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Lunar ISRU device
Current treaties are not specific about the ownership of resources extracted from the Moon or elsewhere in outer space. (credit: NASA)

Understanding the legal status of the Moon

Is the “Common Heritage of Mankind” suitable for the Moon and its resources?


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In 1969, the United States successfully performed the first human landing on the surface of the Moon. Neil Armstrong and Buzz Aldrin placed an American flag in the lunar surface, winning the space race against the Soviet Union. The US government stated later that no sovereignty claims of any kind were made on the Moon. After that historical breakthrough and for decades to come, space exploration suffered a considerable slowdown. The United States had won the space race, and no serious efforts have since been made by any nation to return to the Moon.

Should the Moon could be considered the Common Heritage of Mankind, or should some other legal concept be used in relation to its resources?

In 1985, researchers at the University of Wisconsin discovered that the lunar soil had a considerable amount of the rare isotope of helium known as helium-3 (He-3). This scarce element could be used in energy production, in fusion power plants that—hypothetically—could produce an amount equivalent to 130,000,000 barrels of oil per ton of He-3.1 . It is also environmentally friendly, producing no greenhouse gases or radiation.

Whether because of helium-3 or not, several nations have recently shown interest in returning to the Moon. In 2013, China became the third country to land a spacecraft on the Moon, and other nations have places for lunar missions in the next several years. Besides nations, several private corporations had expressed interest in lunar missions of one kind or another.

Law in this area is not particularly broad. Nevertheless, during the Cold War and because of the progress in the field of space exploration in those early years, some international treaties related to the legal status of the Moon and the outer space region arose, creating a legal regime that is still valid today. Those treaties are the Outer Space Treaty (1967) and the Moon Treaty (1979), currently the existing legal framework valid to some extent.

These treaties, while overlapping to some degree, settled a series of principles regarding human activities outside Earth. The Outer Space Treaty forbids the placement of weapons of mass destruction in space; it also addressed the situation of lunar sovereignty, claiming that the celestial bodies could not be subject of national appropriation. The later Moon Treaty established that the Moon shall be regarded as common heritage of mankind, in a similar regime as the one applicable to the Deep Sea Bed Area.

This essay will address primarily the legal status of the Moon, using the existing framework on the subject. Taking into account the current state of space exploration and other legal systems similar to the one of the Moon, such as the Deep Sea Bed Area, it will analyse the question of whether the Moon could be considered the Common Heritage of Mankind, or if some other legal concept should be used in relation to its resources.

Legal framework

The question of what legal framework should govern the outer limits of Earth was first addressed in the General Assembly of the United Nations in 1961.2 Due to the advances made by the United States and the Soviet Union in the field of space exploration, the issue of what legal regime should be applied in space was brought to the General Assembly and, as a result of this, a declaration of legal principles governing the activities of states in the exploration and use of outer space came to existence. The content of this declaration enunciates general recommendations that nations should follow in space exploration. Nine principles were drafted, in order to oversee the imminent scenarios that the Soviet Union and the United States were most likely going to face in the space race that was about to start.

These principles include the notion of the common interest of humankind in space exploration, stating that the outer space and the celestial bodies were free for exploration and use for all states, and not subject to national appropriation or any claims of sovereignty. Principle 1 of this Declaration also included a primitive version of the concept of the common heritage of mankind, enunciating that the exploration and use of outer space shall be carried on for the benefit of all mankind.

The legal nature of the United Nations resolutions vary greatly depending whether we talk about recommendations, declarations, or decisions,3 but is partially accepted that a declaration has a nature of lex ferenda.4 In this context, the XVIII UNGA resolution formed the basis of the 1967 Outer Space Treaty and the 1979 Moon Treaty, both legal frameworks that addressed directly the situation regarding the Moon and its resources.

These three bodies of law comprehend the current corpus iuris spatialis.5 Several problems arise when law is intended to deal with questions of jurisdiction, liability, or even definitions of concepts such as celestial bodies and outer space.

