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TWENTY YEARS OF THE MOON TREATY:
SPACE LAW CHALLENGES FOR RETURNING TO THE MOON Prof. Ram Jakhu
LL.M. (Panjab); LL.M;DCL(McGill); Associate Professor, Institute of Air and Space Law, Faculty of Law, Director of the Centre for the Study of Regulated Industries, McGill UniversityABSTRACT
There is a renewed global interest in Moon explorations and, possibly its use for deep space missions. This recent attention towards the Moon calls for an appropriate legal regime that would be conducive to Moon related space activities, particularly by private enterprises. Search for such a regime is a major challenge for the international community. This paper analyzes the relevant provisions of the Moon (Agreement) Treaty in order to establish that the Treaty provides a good legal basis for starting exploration of the natural resources of the Moon and thus should be ratified by all States, as soon as possible.
INTRODUCTION
The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter referred to as the Moon Treaty),
1 was drafted by the Legal Sub-Committee of the United Nations Committee on Peaceful Uses of Outer Space (COPUOS) and was adopted by the UN General Assembly on 5 December 1979. Since 1979, this Treaty has been the last to be drafted by the Legal Sub-Committee and so far it could attract only 10 ratifications and 5 signatures.2None of the States Parties to the Treaty is a major space power. What are the main reasons for such a low number of ratifications of the Moon Treaty? In other words, whether the Moon Treaty could be considered good enough to serve as an appropriate legal regime to govern the activities by space faring nations, particularly by their respective private entities?
It is generally believed that the Moon Treaty is not conducive to the particular interests of private commercial enterprises and thus major space powers, like the U.S., have not been keen in ratifying this international space agreement. Therefore, the Moon Treaty can not serve as an appropriate legal regime to govern the Moon activities. I will assess this point below in details. However, in my view, the low number of ratifications has in fact been primarily due to two other factors; i.e. firstly, the exploration of Moon had almost stopped for the last about thirty years and secondly there is a general lack knowledge of international space law in developing countries and the developed countries are not willing to further develop international space law. These two factors are also briefly addressed below with a view to show that a change in them could be expected to enhance an international interest in the legal regime governing the Moon and consequently more States might be ratifying the Moon Treaty in the near future.
In this paper I will address only those provisions of the Moon Treaty that are different from, or an improvement upon, the 1967 Outer Space Treaty.
3GENERAL LACK OF INTEREST IN SPACE LAW
The COPUOS and its Sub-Committees make decisions on the basis of informal rule of consensus. This rule was adopted in 1962 in order to satisfy the concerns of certain States (particularly the Soviet bloc of countries), which feared that their views might be ignored when important decisions would be made with respect to the exploration and utilization of outer space.
4 The consensus rule worked relatively well in the past as five treaties and three resolutions on major space law issues have been successfully drafted and adopted, with the only exception of the 1982 Resolution on the Direct Television Broadcasting via Satellite.5 However, the rule has become a very controversial law-making process in the COPUOS. As noted above, since the adoption of the Moon Treaty in 1979, no international space law agreement has been drafted by the Legal Sub-Committee. Several important items have often been proposed to be placed on its agenda. These items included: (a) commercial aspects of space activities (intellectual property, insurance and liability etc.),(b) legal aspects of space debris, (c) comparative review of international space law and international environmental law, (d) improvements in the Registration Convention, (e) militarization and weaponization of outer space, (f) drafting of a comprehensive space treaty, (g) discussion on the development of an international convention on remote sensing, etc.
6 It is interesting to note that all these issues are important to all States (both space and non-space powers) but have not been accepted for discussion in the Legal Sub-Committee.7 There is no doubt that a very small minority of powerful developed States is monopolizing the decision-making process in the COPUOS and has been using the requirement of consensus as a veto power. These States see no need to elaborate further the legal regime of outer space.On the other hand, there is general lack of knowledge of and interest in space law, particularly in developing countries. This issue was considered to be a "pressing concern" by the 1999 UNISPACE III Conference, which concluded that "many States have not yet become parties to the [UN] outer space treaties…. the apparent decline in the willingness of States to bind themselves to the terms of successive treaties tends to undermine the normative authority of the later international agreements."
8 In order to rectify this "less than optimal" situation, the Conference recommended immediate actions to be taken by the U.N.. In order to implement this recommendation, the Legal Sub-Committee and the U.N. Office of Outer Space Affairs, have started actively promoting capacity building in space law, particularly in developing countries. They have sponsored the organisation of several international workshops on space law,9 (including the current one in Brazil). The Office for Outer Space Affairs has recently started regularly publishing information relating to space law, which is "aimed at a broad audience including policy and decision makers, educators and students of space law, as well as space law enthusiasts."10 In addition, the International Institute of Space Law organizes every year not only its annual Colloquia on the Law of Outer Space but also regional workshops on specific themes of space law.11 These activities and efforts will hopefully enhance awareness and importance of space law at international level and consequently more States could be expected to ratify theU.N. space treaties, including the 1979 Moon Treaty. Recent decision by Belgium to ratify the Moon Treaty is an important development that indicate the start of a new trend of accepting this last Treaty adopted by the Legal Sub-Committee.
RENEWED GLOBAL INTEREST IN MISSIONS
TO THE MOON:The U.S. and Russia are no more the only two States that have been and are interested in sending missions to the Moon. There seems to be a renewed interest in the Moon explorations by these two States and also by the European countries, China, India and others.
