Beyond UNISPACE: It’s time for the Moon Treaty
by Dennis C. O’Brien
|For those who wish to establish independent, sovereign nations on the Moon or other celestial bodies, the Moon Treaty is actually helpful.|
Those protocols should establish a “priority of usage” that is very close to “ownership” of property as generally understood on Earth. Keep in mind that even traditional ownership of property is not absolute: an owner of private property on Earth is subject to zoning and other regulations, cannot do things that would adversely affect others, and can have the property taken (for reasonable compensation) via public domain. Most owners of residential property do not even control the mineral rights. Those who are granted priority usage of celestial property for habitation would face similar limitations but would otherwise have freedom of use comparable to a property owner on Earth.
For those who wish to establish independent, sovereign nations on the Moon or other celestial bodies, the Moon Treaty is actually helpful. The prohibition against countries establishing sovereign claims to territory applies only to those member states who have signed the treaty: it stops them from establishing colonies. It does not apply to a new nation that is applying for recognition through the protocols already established under international law. At the time of its establishment, the new nation would negotiate its borders—the extent of its own sovereignty—before adopting the Moon Treaty and agreeing not to extend its sovereignty by occupation, use, and so on. Once established, if the new nation wanted to re-define the ownership of “private” property within its boundaries, it could choose to do so.
The prohibition against extending sovereignty that is in the Moon Treaty and the Outer Space Treaty encourages the formation of new nations. Without the prohibition, the spacefaring nations of Earth would establish colonies that were an extension of their own sovereignty. Human history has shown that such colonies rarely become independent without violent revolution. The Moon Treaty would allow NGOs and individuals to establish their own settlements, then peacefully join the family of independent nations as they naturally evolve.
The concept of terraforming is as old as science fiction. It has recently been popularized by SpaceX as part of its plans to transport large numbers of people to Mars. Those considering doing so are concerned with the apparent ban on terraforming contained in Article 7.1:
In exploring and using the moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise.
Such an extreme act as terraforming would likely be considered “the disruption of the existing balance of its [celestial body’s] environment.” Although the approval of contained settlements by the international authority would likely be considered a ministerial act, the terraforming of an entire planet has such extensive, long-term consequences that it must be considered a discretionary act, subject to extensive consultation and discussion. As such, it would need to be approved by the Member States using the process adopted for making such decisions (e.g., a two-thirds vote of the Assembly, as with the CLOS.) Considering the impact that terraforming would have on the subject planet and on others, no single organization, group, or country can be given that authority. With all due respect to those brave enough and resourceful enough to attempt terraforming, they cannot do so on their own authority.
The Moon Treaty and the Outer Space Treaty contain certain provisions that seem to diminish individual rights:
States Parties shall retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the moon. - Moon Treaty, Article 12.1
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. - Outer Space Treaty, Article 8
What if someone in outer space sought asylum in another country’s facility? Do the treaties require the person to be returned? This would conflict with the Universal Declaration of Human Rights (UDHR), which states in Article 14.1, “Everyone has the right to seek and enjoy in other countries asylum from persecution.” The statement that a State Party “controls” its personnel while in outer space opens a can of worms of possible restrictions on individual liberty. 
The solution, again, is to use the Implementation Agreement to protect such rights by clarifying that the treaty does not mean to weaken them. Indeed, the IA could incorporate the UDHR by reference. For example: “Nothing in the Treaty or this Agreement shall be construed to overrule any provision of the Universal Declaration of Human Rights.” This may sound too sweeping to some, but it is better to start from this point and identify exceptions rather than to try to itemize individual rights in the agreement.
To summarize: the right to create contained human settlements can be granted through the ministerial process of Article 11; sovereign off-Earth nations can be recognized through existing protocols; terraforming must be subject to the approval of the member states; and individual rights will be protected by the incorporation of the Universal Declaration of Human Rights. All of these should be memorialized in the Implementation Agreement.
