The Moon Treaty: fact and fiction

Fictions about the world's new Moon Treaty have recently begun to appear in print. The evidence contradicts the newspaper advertisements, for example, which appear to be unfriendly to the underlying purposes of the treaty. A quick analysis will indicate the benefits to be gained from its ratification by the United States and other countries and its early entry into force.

The UN-sponsored 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty) is a serious effort to facilitate the orderly and equitable sharing of the benefits to be derived from the resources located in the indicated areas. It is a normal development from the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Principles Treaty). The latter is now binding on about 80 states, including all of the major space states. It assures the free exploration, use, and exploitation of outer space, per se, the Moon, and celestial bodies (space environment). It also provides that these areas shall be open to free access.

Under Article 11 of the 1979 treaty the Moon, including other celestial bodies, and their natural resources "are the common heritage of mankind." Article 11 also states that in effecting the equitable -- but not equal -- sharing of such benefits "special consideration" is to be given to the "interests and needs of the developing countries as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon."

The treaty's provisions resulted from the meticulous consensus diplomacy of the UN's Committee on the Peaceful Uses of Outer Space (COPUOS) covering a period of almost ten years.

Fictions as to the scope and purpose of the treaty can be dispelled by existing facts. Clear evidence is provided by the drafts submitted by the members of COPUOS, by the commentary provided by the negotiators, by the agreed records of the negotiations contained in the annual reports of COPUOS and its legal subcommittee, and by the terms of the treaty.

Fiction: The treaty contains a moratorium provision that would prevent the exploitation of Moon and celestial body resources pending the negotiation of a regime to apply the "common heritage of mankind" principle to the distribution of benefits.

Fact: No such provision exists. Efforts to introduce it were rebuffed. It cannot be implied in the light of the consistent disavowals during negotiations. The formation of the proposed regime and its becoming operational will follow the exploitation of the resources -- not the exploitation to follow the regime.

Fiction: The Soviet Union, aided and abetted by the less-developed countries, has introduced into the treaty some provisions that would prevent the free enterprise system from engaging in exploitative activity.

Fact: Article 11 clearly provides that no constraints on exploitative activity shall be placed on the legal persons who engage in exploitative activity. Only a state may set the conditions under which its own national entities may engage in exploitation.

Fiction: The Soviet Union and the less-developed countries have prepared a treaty that serves only their interests.

Fact: The treaty obtained the approval of all 47 members of COPUOS before it was adopted by the UN General Assembly. COPUOS is composed of all of the principal space-resource states, of many developing countries, geographically distributed over all of the continents and consisting of states pursuing different socio-economic perspectives and ideologies. This level of support suggests that the treaty furthers the interests of advanced states as well as the socialist and less-developed countries. No states will possess sovereign rights over spatial areas. All states will be entitled to make equitable claims for the sharing of benefits derived from exploitative activities after the proposed regime has come into being.

Fiction: The Moon Treaty departs from the 1967 Principles Treaty which prohibits the appropriation by states of the space environment.

Fact: The Moon Treaty maintains the prohibition against the establishment of sovereign rights to spatial areas, but it does allow for the removal from the Moon and other celestial bodies of their natural resources. Such natural resources can be likened to the fish swimming in the ocean beyond areas of national jurisdiction and sovereignty. Moon rocks and the fish can be acquired for the captor's use without giving the captor exclusive rights over the spatial area from which the resource has been taken. By allowing exploiters to acquire such natural resources the negotiators were able to hold steadfast to the principle that sovereign rights to the surface or subsoil of the Moon and celestial bodies could not be acquired. The acceptance of the "common heritage of mankind" principle in no way impeded the guarantees contained in the Principles Treaty relating to the exploration, use, and exploitation of outer space, per se, and the Moon and celestial bodies. The guarantee of access to such areas was also preserved.

The central strategy underlying the Moon Treaty negotiations was to allow for exploitative activity now and in the future by both public and private entities. It is to be hoped that when the US Senate examines the Moon Treaty it will be guided by fact rather than fiction.