Extraction of lunar or asteroid resources could be supported by a modified version of the Moon Treaty that addresses concerns about the “common heritage of mankind.” (credit: Alliance for Space Development)
My article with Jeff Sommers (see “The emerging field of space economics: theoretical and practical considerations”, The Space Review, December 18, 2017) raised considerable criticism regarding the Moon Treaty, particularly, the inclusion of the Common Heritage of Mankind (CHM) doctrine. Leigh Ratiner, L5 attorney during the 1980 Senate ratification hearings, had identified CHM as the reason for rejecting ratification:
Senator Stevenson asked Ratiner if he thought the State Department could successfully negotiate a “good definition” of common heritage in a protocol. Ratiner replied, “No,” but if they try and fail, the Senate will be glad to learn this before approving the Moon Treaty; and if they really do succeed, the treaty would be unobjectionable.
CHM indicates that a subject is of interest to all humanity. CHM is applied to cultural and historical sites, to unique environments with fragile ecosystems, to the genome of plants, the oceans beyond national territorial waters, and other subjects. Varying rules and expectations apply to the use of the concept in its diverse meanings. The commonality among the different usages is that the subject should be treated from the perspective of humanity as a whole. Should outer space and its resources be viewed as a subject of interest to humanity as a whole? Generally, this view appears to be accepted. It is the interpretation of CHM embodied in the Law of the Sea that raised the concern of the American Mining Congress. From the L5 News:
Ratiner pointed out that the debate about US ratification of the Moon Treaty had both a practical and a legalistic side. While the legal definition of the “common heritage” principle may be left open under the Moon Treaty, as supporters argue, the practical meaning of the term is well-established…
Dubs cited the experience of the American ocean mining industry to show how ratifying the Moon Treaty in its present form could retard private industry participation in space development. Darman felt that a central point to assess in the debate was the probability that the future Moon Treaty regime would be similar to the deepsea regime emerging at the Law of the Sea Conference.
Testifying from a different perspective, Eilene Galloway argued that it was entirely possible for the future lunar resource conference called for in the Moon Treaty to develop a regime like INMARSAT, and suggested that the United States set up an advisory committee right now to begin working toward that goal.
Early versions of the Law of the Sea (LOS) and the International Seabed Authority (ISA) created by LOS included provisions that were a concern of the mining industry:
- Imposition of permit requirements, fees, and taxation on seabed mining, and a ban on mining absent ISA permission
- Use of collected money for wealth redistribution in addition to ISA administration
- Mandatory technology transfer
L5 advocates assumed that the inclusion of CHM and the call for an international regime in the Moon Treaty would impose similar requirements on lunar development and the mining of outer space resources. There is no language in the Moon Treaty imposing such requirements. Review of the negotiating history of the treaty points to no intent by the member states of UN Committee on the Peaceful Uses of Outer Space (COPUOS) to impose such requirements.
It is quite clear from the negotiating history that S. Neil Hosenball, NASA General Counsel and chief US negotiator for the Moon Treaty, envisioned a different legal regime to be applied to outer space resource than what was emerging during LOS negotiations, which had raised concerns in 1980 and compelled L5 to oppose ratification of the Moon Treaty. He also cautioned that negotiation of the rules of the international regime should delayed until the feasibility of exploitation of lunar resources has been established.
Additionally, it was the consensus position of COPUOS that this requirement did not place a moratorium on the use of lunar resources. This position was made clear in Hosenball’s closing statement to the 203rd session of COPUOS as well as in Article 6, paragraph 2 of the treaty. Rather than castigating the treaty, Neil Hosenball should be recognized for his major contribution to secure consensus among the 47 member states of COPUOS on the language of a treaty that can create the opportunities for private industry in outer space.
Ratiner stated in the 1980 ratification hearing that if the State Department could successfully negotiate a good definition of CHM that meets US national interests, that the treaty would be unobjectionable. A far simpler route to achieve this purpose than through the unanimous decision-making process of COPUOS would be to fix the treaty and submit the modification to the states parties for approval. There are 17 parties to the treaty and modification can be done through a simple majority, according to Article 17:
Any State Party to this Agreement may propose amendments to the Agreement. Amendments shall enter into force for each State Party to the Agreement accepting the amendments upon their acceptance by a majority of the States Parties to the Agreement and thereafter for each remaining State Party to the Agreement on the date of acceptance by it.
