Development of legal regulations concerning the peaceful uses of the Moon

Development of legal regulations concerning the peaceful uses of the Moon

Acta Astronautica~ Vol. 1, pp. 627--641. Pergamon Press 1974. Printed in the U.S.A. Development of legal regulations concerning the peaceful uses of...

1021KB Sizes 0 Downloads 56 Views

Acta Astronautica~

Vol. 1, pp. 627--641. Pergamon Press 1974. Printed in the U.S.A.

Development of legal regulations concerning the peaceful uses of the Moon VLADIMIR

KOPAL

Institute of Law, Czechoslovak Academy of Sciences, Prague, Czechoslovakia

(Received 28 August 1973) Abstract--Considerations of the legal status of the Moon crystallized the general approach to the principal problems of space law. While the UN General Assembly resolutions 1721 (XVI), 1962 (XVIII) and 1884 (XVIII) included the first fundamental principles relevant to activities on the Moon, the Space Treaty of January 27, 1967, became the first legally binding instrument dealing with the Moon. Furthermore, some provisions of the Agreement on Rescue of Astronauts of 1968 and the Convention on Liability for Damage of 1972 apply to activities on the Moon. Nevertheless, though all these instruments may be applied to uses of the Moon, either directly or by analogy, they have remained on a general level, without distinguishing the Moon from other celestial bodies. A new initiative for a specific treaty concerning the Moon having been taken in 1971, the Legal Sub-Committee of the UN Committee on Outer Space has elaborated a draft of this new instrument. Besides established principles or rules derived from present practice, this draft includes some new elements, in particular, concerning cooperation and mutual assistance in the exploration of the Moon, protection of the lunar environment, establishment of stations and safeguard of life and health of persons. Of the issues not yet settled, the scope of validity of the treaty, the question of inclusion of circumlunar space and the problem of the utilization of lunar resources seem to be the most difficult. The last point, if not confined to reasonable limits, might jeopardize the whole draft. Neither under present regulations nor under the new draft treaty for the Moon do there exist any obstacles to the promotion, preparation and development of international cooperation concerning the exploration and peaceful uses of the Moon by international non-governmental organizations by means of such study projects as the Lunar International Laboratory (LIL) of the International Academy of Astronautics. However, they could not be achieved without a sponsorship of States, be it jointly or within an inter-governmental organization, preferably, by means of a special agreement in which the participation of States and/or inter-governmental organizations, as well as the role of non-governmental organizations concerned, would be specified.

1. First arrangements concerning space activities and their significance for the legal regime of the Moon SINCE THE VERY b e g i n n i n g o f s t u d i e s o f legal p r o b l e m s a r i s i n g f r o m s p a c e a c t i v i t i e s , t h e legal s t a t u s o f t h e M o o n , t h e o n l y n a t u r a l s a t e l l i t e o f o u r p l a n e t , b e c a m e o n e o f the most attractive subjects for those who favoured the promotion and d e v e l o p m e n t o f s p a c e law. T h i s s p e c i a l i n t e r e s t w a s s o o n s t r e n g t h e n e d b y t h e p r o g r e s s o f s p a c e e x p l o r a t i o n itself, f o r as e a r l y as in S e p t e m b e r 1959 t h e first man-made object reached the surface of the Moon, thus beginning one of the most significant t r e n d s in s p a c e a c t i v i t i e s o f o u r t i m e s . It e v e n m a y b e affirmed t h a t d u r i n g c o n s i d e r a t i o n s o f t h e legal s t a t u s o f t h e M o o n t h e g e n e r a l a p p r o a c h to t h e principal problems of emerging space law was crystallizing. I f t h e first artificial E a r t h s a t e l l i t e s a n d o t h e r u n m a n n e d s p a c e o b j e c t s i n i t i a t e d t h e e f f o r t s f o r s t a r t i n g legal r e g u l a t i o n s o f s p a c e a c t i v i t i e s in g e n e r a l , t h e first 627

628

V. KOPAL

successful flight of man in orbit, achieved in 1961, became a convincing argument in favour of those endeavours. Time was ripe to start work on a legal instrument, or instruments, that would regulate at least the most important aspects of existing and expected space activities and, in this way, those relations between States of our planet that were developing in a completely new environment, in outer space and on celestial bodies.

