The Space Review

 
Lunar experiment illustration
While the ultimate test for the Moon Treaty will only come when someone tries to extract and make use of lunar or other extraterrestrial resources, it remains a subject of interest today. (credit: NASA)

The Moon Treaty: it isn’t dead yet


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In the realm of international space law, the Moon Treaty is considered failed international law that will have little if any bearing on the future of space exploration and space exploitation. Yet, despite the chorus chanting its failure, the Moon Treaty is very much alive, as three significant events within the past six months have given the measure new vigor.

Austria’s domestic space law

A domestic action taken by Austria in 2011 is the first significant event that gives new vigor to the Moon Treaty. Austria took a big step forward in its international standing when it passed its domestic space law, known as the Austrian Outer Space Act, on December 6, 2011 (see “A first look at Austria’s new domestic space law”, The Space Review, December 12, 2011). The new law sets the stage for Austria to join the ranks of space-faring nations through the attraction of domestic and foreign satellite operators who may see Austria’s legal, political, and business environment as a favorable one.

Austria’s position as a party that ratified the Moon Treaty, coupled with its burgeoning status as a spacefaring nation, could make that support for the Moon Treaty more powerful.

Austria has played a pivotal role in the creation of the current body of international space law, including the Moon Treaty and other major space law treaties. It also played a significant role in the adoption of that controversial accord when it became the fifth country to ratify it, which technically made the Moon Treaty binding international law. However, Austria’s role in international space law up until recently has been that of an observer. Outside of its participation with European Space Agency (ESA), its contributions to outer space activities as an independent nation are negligible, which brought into question the potency of its support for the Moon Treaty.

However, Austria’s adoption of its domestic space law is a tangible step towards Austria becoming a larger participant in outer space activities. While any space activities performed by Austria and its nationals are limited by the Austrian State Treaty signed on May 15, 1955, which prohibits Austria from possessing, constructing, or experimenting with any self-propelled or guided missile or torpedoes, or apparatus connected with their discharge or control, the Austrian State Treaty does not prevent Austria from hosting satellite operators or becoming a launching state as recognized under the Registration Convention and the Liability Convention.

Austria’s domestic space law and its resultant future participation in outer space activities will give it more credibility in the international space law arena from the perspective of being not only a founder of international space law, but also a contributor. This strikes at the heart of the criticism of the Moon Treaty’s credibility, whereby the major spacefaring nations, including the United States, Russia, and China are not parties. However, Austria’s position as a party that ratified the Moon Treaty, coupled with its burgeoning status as a spacefaring nation, will lessen the impact of that argument.

Turkey’s accession to the Moon Treaty

The Moon Treaty received another boost when the UN Secretary-General deposited Turkey’s intention to accede to the Moon Treaty on February 29, 2012. Turkey’s accession, which will take effect on March 30, 2012, makes it the eighth nation to accede to the Moon Treaty and the seventeenth party to the agreement overall. By acceding to the Moon Treaty, Turkey indicates that it agrees to be legally bound by the terms of Moon Treaty and has the same legal effect as ratification. Prior to acceding to the Moon Treaty, Turkey ratified both the Outer Space Treaty and the Rescue Agreement shortly after they were presented for signature; however, it did not become a party to the Registration Convention until 2006 and the Liability Convention until 2007. In the case of these two accords, Turkey chose to accede to them instead of ratifying them.

Turkey’s space program, when compared to the other spacefaring nations, is still in its infancy. Its space program began in 1999 when the Turkish Air Force began the outline for a space program. In 2001, the Turkish government proposed an agency to institute Turkey’s space policy, but the agency was never formed. The issue of creating the so-called Turkish Space Agency— responsible for creating Turkey’s space policy, protecting its interests in outer space, training astronauts, and building spacecraft—was reintroduced by a Turkish political candidate as an election issue in 2011.

Coupled with the growing influence of countries such as Austria, Turkey’s accession to the Moon Treaty will give the accord strength not so much in terms of individual political strength, but through political strength in numbers.

Notwithstanding the lack of a formal agency to oversee Turkish space activities, Turkey presently operates four communications satellites: Turksat 1B (1994), Turksat 1C (1996), Turksat 2A (2001), and Turksat 3A (2008). It also operates an environmental monitoring satellite, Bilsat-1 (2003), and a photo surveillance satellite called RASAT (2011). Turkey is planning to launch its next satellite, Turksat 4A, in 2012; it is being manufactured in Japan with Turkish engineers working collaboratively with Japanese engineers during its construction. Turksat 4A will be followed by another satellite manufactured indigenously using imported technology from Japan, with a planned launch date in 2014. In addition to its current and future fleet of satellites, the Turkish Aeronautical Association (THK) has set the goal of launching a Turkish astronaut into space in 2023, which is the 100th anniversary of the Turkish Republic. While the technical challenges are great for this feat, Turkey’s strong economy and the technical assistance of Japan in developing space technology makes the goal an attainable one.

Given Turkey’s goals for its space program and its access to the technical means to achieve them, Turkey can be considered a growing spacefaring nation. Even though it is not on par with the space programs of the United States, Russia, or China, its participation in outer space activities cannot go unnoticed, nor can the weight of its voice when it comes to international space law. Coupled with the growing influence of countries such as Austria, Turkey’s accession to the Moon Treaty will give the accord strength not so much in terms of individual political strength, but through political strength in numbers. As those numbers grow, the “Big Three” could find that their influence as non-parties of the Moon Treaty will be challenged by a chorus of many smaller nations who are parties.