The United States of America
On 15
th January 2004, the U.S. President GeorgeW. Bush declared to resume exploration of the Moon and to use its resources for missions to the Mars.
12 More than two-thirds (68%) of Americans support President Bush’s new plan for going back to the Moon.13 NASA’s Exploration Mission Directorate has already started implementing President Bush’s vision of space exploration, with the goal to: "define the characteristics of the first new piloted spaceship since the space shuttle, and establish the initial steps and stages by which these new craft will attempt a series of moon landings."14 It has issued a request for proposals for the design of the crew exploration vehicle (CEV) and has planned to send two teams in 2008. The CEV systems are to be such that they could also be used for deep space missions, such as trips to asteroids or Mars. The NASA’s plan is to develop technical capabilities in a series of spirals with the goal of having one lunar landing per year, starting not later than 2020. The final spiral vehicles "would be the most capable ships, which could extend human presence on the moon up to three months, basically establishing an initial lunar base."15The Russian Federation
In the context of the American decision to return to the Moon, Russia could be expected to rethink its own efforts to join in the renewed ‘rush’ to the Moon. Russian space policy makers expressed that the country already possesses the technology and know-how to re-launch its Moon exploration missions. According to Nikolai Moiseyev, a deputy director of the Russian Rosaviakosmos Space Agency, "Before the end of the year [2004], we intend to develop a federal space program until 2015 and it is possible that such projects [missions to Moon and Mars] would be included."
16 Similarly, Roald Kremnyev, deputy director of the Lavochkin Institute, said that "If Russia decides to revive its lunar program, we would need a year to create a prototype of a new Lunokhod and two to three years to construct the apparatus," 17European Union
Europe’s first mission to the Moon (SMART-1) started on 28 September 2003 in order to "begin detailed mapping of the moon’s surface, including the far side, which is never seen from Earth… [and also to] look for evidence of water on the moon and gather data on its chemical make up."
18 Currently, there seems to be a clear and strong interest within the European governmental institutions, 19 associations of business enterprises and the general public bodies that "Europe must play a leading role on the international stage and be in a position to independently engage in space activities and develop corresponding technologies."20 Given such political vigour in Europe, the European States can be expected to continue their collective efforts in the exploration of the Moon.Peoples Republic of China
In October 2003, the Peoples Republic of China became the third nation in the world to send a man into Earth’s orbit, after the United States and the Russian Federation (former Soviet Union).
21 Due to its expanding geo-political position the world, China has embarked upon an ambitious space program of its own.22 In addition to continue developing its manned space program, China would eventually build its permanent space laboratory and space station.23 Unlike the 15th century overseas expeditions when China left to the Europeans to control the newly discovered territories, in the new era of space explorations, China does not want to miss out.24 According to Brian Harvey, the Dublin-based author of a book on China’s Space Program, "By 2050, you could see a Chinese base on the moon, or even on Mars."25 Expectedly, China has planned the launch of an unmanned mission to the Moon and could eventually establish a Moon base. China’s Moon mission - Chang’e I - would be undertaken in a phased a manner, and during the third phase, China would "launch a space shuttle capable of collecting samples on the moon and returning to Earth."26 According to Luan Enjie, China’s chief space official – the Director of the National Aerospace Bureau - China would launch a probe to orbit the Moon by 2007, an unmanned lunar landing by 2010 and land a human on the Moon by 2020.27 For China, money has so far not been a problem and with unprecedentedly expanding economy and given the new political will to conquer space, China can be expected to make progress in space exploration and exploitation and possibly to making territorial claims in space. In their report, Chinese space scientists urged the Government of China to accelerate the development of space infrastructure and to regard outer space as "space territory". According to the report "opening up of outer space would require infrastructure in space; much like development of land, sea and air which require ground facilities such as railroads, sea ports, power stations and airports."28 The Chinese space scientists also argued that by virtue of having "vehicles that take up positions in space and the ability to possess part of the space resources", the country would effectively extend its three territorial claims - land, sea and air - into space; thus the claim of the "fourth territory".29India
India has become a fairly advanced country in the development, use and management of space technology. It has undertaken complex space missions, indigenously developed launch vehicles and spacecraft capabilities, launched several payloads for foreign entities, and entered into international cooperative programs with the U.S.,
Canada, E.U., Brazil, Mongolia etc.
30 About a year ago, India decided to send by 2008 an unmanned mission called Chandrayan-I in order to put a satellite into Moon’s orbit.31 According to the head of the Indian Space Research Organisation, India’s unmanned Moon mission "is progressing smoothly."32 Given its successes in IT sector, fast developing economy, and aspirations to be a major player in global politics (including its attempts to seek a permanent seat on the United Nations Security Council), India is poised to actively pursue its missions to the Moon. 33Others
The Canadian Space Agency, which is already working on a Moon mission with India, believes that a Canadian mission to the Moon or Mars is technically possible and can be undertaken, if additional funding from the Canadian government is provided for such a mission.
34This renewed global interest in Moon exploration and its use for deeper space missions are expected to dramatically change the geo-political perception of the Moon and a global interest can be expected to arise in the legal regime governing the Moon and other celestial bodies. Because of their various requirements of natural resources, sometimes conflicting interests and possible territorial claims, space faring nations would feel the need of some sort of international regal regime to govern their activities related the Moon. On the other hand, non-space faring nations might feel that rush for utilization and possible territorial claims on the resources of the Moon would jeopardise their interests and thus they too could feel the need of such a regime. In addition, one must not ignore the activities of several private entities in the U.S. and other countries which are "selling" pieces of land on the Moon.