U N General Assembly Resolution 1721 On December 20, 1961, the U N General Assembly adopted with unanimity resolution 1721 (XVI) that provided for a substantial programme of international cooperation in different fields of the peaceful uses of outer space, including space law. In the operative part of the resolution two fundamental principles were commended to States for their guidance in the exploration and use of outer space, both of them being relevant to activities on and with regard to the Moon: (a) International law, including the Charter of the United Nations, applies to outer space and celestial bodies; (b) Outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation. Those principles have remained cornerstones of all further regulations concerning space activities. It is also possible to qualify them as fundamental principles of the present and the future international legal regime of the Moon.

U N General Assembly declaration of 1963 In a more elaborate drafting, those fundamental principles were restated in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, prepared by the U N Committee on the Peaceful Uses of Outer Space and its Legal Sub-Committee, which, starting from 1962, has become a center for consideration of all legal instruments concerning outer space. The Declaration of Legal Principles, unanimously adopted by the UN General Assembly on December 13, 1963, as its Resolution 1962 (XVIII), included already a whole set of principles that concerned, explicitly or implicitly, the Moon. Besides the above mentioned fundamental principles, those declaring international responsibility of States for national activities in outer space, cooperation and mutual assistance, as well as the obligation that States shall conduct all their activities in outer space with due regard for the corresponding interests of other States, have become particularly relevant to the activities on and with regard to the Moon. To this purpose the Declaration provided for a system of mutual consultations. Not less significant were some other principles, confirming, e.g. that the State on whose registry an object launched into outer space was carried should retain jurisdiction and control over such object and any personnel thereon, while in outer space. Ownership of objects launched into outer space and of their component parts should not be affected by their passage through outer space or

Developmentof legalregulations

629

by their return to Earth (and logically by their stay on the Moon or other celestial bodies or their flight around them).

The Test Ban Treaty of 1963 and U N General Assembly Resolution 1884 The adoption of the Declaration of Legal Principles was preceded by agreements on two other important documents, which had a significant impact on the further development of the legal r6gime of outer space and celestial bodies, i.e. by: 1. The Treaty signed on August 5, 1963, in Moscow by the United States, the United Kingdom and the Soviet Union, to which a great number of other countries (except China and France) acceded, banned any nuclear weapon test explosion or any other nuclear explosion, at any place in the atmosphere, beyond its limits, including outer space, or underwater, including territorial waters of high seas. Moreover, nuclear explosions were prohibited in any other environment, should such explosion cause radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion was conducted. In this way outer space, including the Moon and other celestial bodies, was also protected; 2. The UN General Assembly Resolution 1884 (XVIII) of October 17, 1963, called upon all States "to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kind of weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any other manner"; all States should also refrain from causing, encouraging or in any way participating in the conduct of such activities. The two documents laid the first legal basis for a denuclearization of outer space, including celestial bodies, which later was reiterated and developed in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (later on in this paper called Space Treaty), signed on January 27, 1967. It was the planned intensification in the exploration of the Moon involving the landings thereon of man that stimulated the opening of negotiations of a new legally binding instrument, which finally emerged as the Space Treaty. 2. Exploration of the Moon and Present Regulation of Space Activities

Though the original initiative of the United States government suggesting the conclusion of a "Moon Treaty" [1], negotiations in the United Nations resulted again in a broader draft including principles concerning activities both in outer space and on the Moon and other celestial bodies, the text of which was commended in General Assembly Resolution 2222 (XXI) of December 19, 1966. On January 27, 1967, the Space Treaty was solemnly signed simultaneously in London, Moscow and Washington by the three depository governments and governments of many other nations. It entered into force the same year on October 10, 1967.