The 1967 Outer Space Treaty

The 1962 Declaration was followed by the Treaty of Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. This treaty was viewed as general legal basis for the peaceful uses of outer space, providing a framework for the developing law of outer space.

Article I of this treaty stated that:

“The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind…”

Article II includes the principle of no appropriation:

“Outer Space, including the Moon and other celestial bodies, are not subject of national appropriation by claim of sovereignty, by means of use or occupation…”

Finally, Article III extended the corpus iuris spatiallis:

“States parties to the Treaty shall carry activities in the exploration and use of outer space, including the Moon, in accordance with international law and the charter of the United Nations…”

Alongside the concept of non-appropriation of outer space, the Moon, and other celestial bodies, it is important to notice that this body of laws treats humankind as a whole.

Other principles are addressed in the treaty, including the general rule of the peaceful nature of space exploration as well as the prohibition of placing weapons of mass destruction in the outer space or the Moon. In general basis, the 1967 Outer Space Treaty infer directly on the situation related to the sovereignty and jurisdiction of the Moon. It does not distinguish between outer space, the Moon, and other celestial bodies, but it does state that none of them could be appropriated by any country, giving de jure the status of res extra commercium.6 Whether outer space, the Moon, and other celestial bodies are res nullis or res communis is not clear, but Article I does indicate that the use of outer space shall be the province of all mankind.

Alongside the concept of non-appropriation of outer space, the Moon, and other celestial bodies, it is important to notice that this body of laws treats humankind as a whole. Furthermore, Article V indicates that astronauts, regardless of their nationality, are envoys of mankind in outer space. The idea of humankind as a subject of law7 is a concept that has been developed in international law and used in the Law of the Sea and in the Treaty of Non-Proliferation of Nuclear Weapons, along other treaties of the same nature. Humankind should not be used as a synonym of “humanity” as it has its own concrete meaning: “humankind encompasses all the members of the human species as a whole, including present as well as future generations.”8

Traditionally, a subject of international law is an entity who possesses legal international personality. Any subject that could acquire international rights and obligation and that to some extent could undertake actions on an international level9 is considered a subject of international law. States, international organizations, some non-state entities, and indigenous people, among others, are historically subjects of this nature. It has been due the evolution of international law and international relationships that supranational entities, such as the European Union, are also consider subjects of international law; humankind could be the latest addition to this list. The dynamics of the coexistence of states, supranational entities, and humankind as a whole is still to be developed, but undoubtedly it is a watershed in the international law canon.

The two concepts that are deduced from this treaty—the non-appropriative nature of the outer space, the Moon, and other celestial bodies, and the idea of humankind as whole being entitled to the subsequent benefits of space exploration—are the main axes to be used in the construction of the legal regime of the Moon. Several questions arise from the limitations of the treaty, principally the lack of development in the entitlement of all nation to the benefits of space exploration. At best, the 1967 Outer Space Treaty established the regime of res extra commercium for the Moon, but fails to settle an appropriate mechanism to fulfil the idea that later will become the concept of common heritage of mankind.

The 1979 Moon Treaty

The Agreement Governing the Activities of States on the Moon and other celestial Bodies within the Solar System other than the Earth, also known as the 1979 Moon Treaty, was the second attempt to make a body of law directed to human activities in outer space. The development of the Moon Treaty is directly related to the pressure of non-spacefaring nations on the distribution of the potential profits derived from space exploration.10 The legacy of the 1967 Outer Space Treaty was clear enough to infer that several changes were necessary if the idea of the shared benefits of lunar resources were to be fulfilled. As a result, the Moon Treaty was drafted and presented for signature in December 1979.