35 Irrespective of the fact that such "selling" has no legal basis,36 public interest would demand that clear rules must be established primarily at the global level due to the international nature of the Moon. The Moon Treaty could possibly provide a ready made answer to meet such need.EXPLORATION AND EXPLOITATION BY PRIVATE ENTERPRISES
Contrary to a perception propagated by certain individuals, the Moon Treaty is not against the interests of private entities. On the contrary, it actually provides, where the 1967 Outer Space Treaty lacks, a good legal basis for undertaking explorations and use of natural resources of the Moon by non-governmental enterprises. I will address some of the issues that are directly related to this aspect.
Common Heritage of Mankind
The most important and innovative provision of this Treaty is the one that attempts to effect an equitable sharing of the benefits of the exploitation of the natural resources of the Moon and other celestial bodies. This was achieved by declaring, under Article 11 of the Moon Treaty that the Moon, other celestial bodies and their natural resources are the ‘common heritage of mankind’ (CHM). The concept of CHM was first proposed by Mr. Aldo Armando Cocca, the Ambassador of Argentina, during the discussions in the Legal Sub-Committee in 1967. This concept was later taken up by the Ambassador of Malta in the discussion on the equitable sharing of the resources of the high seas and was finally included in the 1982 Convention on the Law of the Sea.
37 In 1970, Argentina presented to the Legal Sub-committee the first set of draft legal principles to govern the use of the natural resources of the Moon.38 Article 1 of these principles stated that "The natural resources of the Moon and other celestial bodies shall be the common heritage of all mankind." As we know that the Argentinean proposal became the basis for the formulation of the Moon Treaty, though significant input was provided by several States through their respective proposals. The above-mentioned Article 1, as slightly modified, became the current paragraph 1 of Article 11 of the Moon Treaty and thus for the first time, the concept of CHM was transformed into a legal principle in 1979 when it was included in the Moon Treaty.There seems to be considerable misinformation about the meaning of ‘common heritage of mankind’, even in some official circles. For example, the U. S. Army Space Reference Text on Space Policy and Law mentions that the Moon Treaty "states that the moon is a common heritage for all mankind which implies that all nations would share equally in any benefits derived from moon exploration. If the U.S. signed this treaty it would be hard to get private firms to invest in future moon projects if they had to divide the profits."
39Such assertion is wrong as the wording of Article 11 is such that it does not require ‘equal’ sharing but an ‘equitable’ sharing. More importantly, such equitable sharing shall be effected only through an international regime, which needs to be established (as discussed below) at a later date. Therefore, private entities engaged in the exploration of the Moon’s natural resources would not be required to share the benefits of such explorations unless and until international regime is established and that too only in according with the provisions of that regime.
While developing countries introduced the concept of CHM in the draft Moon Treaty, the United States supported it,
40 but the Soviet Union was adamantly opposed to any inclusion of the concept in the Moon Treaty.From 1972, the Soviet Union maintained its opposition was because the concept appeared more philosophical than regal and that world could not inherit what was not owned by any entity. It was only during the last session of Legal Sub-Committee in 1979 that Soviet Union compromised when the Brazilian proposal tied the meaning of the CHM to the provisions of the Moon Treaty itself. Thus, the final wording of Article 11, para. 1 states that "The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 of this article [i.e. 11]." Article 11, para 5, in turn, specifies that "States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible."
Therefore, for a proper interpretation of the CHM concept no reference to principles and rules under any other treaty, including the 1982 Law of the Sea Convention, should be made. Moreover, its meaning would be made clearer once the envisioned international regime is established. Thus the CHM is an evolving concept and not the one frozen in time.
International Regime to Govern the Exploitation of Natural Resources of the Moon
Under the Treaty, an international regime needs to be established to govern the exploitation of natural resources of the Moon. Such a regime must include provisions relating to an "equitable sharing by all States Parties in the benefits derived from those resources". It is important to understand that this provision of the Moon Treaty would need to be respected only while establishing an international regime when the exploitation of the natural resources of the Moon "is about to become feasible." Here the term ‘exploitation’ should be understood to mean commercialised and regular extraction and refinement of natural resources. It is not research, scientific investigation and exploration as such activities are only precursors of exploitation.
The envisioned international regime must include provisions with respect to:
"(a) the orderly and safe development of the natural resources of the Moon;
(b) the rational management of those resources;
(c) the expansion of opportunities in the use of those resources;
(d) an equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration."41
The U.S., and other industrialised States, whose private entities would be engaged in research and exploration (and expectedly in exploitation) of the natural resources of the Moon, can not be expected to remain silent observers during the negotiations for the international regime, which would possibly happen in the medium, if not long, term; i.e. 20 to 30 years from now. In other words, it is unthinkable that the interests of the private industry would be compromised under the envisioned regime. However, to influence the scope and nature of that regime, these States must be parties to the Moon Treaty. Mr. Ronald Stowe, the Chairman of the Section on International Law of American Bar Association, in his testimony during the hearings by the United States Senate on the Moon Treaty, stated various reasons for its ratification by the U.S. particularly to provide support to the efforts by the American public and private sectors to reap the benefits of exploitation of the natural resources of the Moon. He cautioned that such "support should not, and in fact could not, come through refusal to ratify the present treaty. In my view it should not, because the present treaty does not itself create any threat to such future investments. And it could not, because whatever investment insecurity exists arises from the fact that resources regime negotiations will be held in the future, not because the United States does or does not ratify this treaty. Failure to ratify would not dispell such insecurity; it would simply make it more difficult for the United States to protect its interests."
