Jack Wright Nelson* and David S. Schuman**<\/p>\n\n\n\n
I. Introduction<\/strong><\/p>\n\n\n\n \u201cThere\u2019s a certain part of the Moon that everyone knows is the best. We have ice there\u2014we have sunlight there. We want to get there first and claim that for America.\u201d With these words, spoken at a U.S. Department of Transportation press conference<\/a> on 5 August 2025, Acting NASA Administrator, Sean Duffy, attracted the attention of space lawyers worldwide. The concern? That any and all lunar \u201cclaims\u201d appear to run counter to Article II of the Outer Space Treaty<\/a> (OST<\/strong>). Article II states that \u201c[o]uter space, including the [M]oon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.\u201d On its face, Article II presents a straightforward preclusion of lunar claims. But reading Acting Administrator Duffy\u2019s comments alongside the rest of the OST exposes a fundamental tension within the Treaty itself\u2014one that may transform the Moon into the \u201cprovince of whoever gets there first,\u201d despite treaty language proclaiming it the \u201cprovince of all [hu]mankind.\u201d<\/p>\n\n\n\n II. De Jure<\/em> Prohibition and De Facto<\/em> Permission<\/strong><\/p>\n\n\n\n The distinction between what the OST formally prohibits and what it practically enables is the cause of this tension. While Article II sets out a de jure<\/em> prohibition, provisions in the OST are de facto <\/em>permissive of exclusive uses of parts of the lunar surface. First, Article VIII grants states \u201cjurisdiction and control\u201d over space objects and personnel \u201cwhile in outer space or on a celestial body.\u201d Second, Article XII acknowledges that states may establish \u201cstations\u201d and \u201cinstallations\u201d on the Moon. Third, Article XII permits the installing state to control access to these stations and installations through advance notice requirements. Finally\u2014and perhaps most significantly\u2014Article IX requires states to conduct lunar activities \u201cwith due regard to the corresponding interests of all other States Parties to the Treaty\u201d and mandates international consultations before proceeding with activities that may cause \u201cpotentially harmful interference\u201d with others\u2019 operations.<\/p>\n\n\n\n In sum, the OST prohibits national appropriation of any part of the Moon but acknowledges infrastructure that necessarily occupies lunar surface area, and insulates that infrastructure from interference. The only way to reconcile the Treaty\u2019s various provisions is to acknowledge that occupation of parts of the lunar surface does not\u2014in and of itself\u2014constitute appropriation under Article II. The United Nations has even adopted principles<\/a> relevant to the use of nuclear reactors in space. The practical result? Once lunar infrastructure is in place, that infrastructure can occupy the relevant portion of the lunar surface. <\/p>\n\n\n\n III. Opening the Overton Window<\/strong><\/p>\n\n\n\n It remains an open question how long such occupation could persist, without amounting to national appropriation. There is very limited practice on this point, other than to note that the hardware from the Apollo <\/em>missions\u2014including landers\u2014has occupied parts of the lunar surface for more than fifty years. Let\u2019s consider the immediate context for Acting Administrator Duffy\u2019s announcement: plans to deploy a nuclear reactor on the Moon by 2030<\/a>, targeting what he described as the \u201cbest\u201d part of the moon, the resource-rich south polar region where water ice may lie in permanently shadowed craters. A 100-kilowatt nuclear reactor represents a significant infrastructure investment that would likely anchor a much larger facility complex. As Michelle Hanlon, Professor of Air and Space Law at the University of Mississippi, recently observed<\/a>, nuclear reactors and other infrastructure create lasting influence, with the first-arriving state effectively drawing \u201ca line on the lunar map.\u201d<\/p>\n\n\n\n These plans do not suggest that the reactor\u2014and the associated facilities, if they come to pass\u2014are intended to be temporary. It may be that the long-term nature of the project motivated Acting Administrator Duffy\u2019s choice of the word \u201cclaim.\u201d However, it is unclear whether such territorial language reflects a lack of appreciation for the existing treaty framework, or signals a deliberate shift in U.S. space policy. Importantly, the NASA directive on the reactor<\/a> itself could have captured a change in policy explicitly, but did not. The recent Executive Order<\/a>, titled \u201cEnabling Competition in the Commercial Space Industry,\u201d while recognizing the OST in Section Five, is silent on this point.