IAC 2010: E7.2. 30 Years of the Moon Agreement: Perspectives

September 28, 2010 at 7:21 am | Posted in Blogcast, Space Law | Leave a comment

by P.J. Blount with the blog faculty

E7.2. 30 Years of the Moon Agreement: Perspectives was the next session of the IISL. It was chaired by Mahulena Hofmann, University of Giessen, and Jose Monserrat-Filho, Brazilian Association of Air and Space Law. The Rappoorteur was MIchael Mineiro, McGill University.

The first presentation was by Yan Ling of China. She presented “Is Selling Land on the Moon Allowed in China?”. This presentation was based on a case about lunar land sales that happened in China. In the case the Beijing Administration for Industry and Commerce (Baic) found that a company had sold 48 acres of lunar land in Beijing. BAIC stated that this violated administrative laws. The company argued that it did not violate any laws. It argued that its action was not violative of the outer space treaty or of domestic laws. BAIC in turned argued that the acts did violate the Outer Space Treaty and Chinese contract law (because the company could not show clear title to the object it was trying to sell. The court upheld the decision of BAIC. It held that lunar land ownership does not exist and that lunar land cannot become a commodity. Ling then did an analysis of the case. She stated that BAIC was correct in asserting that Lunar land is not allowed under domestic law, because there was no clear ownership of the land. Furthermore, she asserted that international law precluded ownership of Lunar land.

“Some Considerations on Establishing an International Regime on Exploration and Use of the Natural Resources of the Moon and Other Celestial Bodies” was presented by Li Shouping of the Beijing Institute of Technology. He began by stating that the international community had failed to establish a consolidated system for exploitation of resource exploitation on the Moon and other celestial bodies. He then moved to discussing the concept of “the common heritage of mankind.” He said this term usually refers to exceptional areas such as Antartica and the deep sea bed. After discussing the term in light of other areas of international law, he turned to a discussion of its use in the Moon Treaty and its similarities to other sources for the term. He then argued that the principle constitutes customary international law. He also argued that it was necessary to establish an international regime under the framework of “the common heritage of mankind.”

Jonathan F. Galloway, Lake Forrest College, presented “Establishing a Natural Resources Regime on the Moon.” Galloway started by stating that the international regime for exploitation of the Lunar resources would be developed when such activity became feasible. He noted the number of signatories had grown to 13 in recent years. Next, he discussed exactly what resources are at stake including water, Helium-3, and uranium; but he said that the technology to exploit these resources was not yet put into place. He then argued that “the common heritage of mankind” could have numerous different political and legal interpretations that range from capitalist to socialist. He stated that he thinks any developed regime would most likely be a public-private partnership, similar to the Intelsat model (he noted that Eilene Galloway proposed this model in 1980).

Fuki Taniguchi, JAXA, the presented on “A Consideration on an International Regime of the Moon Agreement.” Taniguchi started by noting that a small number of States have ratified the treaty, and he asserted that “the common heritage of mankind” was a central reason for the small number of State parties to the treaty. He noted that Japan is not a party to the Moon treaty, because there was no urgency for the State to sign since the major space powers had not signed it. Next he examined Art. II of the Outer Space Treaty and its legal impact on the Moon regime. This article makes the Moon and other celestial bodies res communes. He said that this was different from the “common heritage of mankind” which seeks to establish a regime to manage such a res communes area rather than simply keeping it from being appropriated. Next he moved on to the exploitation of natural resources on the Moon. He then argued that the flaw in the common heritage of mankind language in the Moon Agreement was not clear enough, and that further clarification was essential. He stated that a good reference point for developing such a regime would be the regime that governs the deep sea bed.

Next, Mahulena Hofmann presented “Moon Agreement as a Tool of Planetary Protection.” She started by discussing how the idea of planetary protection (including both forward and backward contamination) emerged in the early days of space exploration. Then she moved to an IAA study on planetary production that has just been completed. This study is a interdisciplinary study. Next she moved to the Moon Agreement provisions that have bearing on planetary protection. She mention Art. 7 of the Moon Agreement, which she argues extends the Outer Space Treaty’s Article IX. She then moved back to the conclusions of the IAA study, which concluded that there was a consensus on planetary protection, that there should be deliberation in the United Nations and other international organizations, and that Art. IX of the Outer Space Treaty should serve a nucleus. She also noted that the study included a draft legal instrument to advance planetary protection. She concluded that the Moon Agreement can serve as an instrument for Planetary Protection, but only in a limited manner.

Finally, Edythe Weeks of the United States presented “Tidying Up the Moon Treaty Prior to Construction.” She started by stating that exploitation of the Moon will soon be feasible. She stated that the Google Lunar X-Prize as well as the new commercial space focus of United States Space Policy. She then moved to a discussion of the Moon Treaty, beginning with a brief history of the Moon Agreement. She stated that the issue with the Moon Agreement were the terms were “the common heritage of mankind” and “international regime.” She argued that a possible change in the terms might accomplish the same ends, yet not be as controversial. She then compared the concept of res communes to the U.S. domestic law concept of “heirs in common.” Weeks co-author Melissa Force then took over and discussed ways to move forward. She supported the Moon Agreement as the best statement on property rights in space available. She said that going forward, that the international community should start with what is already there, but with special attention paid to working with the controversial terms that currently exist in the Moon Agreement. She argued that the common heritage of mankind concept has evolved since the Moon Treaty opened for signature, and that this shift could be leveraged in order to get wider acceptance of the treaty.