Legal challenges to the Moon Treaty

The rationale behind discussing legal challenges, no matter how ludicrous they may seem, is that unless the Moon Treaty is put to the test, its veracity as binding international law will be in question and, through that ambiguity, it has the opportunity to gain strength. While it is certain that the Moon Treaty will be challenged once the first crop of commercial miners prepare to extract extraterrestrial resources, the question is whether it is better to let sleeping dogs lie until that time or allow other circumstances to test its validity before then. Until it is tested, the uncertainty surrounding the Moon Treaty works to bolster it, especially if non-parties choose to ignore instead of officially denouncing it.

While there have been many claims of ownership to the Moon and other extraterrestrial bodies by private citizens of nations that are not parties to the Moon Treaty, few legal challenges have been made concerning those claims. In the instances where outer space property rights were an issue or could have been at issue in actual court cases, legal technicalities or procedure have prevented an examination of those claims, and hence the validity of the Moon Treaty as binding international law.

The latest example occurred in the Canadian Province of Quebec where the litigant, Sylvio Langvein, petitioned the District Court of Quebec concerning property claims he asserted for extraterrestrial property including several planets, the space in between them and the Moon. Specifically, Mr. Langvien petitioned the Court for separate judgments for each of his property claims with the intention of preventing China from establishing stations in outer space above him.

The February 22, 2012, judgment goes on to imply that the “quarrelsome litigant”, which is a term used by the Honorable Alain Michaud, JSC to describe Mr. Langvein, used the Canadian judicial system at many levels to pursue 21 claims for relief since 2001. The judgment further notes that Mr. Langvein listed no respondent, i.e. who he was suing, who could respond to claims for relief. Moreover, the judgment essentially claims that Mr. Langvein is paranoid and that his actions were an abuse of the Canadian legal system.

Given the potential diplomatic and political mess that a legal judgment surrounding the Moon Treaty could entail, it would behoove the government of a non-party to derail or otherwise discourage a legal challenge.

It seems at no point was the issue of the Moon Treaty ever brought into the argument, nor does it seem during Mr. Langvein’s substantial legal actions did the Canadian government— a non-party to the Moon Treaty—or any other international legal body intervene to assert the Moon Treaty in support of or as a defense against Mr. Langvein’s claims. Granted, given the petitioner’s somewhat ludicrous rationale for staking claims on extraterrestrial bodies, any judgment that addressed those claims, and as such the veracity of the Moon Treaty, would not likely have been taken seriously nor would have it withstood appeal.

On the other hand, the judgment of the court in this instance could have more to with politics than it does with legalities, which could explain why the judge in this case labeled Mr. Langvein as “paranoid” as part of an effort to derail his claims. It is a foregone conclusion that any legal test of validity of the Moon Treaty by a non-party nation will be a political hot potato. The question is, will a non-party government to the Moon Treaty watch from the sidelines as one of its courts decides a significant matter of international law? The outcome of such a case could have serious geopolitical consequences. On the one hand, if a court decides that the Moon Treaty is not binding international law, the host government will find itself in the middle of a diplomatic firestorm from those nations that are parties to the Moon Treaty. On the other hand, if a court finds that the Moon Treaty is binding international law, the parties to that accord will find themselves with new geopolitical leverage against non-parties. Given the potential diplomatic and political mess that a legal judgment surrounding the Moon Treaty could entail, it would behoove the government of a non-party to derail or otherwise discourage a legal challenge.

While the Canadian case ended on a procedural note with no decision about the veracity of the Moon Treaty, a new case on outer space property rights has appeared in the United States. Jeffrey Sablotne, who is the principal owner of Space Pioneers LLC, feels the best way to move man’s foray into outer space forward is through the sale of “Derivative Conveyance Deeds” for lunar real estate. While it sounds suspicious on the surface, Mr. Sablotne says he and his partners have done 20 years of research and have recorded numerous claims. However, the president of the Arkansas Chapter of the Better Business Bureau (BBB), which had previously invited and approved Sablotne’s company to join the BBB, reportedly commented on their website that Mr. Sablotne’s business and offer of deeds to lunar property is a scam. Mr. Sablotne’s responded to the BBB’s actions and requested that the BBB remove the statement and file a retraction. The request was refused and Mr. Sablotne filed a defamation suit against the BBB.

The defense to a charge of defamation is the truth, therefore, the BBB may have to prove that international law, in particular the Moon Treaty, forbids private individuals from owning lunar property or any other extraterrestrial property whatsoever. Of course, how the BBB approaches its defense depends on whether Mr. Sablotne cites international law within his pleadings or whether the deeds to the lunar property were correctly filed. Unless this case settles, it’s possible that, for the first time, the Moon Treaty and its veracity as international law could be put to the test in a court of law. Will the United States government stand by as the case proceeds, or intervene as a third party and look for a way to either derail the case procedurally or encourage the litigants to settle?

Conclusion

Until the day that firm plans are made for the extraction of extraterrestrial resources by private entities, the Moon Treaty and its validity will remain in question. However, for the foreseeable future it will slumber through its uncertainty, perhaps with brief interruptions. If the non-parties to the Moon Treaty consider the accord dead and choose to ignore it, political and diplomatic action by its parties, and the legal inaction of non-parties, will only serve to strengthen it. On that day when it does awaken, the non-parties to the Moon Treaty may find that, instead of a dead international agreement, it has become a greater legal and political force than anticipated, and thus may be more difficult to overcome than anyone thought.


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