The recent launch of Artemis II and SpaceX’s steps toward an IPO mark a pivotal moment for the space economy. Yet as global attention from casual space enthusiasts and corporate investors intensifies, a long-standing vulnerability is coming into focus – one that space lawyers have noted for decades but never had to address on such a scale.
The Outer Space Treaty of 1967, the 1979 Moon Agreement, and their related instruments set out high‑minded principles but leave core commercial issues unanswered. What distinguishes sovereignty from possession of a lunar resource? Which court would adjudicate a dispute between a private satellite operator in one nation and a mining consortium in another? Who bears the cost when debris from a dead spacecraft cripples a functioning asset? On these matters, the treaties are largely silent, and intestinally so. The authors anticipated that the world would evolve over decades and deliberately chose ambiguity.
The Commonwealth of Nations is well-places to step into that ambiguity. Not to replace the existing framework, but to serve as a trade organisation that bridges its commercial gaps and drives economic development through joint ventures.
The Commonwealth is often caricatured. It is not an EU‑style political union, a NATO‑style alliance or a World Bank‑style lender. It is a voluntary association of fifty‑six states, most sharing common‑law traditions, that function above all as a trade and legislative coordination body. Its members span established space powers including the United Kingdom, Canada, Australia and India, as well as emerging space nations such as Nigeria, South Africa and Singapore. In many alliances, such diversity can be seen as a weakness, here, it is a strength. A robust space economy cannot be built with developing countries watching from the sidelines. The Commonwealth already possesses the mechanisms for trade agreements, model laws and arbitration and those tools can be adapted to space commerce without the prolonged struggle of negotiating a new global treaty. By leveraging these capabilities, the Commonwealth can augment the Outer Space Treaty, helping to craft and uphold the commercial code essential for today’s economic environment.
This concept is not new , the Commonwealth is already engaged in space-related work, though it currently follows a different track. The City of London Corporation’s Common Space strategy, prepared by Professor Manahel Thabet and Dr Lucy Maison under the auspices of Rt Hon Baroness Patricia Scotland, focuses on climate resilience, debris removal, education, diversity and the protection of historic sites in space. This ambitious agenda builds on the Commonwealth’s longstanding strengths in sustainability and capacity building. It reaffirms the central importance of the Outer Space Treaty and advocates for regulatory frameworks that promote responsible conduct. At its core, it is guided by the principles of preservation and the public good.
The new proposal to use the Commonwealth starts with economic development, joint commercial ventures and a deliberate effort to close the legal gaps that currently deter private capital. Here is the real opportunity: the Commonwealth can leverage its inherent strengths in convening and cooperation to assume a leadership role in the space sector, filling the current vacuum.
The institutional roots of a more commercial approach are already visible. On 12 June 2025, Commonwealth Secretary‑General Hon Shirley Ayorkor Botchwey signed a joint declaration with the UN Office for Outer Space Affairs. The declaration commits both sides to cooperation on space‑based solutions and openly calls for strategic partnerships with the private sector, acknowledging that companies now lead much of the cutting‑edge work in space technology. The language is striking: “problem‑solving”, “future‑facing”, built on “mutual benefit and mutual respect”. It is the vocabulary of commerce as much as conservation. Political groundwork for private‑sector engagement is taking shape, yet the law lags behind.
Three gaps matter most for economic development.
The first is resource rights. The Outer Space Treaty bars national appropriation of celestial bodies but says nothing clear about private extraction. The Moon Agreement declares lunar resources the common heritage of humankind, but none of the major space powers have ratified it. Therefore, companies such as SpaceX can spend billions to extract lunar water for fuel and still have no certainty that any court will recognise their claim to that water. Currently, sovereign states are enacting space resource rights in a patchwork fashion, with little cooperation among them and limited coherence within their own legislation.
The Commonwealth can address this by drafting a model law on space resource rights that distinguishes sovereignty over territory from possessory rights to extracted materials. This distinction, well established in maritime and seabed mining law, is already accepted by states and investors. A member state could adopt such a law unilaterally and then recognise similar regimes in other Commonwealth jurisdictions through bilateral investment treaties or a Commonwealth arbitration framework. As more states follow, practice would shift to become customary law, much as it did with the Law of the Sea.
