents the ILRS as a scientific initiative that is concealing strategic military interests.[28] Such competition has disoriented the global commons labeling with the US shifting to an energy-asset paradigm and China embracing the commons rhetoric to unite the Global South against Western imperialism.

IV. TECHNICAL, ETHICAL IMPLICATIONS

IV.1 AI AND LIABILITY GAP

The Moon industrialization is based on the autonomous systems, which has formed a terrifying gap in the 1972 Liability Convention. Space liability is a fault-based liability, which means it needs to demonstrate negligence, a human-centric concept that is hard to apply to the black-box AI algorithms.[29] Without compensating the victims, states may claim that algorithmic errors are not considered the root cause in case of a radiological leak caused by an independent reactor.[30]

IV.2 ETHICAL GOVERNANCE AND THE INDIGENOUS RIGHTS

The high-speed development of commercial mining is a threat of a repetition of colonial ways of exploitation. It is increasingly called for that Indigenous views be included in lunar missions, in line with the UNDRIP[31]. In a 2025 scale on space ethics, UNESCO proposed a color-coded scheme to assess the risk of activities, with low impact research (Level 1) at one end and high impact commercial unregulated mining (Level 4) at the opposite end, in order to make sure that the lunar development will be within the global sustainability agenda[32].

V. CONCLUSION

The 2026 epoch requires a change in the mode of static interpretation of treaties to a regime evolution approach. As space activities become privatized, the governance has to be transformed to one that goes beyond coordination and to a bottom-up, nationally, based regime of cooperation that maximizes such values as equity, security, and environmental protection. Law No. 89/2025 of Italy serves as an example of making a claim of national control without violating international law, but the unilateral dynamics in the US and the rivalry between the Artemis-ILRS puts the risk of a black hole in the legal environment on the Moon. To reconcile safety zones with the principle of non-appropriation, a transparent multi-lateral registry of activities and strict implementation of the principles of due diligence that are clarified by the ICJ should be provided. The fragmented frontier can only be controlled as the province of all mankind, by incorporating these environmental and ethical protection strategies.

REFERENCES

I. PRIMARY SOURCES

TREATIES AND INTERNATIONAL AGREEMENTS

  • Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty).
  • Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 11 July 1984) 1363 UNTS 3 (Moon Agreement).
  • Convention on International Liability for Damage Caused by Space Objects (adopted 29 March 1972, entered into force 1 September 1972) 961 UNTS 187 (Liability Convention).
  • Convention on Registration of Objects Launched into Outer Space (adopted 14 January 1975, entered into force 15 September 1976) 1023 UNTS 15.

CASES AND ADVISORY OPINIONS

  • Obligations of States in respect of Climate Change (Advisory Opinion) (23 July 2025) ICJ.

NATIONAL LEGISLATION AND EXECUTIVE ACTIONS

  • Italy, Law No 89/2025 (Italian Space Law) [25 June 2025].
  • US, H.R. 7458, ‘Domestic Opportunities for Resource Exploration (Domestic ORE) Act’ (February 2026).
  • US, ‘Immediate Measures to Increase American Mineral Production’ [Executive Order] (March 2026).

II. SECONDARY SOURCES

BOOKS

  • Mirzoeva O, Walking with Grandmother Moon: Advancing UNDRIP in Space Governance (Digital Policy Hub, Centre for International Governance Innovation 2024).

JOURNAL ARTICLES

  • Dallas JA, Raval S, Saydam S and Dempster AG, ‘An Environmental Impact Assessment Framework for Space Resource Extraction’ (2021) 57 Space Policy 101441.
  • Foster CE, ‘The 2025 International Court of Justice Advisory Opinion on Obligations of States in Respect of Climate Change’ (2025) 74(4) International and Comparative Law Quarterly 775.
  • Freeman CP, ‘The Impact of US–China Strategic Competition on the Idea of Space as a “Global Commons”’ (2025) 6 Frontiers in Space Technologies 1664300.
  • Nie M, ‘Legal Measures to Preserve Lunar Security and Safety in the Context of China–US Competition to the Moon: An Appraisal from China’s Perspective’ (2025) 38(4) Leiden Journal of International Law 789.