42On the other hand, though it is impossible to predict the nature and scope of the future international regime, whether it will be exclusively based on the current Moon Treaty or a new agreement, I believe that the principle of CHM would feature in that regime, too. If the principle of CHM could be retained in the Law of the Sea after a major modification to the Law of the Sea Convention in 1994, I see no logical reason for the principle to be removed from the future legal regime for the exploitation of the natural resources of the Moon and other celestial bodies.
Though supporting the inclusion of the CHM concept throughout the negotiations on the Moon Treaty, the U.S. had been concerned about any insertion of "a moratorium on the exploitation of the resources of the moon and other celestial bodies pending the establishment of an international regime."
43 At its July 1979 session, the COPUOS took care of this concern by adding under paragraph 65 of its report a clarification to the effect that, "the Committee agreed that article 7 is not intended to result in prohibiting the exploitation of natural resources which may be found on celestial bodies other than earth, but, rather, that such exploitation will be carried out in such manner as to minimize any disruption or adverse effects to the existing balance of the environment."44 The implication of this clarification is that there is no moratorium on the exploitation of the natural resources of the Moon before the creation of the envisioned international regime, particularly since the U.N. General Assembly, when adopting the final text of the Moon Treaty, has directed that this paragraph should to be taken into consideration for proper interpretation of the Moon Treaty.45Right to Collect and Remove Moon’s Minerals and to Use Them to Support Missions
Before the establishment of such an international regime, the provisions of Article 6 (2) shall remain applicable, which state that:
"In carrying out scientific investigations and in furtherance of the provisions of this Agreement, the States Parties shall have the right to collect on and remove from the moon samples of its mineral and other substances. Such samples shall remain at the disposal of those States Parties which caused them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation. States Parties may in the course of scientific investigations also use mineral and other substances of the moon in quantities appropriate for the support of their missions."
It is quite clear that for scientific investigations and explorations both public and private entities are entitled to collect and remove Moon’s minerals and other substances and also use them for the support of their space missions. It is important to note that such right does not seem to exist under the 1967 Outer Space Treaty, whose Article II on non-appropriation must be interpreted broadly and strictly. The Moon Treaty, being later in adoption, shall prevail over the 1967 Outer Space Treaty. Such entitlement is necessary to encourage investment and develop capabilities to determine the feasibility of exploitation of natural resources.
NO THREAT OR USE OF FORCE ON AND
FROM THE MOONOne of the most important factors for attracting significant financial investment and conducting commercial operations smoothly is peaceful environment which legally assures everyone involved that their activities could be carried out without any fear of hostility. The 1967 Outer Space Treaty and the Moon Treaty contain provisions to the effect that the Moon shall be explored and used for exclusively peaceful purposes. They demilitarise and deweaponise the Moon.
46 However, it is the Moon Treaty that specifically and expressly prohibits any threat or use of force or any other hostile act on and from the Moon.47 It is important to note that such prohibition, though implicitly and indirectly applicable to outer space and the Moon under the Outer Space Treaty,48 has been expressly imposed on all States involved in the exploration and use of the Moon under the Moon Treaty.49 Moreover, the Moon cannot be legally used as a base for carrying out any threat or using force or any other hostile act or threat of hostile act in relation to the earth, spacecraft, and the personnel of spacecraft. The Moon Treaty applies not only to the Moon but also other celestial bodies within the solar system, other than the earth, and orbits around or other trajectories to or around the Moon and other celestial bodies.50 The impact of Article 3, paragraph 2, according to Eilene Galloway, is that it will "prohibit a fractional orbital mass destructive weapon from being used in connection with the Moon or any other celestial body. The OST [Outer Space Treaty] does not prohibit use of fractional orbital bombardment system (FOBS), i.e., a spacecraft that does not complete a full orbit of the Earth."51Thus the Moon Treaty, as compared to the Outer Space Treaty, offers additional protection against any hostility and use of force to the States and private companies that would like to be engaged in the exploration and use of the Moon. In 1980, the United States Senate conducted hearings on the Moon Treaty. During these hearings, Mr. Franklin D. Kramer, Assistant Secretary of Defense for International Security Affairs of the U.S. Department of Defense, was asked "How would the security interests of the United States be enhanced by this Agreement [the Moon Treaty]?"
52 Mr. Kramer’s following answer to this question is quite important and revealing from the security perspective of not only the U.S. but also other space and non-space powers:53"U.S. security interests could be enhanced by the acceptance by other nations through their ratification of the Agreement [the Moon Treaty], from its arms control provisions and other provisions which would limit certain military activity. In view of the fact that not all nations which are space powers are signatories to the 1967 Principles Treaty [the Outer Space Treaty], another possible benefit could derive because of repetition of certain arms control provisions in this agreement [the Moon Treaty]. Those nations may see benefits to be derived from the Agreement that do not exit with regard to the 1967 Treaty which would encourage them to ratify the new Agreement, thus subjecting themselves to its arms control provisions and other constraints on military activity."