630

V. KOPAL

Space Treaty of 1967 Based on a common legal ground for all activities in the peaceful uses of outer space, the legal status of the Moon and other celestial bodies, as expressed in the Space Treaty, differs in some respects from that of outer space. The most significant difference appears in the degrees of their demilitarization. While with regard to outer space, in general, States Parties to the Space Treaty have assumed the obligation of denuclearization, the Moon and other celestial bodies have been completely demilitarized. Free access of representatives of States on a basis of reciprocity to all stations, installations, equipment and space vehicles on the Moon and other celestial bodies, as stipulated in Article XII of the Treaty, offered a kind of verification that the activities concerned would be compatible with the provisions of the Treaty. From among the common principles concerning outer space, includin~ the Moon and other celestial bodies, those relating to international cooperation and mutual assistance, as well as the stipulation that all activities shall be conducted with due regard to the corresponding interests of all other States Parties to the Treaty, were significant. Contracting Parties also assumed an obligation to pursue studies and conduct the exploration of outer space, including the Moon and other celestial bodies, so as to avoid their harmful contamination and adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and to adopt appropriate measures for this purpose. For events of mutual interference in activities of different Contracting Parties, the Space Treaty provided for consultations in similar terms as had been done in the Declaration of 1963. In obliging States to undertake appropriate international consultations before proceeding with any such activity or experiment, the Space Treaty has left, however, in the hands of individual States the determination of whether conditions for undertaking such consultations existed or not. Moreover, States Parties to the Space Treaty did not assume an obligation to act in accordance with the conclusions of eventual consultations. Some other provisions too bore similar features of a compromise, e.g. the principle according to which the Treaty shall apply to space activities carried on by a single State or jointly with other States, including cases where they are carried on within the framework of international intergovernmental organizations. At the same time it was stated that any practical questions arising in connection with activities carried on by international intergovernmental organizations should be resolved by States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which would be Parties to the Space Treaty [2]. Agreement on Rescue of Astronauts of 1968 and Convention on Liability for Damage of 1972 When the Space Treaty was being prepared, its drafters took into account that some of its principles would be, sooner or later, elaborated in more specific agreements. In fact, two such instruments had been initiated prior to the signature of the Space Treaty, which stimulated their successful conclusion. As early as on April 22, 1968, the Agreement on the Rescue of Astronauts, the Return of

Development of legal regulations

631

Astronauts and the Return of Objects Launched into Outer Space was signed, which developed principles stated in Articles V and VIII of the main space instrument. The Agreement on Rescue, however, did not include any special provisions that would in specific terms provide for assistance to astronauts on the Moon. For such accidents, only those provisions that concern "places not under the jurisdiction of any State" might be applied by analogy. Thus, according to Articles 3 of the Agreement, if information is received or it is discovered that the personnel of a spacecraft have alighted on such places, those Contracting Parties which are in a position to do so shall, if necessary, extend assistance in search and rescue operations for such personnel to assure their speedy rescue. In accordance with Article 5, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority--i.e, even on the Moon--shall be returned to or held at the disposal of representatives of the launching authority upon its request and identification[3]. Neither the second specific agreement, the Convention on International Liability for Damage Caused by Space Objects, which was opened for signature on March 29, 1972, introduced any special regulation of damage that would be caused by its Contracting Parties on the Moon. Again, the application of some of its generally conceived rules for such a situation is, however, possible. Should such a case occur, damage caused on the Moon might be included in "damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State" [4]. If we consider the present legal regulations of space activities as a whole, it is obvious that, though the relations resulting from the exploration and use of the Moon fall under the scope of validity of the main space instrument and though the two specific agreements may be applied to them either directly or by analogy, all the provisions concerned have remained on a general level without distinguishing the Moon from "other celestial bodies," the exploration of which is still at its beginning and the use of which remains a relatively remote goal. At the same time, the successful development of Moon flights, achieved under the US project Apollo from the first landing of men on its surface on July 21, 1969, as well as the exploration undertaken by the USSR by means of unmanned objects, have not only extended our knowledge of this celestial body but stabilized certain practices observed in those activities. At the same time they have put some new questions for which there is no answer in the present legal regulations. It should be recalled in this connections that the Agreement on Cooperation in Space Exploration, concluded by the United States and the Soviet Union on May 24, 1972, also provides for the development of cooperation in the exploration of the Moon and the planets and that both space powers stipulated that they would "encourage international efforts to resolve problems of international law in the exploration and use of outer space for peaceful purposes with the aim of strengthening the legal order in space and further developing international law" and that they would "cooperate in this field" [5]. In this way the ground has been prepared for a new significant step in the growth of space law that would be achieved by a special agreement on the Moon.

