Is it time to rethink the Moon Agreement?
Updated: Jun 28, 2019
This year marks the 50th anniversary of the first landing of humans on the Moon. This year also marks the 40th anniversary of the Moon Agreement opening for signature. The Moon Agreement is the fifth of the United Nations space law treaties. It is generally considered to be a failed treaty as it has, to date, only 18 parties (compared to the Outer Space Treaty’s 109) none of which are ‘major spacefaring states’ (though France and India are signatories). This ‘failure’ is largely attributed to Article 11 which declares the Moon and other celestial bodies to be the Common Heritage of Mankind (CHM) a principle also found in the Law of the Sea Convention (UNCLOS) as well as requiring State parties to establish an international regime governing space resource activities once it becomes feasible to do so. While some have declared the Moon Agreement a failure, or dead, it is an active treaty and in fact the number of its number of States Parties continue to grow, albeit rather slowly. That said, it did garner quite a bit of attention at this year’s session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space. With the Russian delegation going so far as to suggest that it may be time for COPUOS to reconsider the Moon Agreement. This post will do just that. First with a brief overview of the Moon Agreement, then a more specific look at Article 11, before asking the operative question about revisiting or even ‘reviving’ the Moon Agreement.
Overview of the Moon Agreement
As mentioned, the Moon Agreement is the fifth of the United Nations treaties governing outer space. It aimed to build on the Outer Space Treaty and was motivated by considerations that activities and development on the Moon were about to ‘take off’ though obviously this optimism was misplaced as it also overlapped with NASA’s post-Apollo decline. The Moon Agreement was negotiated around the same time as UNCLOS which, at least with regards to its provisions on deep seabed mining, was also negotiated with consideration that activities were about to develop. It is also worth remembering that the 1970s were also the period of the ‘oil crisis’(es) and the New International Economic Order which was an attempt by developing States to rebalance the international economic order to be less detrimental to themselves (and it is also important to remember that many of these states were in the first decade of independence, if that.)
For the most part, the Moon Agreement mirrors the Outer Space Treaty. Other than Article 11 there are a few notable exceptions. Despite the name, the Moon Agreement applies to all bodies in the solar system other than the Earth, the stipulation ‘in the solar system’ is a modesty not shared by the OST, but that isn’t a particularly important differentiation. Article 4 of the Moon Agreement however does require that States parties give ‘due regard’ for the interests of present and future generations. What this would mean in practice is, of course, open for discussion, but ‘intergenerational equity’ isn’t an unexplored concept. And when considering the future of humanity in outer space one we should take seriously regardless of the legal status of the Moon Agreement. Article 7 provides some stronger language for ‘environmental’ protection, which again is worth keeping in mind regardless of its bindingness on any particular state. But as discussed the main ‘addition’ to the corpus of space law provided by the Moon Agreement is Article 11.
Article 11 declares that “the Moon and its natural resources are the common heritage of mankind.” Which “finds its expression” in the provisions of the Moon Agreement Article 11 paragraph 5, in particular. Which requires that States Parties to the Moon Agreement undertake to establish an international regime to govern exploitation of the national resource of the moon as soon as it becomes feasible to do so. The purpose of this regime should be to allow for the orderly and safe development of the natural resources of the moon. Additionally, this regime should provide for the rational management of those resources as well as an expansion of the opportunities in their use and an equitable sharing of the benefits derived from those resources. It should also give consideration to the interests and needs of developing countries and those who have contributed to the exploitation and development of those resources (what some call ‘pioneer operators).
UNCLOS also contains the Common Heritage of Mankind principle but it is important to note that the two, while similar, are distinct. Additionally, UNCLOS goes further regarding sharing, specifically discussing sharing of technology and stipulating other specific measures for the protection of the interests of developing countries. Nevertheless, the two were conflated in an effort to kill both agreements. UNCLOS and the Moon Agreement largely suffered the same fate although UNCLOS was revived via the 1994 implementation agreement which largely watered down the provisions discussed and now enjoys widespread support from maritime states, with the only exception being the United States, although the US, at least under pre-Trump administrations, expressed support for the Convention despite the Senate’s unwillingness to ratify it.
It’s hard to see the bogey-man in the Moon Agreement, equitable doesn’t mean equal, consideration is given to ‘pioneer investors’, and consideration of the ‘interests of developing countries’ doesn’t necessarily mean a whole lot, it has been largely ignored as a binding provision in the Outer Space Treaty. Furthermore, one of the repeated refrains from the embryonic space mining industry is that they need legal certainty and security which a regime under Article 11 of the Moon Agreement would provide them with, as it does for the deep seabed, which is why Lockheed Martin opened a subsidiary in the UK so that they could apply for a licence under UNCLOS. And it is why, with all the talk of developing a regime for the governance of space resource activities, States might be rethinking their non participation in the Moon Agreement.
