The limits of space law
by Taylor Dinerman
|His interpretation of the Outer Space Treaty is an unlimited claim of legal control and as such it contains the seeds of its own destruction.|
In his new book, The Development of Outer Space: Sovereignty and Property Rights in International Space Law, Thomas Gangale makes the case that it is now settled international law that there can be no private property on the Moon or on other bodies, at least as private property is understood here on Earth. He makes the case that some sort of internationally recognized body, probably under UN control, will have to legitimate any commercial activity. He believes that there may be a way for private companies to harvest lunar resources without contravening the provisions of the OST, but he cannot clearly define how this would work.
His interpretation of the OST is an unlimited claim of legal control and as such it contains the seeds of its own destruction. In US history we have a terrible example of a Supreme Court, in the Dred Scott decision, recognizing the legal legitimacy of chattel slavery. Gangale may have the law on his side, at least as far as the OST is concerned, but then so did the slaveowners of the Old South.
Gangale believes that the day of the nation-state is almost over and that some sort of new “transnational” form of shared sovereignty is merging. He quotes former ultra-leftist German Foreign Minister Joschka Fischer who approves of “the transfer of nation-state sovereign rights to supranational European institutions.” He may be right, but there is no sign that such institutions will preserve individual rights any better than the old system. Indeed, to judge by the European Union, such institutions will seek to undermine individual rights such as freedom of speech and freedom to engage in lawful commerce whenever they find it convenient. Raison d’état has long trumped law in the EU, and no US or other private entity should expect fairness or equitable treatment from them or from any institution they control.
What really seems to bother Gangale is the fact that the Moon Treaty of 1979 was rejected by the US as well as by most other spacefaring nations. He believes that it would be a good idea to reintroduce it. Since there is no authoritative interpretation of the treaty, or of the OST for that matter, he chooses to use the Law of Treaties to push for an interpretation depending on such things as “preparatory work” and “negotiating history”. Experience from the way these concepts were twisted in the world of arms control treaties shows just how weak any argument that depends on them really is.
Vladimir Kopal, former chair of the UN’s Committee on the Peaceful Uses of Outer Space’s (COPUOS) legal subcommittee, said in 2006 that in the Moon Treaty “an attempt to reach a generally acceptable compromise was made by joining the confirmation of the freedom of scientific investigation, and the exploitation and use of the Moon as a right of all states, with the stipulation to establish an international regime governing the exploitation of the natural resources of the Moon as such exploitation is about to become feasible.” As Gangale points out the word in the treaty is “undertake” rather than “stipulates” but the meaning is plain. If the US had signed the Moon Treaty it would indeed have been negotiating “under the gun”.
Occasionally the US has shown that it has the ability to stand up to pressure from the so-called international community. In the long run it often succumbs and allows its policy to be twisted. The land mine treaty is an excellent example. While the US has effectively stopped the production and use of land mines, its enemies are quite effectively using them to kill Americans and others in both Iraq and Afghanistan. The activists who pushed for the treaty, and were well rewarded for doing so, have barely said a word about this.
When it comes to actual policy, Gangale claims that since the OST has not been significantly challenged. He quotes a State Department official’s 2002 statement to the effect that “The Outer Space Treaty has truly stood the test of time; its provisions remain as relevant and important today as they did at the inception of the space age.” Gangale claims that this and other “statements by representatives of the most unilateralist U.S. administration since World War Two expresses the depth of the U.S. commitment to the Outer Space Treaty.” To which the answer is “so what”. If and when a private organization begins operations on the Moon, the Treaty will face either ruin or major revision.
To say that according to international law the US would become an “outlaw” if it withdrew from the treaty is silly. A good case can be made that since space operations are an essential enabling technology for all modern military forces, the peaceful uses clause of the treaty has already been rendered, in effect, null and void.
|If and when a private organization begins operations on the Moon, the Treaty will face either ruin or major revision.|
The truth is that international law has been losing its legitimacy for decades. By trying to do everything and to extend its reach everywhere, its advocates have taken what might have been a useful, limited tool of statecraft and turned it into an institutional power grab that is slowly collapsing of its own weight. The refusal of so many nations—not just the US—to agree to the Moon Treaty is a sign of just how strong the resistance really is. In another context India’s rejection of US climate control proposals is another sign that global governance is not something that has much of a future.
The worst thing about Gangale’s work is that it is fundamentally mean-spirited and humorless. Indeed his only stab at wit is a racial put-down that falls flat. Even the few good points that he does make, such as the one concerning the excessive criticism that some space advocacy organizations have aimed at NASA, are lost in a swamp of political posturing and personal insults.