The present states parties to the treaty are: Australia, Austria, Belgium, Chile, Kazakhstan, Kuwait, Lebanon, Mexico, Morocco, Netherlands, Pakistan, Peru, Philippines, Saudi Arabia, Turkey, Uruguay, and Venezuela. Additionally, France, Guatemala, India, and Romania are signatories. A majority of these states would not oppose commercial development in outer space.
I propose the following modifications to the Moon Treaty to clarify that the treaty is consistent with US national interests and the goal of advancing space development. No doubt other suggestions would emerge, if this course were to be followed.
Article 11, paragraph 1:
The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.
The definition of CHM in the Moon Treaty implies a concern with economic benefits to humanity as a whole. It creates an obligation that if it becomes feasible to exploit lunar resources to increase economic benefits to mankind this should be encouraged. Revised text:
The moon and other cosmic bodies and their natural resources are the common heritage of mankind to explore and to use. While the moon is a subject of interest for mankind as whole this does imply that the moon and its resources are the property of mankind or that rents should be collected by an international authority for their use, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.
Article 11. paragraph 5:
States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement
The revised text of Article 11, Paragraph 5 includes the idea that the international regime needs to be efficient, absorbing as few resources in its administration as practicable. Its formulation should encourage commercial development of outer space to lead to greater benefits to humanity and increased prospects for promoting higher standards of living and conditions of economic and social progress as called for in Article 4, paragraph 1.
States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. The international regime needs to be efficient and encourage commercial development where this would be feasible. Multiple regimes need to be considered due to the very different conditions present on the Moon in contrast to other cosmic bodies. This provision shall be implemented in accordance with article 18 of this Agreement
Article 11, paragraph 7 (d):
(d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby 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, shall be given special consideration.
The most significant benefits from outer space resources are likely to be downstream. As an example, lunar water can potentially reduce the costs of missions to Mars. Direct economic benefits to the entity that extracts lunar water are small compared to the ultimate benefit that could make missions to Mars feasible. To encumber the international regime intended to govern exploitation of lunar resources with conditions to share benefits would be counter to the idea of an efficient regime. Future benefits of outer space resources to humanity remain to be defined, but no scheme of income redistribution appears beneficial or plausible.
The benefits of boundless resources of outer space derive from access to resources and industrial and technical capacity. The World Bank, UN Development Program, and other programs of major developed powers aim at improving access to space by less developed countries. Benefits of outer space are shared at no cost to users through services such as Landsat, Copernicus, and GPS. The EU-Africa Partnership includes programs to boost the space capabilities of developing states in Africa. As use of lunar and other outer space resources becomes feasible, such programs will need to be expanded, but this would largely take place outside of the international regime. The revised text reflects sharing of space benefits with all countries and their people rather than states parties consistent with the principle that the Moon and its resources are the common heritage of mankind:
(d) An equitable sharing by all countries and their people in the benefits derived from outer space resources, whereby 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, shall be given special consideration.
Revision of the Moon Treaty offers a straightforward path to the development of policies governing the exploitation of outer space resources. Unlike the present situation, where the Outer Space Treaty offers little guidance and no forum exists to negotiate the rules governing exploitation of lunar resources, the Moon Treaty provides both a forum and a process for negotiation.
Leigh Ratiner in 1980 offered that a proper definition of the use of CHM in the Moon Treaty would be sufficient to make the treaty unobjectionable. As shown above, other elements of the treaty need to be considered as well. The ease of modifying the treaty with a simple majority vote, as opposed to unanimous decision-making with COPUOS, suggests that the drafters anticipated that changes would be needed. What decision-making process is to govern the negotiation of the international regime, or regimes, that will be required is open to be decided by the parties when exploitation of lunar resources becomes feasible.