ABSTRACT

Adopted on December 5, 1979, opened for signature on December 18, 1979, and came into force on July 11, 1984 (General Assembly resolution 34/68), the Moon Agreement, 1979 is a framework of laws relating to the Moon and other celestial bodies within the Solar System, other than Earth, including orbits around or other trajectories to or around them.1 It is one of the 5 multilateral treaties deliberated and developed by the Legal Subcommittee for the Committee on the Peaceful Uses of Outer Space (COPUOS) from 1972 to 1979.

The Moon Agreement aspires to establish an international regime to govern the exploitation of resources that explorations by various countries may yield. But there has been no consensus on establishment of such laws. Hence, in 2018, S. Neil Hosenball (NASA General Counsel and chief US negotiator for the Moon Treaty) decided, that negotiation of the rules of this international regime should be delayed until the feasibility of exploitation of lunar resources has been established.

It upholds and elaborates various provisions of the Outer Space Treaty, however, it is still considered to be a failed international law and remains unratified by major space faring powers like United States of America, Russia and People’s Republic of China. This article critically analyses the provisions of the Moon Agreement, 1979, to draw out conclusions about its relevance and validity in the current times along with its future implications.

INTRODUCTION

The United Nations has the power and responsibility to develop and codify international law and has thus become a focal point for international cooperation in outer space.4 The United Nations Treaties and Principles on Outer Space are “Text of treaties and principles governing the activities of States in the exploration and use of outer space, adopted by the United Nations General Assembly”. However, extension of law to outer space has been gradual and evolutionary, beginning with the study of questions relating to legal aspects, continuing to the formulation of principles of a legal nature and, then, incorporating such principles in general multilateral treaties. The declaration of legal principles governing the activities of States in the Exploration and Use of Outer Space was adopted by the General Assembly in 1963. This text is the genesis of what has become known as “Space Law”.

Thereafter, as stated above, UN saw development of 5 multilateral treaties, out of which one became the Moon Agreement or the Moon Treaty that provides several guidelines and provisions outlined in 21 articles.

The Agreement governs the activities on moon and other celestial bodies stating that the moon and its natural resources are “the common heritage of mankind”. It declares that the Moon should be used for peaceful purposes and for the benefit of the entire international community reiterating the fact that lunar resources shouldn’t be subjected to claims by nations on basis of sovereignty or by means of occupation.  The primary objective of the Moon Agreement is ‘to provide the necessary legal principles for governing the behaviour of states, international organizations, and individuals who explore celestial bodies other than Earth, as well as administration of the resources that their explorations may yield.’8 The Agreement proposes to establish an international regime or framework of laws that apply to the Moon and to other celestial bodies within the Solar System (Article 11.5; Moon Agreement, 1979).9

Currently, 18 States are parties to the Agreement, out of which, seven have ratified the same and the rest acceded. Four other Sates have signed, but not ratified the treaty yet.

ANALYSIS

As mentioned earlier, the Agreement reiterates most of the provisions of the Outer Space Treaty. However, it provides a new angle to the international space laws by addressing the issue of exploitation of natural resources, by applying the concepts of ‘common heritage of mankind’ and to have the participating countries develop ‘appropriate procedures for mining’ in order to protect and sustain the natural environment for the present as well as future generations. It explores some significant themes by ensuring that parties to this Agreement consider the repercussions of their activities in space and the environmental changes that follow and identify the general need to promote better standards of living. Article 2 of the Agreement specifically states that the Moon and other celestial bodies are a province of all mankind and not subject to national appropriation by any means.

This Agreement augments the agreement on outer space laws in several ways. It is first space law treaty that specifically mandates that sustainable options should be used while exploring the Outer Space, considering the idea that both, the present and the future generations have an equal right on the available resources.13 It also provides wider prohibitions on use of nuclear weapons or weapons of mass destruction as well as setting up of military bases on moon and other celestial bodies than the 1967 treaty.14 It also expresses the aspiration to prevent the Moon and other celestial bodies from becoming a source of international conflict.

Apart from this, it also rectifies another flaw of the Outer Space Treaty by banning the ownership of any extra-terrestrial property by any organisation or private person, allowing only international and governmental organisations to carry out research. The Agreement provides strength to the concept of ‘Global Commons’ by disallowing individual ownership of resources on Moon and other Celestial Bodies.