As mentioned, owing to it’s low number of parties the Moon Agreement is frequently regarded as a failed treaty, which leads to calls for its revival. Most of these take the form of academic articles looking for solutions to such things as regulating space resource activities. There is even a campaign for an ‘implementation agreement’ for the Moon Agreement as was done in 1994 for UNCLOS, which has subsequently seen near universal adoption by States (with the notable exception of the United States.)
On a more official levels UNCOPUOS regularly calls for the universalisation of the five UN space law treaties, of which the Moon Agreement is one, although this is a largely pro forma process. The Moon Agreement States also frequently call upon other states to sign up to the Moon Agreement and in the recent debates on regulating space resource activities they have asserted that the best approach is Article 11 of the Moon Agreement, but to borrow a phrase from British political history ‘they would say that, wouldn’t they?’ What is surprising is the expression of interest from States like Russia particularly their assertion at this year’s session of UNCOPUOS’ Legal Subcommittee that the international community, UNCOPUOS in particular, should give the Moon Agreement a second look and consider ratifying. This certainly is something new and is not the standard pro forma request to universities the five UN space law treaties.
There are good reasons to reconsider the Moon Agreement. First a good faith reading demonstrates that it is not as bad as has been claimed. Second, Article 11 of the Moon Agreement does seem like a solution to some of the issues that are arising with regard to space resource activities. A regime instituted under Article 11 of the Moon Agreement would (could, should) provide legal certainty, and international recognition along with mechanisms for the registry of claims, mining sites, property rights, heritage sites, geological and scientific sites of interest et al. Finally, equitable doesn’t mean equal and considering the interests of lesser developed states doesn’t mean cash or technology transfers, and is anyway frequently ignored or at best paid lip service.
However, all of that is doable without signing up to the Moon Agreement. There is nothing stopping COPUOS or the wider international community from creating an international regime for governing (or if you prefer, coordinating) space resource activities under the Outer Space Treaty. Furthermore, doing it under the Outer Space Treaty and not the Moon Agreement would allow greater flexibility. Granted there’s nothing that stipulates that the regime called for in Article 11 of the Moon Agreement has to be hard (binding) law but there would presumably be a fairly strong presumption that it is. It hardly seems a stretch to assume that a regime called for by a binding provision of international law would be binding itself. However, a soft law regime is probably the best initial approach as this is a regime that will need to develop and evolve both as the space resources industry develops and evolves (and human activity in outer space more broadly) but our understanding of the make up of the celestial bodies being targeted also expands. As recent missions to small bodies demonstrate, there still so very much we don’t know. Therefore, we need an adaptable regime, which is best done outside of the Moon Agreement.
I like the Moon Agreement. I don’t really have a problem with the idea of its revival in and of itself and think that Article 11 is a useful mechanism for developing an international mechanism for the regulation of space resource activities. However, the Moon Agreement is politically toxic and would likely lead to a fragmentation of the space law regime which would serve no one’s interest. Furthermore, as the work of The Hague International Space Resources Governance Working Group has proved (if it needed to be proven) it would be a pointless fragmentation as it is possible to develop an international regime without the Moon Agreement. Granted The Hague Building Blocks are just that, building blocks, foundational elements from which to develop a regime, not a regime in and of itself but they show that a path is possible without Article 11 of the Moon Agreement. Especially as Article 11 of the Moon Agreement is so bare bones, there’s not enough there to justify the effort of getting everyone to sign up to it, we still actually have to build the regime, so why not just skip the first unnecessary and impossible step… So I think it’s time for us to say that the Moon Agreement is dead. It was ahead of its time but now that its time has come we don’t actually need it. We need to focus on what we do need for the future, and there’s a lot to do, especially if we want to ensure that space is more than just a billionaire’s playground.
The opinions expressed in these blogs posts are those of the author and do not necessarily represent the views of the Centre for a Spacefaring Civilization or anyone else.
Agreement Governing the Activities of States on the Moon and Other Celestial bodies – see page 30 for full text http://www.unoosa.org/res/oosadoc/data/documents/2017/stspace/stspace61rev_2_0_html/V1605998-ENGLISH.pdf (versions in Arabic, Chinese, French, Russian and Spanish are also available on UNOOSA.org)
Though it didn’t achieve the required number of parties for it to become effective until 1984
Full text, again in all six languages can be found here: https://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm and the 1994 Implementation Agreement can be found here: https://www.un.org/Depts/los/convention_agreements/convention_overview_part_xi.htm
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Oher celestial bodies – see page 3 http://www.unoosa.org/res/oosadoc/data/documents/2017/stspace/stspace61rev_2_0_html/V1605998-ENGLISH.pdf
Frans von der Dunk, ‘International Space Law’ in Frans von der Dunk and Fabio Tronchetti eds., Handbook of Space Law (Edward Elgar, 2015), 99
https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-space-resources-governance-working-group – the Draft Building Blocks: https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht--en-ruimterecht/space-resources/draft-building-blocks.pdf