632

v. KOPAL

3. Draft of an international treaty concerning the Moon

As early as on May 27, 1971, the Minister for Foreign Affairs of the Soviet Union addressed to the UN Secretary-General a letter requesting for the inclusion of an item called "Preparation of a Treaty Concerning the Moon" in the provisional Agenda of the XXVIth Session of the UN General Assembly [6]. In this letter, to which the draft of the Treaty was annexed, motives that had led the Soviet government to this initiative were briefly explained. The UN General Assembly started the legislative procedure by requesting in its unanimously adopted resolution 2779 of November 29, 1971, that the Committee on the Peaceful Uses of Outer Space and its Legal Sub-Committee consider, as a matter of priority, the question of the elaboration of a draft international treaty concerning the Moon and to report thereon to the General Assembly at its XXVIIth session in 1972. The elaboration of the draft treaty became a subject of substantive discussions at the 1lth session of the Legal Sub-Committee, which was held on April 10--May 5, 1972, in Geneva. Besides the Soviet draft, which served as a basis of the discussions, the Sub-Committee had also at its disposal a "Draft Agreement on the Principles Governing Activities in the Use of the Natural Resources of the Moon and other Celestial Bodies," which had been submitted to the Sub-Committee in 1970 by the delegation of Argentina[7]. In the course of discussions in the Working Group, which was established by the Sub-Committee, a number of proposals concerning individual draft articles were submitted by other members of the Sub-Committee, among them, in particular, by the delegation of the United States [8]. Except for a relatively limited number of remaining issues, the Legal Sub-Committee fulfilled a major part of its task and prepared almost a complete text of the draft treaty [9]. Notwithstanding that the work of the Legal Sub-Committee was to a certain degree facilitated by principles of the Space Treaty of 1967 already in force, some of which were transferred into the new instrument word for word, the draft treaty concerning the Moon involves a lot of new elements. Therefore, it might be said that even in its present, not yet completely settled, form the draft treaty as a whole represents a significant contribution to efforts for the progressive development of space law.

Definitions Article I of the draft treaty includes two definitions: one concerning the term "celestial body," the other concerning the phrase "the Moon and other celestial bodies." Both of them, however, are still in square brackets, for it has not been decided yet whether the treaty would concern the Moon only or the Moon and other celestial bodies, as has been the case in the Space Treaty of 1967. The second definition is interesting from the technical point of view, for it states that "the Moon and other celestial bodies shall include orbits around or other trajectories to or around celestial bodies." The treaty shall not apply to extra-terrestrial materials that reach the surface of the Earth by natural means, thus excluding meteorites and other similar substances from the scope of the treaty.

Developmentof legalregulations

633

Peaceful character of activities on the Moon In this respect the draft treaty confirms some important principles that have been already inserted in the Space Treaty of 1967. In some significant aspects they are, however, more elaborate or expressed in more precise terms. Thus, it is now stated in Art.II, para.2 of the draft treaty that, in accordance with the UN Charter, the threat or use of force or any other hostile act or threat of hostile act on the Moon is prohibited. It is likewise prohibited to use the Moon in order to commit any such act or to engage in any such threat in relation to the Earth or other celestial bodies, spacecraft, the personnel of spacecraft or man-made space objects. The following Article III is headed by the principle of the Space Treaty that the Moon shall be used by all States Parties exclusively for peaceful purposes. Specific prohibitions are reiterated concerning military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon, including the exception concerning peaceful uses of military personnel and equipment or facility necessary for peaceful exploration. According to para.2 of Art.III, Contracting Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other weapons of mass destruction or place or use such weapons on or in the Moon. If adopted, the provisions of Articles II and III of the draft treaty would establish a firm legal basis for a complete demilitarization and neutralization of the Moon. Common interests of mankind, cooperation and mutual assistance Provisions dealing with these subjects as inserted in Article IV of the draft treaty tend obviously to a compromise solution between the original Soviet draft, U.S. amendments and another proposal submitted by the delegations of Egypt and India, which was based on the doctrine that "the Moon and other celestial bodies and their natural resources shall be the common heritage of all mankind" [10]. The principle of the Space Treaty is restated according to which "the exploration and the use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development." Furthermore, a new phrase recalls that "due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living conditions of economic and social progress and development in accordance with the Charter of the United Nations." Contracting parties would also stipulate that they should be guided by the principle of international cooperation and mutual assistance in all their activities concerning the exploration and use of the Moon and that international cooperation should be "as wide as possible and may take place on a multilateral basis, on a bilateral basis, or through international intergovernmental organizations." The problem of mutual information has been settled in the following way: First, as in the Space Treaty of 1967, States Parties promise to "inform the Secretary-General as well as the public and international scientific community, to the greatest extent feasible and practicable, of their activities concerned with the

634

V. KOPAL

exploration and use of the Moon." This general stipulation is, however, specified: the time, purposes, locations, orbital parameters, duration and results of each mission to the Moon should be indicated. In case of a mission lasting more than 60 days, such information should be given periodically at 30 days intervals: for missions lasting more than six months, however, only significant additions need be reported thereafter. Still, there remains a rather difficult issue to be settled: Whether information required should be forwarded before and during the mission concerned or immediately after its completion. From the point of view of coordination of activities on and with regard to the Moon, the final provision of Article IV is of great significance: If a State Party becomes aware that another State Party plans to operate simultaneously in the same area of or in the same orbit around or trajectory to or around the Moon, it shall promptly inform the other State of the timing of and plans for its own operations.