At the same time the non-space powers that ratify the Moon Treaty could also enjoy security from any hostility and use of force carried out against them from the Moon. Therefore, Article 3, paragraph 2 of the Moon Treaty is certainly a significant improvement over the regime established under the Outer Space Treaty as it considerably enhances peaceful situation on the Moon – an important pre-requisite for encouraging exploration and use of the natural resources of the Moon.
CONCLUSION
Since its coming into force in 1984, the Moon Treaty has been almost become a dead letter law. However, current fascination in this Treaty is aroused primarily due to the recent global interest in the Moon missions. Like other international agreements, this Treaty has been no doubt a result of compromises on the part of then three major players at international level; i.e. the Soviet Union (now the Russian Federation), the United States of America and a group of developing countries. The carefully thought-out compromises in the Treaty have given effect to ‘balance of interests’ of all States.
It is fair to say that while the CHM is the most significant concept of the Moon Treaty, it has also been the most controversial one. Contrary to the views of some individuals, including those in high positions in their respective countries, the Moon Treaty provides, where the 1967 Outer Space Treaty lacks, an appropriate legal regime for encouraging and undertaking explorations and use of natural resources of the Moon by non-governmental enterprises. Search for an international legal framework, in lieu of the Moon Treaty, will be un-necessarily time-consuming, could be adding confusion to the Moon’s legal environment, thus would be off-putting private sector’s involvement in the exploitation of the natural resources of the Moon and consequently in the exploration of outer space.
As missions to the Moon increase and awareness of the importance of space law at international level enhances, one can expect increased ratifications of the 1979 Moon Treaty, as is exemplified by Belgium’s recent decision to ratify this Treaty. It is submitted that all States should accept the Moon Treaty as soon as possible so that the legal regime of the Moon is clarified and expanded in order to encourage and support the renewed interest in the exploration and use of this natural satellite of the planet Earth. Failing that would carry national rivalries to ‘heaven’ and make it ‘hell’ too. The real challenge for the international community and space lawyers around the world is how to ‘sell’ this Treaty in order to make it acceptable to all, particularly those that will be making considerable financial and technological investments.
-------------------------References
1
Adoption by the United Nations General Assembly under Resolution no. 34/68. 18 ILM 1434; 1363 UNTS 3. The Treaty was opened for signature on 18 December 1979, and has entered into force on 11 July 1984. Depositary for the Treaty is the UN Secretary-General.2 As of 1 January 2004, while Chile, Kazakhstan, Mexico, Morocco, The Netherlands, Pakistan, Philippines, and Uruguay have ratified the Treaty, the signatory States include France, Guatemala, India, Peru, and Romania. See: "Status of international agreements relating to activities in outer space as at 1 January 2004", UN Document, Addendum, ST/SPACE/11/Add.1/Rev.1.
3 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty", adopted by the General Assembly in its resolution 2222 (XXI)), opened for signature on 27 January 1967, entered into force on 10 October 1967. As of 1 January 2004, there are 98 ratifications and 27 signatures to the Treaty (hereinafter referred to as the ‘1967 Outer Space Treaty’).
4After serious and lengthy discussions amongst the member States with respect to the procedure for decision making in the COPUOS, on 19th March 1962 the Chairman of the COPUOS announced that "The Committee and its subcommittees [would] conduct the Committee’s work in such a way that the Committee will be able to reach agreement on its work without need for voting."
5
"Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting", General Assembly Resolution 37/92, adopted by 107 votes to 13, with 13 abstentions, on 10 December 1982; U.N. Document A/37/PV.100 of 17 December 1982.6 Report of the Legal Subcommittee on the work of its forty-third session, held in Vienna from 29 March to 8 April 2004, UN Document no. A/AC.105/826 of 16 April 2004, page 20; Report of the Legal Subcommittee on the work of its forty-second session, held in Vienna from 24 March to 4 April 2003, UN Document no. A/AC.105/805 of 10 April 2003, page 21.
7 The only exception has been the addition in 2001 of an item on the Legal Sub-Committee’s agenda relating to "Consideration of the draft convention of the International Institute for the Unification of Private Law (Unidroit) on international interests in mobile equipment and the preliminary draft protocol thereto on matters specific to space property": UN Doc. A/AC.105/763 (24 April 2001).
8 Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space, Vienna, 19-30 July 1999, UN Document no. A/Conf.184/6, para 372.
9 For example, see: Report on the United Nations/Republic of Korea Workshop on Space Law on the theme "United Nations treaties on outer space: actions at the national level" (Daejeon, 3-6 November 2003), UN Document no. A/AC.105/814; Report on the United Nations/International Institute of Air and Space Law Workshop on Capacity-Building in Space Law (The Hague, 18-21 November 2002), UN Document no. A/AC.105/802; and the IV Conferencia Espacial de las Americas, Cartagena de Indias, Colombia, 14-17 May 2002.
10 http://www.oosa.unvienna.org/SpaceLaw/ spacelawupdate/index.html (date accessed: 06-Nov-04)
11 For example: Space Law Conference 2004 - Asia: a Regional Force in Space, 25-27 April 2004, Beijing, Peoples Republic of China; Space Law Conference 2001: Legal Challenges and Commercial Opportunities for Asia, 11-13 March 2001, Regent Hotel, Singapore. The third similar Conference is being planned that will take place on 26-28 June 2005 in Bangalore, India.
