Legal Support for the Private Sector: An Implementation Agreement for the Moon Treaty

Abstract

The United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS), through its consensus process, has accomplished much over the decades, most notably helping to produce the five space treaties and related guiding principles. But it has been unable to produce the international framework of laws that the Moon Treaty calls for to facilitate humanity’s departure from the home planet. This has created a gap in space law that has had a detrimental effect on private activity in outer space. The Moon Treaty, with the proper implementation agreement, now offers the best hope for closing that gap. Such an agreement would need to address many issues, most involving private enterprise and settlements. Although some argue that the Moon Treaty would hinder private space activities, with the proper IA, it would in fact support them. The Space Treaty Project has proposed a ten-paragraph Implementation Agreement that is based on four organizational principles: (1) The Agreement must be comprehensive and support all private activity; (2) The Grand Bargain: Trade private property rights for public policy obligations; (3) Defer issues currently at impasse (e.g., monetary sharing of benefits) by creating a governance process for making future decisions; (4) Build upon and integrate current institutions and processes. Why is this proposal necessary? As of January 2020, there is no internationally recognized mechanism for granting property rights to anyone for any location or natural object in outer space. The current controlling international law is the Outer Space Treaty of 1967, which prohibits any one country from appropriating anything in outer space: “Article II: Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Many countries agree that the prohibition against appropriation prevents any one country from granting property rights on its own authority. Some disagree, enough to create a potential for conflict and uncertainty for businesses and investors. Since the functions of law include avoiding conflicts and reducing uncertainties, it is imperative to create an international legal framework for private activity in outer space. The Moon Treaty provides the international authority to grant property rights. Article 11 does not prohibit ownership; it just prohibits any one country from granting it on its own authority. It is important to note that Article 11 begins by stating that the “common heritage of mankind” is defined by the Moon Treaty and its implementation agreement. The CHM has no legal meaning or force of law beyond the framework that the States Parties adopt. The proposed Implementation Agreement provides the minimum framework of international law that is necessary at this time for public and private activity on the Moon and beyond. The hopes and dreams of individuals and groups to create new societies in outer space are just as important as the entrepreneurship of those seeking to engage in space commerce. Both must be recognized, honored, and nurtured if humanity is to leave our home planet in a sustainable manner. At this moment in time, it is space law itself that needs capacity building. The current framework is inadequate, resulting in endless arguments over the meaning of outdated agreements. The time has come to craft a new agreement that will facilitate the sustainable exploration and development of outer space. In the year 2020, it is the Moon Treaty, with a proper implementation agreement, that can provide the international framework of laws that humanity needs to become a space-faring species.