INTERNATIONAL INSTRUMENTS AND SOFT LAW

  • Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes (13 October 2020).
  • UN COPUOS, ‘Initial draft set of recommended principles for space resource activities: Note by the Vice-Chair of the Working Group on Legal Aspects of Space Resource Activities’ (28 April 2025) UN Doc A/AC.105/C.2/L.339.
  • UNESCO, ‘Space Ethics Scale: Standardised Framework for Evaluating Ethical Risks’ (2025) UN Doc SHS/COMEST-14/2025/1.

WEBSITES, REPORTS AND NEWS ARTICLES

  • Balboni P, Bolognini L, Dirutigliano J and Ceselli L, ‘Space Law 2025: Italy – Trends and Developments’ (Chambers and Partners Practice Guides, 10 July 2025) https://practiceguides.chambers.com accessed 13 April 2026.
  • Dominguez M, ‘Capitalism Beyond Earth: Legal and Moral Obstacles of Commercial Space Mining’ (Vrije Universiteit Amsterdam News, 20 January 2026) https://vu.nl accessed 13 April 2026.
  • Guest L, ‘Lunar Landowners: Questions Regarding the Ownership of Lunar Bases and the Land upon which they are Built’ (Socio-Legal Studies Association, 14 July 2025) https://slsa.ac.uk accessed 13 April 2026.
  • Hajjahia A, ‘ICJ Delivers Unanimous Advisory Opinion on States’ Climate Change Obligations’ (American Society of International Law, 24 July 2025) https://www.asil.org accessed 13 April 2026.
  • Horn DM and others, ‘Trump Administration Charts Ambitious Path Toward US Critical Mineral Dominance’ (WilmerHale, 5 March 2026) https://www.wilmerhale.com accessed 13 April 2026.
  • Mak CHW, ‘Redefining the Rules for a New Generation of National Laws and Agreements in Commercial Space Mining’ (Opinio Juris, 18 December 2025) https://opiniojuris.org accessed 13 April 2026.
  • Marchisio S, Nucera G and Prest MV, ‘New Italian Space Law’ (Outer Space Law Sapienza, 25 June 2025) https://outerspacelawsapienza.it accessed 13 April 2026.
  • Nelson JW and Schuman DS, ‘Return to the Moon – First Come, First Served?’ (Harvard International Law Journal, 22 January 2026) https://journals.law.harvard.edu accessed 13 April 2026.
  • Sharma V, ‘The Lunar Jurisdictional Trap: Why AI and Nuclear Ambitions Are Outpacing Space Law’ (CounterVortex, 3 February 2026) https://countervortex.org accessed 13 April 2026.
  • ‘Voyager Commends NASA and Administrator Isaacman for Bold and Visionary Directives on Lunar, LEO and Deep Space Initiatives’ (Voyager Technologies, 25 March 2026) https://voyagertechnologies.com accessed 13 April 2026.

[1] Mia Dominguez, ‘Capitalism Beyond Earth: Legal and Moral Obstacles of Commercial Space Mining’ (20 January 2026) Vrije Universiteit Amsterdam News https://vu.nl accessed 13 April 2026.

[2] Freeman, CP, ‘The Impact of US–China Strategic Competition on the Idea of Space as a “Global Commons”’ (2025) 6 Frontiers in Space Technologies 1664300.

[3] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205, art II.

[4] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205, art VIII.

[5] Sharma V, ‘The Lunar Jurisdictional Trap: Why AI and Nuclear Ambitions Are Outpacing Space Law’ (CounterVortex, 3 February 2026) https://countervortex.org accessed 13 April 2026.

[6] Nelson JW and Schuman DS, ‘Return to the Moon – First Come, First Served?’ (Harvard International Law Journal, 22 January 2026) https://journals.law.harvard.edu accessed 13 April 2026.

[7] Charles Ho Wang Mak, ‘Redefining the Rules for a New Generation of National Laws and Agreements in Commercial Space Mining’ (18 December 2025) Opinio Juris https://opiniojuris.org accessed 13 April 2026.

