After a long period of subdued interests in the Earth’s single celestial companion, plans to send humankind back to the Moon are hatched in abundance again, and one major difference is that this time many of those plans focus on remaining there and ultimately build semi-permanent or even permanent habitats. This obviously raises a number of issues that the short visits to the Moon by humankind so far, manned as well as unmanned, did not raise. Most fundamentally, the absence of exercise of jurisdiction on a territorial basis (as per Article II of the Outer Space Treaty) may no longer be sufficient to guarantee the baseline freedom of exploration and use (as per Article I of the Outer Space Treaty). Questions now arise as to how far the quasi-territorial jurisdiction over registered space objects (as per Article VIII of the Outer Space Treaty) can continue to exclude access to such space objects once transformed to or included in permanent habitats on the Moon in spite of the requisite free access to all areas as well as all stations and installations there (as per Articles I and XII of the Outer Space Treaty) and the similarly foundational understanding that activities on the Moon should be for the benefit and in the interests of all countries (as per Article I of the Outer Space Treaty). At what point would (hu)mankind settling on the Moon effectively become ‘Moonkind’, and what changes would, or should, that give rise to? These are the overarching questions the present paper will tackle.

Article VI of the Outer Space Treaty, requiring “authorization and continuing supervision” of “national activities in outer space” including those of “nongovernmental entities”, has always been viewed as the primary international obligation driving the establishment of national space legislation for the purpose of addressing private sector space activities. As the Article itself did not provide any further guidance on precisely what categories of ‘national activities by nongovernmental entities’ should thus be subjected to national space law and in particular to a national licensing regime, in academia generally three different interpretations soon came to be put forward on how to interpret the key notion of ‘national’ in this context as scoping such national regimes.
Looking back at 50 years of national space legislation addressing private sector space activities, however, we now have the possibility to look not only at the writings of learned experts, at best a subsidiary source of public international law, but at actual State practice-cum-opinio iuris on the matter. The present paper, on the basis of a survey of more than two dozen existing national space laws, will therefore be able to considerably narrow the appropriate interpretation of ‘national activities in outer space’, so as to diminish the uncertainty as regards what categories of private space activities States may be held responsible for, thus both narrowing the permissible discretion of individual States in scoping their national space law regimes and increasing the coherence and transparency of space law at the international level.

From the inception of European integration, a regime trying to regulate and arrange competition as much as considered necessary for the benefit of society at large has been one of the core elements of the European Union’s legal order. While the European Union has over the past few decades become more and more involved in the European space effort, this has so far hardly given rise to fundamental application of this competition regime to space activities, even if space also in Europe increasingly has become commercialized and privatized. The current paper investigates the reasons and rationale for this special situation, addressing inter alia the special character of outer space activities and the space industry and the role of the European Space Agency in this respect.