<\/p>\n\n\n\n Analysis of oral remarks, as opposed to formal policy documents, could be criticized as premature. Yet Acting Administrator Duffy\u2019s comments show how easily casual language can impact carefully constructed legal principles. It is not uncommon for official language to presage shifts in policy. Whether the Trump Administration captures such language as formal policy in this case or adjusts it to align more closely with existing treaty language remains to be seen. On November 4, 2025, President Trump re-nominated<\/a> Jared Isaacman to be NASA Administrator; he was then confirmed by the United States Senate on December 17. It remains to be seen whether NASA will follow Acting Administrator Duffy’s comments with formal policy, or pursue a more traditional view of property rights on the Moon. In any event, Acting Administrator Duffy\u2019s choice of language remains significant, because it opens the Overton Window<\/a> to explicit territorial thinking in international space law. The Overton Window is the range of ideas considered acceptable for public discussion at any given time. If senior officials of a leading space power begin speaking openly about claiming lunar territory, other nations may feel compelled to abandon multilateral frameworks in favor of more aggressive and fundamentally territorial strategies. The result could be the (further) fragmentation of international space law and the dismantling of Article II.<\/p>\n\n\n\n IV. Conclusion<\/strong><\/p>\n\n\n\n One could argue that a \u201cfirst-come, first-served\u201d approach represents the best way to fully and efficiently develop the Moon. It certainly has been the applicable framework for much of human history on Earth, with all its injustices and detrimental effects. And there are good reasons to be cynical that human activity in outer space will be any different from previous human behavior: nations will pursue strategic advantages, establish presence where possible, and use the language of international law to legitimize their positions. <\/p>\n\n\n\n Such observations aside, international law has tended to have a moderating effect on human behavior. We think that is a good thing. Perhaps today\u2019s challenge is best characterized as preserving the OST\u2019s aspirational vision of space as humanity\u2019s shared heritage while developing practical frameworks that acknowledge the realities of lunar development. This may require walking a careful path: creating clear rules for conduct around infrastructure without abandoning the principle that no nation can appropriate any part of the Moon. The alternative\u2014allowing increased territorial rhetoric until Article II becomes meaningless\u2014risks transforming the Moon from the \u201cprovince of all [hu]mankind\u201d into a patchwork of de facto<\/em> national territories, secured not by law but by whoever gets there first.<\/ins><\/p>\n\n\n\n *Jack is an Assistant Professor of Law at Thompson Rivers University. His teaching and research focus on air and space law, and more broadly on the intersections between law, science, and technology.<\/em><\/p>\n\n\n\n **David is retired from NASA\u2019s Office of General Counsel at the Goddard Space Flight Center where he was lead counsel for the James Webb Space Telescope from the project\u2019s inception through launch and operation. He recently represented the International Astronomical Union and National Space Society, respectively, at the Legal Subcommittee and General Meeting of the United Nations Committee on the Peaceful Uses of Outer Space. Views expressed here are personal and do not represent those of NASA, the U.S. Government, or other organizations.<\/em><\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" Jack Wright Nelson* and David S. Schuman** I. Introduction \u201cThere\u2019s a certain part of the Moon that everyone knows is […]<\/p>\n","protected":false},"author":218,"featured_media":11184,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_FSMCFIC_featured_image_caption":"","_FSMCFIC_featured_image_nocaption":"","_FSMCFIC_featured_image_hide":"","_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[121,366],"tags":[],"class_list":["post-11182","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-article-series","category-perspectives"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/ilj\/wp-content\/uploads\/sites\/84\/15366884623_78f3d54103_b.jpg","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZu3S-2Um","jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/posts\/11182","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/users\/218"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/comments?post=11182"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/posts\/11182\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/media\/11184"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/media?parent=11182"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/categories?post=11182"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/tags?post=11182"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}