The Effectiveness and Applicability of the Moon Agreement in the Twenty-First Century: Will There Be a Future?

Mavroeidi, Eleni-Anna

doi:10.1007/978-3-030-01479-7_3

The Effectiveness and Applicability of the Moon Agreement in the Twenty-First Century: Will There Be a Future?

Eleni-Anna Mavroeidi^3,4

Conference paper

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Abstract

At the dawn of the twenty-first century, a significant number of nations showed keen interest in space activities that focus on the exploration of the Moon and near-Earth asteroids. This prospect, which is mainly a result of the privatization and commercialization of such activities, reveals new challenging tasks for space-faring nations and raises the issue of effectiveness of the already existing legal framework.

This paper considers the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) as the most relevant legal document to address the topic in question. This position is followed because the Moon Agreement can be viewed as a text designed specifically to provide for a globally acceptable legal regime to govern such unavoidable development. However, during the past decade, legal and policy concerns – including concerns on the interpretation of the current legal regime – have arisen and put the effectiveness of the Moon Agreement in the spotlight. For instance, the lack of definition of the term “celestial body” or issues concerning state responsibility, as drawn in Article 14 of the Agreement, reveal significant legal gaps that need to be addressed to enhance the possibility of a wider acceptance of the Moon Agreement. Through the analysis of the aforementioned, the author will emphasize the need that the Moon Agreement be reviewed and reconsidered by the future international community. Therefore, this paper addresses questions on the future of this legal instrument and on whether it should be reformed or discarded once and for all.

