Earth Observation, the Environment, Space, and Remote Sensing Law in the Pacific Rim: Jon Van Dyke

June 21, 2010 at 3:46 pm | Posted in Blogcast, Space Law | Leave a comment

by P.J. Blount with the blog faculty

The final presentation of the meeting was Prof. Jon Van Dyke, University of Hawaii, School of Law, “Access to Water on the Moon: Lessons from the Hawaiian Experience – Law and Practice.” Van Dyke noted that water had recently been found on the moon and that water rights of some sort would need to be developed as humans began to exploit this resource. He stated that International cooperation would be the key.

He started by discussing the implications of the Outer Space Treaty and its Art. II (no claims of sovereignty) and Art. IX (due regard for other nations and consultations). Next he pointed out that the Moon Treaty would be relevant despite its low number of State parties. He pointed out, in particular, the Moon Treaty’s “common heritage of mankind” language and whether that would require the establishment of an international entity to manage such resources.

Next, he turned to international environmental law. He stated that one of the most important and basic concepts in this area of law as well as in general international law was the duty to cooperate. He then pointed to a recent ICJ case (Argentina v. Uruguay 2010) which gave some explication of what the duty to cooperate entails. The case steates that the duty to cooperate includes: the duty to notify; the duty to exchange information; the duty to listen to the concerns of affected states; and the duty to respond to concerns of affected states. This does not include the duty to reach an agreement.

He next moved to a discussion of water rights in the United States and specifically Hawaii, wherein many streams have been diverted for irrigation purposes. In Hawaii water is a public trust resource and Hawaii uses the precautionary principle when examining legal rights in relation to water.

Finally, his discussion moved back to Moon wherein he applied international environmental law and water law to the environment on the moon. He said that moon water rights would need to be equitably allocated but also balanced with incentives for investment. He suggested the International Seabed Authority as a model for such a regime.