12 "Bush proposal to send man to Mars (Last Updated: Friday, 9 January, 2004, 12:36 GMT), http:// news.bbc.co.uk/2/hi/science/nature/3381531.stm#text (date accessed: 09/01/2004); "Bush unveils vision for moon and beyond: President seeks $1 billion more in NASA funding (Wednesday, January 14, 2004 Posted: 4:13 PM EST), http://www.cnn.com/2004/TECH/space/01/14/ bush.space/index.html (date accessed: 14/01/2004).
13 "Gallup Survey Shows Americans Support New Plan For Space Exploration," (Cape Canaveral FL, Jul 20, 2004), http://www.spacedaily.com/news/spacetravel-04zm.html (date accessed: 11-Sep-04).
14 Frank Sietzen, "UPI Exclusive: NASA Begins Moon Return Effort", (Washington, Jul 29, 2004), http:// www.spacedaily.com/news/spacetravel-04zq.html (date accessed: 11-Sep-04). Frank Sietzen, "Analysis: Bush Stands By His Space Plan", (Washington, July 26, 2004), http://www.spacedaily.com/news/spacetravel-04zp.html (date accessed: 11-Sep-04).
15 Ibid.
16 "After Bush speech, Russia mulls missions to Moon and Mars" (Moscow, Jan 15, 2004), http:// www.spacedaily.com/2004/040115162118.8ffpi9bk.html (date accessed: 12-Sep-04).
17 Ibid.
18
"Europe’s moon mission blasts off" (Sunday, September 28, 2003), http://www.cnn.com/2003/TECH/space/09/28/ moon.launch/index.html (date accessed: 29/09/2003); "Europe’s lunar adventure begins" (Sunday, September 28, 2003), http://news.bbc.co.uk/2/hi/science/nature/ 3136004.stm (date accessed: 29/09/2003). For an historical perspective, see "Europe counts down for first moon mission", (Friday, September 26, 2003), http:// www.cnn.com/2003/TECH/space/09/26/europe.moon.ap/ index.html (date accessed: 26-Sep-03); Jonathan Amos, "Europe targets the Moon", (Tuesday, 4 March, 2003), http://news.bbc.co.uk/2/hi/science/nature/2818551.stm (date accessed: 05-Apr-03).19 "European MPs Favours Ambitious Space Program", (Paris - Oct 21, 2003), http://www.spacedaily.com/news/ esa-general-03r.html (date accessed: 30-May-04): The European Parliament’s Committee on Industry, External Trade, Research and Energy reaffirmed "the need for Europe to play a leading role in this highly strategic international arena." For details of European Space Policy and priorities, see, The European Commission’s WHITE PAPER, "Space: a new European frontier for an expanding Union An action plan for implementing the European Space policy" Brussels, 11 November 2003, COM(2003) 673.
20 "Europe must Play a Leading Role in Space, EISC Stresses", Brussels, 15 November 2003, at http:// www.spacedaily.com/news/esa-general-03t.html (accessed on: 04-May-04); "EU Competitiveness Council Debates Space Policy", Brussels, 26 March 2004, at http:// www.spacedaily.com/news/disaster-management-04b.html (accessed on: 24-May-04).
21 "China Successfully Completes First Manned Space Flight" (Beijing, Oct 16, 2003), http:// www.spacedaily.com/news/china-03zo.html (date accessed: 30-May-04).
22 "China’s vision for new space age", (Thursday, 8 July, 2004), http://news.bbc.co.uk/2/hi/science/nature/ 3876373.stm (date accessed: 08-Jul-04). For a rundown of key events in China’s space program, see "Timeline: China’s space quest" (Monday, October 6, 2003), http:// www.cnn.com/2003/TECH/space/10/03/ china.space.timeline/index.html (date accessed: 29-Nov03). For details of Chinese Space Policies and Activities, http://www.cnsa.gov.cn/fg_e.htm (date accessed: 09/09/ 2002);
23 "China’s vision for new space age", (Thursday, 8 July, 2004), http://news.bbc.co.uk/2/hi/science/nature/ 3876373.stm (date accessed: 08-Jul-04); "China Makes Strides In Space Technology" (Beijing, Oct 06, 2004), http:/ /www.spacedaily.com/news/china-04zzo.html (date accessed: 11-Oct-04).
24 "On eve of space age, China is keen not to miss out on new era of exploration" (Beijing, Oct 20, 2003), http:// www.spacedaily.com/2003/031020055022.skthblf2.html (date accessed: 30-May-04): "If we miss out on the space age, it will be similar to 500 years ago, when we missed out on maritime technology and missed a chance for development of society," the Beijing Evening News Editorial.
25 "Space could be Chinese by the year 2050, experts say" (Beijing, Oct 16, 2003), http://www.spacedaily.com/2003/ 031016024357.yvvtcqwo.html (date accessed: 28-May04).
26 "China Outlines 4 Scientific Goals For Moon Project" (Beijing - Nov 10, 2003), http://www.spacedaily.com/news/ china-03zy.html (date accessed: 05-May-04); "China may launch unmanned moon mission in 2005: report" (Beijing, Mar 03, 2003), http://www.spacedaily.com/2003/ 030303030843.54odg9c7.html (date accessed: 08-Apr-03).