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Notes

1.
Antonella Bini, The Moon Agreement: Its effectiveness in the 21st century, ESPI 14 Perspectives, at 1.
2.
Large amounts of aluminum, anchorite, iron, and titanium have been discovered; helium 3 that can be used as an alternative to hydrocarbon and fossil fuels; water and ice that can support manned stations on the lunar surface; solar power, orbiting solar power satellite (SPS).; “[T]he Moon, planets and asteroids have been said to contain “aluminum, calcium, carbon, chromium, gold, hydrogen, iridium, iron, magnesium, manganese, nickel, nitrogen, oxygen, platinum, silicon, titanium and water.” Heidi Keefe, Making the Final Frontier Feasible: A Critical Look at the Current Body of Outer Space Law, 11 Santa Clara Computer & High Tech L J 345, 362 (1995).
3.
Ian Sample, Mars one mission: a one-way trip to the red planet in 2024, The Guardian, 9 February 2015.
4.
21st Century Moon Missions: United States of America: “Constellation Program” of 2004: (LRO) 18 June 2009. Its return to the Moon is estimated by 2020. The scope of this program is to establish an extended human presence on the Moon and use the Moon as a basis for more ambitious projects in the future.
Japan: “Selene Mission” of 2007: The mission’s aim was to analyze the Moon’s origin and its physical composition.
India: “Chandrayan 1 Mission” of 2008: The Indian mission was aiming to investigate the various minerals and chemical substances on the Moon.
China: “Lunar Exploration Program CLEP” also known as “Chang’e Program”: Three lunar robotic missions, Chang’e 1 (2007–2009), Chang’e 2 (2010), and Chang’e 3 (2013). Chang’e 5’s sample return mission is scheduled for 2017. CLEP is also paving the way for the first manned mission by 2025–2030.
5.
General Assembly Resolution 1721 (XIV): In 1963 the General Assembly finally adopted the Declaration of Legal Principles Governing Activities of states in the Exploration and Use of Outer Space, as proposed by the Committee on the Peaceful Uses of Outer Space (“COPUOS”). Most of the principles embodied in the Declaration are reflected in the Outer Space Treaty.
6.
General Assembly Resolution 1962 (XVIII): Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty, 1967), Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement, 1968), Convention on International Liability for Damage Caused by Space Objects (Liability Convention, 1972), Convention on Registration of Objects Launched into Outer Space (Registration Convention, 1975), Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement, 1979).
For further information, see: http://www.unoosa.org/oosa/en/SpaceLaw/treaties.html.
7.
Article IX, Outer Space Treaty, supra note 12, on mutual assistance; Articles II–IV, Liability Convention, supra note 12 on third-party liability; Article II para 1, Registration Convention, supra note 12 on the registration of space objects.
8.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205, 18 UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on October, 10 1967) [Outer Space Treaty], at Annex.
9.
For a more elaborate analysis of the negotiations of the Moon Agreement and its travaux préparatoires, see H. W. Bashor Jr., The Moon Agreement Paradox (2004).
10.
UN Doc. A/AC. 105/85.
11.
UN Doc. A/C1/L.568, Nov. 5, 1971.
12.
G. Zhukov and Y. Kolosov, International Space Law, Novosti Press Agency, Moscow (1984) at 173; Bin Cheng, Studies in International Space Law, Oxford (1997) at 246.
13.
United Nations, Treaty Series, vol. 1363, supra note 6.
14.
Ibid.
15.
Michael Listner, The Moon Agreement: failed international law or waiting in the shadows? The Space Review, October 2011.
16.
E. Galloway, Guidelines for the Review of Outer Space Treaties, Proceedings of the 41st Colloquium on the Law of Outer Space (1998) at 2; G. H. Reynolds, International Space Law: Into the Twenty-First Century, 25 Vand. J. Transnat’l L. (1992) at 225.
17.
Moon Agreement, Art. 3, supra note 2, stating in para 1 that “[t]he moon shall be used by all States Parties exclusively for peaceful purposes” and in para 2 that “[a]ny 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.”
18.
Ibid.
19.
Article II, OST: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
Article 11(2), MA: “The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.”
20.
M. Lachs, The Law of Outer Space, (1972), at 42–48.
21.
For the concept of res nullius, see, e.g., I. Brownlie, Principles of Public International Law (Oxford: OUP, 1979), at 109, 180–1.
22.
For example, this view was supported in van Bogaert ERC, Aspects of Space Law (Kluwer, Deventer), (1986), at 76.
23.
See United Nations Doc AIAC.1O5lS.R.187-S.R.188; J. A. Beesley, Canadian practice in international law during 1972 as reflected mainly in public correspondence and statements of the Department of External Affairs, 1 Canadian Yearbook of International Law, (1973), at 294–295.
24.
F.G. Von der Dunk, “Back in Business? The Moon Agreement, Private Actors and Possible Commercial Exploitation of the Moon and Its Natural Resources” (2006), paper presented at the International & Interdisciplinary Workshop on Policy and Law Relating to Outer Space Resources: The Example of the Moon, Mars & Other Celestial Bodies, Session 5 The Acceptability of the Moon Agreement and the Road Ahead, 28–30 June 2006, Montréal, Canada.
25.
Michael Listner, supra note 21.
26.
See Articles 4, 7, and 9, Moon Agreement, supra note 2.
27.
As set out by Article 18 of the Moon Agreement (MA), 10 years after its entry into force, COPUOS considered the question of a first review of the MA and the prospect of the establishment of an international regime at its 37th session in 1994. However, the Committee recommended to the General Assembly not to take further action at that time (GA Res. 49/34). This is the reason why a first review of the MA never took place.
28.
Article 1, Moon Agreement, supra note 2.
29.
Michael E. Davis, Ricky J. Lee, Twenty Years After the Moon Agreement and its Legal Controversies, supra fn. 4, at 11.
30.
See United Nations Doc A/AC.105/196.
31.
Nicholas M. Matte, Legal Principles Relating to the Moon, in Nandasiri Jasentuliyana and Roy S. Lee, Eds, MANUAL ON SPACE LAW (Springer: 1979), at 258.
32.
Ibid.
33.
Gyula Gál, SPACE LAW, AW Sijthoff, Leyden (1969), at 186.