The above discussion has revealed several benefits that the Moon Treaty and its Implementation Agreement would provide to humanity as a whole, even if there was no direct transfer of wealth from successful enterprises to less developed nations. Such benefits would include the free access to outer space by any nation, organization, or individual; the peaceful use of outer space by all; the creativity, talent, and resources of free enterprise; the sharing of information; access to technology; mutual assistance at times of need; the protection of the celestial environment (including historical or cultural legacy sites); the protection of individual rights; and a decision-making process that addresses public policy interests while providing a predictable and sustainable legal framework for space commerce.
|We have reached the moment of decision when we must dedicate the exploration and use of outer space to the benefit of all of humanity, and it can only be done through international cooperation that will develop understanding and strengthen relations.|
But there is another, more generalized benefit to humanity that springs from an international framework of laws for the exploration and use of outer space: the bringing together of the nations and the people of the Earth. This goal is alluded to in the preamble of the Outer Space Treaty:
Inspired by the great prospects opening up before mankind as a result of man’s entry into outer space,
Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes,
Believing that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development,
Desiring to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes,
Believing that such co-operation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples…
- Preamble, Outer Space Treaty, 1967 
These principles were adopted at the beginning of the space age and have guided us ever since. Every subsequent treaty and declaration of principles by the United Nations are consistent with them. And they are even more relevant today. For, indeed, the prospects have never been greater, and recognizing the common interests of all humanity has never been more important. We have reached the moment of decision when we must dedicate the exploration and use of outer space to the benefit of all of humanity, and it can only be done through international cooperation that will develop understanding and strengthen relations.
The benefits of such cooperation are also the focus of the Preamble to the Moon Treaty:
Determined to promote on the basis of equality the further development of co-operation among States in the exploration and use of the moon and other celestial bodies,
Desiring to prevent the moon from becoming an area of international conflict,
Bearing in mind the benefits which may be derived from the exploitation of the natural resources of the moon and other celestial bodies,…
Taking into account the need to define and develop the provisions of these international instruments in relation to the moon and other celestial bodies, having regard to further progress in the exploration and use of outer space…
- Preamble, Moon Treaty, 1984 
The benefits of international cooperation were realized in the Apollo-Soyuz mission of 1975 and have continued through the muli-national use of the International Space Station and other programs that increase access to outer space by all nations and all people.
But such international efforts are now being threatened. The United States has already passed a law that would unilaterally grant property rights to an extracted space resource to any US entity that gets to it first. The Trump administration intends to use the US military to protect such economic interests, calling for the creation of a Space Force. Space is a “warfighting domain”, said Vice President Mike Pence last year, quoting President Trump. The nation must “prepare for the next battlefield,” to “defeat a new generation of threats.” 
Such militant nationalism has unfortunately been common throughout history. But as humanity prepares to leave its home planet, it raises new concerns. As one commentator stated:
The fear is that rhetoric like that coming from those raising the inevitability of space war will fuel a race to the bottom, as all major (space) powers dedicate even more energy towards an arms race in space.
This also gives rise to the creeping colonization of space around claims regarding resource exploitation and possible attempts by countries to establish systems to protect themselves against their vulnerabilities by denying access to space for others. 
This concern was also raised at last April’s UNCOPUOS conference:
29. The view was expressed that space resources were accessible to only a very limited number of States and to a handful of enterprises within those States. In that connection, the delegation expressing that view was also of the view that it would be important to assess the impact of a “first-come, first-served” doctrine on the global economy, which could create a de facto monopoly in complete contradiction to the letter and the spirit of the United Nations treaties and resolutions. 
These are the two futures facing humanity, a choice between international cooperation and nationalistic competition. In order to make that choice, every policymaker and interested party must now pause and ask themselves, on the deepest level, “What is our mission?”