Freedom of scientific investigation The beginning of Article V of the draft treaty reiterates the principle of "the freedom of scientific investigation on the Moon by all States Parties without discriminations of any kind, on the basis of equality and in accordance with international law" as declared already in the Space Treaty of 1967. In addition to this principle, the present draft treaty has brought in a significant innovation concerning samples, which is based on up to date practice: In carrying out scientific investigations States Parties have the right to collect on and remove from the Moon samples of its mineral and other substances. Such samples remain at the disposal of those States which caused them to be collected and may be used by them for scientific purposes. In doing so they "shall have regard to the desirability of making a portion of such samples available to other States and the international scientific community for scientific investigation." They also may in the course of scientific investigations use mineral and other substances of the Moon in quantities appropriate for the support of their missions. In the last paragraph of this Article, States Parties would recognize the desirability of exchanging scientific and other personnel on expeditions to or installations on the Moon to the greatest extent feasible and practicable.

Protection of environment The efforts to develop international cooperation in protecting environments belong, without any doubt, to characteristic features of our times. The draft treaty concerning the Moon too reflects this common interest of nations, though some ideas inserted in its Article VI dealing with this matter are not yet agreed upon. Article VI is headed by a general stipulation that, 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 such environment, its harmful contamination through the introduction of extraenvironmental matter or otherwise. Similarly, measures should be taken to prevent harmfully affectit~g the environment Of the Earth.

Development of legal regulations

635

This principle has to be followed by provisions concerning notifications of measures being adopted addressed to the Secretary-General, as well as of plans to place radio-active material on or in orbit or other trajectory around the Moon. In this respect too, the time for submitting such information has not yet been agreed upon. On the other hand, a valuable idea of "areas of the Moon having special scientific interest" and "their designation as international scientific preserves for which special protective arrangements are to be agreed" has obtained a general support.

Types of activities Article VII of the draft treaty deals with different kinds of activities that would be permitted on the Moon. There is no dispute that States Parties may pursue their activities in the exploration of the Moon anywhere on or below its surface, subject to the other provisions of the Treaty. Their activities should not interfere with the activities of other States and where such interference might occur consultations should be undertaken. There remains, however, a question whether provisions of this Article should be applied not only to activities on the Moon but also to activities in circumlunar space.

Stations on the Moon The establishment of manned and unmanned stations on the Moon is a special kind of activity that is provided for in Article VIII of the draft. In establishing such stations, States Parties should use, however, only that area which would be required for the needs of the station and should immediately inform the Secretary-General of the location and purposes of that station. Moreover, stations should be installed in such a manner that they do not impede the free access to all areas of the Moon of personnel, vehicles and equipment of other States conducting activities on the Moon in accordance with the future treaty concerning the Moon and the Space Treaty of 1967. In this way the principle of freedom in establishing stations on the Moon and the principle of free access to all areas of the Moon would be reconciled.

Safeguards of life and health of persons While the Agreement on Rescue of 1968 provided for assistance to astronauts mainly for cases of their emergency landing on the Earth, it was necessary to adopt new measures protecting the life and health of persons in specific conditions of the Moon. Therefore, a general agreement has been reached and expressed in Article IX of the draft treaty that States Parties should adopt all practicable measures to safeguard the life and health of persons on the Moon and that any persons on the Moon would be regarded as an astronaut and as part of the personnel of a spacecraft within the meaning of the Agreement on Rescue of 1968. Furthermore, States Parties would stipulate that they should offer shelter in their stations, installations, vehicles and other facilities to persons in distress on