27 "Report: China manned moon trip by 2020", (Saturday, November 29, 2003), (date accessed: 29-Nov-03). See also, David Whitehouse, "China sets its sights on the Moon", (Wednesday, 3 December, 2003), (date accessed: 03-Dec03); "China’s vision for new space age", (Thursday, 8 July, 2004), (date accessed: 08-Jul-04); "China Makes Strides In Space Technology" (Beijing, China (XNA) Oct 06, (date accessed: 11-Oct-04).
28 Wei Long "China Eyes Territorial Claim Of Outer Space" (Beijing - Jan 21, 2002), http://www.spacedaily.com/news/ china-02f.html (date accessed: 21- Jan-02).
29 Ibid.
30 For details, see: "ISRO to Launch Israel’s Scientific Instrument", (Bangalore - Dec 30, 2003), http:// www.spacedaily.com/news/india-03h.html (11-Sep-04); "India To Launch Indonesian Satellite", (New Delhi-Sep 17, 2004), http://www.spacedaily.com/news/microsat04m.html (date accessed: 20-Sep-04); "India’s space agency wins 10 mln dollar EU contract to launch satellite" (Bangalore - Jun 05, 2004), http://www.spacedaily.com/ 2004/040605104435.cyq2twy4.html (date accessed: 12Sep-04); "U.S., India discuss space cooperation", (Monday, June 21, 2004), http://www.cnn.com/2004/TECH/space/ 06/21/india.space.ap/index.html (date accessed: 21-Jun04); "Bush unveils deeper US-India space, nuclear cooperation", (Monterrey, Mexico- Jan 12, 2004), http:// www.spacedaily.com/2004/ 040112222734.c2g2d9wp.html (date accessed: 22-Jan-04); "Canada And India Sign Space Cooperation Agreement", (Bangalore - Apr 01, 2003), http://www.spacedaily.com/ news/india-03b.html (date accessed: 04-Apr-03); "India and Brazil Sign Agreement for Cooperation in Space" (Bangalore - Jan 27, 2004), http://www.spacedaily.com/ news/india-04d.html (date accessed: 12-Sep-04); "ISRO and Brazilian Space Agency to Cooperate in Space Activities", (Washington - March 27, 2000), http:// www.spacedaily.com/spacecast/news/india-00e.html; "India Signs Space Cooperation Agreement With Mongolia", (Bangalore - Jan 27, 2004), http:// www.spacedaily.com/news/india-04b.html (date accessed: 12-Sep-04); "Italy, India sign technology pact", New Delhi -Nov 28, 2003), http://www.spacedaily.com/2003/ 031128164925.dnaimfl3.html (date accessed: 01-Dec-03); "India, China turn traditional rivalry into space race" (Bangalore- Oct 12, 2003), http://www.spacedaily.com/ 2003/031012013635.6p1w7a9u.html (date accessed: 07May-04).
31 "Indian cabinet approves proposal for unmanned moon mission", (New Delhi, Sep 11, 2003), http:// www.spacedaily.com/2003/030911164033.fm12qa0c.html (date accessed: 15-Jan-04); "Indian Prime Minister Announces Mission to Moon", (Bangalore - Aug 20, 2003), http://www.spacedaily.com/news/india-03f.html (date accessed: 12-Mar-04); "Unmanned moon mission could catapult India to global league: space chief" (Bangalore, Apr 29, 2003), http://www.spacedaily.com/2003/ 030429012615.mjvka2bc.html (date accessed: 29/04/ 2003); Pratap Chakravarty, "India Craves The Moon To Crown Its Space Odyssey", Space Daily, 12 March 2001, http://www.spacedaily.com/spacecast/news/india-00c.html (date accessed: 15/03/2001); "Russia to join India’s moon programme: space official", (Moscow - Nov 13, 2003), http://www.spacedaily.com/2003/ 031113153537.5car1dyo.html (date accessed: 14-Nov-03);
32 "India’s Unmanned Moon Mission Going Smoothly: Official" (New Delhi - Sep 27, 2004), http:// www.spacedaily.com/news/india-04p.html (date accessed: 28-Sep-04); "India ‘on course’ for the Moon", http:// news.bbc.co.uk/2/hi/south_asia/2917271.stm (date accessed: 05-Apr-03).
33 For details, see "India to be fastest growing tech market in the world: Gartner", (BANGALORE - Jan 20, 2003), http://www.spacedaily.com/2003/ 030120104434.v64vmi18.html (date accessed: 28-Apr03); "Blair backs India’s quest for permanent seat on UN Security Council", (London - Sep 20, 2004), http:// www.spacedaily.com/2004/040920163432.gxs2s3xj.html (date accessed: 21-Sep-04); "Unmanned moon mission could catapult India to global league: space chief", (Bangalore - Apr 29, 2003), http://www.spacedaily.com/ 2003/030429012615.mjvka2bc.html (date accessed: 29Apr-03);
34 "Canada could fly to Mars too: space agency" (Tuesday, 13 Jan 2004), http://www.cbc.ca/stories/2004/01/13/ canada_mars040113 (date accessed: 13-Jan-04).
35 Richard Stenger, "Prime lunar real estate for sale — but hurry" November 20, 2000, http://www.cnn.com/2000/ TECH/space/11/20/lunar.land/index.html (date accessed: 14/01/04).