The early 21st century is an extraordinary time. Humanity has been presented with an historic opportunity as it prepares to leave its home planet. Like those who went forward during the Age of Exploration some 500 years ago, the decisions made today will affect humanity for centuries, perhaps millennia. If ever there has been a time to determine how to implement humanity’s collective vision for the future, it is now.
|The mission of space law must be nothing less than to restore that hope, to give the people of our planet a future they can believe in.|
This paper has so far been written in legal and economic terms. It has tried to demonstrate that a comprehensive international framework of laws for the development of resources will actually help private enterprise flourish, and that the certainty of the rule of law will allow countries, businesses, non-profits and even individuals to dare to make their dreams come true. It is now time to speak of those dreams.
When Galileo looked at Jupiter the first night he used a telescope, he was pleased but not too surprised. It was the second night, when he looked again and saw that the four stars near Jupiter had all moved, that they were actually moons circling another celestial body, that he realized the universe was far different, and far more fascinating and glorious, than he had ever imagined. More recently, just six decades ago, people all over the world stood outside their homes as the Sun set, looking to the sky as a blinking light passed overhead, the tumbling upper stage booster of the world’s first satellite, Sputnik. Because of the Cold War there was some fear, but for most the overwhelming emotions were awe and excitement. Despite all its imperfections, all its follies, and all its deadly conflicts, humanity had managed to throw off the shackles of gravity and reach the stars. All the stuff of science fiction suddenly seemed possible. And not just the stuff about technological advances; the writers, the poets, and those who dared to dream of a better future saw a day when humanity could resolve its differences by peaceful means and move forward together.
This dream was enhanced in December 1968, when our view of the world literally changed. As Apollo 8 rounded the Moon, the astronauts on board were suddenly overwhelmed as humans saw the Earth rising above the lunar horizon for the first time. The picture taken at that moment showed the home planet, beautiful and fragile, hanging in the vastness of space. Humanity as a species began to realize that we are all one, living together on a fragile planet hurtling through the cosmos.
But even though no borders were visible, war and suffering continued to wrack the home world. In the half-century since, people have begun to lose faith in their governments, their private institutions, even in humanity itself. Every day people wake up to the news of yet another mass killing, more terrorist attacks, the disastrous effects of climate change, and an increased threat of nuclear war. To that has now been added the threat of war in outer space. Our governments seem to care more for corporations than for people, and the corporations seem to put their bottom line above everything else. The people of Earth are beginning to despair, wondering if there is anything they can really believe in. They are losing hope, and the resulting cynicism is poisoning our politics, our relationships, even our thinking.
The mission of space law must be nothing less than to restore that hope, to give the people of our planet a future they can believe in. To counter the despair of war and violence and neglect. This moment in time is a unique opportunity to set an example and create a new future for humanity, to build that shining city on a hill that will light the way for all.
It is the duty of everyone involved with outer space to make that hope a reality. It is time for every person and organization to voice their support for the adoption of the Moon Treaty and to make every effort to persuade their respective national governments to do so. Meanwhile, the current State Parties must immediately begin the process of creating an Implementation Agreement that will address outstanding concerns and allow other nations to adopt the treaty, creating the international framework of laws the treaty requires.
It has been 500 years since the world has had such an opportunity to start anew. At that time, it chose to perpetuate military conquest and economic exploitation, which caused misery and countless wars. And when the Industrial Revolution came along, it placed profits ahead of people, resulting in economic and environmental catastrophe. Much of humanity stopped believing in its ability to control its own destiny.
That can change. But doing so requires immediate action. There will be only one time when humanity leaves its home world, only one chance to create a new pattern that will lead each person, and all people, to their best destiny. That time is now. Please join in this effort to restore hope and create a better world—a better universe—for everyone.