636

V. KOPAL

the Moon and should extend information of any phenomena they discover that could endanger human life or health. The last part of this provision includes a completely new element: States Parties would also be obliged to extend information concerning any indication of organic life. A modest, but significant provision signalizing a fresh trend in astronautics--the search for life in the Universe! Natural resources of the Moon The status of natural resources of the Moon (and other celestial bodies as well) belongs to the most discussed issues of the draft. From among different problems involved, a provision based on the principle of non-appropriationseems to be the least controversial. It declares that "neither States, international intergovernmental or non-governmental organizations, national organizations having the status of juridical persons or not, nor natural persons, may claim the surface or subsurface of the Moon as their property." Any activities on or below the surface of the Moon should not create a right of ownership over parts of the subsurface of the Moon. Less undisputable seems to be the following provision forbidding any arrangements or transactions between any persons of international or national laws concerning parts of the surface or subsurface of the Moon. The core of the controversy lies in the concept of "common heritage of mankind" that should, according to some sponsors, head this part of the new treaty. This concept is generally supported by developing countries with regard to all natural resources "beyond the limits of national jurisdiction." While some other countries are ready to agree to this language, giving this principle a different interpretation, another group of States is reluctant to accept at this stage premature obligations including unforseeable consequences. The last paragraph of this Article suggests a provisional settlement, in recalling "the need for economic advancement and for the encouragement of investment and efficient development if utilization of the resources of the Moon and other celestial bodies becomes a reality." It also recognizes the need for conclusion of specific agreements in this area in appropriate time. Jurisdiction and control over personnel and objects Article XI of the draft treaty applies to relations on the Moon the principles concerning jurisdiction and control enunciated in the Declaration of 1963, which were later incorporated in the Space Treaty of 1967 and implemented in the 1968 Agreement on Rescue. There would be, however, an important innovation inserted in para.3 of this Article: In the event of an emergency involving a threat to human life, States Parties, or better to say their astronauts, might use the equipment, vehicles, installations, facilities or supplies of other States on the Moon but a prompt notification of such use should be made to the UN Secretary-General or State Party concerned. In this connection another provision of this kind, inserted in Article XII of the draft treaty, should be mentioned: A State Party which learns of the crash landing, forced landing or other unintended landing on the Moon of a space object, or its

Developmentof legalregulations

637

component parts, shall promptly inform the launching State Party and the UN Secretary-General.

International responsibility for national activities and liability for damage With regard to international responsibility for national activities on the Moon, the draft treaty restates in substance the principle declared already in Article VI of the Space Treaty of 1967. It means that States shall bear international responsibility for any national activities, whether such activities are carried on by governmental agencies or by non-governmental entities. They shall ensure that non-governmental entities under their jurisdiction shall engage in activities on the Moon only under their authority and continuing supervision. Paragraph 2 of Article XIII modifies the principle of liability for damage, as established in Article VII of the Space Treaty, so that a State Party should be liable for damage resulting from its act or of its personnel on the Moon to the property or personnel of other States Parties on the Moon, "unless it is established that the damage occured through no fault of the said State or of its personnel on the Moon."

Position of international organization The question of a legal status of international intergovernmental organization conducting space activities has been settled in the draft treaty in an identical way as in paragraphs 1 and 2 of Article XXII of the Convention on Liability for damage of 1972. It means that, in principle, the provisions of the new treaty concerning the Moon would also apply to any such organization if it declares its acceptance of the rights and obligations provided for in this treaty and if a majority of the States members of the organization become parties to this treaty and to the Space Treaty of 1967.

Settlement of dispute In comparison with the Space Treaty of 1967, provisions regulating settlement of differences, including measures to ensure that activities on the Moon are in conformity with the treaty, have been more developed. According to the present edition of Article XVI, each State Party might assure itself that the activities of other States Parties in the exploration and use of the Moon are compatible with the treaty. Therefore, all space vehicles, equipment, facilities, stations and installations on the Moon should be in principle open to other parties. To this end any State may use its own means, or may act with the full or partial assistance of any other State Party, or through appropriate international procedures within the framework of the UN. Furthermore, para.2 of Article XVI of the draft treaty would broaden the principle of consultations established in Article IX of the Space Treaty of 1967: A State Party receiving a request of another State for consultations would be obliged to enter into such consultations without delay and any other State Party would be entitled to take part in such procedure. If the consultations did not lead to a mutually acceptable settlement, the parties concerned would take all measures to settle the dispute by other

638

v. KOPAL

appropriate peaceful means. In this respect the draft treaty assigns the role of mediator to the UN Secretary-General, if his assistance is sought by any State Party. A special procedure is also provided for a case of a dispute with the participation of a State which does not maintain diplomatic relations with another State. 4. Value of the Draft Treaty and its remaining issues As has been already said, the new draft treaty is based on principles that were established at earlier stages of the development of space law. Those principles, however, have been mostly adapted in the new draft for specific needs of the exploration and use of the Moon, and completed by new and detailed provisions. New elements are strongly represented, in particular in those provisions that deal with different forms of international cooperation, be it in the field of mutual assistance in the exploration of the Moon, or in the preservation of the Moon environment, or in the safeguarding of life and health of persons conducting space activities. A certain progress has been reached even in the difficult field of settlement of differences and disputes that might arise from such activities. Another characteristic feature of the draft treaty is that it provides for many specific functions of the UN Secretary-General in the application of the treaty stipulations. In many respects the draft treaty concerning the Moon is based on existing practices and codifies them. In other aspects, however, it goes further, thus creating conditions for unprecedented procedures, without leaving the firm ground of reality. Nevertheless, there are still certain issues that could not be settled so far either by the Legal Sub-Committee or during subsequent negotiations.

