III SISL – SERIES OF SEMINARS ON INTERNATIONAL SPACE LAW, LEICESTER, UK
Francesca Giannoni-Crystal speaking on the panel “The Commercialization of Outer Space: Legal Implications of the Emerging Space Industry and Non-Governmental Entities”
Place: Leicester Space Park
Date: 23 May 2025
I’m Francesca Giannoni-Crystal, an international lawyer based in Washington, D.C. In addition to my private practice, I serve as outside in-house counsel for the Pasquali Microwave Group, which manufactures components for the space and defense sectors, particularly in the areas of microwaves and composites.
1.Agriculture/biotechnology. I’ve recently written a paper (coming out this fall in the Journal of Air Law and Commerce) that looks at some of the legal issues around agriculture, biotechnology, and even terraforming in space. As we move from short-term exploration to actually trying to stay on the Moon or Mars, these kinds of biological activities (like growing food or using microbes to support life) are going to be essential. But they raise real legal questions, especially under Article IX of the Outer Space Treaty and the Planetary Protection Framework, which was really set up to protect scientific exploration, not human settlement. The part of Article IX which we are dealing here is “states Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.”. It’s important principle but it was written in an era focused entirely on scientific exploration. Also, in the fifty years, national space agencies – -historically the sole entities conducting interplanetary missions– have generally interpreted the “appropriate measures” imposed by Article IX to mean compliance with the COSPAR Policy issued and periodically amended by Committee on Space Research Policy on Planetary Protection (“COSPAR”) — a non-governmental organization (NGO) established in 1958.
My concern is that over-reading contamination ends up paralyzing progress. I am dealing here principally with forward contamination. Now, Article IX’s concern is foundational but it doesn’t distinguish between contamination from careless waste and biological systems intentionally introduced to support human life, like plants, microbes, or engineered ecosystems.
In my opinion, if we interpret “harmful contamination” too rigidly, we risk making long-term habitation legally and practically unworkable because long-term human presence in space depends on biological systems, plants, microbes, genetically adapted environments. Instead, we need to evolve the interpretation to distinguish between uncontrolled, harmful contamination and planned, sustainable biological activity that enables humans to stay. That kind of shift is essential if we want to move from temporary missions to real settlement.
Now, the COSPAR Policy is primarily designed to prevent biological contamination during exploratory missions and to facilitate international collaboration and coordination in alignment with Article IX OST, as well as to prevent Earth’s biological material from compromising the search for extraterrestrial life. A fundamental part of COSPAR contamination control measures is bioburden, which makes agriculture or biotechnology in certain areas of space almost impossible. Now, it is not the case for the Moon, but let’s say Mars or the icy moons of Jupiter or Saturn.
Sure, the 2024 COSPAR update is definitely a step forward. It adopts more flexible, case-by-case language, allowing for contamination control measures to be tailored based on scientific justification. But the fundamental issue remains as we’re still applying a framework built for short-term exploration to long-term habitation.
You might say: COSPAR is not binding and has focused on government-led missions. Now the 2024 COSPAR explicitly ties into Article VI OST. But as commercial activities become predominant in space, it can be expected that COSPAR will be extended to private entities through domestic regulations or licensing requirements (hence possibly to space agriculture, biotechnology, and terraforming as well). So we need to be sure that it is what these sectors need to develop.
What I’m interested in is whether we can rethink how we interpret Article IX, and adjust the COSPAR Policy, so that we still protect science, but also make room for what it takes to build long-term, livable environments in space. We need to move toward a more balanced interpretation that supports essential biological experimentation—especially on the Moon and Mars, where life support will depend on local production systems.
2.Space resource utilization and ISAM. In a paper that I published in the Santa Clara Law Review I discuss how private companies are actively developing business models based on extracting lunar resources like water, oxygen, and metals. In fact, commercial space has big ambitions when it comes to resource utilization. The Moon is front and center—companies are going after water, oxygen, metals. We’re seeing real activity already from groups like ispace, Interlune, and TransAstra. And it’s not just the Moon—companies like AstroForge is looking at asteroid mining.
The legal question is: which laws doe sit apply? There are legal issues. Article II OST first of all and then, as infrastructure starts to grow—extraction gear, landers, maybe even habitats—Articles VIII and XII of the Outer Space Treaty start to matter.
I believe that, on the legal perspective, legally, we’re moving toward permissibility of what you extract from the celestial bodies. National laws have been issued about this, in particular, U.S., Luxembourg, the UAE, and Japan, which I analyze in my article, also discussing relevant combination of legal clarity, political backing, and long-term business support. However, some interpretation of Article II of the Outer Space- though I’d say they’re not the majority view anymore- suggest resource extraction could amount to appropriation, and therefore be prohibited. In my opinion, this interpretation could create tensions.
The other topic I’ve been working on is ISAM (which obviously stand for in-space servicing, assembly, and manufacturing); I have a paper coming out this summer in the Georgia Journal of International and Comparative Law. I’m also part of COSMIC; it’s a national group backed by NASA and run by the Aerospace Corporation that brings together government, industry, and academia to push ISAM forward and stay in the loop as the tech and policy take shape.
Now, ISAM is going to be a key part of how we build and sustain infrastructure on the Moon. It’s not just about building things in orbit or on the Moon (or Mars, etc.); it enables everything from mobility to refueling (which I’ve also written about) to construction in space. And all of this brings legal and environmental challenges.
The issue is that under the Outer Space Treaty, there’s still a dose of uncertainty about how ISAM fits—especially when we’re talking about assembling large structures, using local resources, or occupying land in a stable way, which could start to look like de facto appropriation. Or even repurposing leftover parts of other space objects, either in orbit or on the Moon. In my paper, I suggest a collaborative approach—shared infrastructure, maybe even shared platforms or network contracts. And while we’re probably not getting new binding treaties anytime soon, non-binding, industry-led guidelines could go a long way in setting norms and avoiding conflict as these activities ramp up.
3.Closing
These legal challenges need to be addressed, and we need legal interpretations that respond to emerging realities—not just legacy concerns. As I’ve said, I don’t believe a new treaty is coming anytime soon.
As a lawyer –by training and in my daily work– I focus on finding practical, workable paths forward for my clients. Commercial space actors are already gearing up for these activities, and they will move forward with them—assuming the funding is there. The Outer Space Treaty was adopted over 50 years ago, at a time when space agriculture, biotechnology, resource extraction, and ISAM were still science fiction. Like any constitution, I believe it should be interpreted in an evolutionary way, one that can adapt to where space is actually headed. One that can help humanity become a multi-planetary species.