34.
Ibid, e.g., the sun, our solar systems, comets, etc. cannot become legally relevant for exploitation or exploration purposes.
35.
Inappropriate activities can be due to the object’s dimension, nature, or substance: see G. P. Zhukov, Kosmicheskoye arvo (1966, Moscow; 1968, German ed., Weltraumrecht, Berlin), at 270–275; Marco G. Marcoff, La lune et le droit international, 68 Revue Generale de Droit International Public (1964), at 248.
36.
A. Gorbiel, Remarques sur la definition de l’ éspace extra-atmosphérique, Proceedings of the 21st Colloquium on the Law of Outer Space (1978), at 89.
37.
General Assembly Resolution 1962 (XVIII), A/RES/18/1962.
38.
Article 11 (1, 5, 7), Moon Agreement, supra fn. 2.
39.
Ibid (5).
40.
The Soviet Union opposed until the end of 1978, while the United States acted at first as one of the major supporters of the “Common Heritage of Mankind” principle during the negotiations. When the Agreement was open for signature and ratification, it strongly opposed it.
41.
Michael E. Davis, Ricky J. Lee, supra note 4, at 20.
42.
Ibid.
43.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, entered into force Oct.10, 1967, 18 U.S.T.2410, 610 U.N.T.S.205, Article II: Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
44.
Ian Brownlie, Principles of Public International Law (5th edition, Oxford University Press) (1998), at 105.
45.
Michael E. Davis, Ricky J. Lee, supra fn. 4, at 12.
46.
M. Lucy Stojak, Rapporteur’s Notes for Session 5 The Acceptability of the Moon Agreement and the Road Ahead (Commentary on F.G. Von der Dunk’s, Back in Business? The Moon Agreement, Private Actors and Possible Commercial Exploitation of the Moon and Its Natural Resources (2006), supra note 30), at 314.
47.
Article 3, Moon Agreement, supra note 2.
48.
Michael E. Davis, Ricky J. Lee, supra note 4, at 20.
49.
B. A. Boczek, Ideology and the law of the sea: the challenge of the new international economic order, 7 Boston College International and Comparative Law Review 1 (1984); see C. Q. Christol, The common heritage of mankind provision in the 1979 Agreement Governing the Activities of states on the Moon and other Celestial Bodies, 14 International Lawyer (1980), at 429; M. A. Ferrer, Legal implications of the principle according to which exploration and use of outer space shall be carried out for the benefit and interest of all states, taking into particular account the needs of developing states, Proceedings of the 32nd Colloquium on the Law of Outer Space 5 (1989).
50.
United Nations Convention on the Law of the Sea, 1833 UNTS 3; 21 ILM 1261 (1982) [UNCLOS].
51.
Articles 151–161, 1982 Law of the Sea Convention, supra fn. 57.
52.
Ibid, Article 170.
53.
Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed, Sept. 2, 1982, 34 U.S.T.S. 3451.
54.
“[t]o address certain difficulties with the seabed mining provisions contained in Part XI of the Convention, which had been raised, primarily by the industrialized countries, the Secretary-General convened in July 1990 a series of informal consultations which culminated in the adoption, on 28 July 1994, of the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. The Agreement entered into force on 28 July 1996,” available athttp://www.un.org/depts/los/convention_agreements/convention_overview_part_xi.htm.
55.
United States Senate Committee on Commerce, Science and Transportation, 96th Congress, 2nd Session, Report on Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1980), at 30.
56.
Article 14, Moon Agreement, supra fn. 2.
57.
Article VI, Outer Space Treaty, supra fn. 14.
58.
Bin Cheng, Article VI of the 1967 Space Treaty revisited: ‘international responsibility’, ‘national activities’ and ‘the appropriate nation’, 26 Journal of Space Law 7 (1998), at 12–19.
59.
F.G. Von der Dunk, Back in Business? The Moon Agreement, Private Actors and Possible Commercial Exploitation of the Moon and Its Natural Resources (2006), supra fn. 30, at 246.
60.
Article VI, OST, supra fn. 14.
61.
Bin Cheng, Article VI of the 1967 Space Treaty revisited: ‘international responsibility’, ‘national activities’ and ‘the appropriate nation’, supra fn. 65, at 16.
62.
Ibid, at 18.
63.
Article IX, Outer Space Treaty, supra fn. 14.
64.
Convention on Registration of Objects Launched into Outer Space, entered into force Sept. 15, 1976, 28 U.S.T. 695, 1023 U.N.T.S. 15., Article II (2).
65.
Bin Cheng, The extra-terrestrial application of international law, 18 Current Legal Problems (1965), at 132.
66.
See Doc A/AC.105/C.2/2008/CRP.11.
67.
Article 4, Moon Agreement, supra fn. 2 stating in para 1 that “[T]he exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations” and in para 2 that “[S]tates Parties shall be guided by the principle of cooperation and mutual assistance in all their activities concerning the exploration and use of the Moon. International cooperation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through international intergovernmental organizations.”
68.
Alan Duane Webber, Note, Extraterritorial Law on the Final Frontier: A Regime to Govern the Development of Celestial Body Resources, 71 Geo. L.J. 1427, 1436–37 (1983); See, e.g., International Space Activities, 1979: Hearings Before the Subcomm. on Space Science & Applications of the H. Comm. on Science & Technology, 96th Cong., (1979), at 134.
69.
Gorove, Implications of International Space Law for Private Enterprise, 7 Annals Air & Space Law 319, (1982), at 321.

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Attorney-at-Law, Athens Bar Association, Athens, Greece
Eleni-Anna Mavroeidi
LL.M. Air & Space Law, Leiden University, Leiden, Netherlands
Eleni-Anna Mavroeidi

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Faculty of Law, National and Kapodistrian University of Athens, Athens, Greece
George D. Kyriakopoulos
Institute of Air and Space Law, Faculty of Law, McGill University, Montréal, QC, Canada
Maria Manoli

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Mavroeidi, EA. (2019). The Effectiveness and Applicability of the Moon Agreement in the Twenty-First Century: Will There Be a Future?. In: Kyriakopoulos, G.D., Manoli, M. (eds) The Space Treaties at Crossroads. Springer, Cham. https://doi.org/10.1007/978-3-030-01479-7_3

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