Question of inclusion of other celestial bodies It is, for example, still to be decided whether the new treaty would deal with activities on or with regard to the Moon only, or whether this new instrument too, as has been the case of the Space Treaty of 1967, should apply to the Moon and other celestial bodies. The special relationship of the Moon and our planet, the principle of specialization, in general, as well as the fact that the provisions of the present draft treaty are based on the experience provided by the exploration of the Moon, speak in favour of a narrower validity of this treaty. On the other hand, it is expected that space activities to be developed with regard to and on other planets of our solar system will be very similar to those performed on the Moon. Under such circumstances, suggestions already made during the discussions in the Legal Sub-Committee along the lines that references to "other celestial bodies" in each of the provisions might be deleted and a general clause added for a provisional application of the treaty to other celestial bodies in addition to the Moon until such time as special instrument or instruments in relation to specific celestial bodies are concluded[l 1], seem to be fairly reasonable.

Question of circumlunar space More technical is another question, whether the legal regime of the Moon as regulated by the new instrument should be applied not only to the Moon itself but

Developmentof legal regulations

639

also to the circumlunar space. As is known, international law has difficulties with delimitations of different spaces or zones, as has been the case of delimitation of outer space and air space surrounding our Earth or the case of delimitation of territorial waters and the high seas. As far as the Moon is concerned, however, there would not be such an opposition in principles governing activities in different spaces as has been the case e.g. between air space, whose regime is governed by the principle of sovereignty of subjacent States and outer space, whose regime is based on freedom of its exploration and uses. At the same time it is obvious that activities conducted in the near neighborhood of the Moon cannot be completely separated from activities on the Moon itself, as was proved e.g. by the techniques of landing used by the Apollo project. Therefore, the inclusion of circumlunar space in the special legal status of the Moon seems to be justified. It is difficult, of course, to determine precise limits of circumlunar space but such exact delimitation would not be quite indispensable. On the other hand, it is questionable whether all difficulties of this problem might be o v e r c o m e by a simple principle according to which provisions concerning the Moon (and eventually other celestial bodies) should relate without any limitation to "all orbits around or other trajectories to or around celestial bodies," as is provided in a definition inserted in the present Article I of the draft treaty. In the future, space flights will be characterized by an increasing complexity of purposes and a precise differentiation of missions may become sooner or later not less difficult than is today the establishment of certain limits in space.

Question of natural resources The most complex problem seems to be the legal status of natural resources. Although the practical uses of resources of the Moon, or even of other parts of the Universe, in comparison with the exploitation of natural resources on our Earth is still rather theoretical, analogous concepts appear in some proposals concerning natural resources with regard to the Moon and other celestial bodies, as are those proposed with regard to the area of the seabed and ocean floor b e y o n d the limits of national jurisdiction on our Earth. Without any doubt, exploitation of all those resources, when it becomes economically feasible, must be carried out for the benefit of all peoples. On the other hand, it should be recognized that present and expected activities in the forseeable future will highly probably remain within the limits of scientific research and exploration. It would not be wise to deny the difference in conditions existing with regard to resources on our planet and on the Moon and other celestial bodies. At the same time, it is difficult to deny countries conducting expensive explorations of those areas the right to use reasonable quantities of resources on the spot for different needs of their space activities that are in conformity with principles and norms of space law. Similarly, it is necessary to recognize that such activities open new prospects for mankind as a whole, while countries conducting the exploration bear almost all or a greater part of the expenses, even if there is participation of other countries. Under such circumstances, there seems to be no other solution than to reserve the regulation of this complex problem for later arrangements that would be based

~0

V. KOPAL

on a greater knowledge and a better experience than we have today at our disposal.