[8] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 11 July 1984) 1363 UNTS 3 (Moon Agreement).

[9] Italy, Law No 89/2025 (Italian Space Law) [25 June 2025].

[10]Marchisio S, Nucera G and Prest MV, ‘New Italian Space Law’ (Outer Space Law Sapienza, 25 June 2025) https://outerspacelawsapienza.it accessed 13 April 2026.

[11] Ibid.

[12] Ibid.

[13] Balboni P, Bolognini L, Dirutigliano J and Ceselli L, ‘Space Law 2025: Italy – Trends and Developments’ (Chambers and Partners Practice Guides, 10 July 2025) https://practiceguides.chambers.com accessed 13 April 2026.

[14] Horn DM, String MA, Beaudreau TP, Mandell L, Laband JA and Marquis P, ‘Trump Administration Charts Ambitious Path Toward US Critical Mineral Dominance’ (WilmerHale, 5 March 2026) https://www.wilmerhale.com accessed 13 April 2026.

[15] US, H.R. 7458, ‘Domestic Opportunities for Resource Exploration (Domestic ORE) Act’ (February 2026).

[16] ‘Voyager Commends NASA and Administrator Isaacman for Bold and Visionary Directives on Lunar, LEO and Deep Space Initiatives’ (Voyager Technologies, 25 March 2026) https://voyagertechnologies.com accessed 13 April 2026.

[17] Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes (13 October 2020).

[18] Charles Ho Wang Mak, ‘Redefining the Rules for a New Generation of National Laws and Agreements in Commercial Space Mining’ (18 December 2025) Opinio Juris https://opiniojuris.org accessed 13 April 2026.

[19] Guest L, ‘Lunar Landowners: Questions Regarding the Ownership of Lunar Bases and the Land upon which they are Built’ (Socio-Legal Studies Association, 14 July 2025) https://slsa.ac.uk accessed 13 April 2026.

[20] UN COPUOS, ‘Initial draft set of recommended principles for space resource activities: Note by the Vice-Chair of the Working Group on Legal Aspects of Space Resource Activities’ (28 April 2025) UN Doc A/AC.105/C.2/L.339.

[21] Hajjahia A, ‘ICJ Delivers Unanimous Advisory Opinion on States’ Climate Change Obligations’ (American Society of International Law, 24 July 2025) https://www.asil.org accessed 13 April 2026.

[22] Foster CE, ‘The 2025 International Court of Justice Advisory Opinion on Obligations of States in Respect of Climate Change’ (2025) 74(4) International and Comparative Law Quarterly 775.

[23] Dallas JA, Raval S, Saydam S and Dempster AG, ‘An Environmental Impact Assessment Framework for Space Resource Extraction’ (2021) 57 Space Policy 101441.

[24] Foster CE, ‘The 2025 International Court of Justice Advisory Opinion on Obligations of States in Respect of Climate Change’ (2025) 74(4) International and Comparative Law Quarterly 775.

[25] Freeman, CP, ‘The Impact of US–China Strategic Competition on the Idea of Space as a “Global Commons”’ (2025) 6 Frontiers in Space Technologies 1664300.

[26] Ibid.

[27] Nie M, ‘Legal Measures to Preserve Lunar Security and Safety in the Context of China–US Competition to the Moon: An Appraisal from China’s Perspective’ (2025) 38(4) Leiden Journal of International Law 789–811.

[28] Freeman, CP, ‘The Impact of US–China Strategic Competition on the Idea of Space as a “Global Commons”’ (2025) 6 Frontiers in Space Technologies 1664300.

[29] Sharma V, ‘The Lunar Jurisdictional Trap: Why AI and Nuclear Ambitions Are Outpacing Space Law’ (CounterVortex, 3 February 2026) https://countervortex.org accessed 13 April 2026.

[30] Ibid.

[31]
Mirzoeva O, Walking with Grandmother Moon: Advancing UNDRIP in Space Governance (Digital Policy Hub, Centre for International Governance Innovation 2024).

[32] UNESCO, ‘Space Ethics Scale: Standardised Framework for Evaluating Ethical Risks’ (2025) UN Doc SHS/COMEST-14/2025/1.

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