The second is dispute resolution. When two private firms from different Commonwealth countries clash over a landing site, a resource claim or a radio frequency, there is no obvious forum for resolution and the existing treaties provide no practical solution. The Commonwealth already has a network of arbitration centres, from the London Court of International Arbitration to regional hubs in Singapore, Dubai and Mauritius. These could host a specialist space chamber. No new universal treaty is needed. What is needed is for Commonwealth governments, through existing trade and investment agreements, to recognise the jurisdiction of a Commonwealth Space Tribunal for commercial disputes. This tribunal would apply the model resource‑rights law, relevant treaty obligations, and establish familiar common‑law principles. This is exactly how cross‑border arbitration has operated for centuries.
The third is liability and insurance. Today’s liability regime puts the responsibility on the “launching state”, not on private operators. This structure creates a built‑in moral hazard: companies maximise their upside while governments remain on the hook for damages. A Commonwealth model law on space insurance and liability caps could realign these incentives, tying private obligations more closely to public exposure. This could also support a Commonwealth‑wide mutual insurance pool for space assets, reducing the cost of capital for smaller operators from developing member states. This is not charity; it is market-building. More operators mean more trade, and, over time, greater influence for the Commonwealth as a bloc. The CommonSpace strategy talks about co‑investment and space bonds, but largely in the context of ethical and sustainable technologies. The proposal here is for hard‑nosed commercial insurance and liability caps aimed designed to unlock investment. Both approaches have their value, they simply target different points in the value chain.
There is also a proven method. The Commonwealth has done this before. Its model laws on arbitration, competition, electronic transactions and digital trade all started as voluntary templates and became de facto standards across dozens of jurisdictions. This same method can be applied to space. A country like the UK or Australia could adopt a Commonwealth Model Law on Space Resource Rights and write recognition of that law into its trade agreements with Canada, India or Singapore. As more states join, the model would become the default operating system for a significant share of the global space economy – not because anyone ordered it, but because it works for companies. The CommonSpace call for governance frameworks could sit comfortably within that commercial architecture. The difference being that governance is framed first as an enabler of business.
The timing could not be better. Artemis II has captured public attention. A SpaceX IPO will, for the first time, make space a regular feature of mainstream portfolios. Together, they create a window for real first‑mover advantage. The first coherent set of commercial space rules to reach critical mass will shape practice for decades. The Commonwealth is unusually well placed to move early precisely because it is not a superpower bloc. It is a network of middle powers and developing states with a shared legal language and a record of producing usable model legislation. The United States has the politically freighted Artemis Accords. China has its International Lunar Research Station framework. Both are explicitly tied to power politics. The Commonwealth can offer a distinctive advantage: a neutral legislative framework that any state can adopt without aligning to Washington’s or Beijing’s agendas. It’s joint declaration with UNOOSA strengthens this position, underscoring that the Commonwealth works in partnership with the UN, not in competition.
The common objection is that the Commonwealth lacks enforcement power. That may be true, but it is also the wrong measure of its value. The Commonwealth has the opportunity to write commercial rules that are simple and expected so that companies follow them because doing so lowers their legal risk and insurance costs. In practice, enforcement would come from markets, not regulators. A firm that ignores Commonwealth‑aligned rules may find its assets hard to insure or use as collateral with Commonwealth‑based lenders. A state that refuses to recognise Commonwealth arbitration awards may find its operators quietly excluded from preferential access and joint ventures. That is not coercion; it is how trade systems work. The joint declaration’s emphasis on private‑sector partnerships makes clear that the Commonwealth Secretariat understands where the momentum in space now lies. CommonSpace’s co‑investment ideas are valuable, but they presuppose a legal base. Establishing that foundation, which is presently lacking, must be the first task.
The Roman historian Tacitus observed that empires are built less by force than by laws that align private ambition with public order. The Commonwealth is not about to build an empire on the Moon. No single institution could do this. It can, however, build a commercial code. It can occupy and develop the legal ground the Outer Space Treaty left open. It can give companies and investors the certainty they need to invest and it can give developing countries the legislative tools they need to participate.
The CommonSpace strategy runs on a parallel track, centred on sustainability and the public good. Both are important. Yet Artemis II and the SpaceX IPO present an invitation. The question is whether the Commonwealth will respond as it has in the past, using consensus and shared culture to convert broad principles into practical law.