Unlike the 1967 treaty, Article XI of the 1979 Moon Treaty states clearly that the Moon and its resources are Common Heritage of Mankind. The first time that the concept of Common Heritage of Mankind was mentioned, was in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. However, it was not until the draft of what it would be known as the Law of The Sea that the concept took form. It is true that the concept was conceived first in the development of the Law of the Sea,11 but because it took longer to actually become law, it was the 1979 Moon Treaty the first to give it effect in international law.

Article 11 of the 1979 Moon Treaty specified that:

“The Moon and its natural resources are the common heritage of mankind. The Moon is not subject to national appropriation. Nor the surface nor the subsurface of the Moon shall become property pf any State, International Intergovernmental or non-governmental organization, entity or any natural person…”

The same article also stated that:

“States Parties to this agreement hereby undertake to establish an international regime to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible…”

The same principles drafted previously in both the 1963 Declaration of Principles Governing the Activities of States in the Exploration of Outer Space and in the 1967 Outer Space Treaty were addressed in the 1979 Moon Treaty. The idea of the legal nature of the Moon, regarding its non-appropriative status and its resources belonging to the humankind, are again, further developed in the Moon Treaty.

Unlike the 1967 treaty, the Moon Treaty clearly indicated that the Moon belonged to humankind and that a legal regime needed to be established in order to accomplish the principle of common heritage. A reference to the United Nations Convention on the Law of the Sea needs to be made in order to fully understand how a legal regime could deal with such errand.

The main problem of the 1979 Moon Treaty it is that only 14 countries have signed and ratified the agreement. It is not a valid source of law related to the Moon and its resources.

Only the deep seabed area (also known as the area) and the Moon could be considered as common heritage of mankind. Obviusly, the two are significantly different: the deep seabed area is utterly accessible and mining ventures are not only feasible but already underway. By contrast, any endeavor to the Moon requires far greater resources. Nevertheless, they are both, de juris, common heritage of mankind; therefore, using the area as an example in the setting of a legal regime for the Moon it is necessary.

In the interest of making the deep seabed area legal regime effective, two legal entities were established: the Deep Sea Bed Authority12 and the Enterprise.13 The second is subordinated to the first, but they both have international personality. In order to guarantee that the area remains as common heritage of mankind, an exploitation system14 was set up, called the parallel exploitation system. In order for an entity to profit from the resources of the area, it is necessary to work along with the enterprise in the prospecting and exploration of two sites of equally potential value. The mining venture will then proceed to exploit one of the selected areas while the enterprise will do the same with the other. Profits from the area selected by the enterprise will then be shared among all nations.

The treaty itself addresses this situation: Article XI makes clear that a legal regime should be establish once that exploitation become feasible. (Therefore, there is no real need to establish that lunar authority now, and the absence of such entity does not imply a failure in the legal regime.) It is only natural to think that the most logical model to follow would be the one already established for this area. A parallel exploitation system would guarantee that lunar resources remain as common heritage of mankind, keeping the non-appropriative nature granted to our only natural satellite.

Conclusions

Three situations need to be brought to the table in order to fully understand the current and future situation of the Moon and its resources.

It is necessary to first address the 1979 Moon Treaty. This legal framework was drafted not only as an improvement of the 1967 Outer Space Treaty, but also as a new legal regime intended to protect humankind interest regarding the Moon and its resources. It is partially true that the key question of how this treaty planned to enforce the principle of Common Heritage of Mankind is not fully answered, but is obvious to infer from the very text of the treaty (section 5 of article 11) that a similar system to the one governing the deep seabed area needs to be establish as soon as exploitation become feasible. Undoubtedly, a Moon authority and a Moon enterprise would work in the same context as the deep seabed area regime; a parallel system of exploitation intended to distribute the profits of the Moon’s natural resources.

The main problem of the 1979 Moon Treaty it is that only 14 countries have signed and ratified the agreement. Moreover, none of the major spacefaring nation have joined the treaty. To this day, the 1979 Moon Treaty is not a valid source of law related to the Moon and its resources. Only if true spacefaring nations sign and ratify this treaty could we consider it a valid source in international law. Thus, for legally binding effects, the 1967 Outer Space Treaty should be addressed.