36
See Statement by the Board of Directors Of the International Institute of Space Law (IISL) On Claims to Property Rights Regarding The Moon and Other Celestial Bodies (2004): "according to international law, and pursuant to Article VI [of the Outer Space Treaty], the activities of non-governmental entities (private parties) are national activities. The prohibition of national appropriation by Article II thus includes appropriation by non-governmental entities (i.e. private entities whether individuals or corporations) since that would be a national activity. The prohibition of national appropriation also precludes the application of any national legislation on a territorial basis to validate a ‘private claim’. Hence, it is not sufficient for sellers of lunar deeds to point to national law, or the silence of national authorities, to justify their ostensible claims. The sellers of such deeds are unable to acquire legal title to their claims. Accordingly, the deeds they sell have no legal value or significance, and convey no recognized rights whatsoever." http://www.iafastroiisl.com/additional%20pages/ Statement_Moon.htm (date accessed: 02-Oct-04).37
United Nations Convention on the Law of the Sea (and the Agreement relating to the implementation of Part XI of the Convention), signed at Montego Bay, Jamaica, 10 December 1982, Entered into force: 16 November 1994 (there are 145 ratifications as of 1 January 2004; the 145th State to ratify the Convention was Lithuania, while the 144th was Canada which deposited its instrument of ratification on 7 November 2003).38 Report of the Legal Sub-Committee on the Work of the Eleventh Session, April 10 to May 5, 1972, U.N. Document: A/AC.105/101. May 11, 1972, Annex I, pp.6-7.
39 Chapter 3, SPACE POLICY AND LAW, (US) ARMY SPACE REFERENCE TEXT, (http://www.fas.org/spp/ military/docops/army/ref_text/index.html#APPA, date accessed: 20-Jan-01), emphasis added. This document was prepared by Space Division, HQ TRADOC. Recommended changes should be submitted on DA Form 2028 to: Commander, U.S. Army Training and Doctrine Command, ATTN: ATCD-HS, Fort Monroe, VA 236515000. The purpose of this Reference Text is to provide information on space systems and their use as they relate to U.S. Army operations. The intended users are U.S. Army commanders, staff officers and Noncommissioned Officers, students attending Army courses of instruction and their instructors.
40
The text of the U.S. Working Paper 12/Revision 1, introduced on April 12, 1972, proposed, inter alia, that "1. The natural resources of the Moon and other celestial bodies shall be the common heritage of all mankind’. Cf. the Eilene Galloway Report, op. cit., p. 14. It is also relevant to note here that earlier on May 3, 1972, the U.S. Representative to the Legal Sub-Committee of the COPUOS had stated that "On the broadest level of generality, it seems right to state that such resources [ the natural resources of the Moon and celestial bodies] are part of ‘the common heritage of all mankind’. This would parallel the policy proposed by President Nixon two years ago this month that all nations should regard the resources of the seabed lying beyond the point where the high sea reach a depth of 200 meters as the common heritage of mankind", Cf. the Eilene Galloway Report, op. cit., p. 14.41
The Moon Treaty, Article 11, paragraph 7.42
Senate Hearings on the Moon Treaty, op.cit., p. 75.43
The Eilene Galloway Report, op. cit. p. 27.44
Report of the Committee on the Peaceful Uses of Outer Space, United Nations General Assembly, Official Records: Thirty-Fourth Session, Supplement No. 20, 1979, Un Document No. A/34/20.45
The Eilene Galloway Report, op. cit. p. 53.46 Article VI (2) of the 1967 Outer Space Treaty specifies that "The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited." Similarly, Article 3 paras 3 and 4 of the 1979 Moon Treaty repeat these obligations of the States Parties; i.e. "(3) States Parties shall not place in orbit around or other trajectory to or around the moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the moon. (4) The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the moon shall also not be prohibited."
47
Article 3 (2) of the 1979 Moon Treaty asserts that, "Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited. It is likewise prohibited to use the moon in order to commit any such act or to engage in any such threat in relation to the earth, the moon, spacecraft, the personnel of spacecraft or man-made space objects."48 According to Article III of the 1967 Outer Space Treaty, outer space activities must be in accordance with international law, including the Charter of the United Nations. And under Article 2(4) the Charter, all Members States are required to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."
49 It may be noted that when France signed the Treaty on January 29, 1980, it notified a clarification to the U.N. that, "France is of the view that the provisions of article 3, paragraph 2, of the Agreement [Moon Treaty] relating to the use or threat of force cannot be construed an anything other than a reaffirmation, for the purposes of the field of endeavour covered by the Agreement of the principle of the prohibition of the threat or use of force, which States are obliged to observe in their international relations, as set forth in the United Nations Charter." (cited from, Agreement Governing the Activities of States on the Moon and other Celestial Bodies, Prepared [by Mrs. Eilene Galloway ] at the request of Hon. Howard W. Cannon, Chairman, Committee on Commerce, Science, and Transportation, United States Senate, May 1980, p. 49. In this paper referred to as the ‘Eilene Galloway Report’.)
50 The Moon Treaty, Article 1, paragraphs 1 and 2.
51 The Eilene Galloway Report, p. 49.
52 The Moon Treaty, Hearings before the Subcommittee on Science, Technology, and Space of the Committee on Commerce, Science, and Transportation, United States Senate, Ninety-Sixth Congress, Second Session on Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, July 29 and 31, 1980, (Serial No. 96-115), p. 147. (In this paper referred to as ‘Senate Hearings on the Moon Treaty’). 53 Ibid.