 United Nations Committee on the Peaceful Uses of Outer Space, Sixty-first session, Vienna, Austria, 20–29 June 2018; Draft Report, Chapter III, Recommendations and Decisions: (C) Report of the Scientific and Technical Subcommittee on its fifty-fifth session; (10) Long-term sustainability of outer space activities. (accessed December 30, 2018)
 “The 61st Session of the UNCOPUOS Focuses on Using Space to Address Global Challenges”, Michelle Hanlon, SpaceQ, July 10, 2018. (accessed December 30, 2018)
 “The nation’s reliance on the Shuttle as its principal space launch capability created a relentless pressure on NASA to increase the flight rate. Such reliance on a single launch capability should be avoided in the future.” Report to the President by the Presidential Commission on the Space Shuttle Challenger Accident, June 6, 1986, p. 201. (accessed December 30, 2018)
 International Space Law: United Nations Instruments, United Nations Office for Outer Space Affairs (UNOOSA), May 2017. (accessed December 30, 2018). All citations to the Moon Treaty and Outer Space Treaty are from this publication.
 “The Moon Treaty: Failed international law or waiting in the shadows?”, Michael Listner, The Space Review, October 24, 2011. (accessed December 30, 2018) Mr. Listner’s article is an excellent analysis of the current influence of the Moon Treaty on international law.
 United States and the United Nations Convention on the Law of the Sea, Wikipedia (accessed December 30, 2018). See also Supporters, Law of the Sea Convention, U.S. Department of State (accessed December 30, 2018)
 International Seabed Authority – Deep Seabed Minerals Contractors, (accessed December 30, 2018)
 Draft Report, Chapter III, Recommendations and Decisions: (D) Report of the Legal Subcommittee on its fifty-seventh session, United Nations Committee on the Peaceful Uses of Outer Space, Sixty-first session, Vienna, Austria, 20–29 June 2018. (accessed December 30, 2018)
 Moon Agreement and Property Rights, Melissa K. Force, Nov. 5, 2013 (video), and its referenced PowerPoint presentation, Space Law Principles That Encourage Extraterrestrial Resource Extraction and Investment. (both accessed December 30, 2018) Ms. Force is currently general counsel for the New Mexico Spaceport Authority.
 Draft Building Blocks for the Development of an International Framework on Space Resource Activities, The Hague Space Resources Governance Working Group, September 2017. (accessed December 30, 2018)
 Agreement Relating to the Implementation of Part XI of the Convention [on the Law of the Sea], effective November 16, 1994. United Nations archives. (accessed December 30, 2018)
 Chris Matthews, “The 'Invisible Hand' Has an Iron Grip on America”, Fortune, Aug. 13, 2014. (accessed December 30, 2018)
 “The Federal Government shall not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.” H.R. 2809, “American Space Commerce Free Enterprise Act of 2017”, §8103 (c)(2)(C). (accessed December 30, 2018)
 See, e.g., Vidvuds Beldavs, “Simply Fix the Moon Treaty”, The Space Review, January 15, 2018. http://www.thespacereview.com/article/3408/1 (accessed December 30, 2018)
 “Reaching for the High Frontier: Chapter 5”, Michael A. G. Michaud, National Space Society (1986) (accessed December 30, 2018)
 H. Keith Henson and Arel Lucas, Star Laws, 1982. (accessed December 30, 2018) Mr. Henson was a founder and the first president of the L-5 Society; Ms. Lucas was the editor of L-5 News.
 U.S. Commercial Space Launch Competitiveness Act, Section 51313 (2015). (accessed December 30, 2018)
 “Mike Pence on Space Force: ‘We must have American dominance in space’”, Washington Post (video), August 9, 2018. (accessed December 30, 2018)
 “The US Plan for a Space Force Risks Escalating a ‘Space Arms Race’”, Steven Freeland, The Conversation, Aug. 10, 2018. (accessed December 30, 2018)
 Information on the Activities of International Intergovernmental and Non-Governmental Organizations Relating to Space Law, UNCOPUOS Legal Subcommittee, 57th Session, Draft Report, Section III, April 9-20 2018. (accessed December 30, 2018)
 Earthrise: The 45th Anniversary (video), NASA Goddard Space Flight Center, Dec. 20, 2013. (accessed December 30, 2018)