In spite of everything, both the 1979 Moon Treaty as well as the 1967 Outer Space Treaty are important milestones in the future of space law.

This brings us to the second point needed to comprehend the legal status of the Moon. As previously noted, the flaws in the Outer Space Treaty flaws are abundant and there is a lack of development in many of the principles that this legal framework attempts to protect. The absence of an adequate definition of “human province”—undoubtedly, a primitive idea of common heritage of mankind—makes the concept nebulous and open to interpretation. Furthermore, the treaty fails to acknowledge the fact that private endeavors might also take part in space exploration, and it only addresses state parties and international intergovernmental organizations15 without even suggesting the creation of an ad-hoc authority to deal with these affairs. Two scenarios arise from the fact that the Outer Space Treaty is, for legal effects, the lawful framework in the subject of the Moon and its resources:

  1. A state performs successfully a mining venture for helium-3 and, disregarding the unclear principle of “human province,” proceeds to keep the profits for its own.
  2. A private entity, not being even a valid subject of space law, carries out an extraction project not being subordinated to any authority other than its own government.

It is because of this that the Outer Space Treaty is, by far, a less-than-ideal framework for the Moon and its resources, at least in what is concerned to the common heritage of mankind principle.

In spite of everything, both the 1979 Moon Treaty as well as the 1967 Outer Space Treaty are important milestones in the future of space law. However, this takes us to the third point, related to the practical application of these frameworks. It is true that the future of humankind is not restricted to the surface of our own planet. It is only natural to think that the Moon is only our next destination, but it should not be, by far, our last. Someday, the works carried in the drafting of both bodies of law will become essential for the further development of international space law. There is still lot of work to do in order to develop an efficient way to prospect the Moon.

The question of the Common Heritage of Mankind being an ideal legal figure for the Moon and its resources will depend greatly in the geopolitical situation of the world in the next century. Only when new technologies become available will countries will be forced to address this legal situation. Nevertheless, it seems likely to expect a collaboration of states due the massive amount of resources likely required for large-scale mining efforts on the Moon. Due to the potential of helium-3 as an energy source, it is truly in the interest of all humanity that the principles of the common heritage of mankind are fully respected.

Endnotes

  1. D’Souza M., Otalvaro, D., Arjun, D., (2006). Harvesting helium-3 from the moon, Worcester Polytechnic Institute, at p. 19. Retrieved January 2, 2015, from the Worcester Polytechnic Institute Electronic Projects Collection website: https://www.wpi.edu/Pubs/E-project/Available/E-project-031306-122626/
  2. Cheng, B. (1997), Studies in International Space Law, at p. 125, Oxford
  3. Divac-Öberg, M., (2006), The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ, at p. 880, The European Journal of International Law Vol. 16 no.5, quoting Castañeda, j., Legal Effects of UN Resolutions (1969).
  4. Ibid, at p. 903.
  5. See Cheng, B. supra note 23, at p. xlv.
  6. See Cheng, B. supra note 23, at p. 229.
  7. Slavkov, A., (2009), Legal Status of Humankind in International Law, Bulgarian Academy of Sciences. Retrieved from the Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1517623
  8. Cançado, A., (2013), International Law for Humankind: Towards a New Jus Gentium. At p. 281. Martinus Nijhoff Publishers.
  9. Abdulrahim, W., Subjects of International Law, n.d., n.p., n.pag. Retrieved January 3, 2015, from the author website. https://sites.google.com/site/walidabdulrahim/
  10. See Cheng, B. supra note 23, at p. 358.
  11. Churchill, R.R., Lowe, A.V., (1999), The Law of the Sea, Manchester University Press, at p. 252.
  12. See Churchill, R.R., Lowe, A.V., supra note 34, at p. 239.
  13. Ibid.
  14. Ibid., at p. 248.
  15. See Space Treaty, article 13.

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