The question however, is whether this Agreement successfully justifies its ratification as a new space law, considering that it has not been ratified or signed by any of the ‘Big Three Nations’ (USA, Russia and China).

The Moon Agreement is one of the least supported treaty/agreement relating to the outer space law.15 India is the only country with independent spaceflight capabilities that has signed (but not ratified) this Agreement.

One of the major objections that is often raised is that this Agreement mandates that extracted resources, along with the technology used to achieve that end should be shared with developing nations that have not invested funds or assumed risks to enable use of lunar resources.

The moon plays an important role in the exploration of Outer Space, and exploitation of its resources can prove to be commercially profitable in the long run. Thus, each major space faring power wants to extract the maximum benefit out of the Moon’s available resources. But the Moon Agreement acts as a check on the countries by mandating that the UN should be informed about any new station that is to be placed on the Moon. Also, one of the major focus points of the Agreement is ‘sharing’ of resources which is a major drawback for the developed nations when analysed commercially.

Even though, the Agreement doesn’t require ratification from any of the “Big Three” to come into force, it is not a binding international law as US, Russian Federation and China have neither signed nor acceded to, nor ratified it, leading to a conclusion that it is a failure from the standpoint of international law. An example of Dennis Hope, where he asserts a claim over the Moon in 1980, has not formally been rejected by the US, and thus, questions the validity of the Moon Agreement as a binding international law.

A reason for the failure of this Agreement is the threat it imposes on the developed nations. Similar to the Agreement of Law of Sea Convention, this Agreement might also demand for the developed nations to share their technology and innovations with the developing nations, which the nations like USA, often consider hinderance to their progress.

If the international regime that is envisioned by the Moon Agreement takes a form similar to that of the Enterprise (proposed in the Agreement of the Law of the Sea Convention), developed nations would be required to relinquish a portion of the resources extracted from the Moon and other celestial bodies. They would also be required to surrender technology developed by private industries under their jurisdiction for extracting extra-terrestrial resources so that the

developing nations also get a chance to explore the available resources. This implies that the Moon Agreement’s common heritage view might also apply to Intellectual Property Rights.

Another limitation to the Agreement is that it fails to define the term ‘resources’, thereby posing a critical challenge to the countries that ratify the same. The Agreement remains ambiguous at various instances, leading to its failure as an international space law.

Another major drawback of the Agreement is that it is a compilation of dictates from past agreements, with only six out of 21 articles that aren’t addressed previously in other space laws. Apart from this, the areas that are novel, lack the clarity required to make necessary changes.

Louis de Gouyon Matignon, in his study on the Moon Agreement states that, “the Agreement is a germinal legal framework for developing the required laws, rather than a finished set of detailed laws”.

Therefore, this Agreement requires a lot of changes before it can actually be implemented in the current scenario. However, as mentioned earlier, negotiation of the rules of this Agreement have been delayed until exploitation of such resources, available on Moon and other Celestial Bodies, becomes a reality.

Although, the Moon Agreement has a lot of drawbacks, it also creates a shadow of customary law that could grow such that non-parties could find themselves overshadowed by the penumbra of the Moon Agreement, especially if those non-parties take no action to refute its legitimacy. Also, the soft power gains of China and Russia might promote them to sign and ratify the Moon Agreement, restoring its status as a customary law binding on parties and non-parties alike.

The assumption that the Moon Agreement has no legal effect because of the non-participation of the Big Three nations is false. Hence, to officially curb the power of the Moon Treaty of becoming a customary law highly depends on its official denunciation by these nations.

CONCLUSION

Considering the advantages and the drawbacks of the Moon Agreement, 1979, it is evident that some major changes are required before making it binding on parties and non-parties, along with the ratification of major space faring powers. Thus, the UN should review the present provisions of the Agreement and incorporate the required changes and also provide a better clarification on the already existing clauses. However, the genuine test of the Moon Agreement as a treaty as well as a customary law will only be possible after exploitation of the extra-territorial resources becomes technically and economically feasible

Author: Sujata Porwal, Legal Intern at Legal Desire (June 2020)

Sujata is a student of law, currently pursuing BA. LLB. (Hons.) degree from Symbiosis Law School, Pune. Criminal law and psychology, along with Sports Law are few subjects of her interest.