Question o[ international cooperative projects Finally, there remains one specific question that cannot be listed among issues of the draft treaty concerning the Moon but is, without any doubt, of particular concern to all those who have in mind the development of international cooperation in space activities: What is, under present regulations, the position of international non-governmental organizations and what prospect, from the point of view of space law, have such projects as the one for a Lunar International Laboratory [ 12]. In answering this question we have to recognize that the present space legal instruments, as well as drafts of treaties under preparation, take into account and govern space activities of States (including non-governmental entities acting under their authorization, supervision and responsibility) and activities of international inter-governmental organizations. Neither the Space Treaty of 1967, nor the new draft treaty concerning the Moon, include any provision that would deal specifically with space activities to be undertaken directly by international non-governmental organizations themselves, i.e. without participation of States or inter-governmental organizations concerned. On the other hand, there exist no legal obstacle that would hinder any efforts on the part of international non-governmental organizations, such as the International Academy of Astronautics, to promote international cooperation in space activities by means of such cooperative projects as is the LIL. The preparation of such projects, its scientific programme and technical requirements and even elaboration of an appropriate organizational framework may well be outlined and developed on a non-governmental basis between specialists of different countries. Such activity would serve, without any doubt, the noble aim that has been expressed in the Preamble of the main legal instrument governing space activities, i.e. in the Space Treaty of 1967: "Desiring to contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes" and "believing that such cooperation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples." Nevertheless, it must be taken into account that any project of an international non-governmental organization could not be accomplished without participation and sponsorship of States, be it jointly or within the framework of an appropriate inter-governmental organization. Of course, international non-governmental bodies might continue even at the stage of realization of a given project by its consultative or other services, the legal authority and responsibility being reserved, however, to States or inter-governmental organizations. Such a conclusion may also be derived from the language of the new draft treaty concerning the Moon which states in its Article IV that "international cooperation in pursuance of this Treaty should be as wide as possible and may take place on a multilateral basis, on a bilateral basis, or through international intergovernmental organizations." And in Article V of the same draft States Parties to

Development of legal regulations

641

t h e n e w t r e a t y c o n c e r n i n g t h e M o o n " a g r e e o n t h e d e s i r a b i l i t y o f e x c h a n g i n g scientific and other personnel on expeditions to or installations on the Moon to the greatest extent feasible and practicable." C e r t a i n l y , t h e a c c o m p l i s h m e n t o f a n y p r o j e c t s u c h as t h e L I L , w o u l d r e q u i r e t h e c o n c l u s i o n o f a s p e c i a l a g r e e m e n t in w h i c h t h e p a r t i c i p a t i o n o f S t a t e s a n d / o r i n t e r - g o v e r n m e n t a l o r g a n i z a t i o n s , as w e l l as t h e r o l e o f n o n - g o v e r n m e n t a l o r g a n izations concerned, would be specified.

References 1. Cf. UN Doc. A/6327 of May 10, 1966. 2. For a more detailed analysis of the origins of the Space Treaty of January 27, 1%7 and its legal significance, cf. V. Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, in Yearbook of Air and Space Law, 1966, Annuaire de droit a~rien et spatial, Montreal 1968, Ch. 22, pp. 463--484. 3. As to an analysis of the Agreement of April 22, 1%8, cf. G. P. Zhukov, International Cooperation in the Rescue of Astronauts, in Space Exploration and Applications, Papers Presented at the UN Conference on the Exploration and Peaceful Uses of Outer Space, Vienna, 14--27 August 1%8, Vol. II, pp. 112%1134; V. Kopal, The Agreement on Rescue of Astronauts and Return of Space Objects, in New Frontiers in Space Law, Leyden, 1%9, pp. 103-123, etc. 4. As to an analysis of issues involved in the preparation of the Convention of March 29, 1972, cf. P. G. Dembling, International Liability for Damages Caused by the Launching of Objects into Outer Space--Theory and Applications. in Space Exploration and Applications, Vienna, 14-27 August 1%8, Vol. II, pp. 1116--1120. 5. The full texts of the U.S.-Soviet Agreements on Cooperation in Space Exploration and in Science and Technology, cf. Astronautics & Aeronautics, New York, July 1972, pp. 20-21. 6. Cf. UN Doc.A/8391 of June 4, 1971. The title was later redrafted as "Preparation of an International Treaty Concerning the Moon" (cf. UN Doc.A/8391[Corr. 1). 7. Cf. UN Doc. A/AC.IO5IC.2/L.71 and Corr. 1. 8. All proposals and other documents relating to the preparations of the treaty concerning the Moon are reprinted in Annex I to the Report of the Legal Sub-Committee on the Work of its Eleventh Session (10 April-5 May 1972), UN Doc. A/AC.105/101 of May I1, 1972. 9. Cf.Doc.PUOS/C.2/WG(XI)/I 5/Rev. 1. The full text of the draft is also included in the Report of the Legal Sub-Committee, UN Doc.A/AC.105/101 of May 11, 1972, pp. 6--16. 10. Cf. Egypt and India: working paper (A/AC.lO5/C.2(XI)/Working paper 20; 14 April, 1972). 11. Cf. Report of the Legal Sub-Committee, UN Doc.A/AC.105/101, p. 6, footnote 4. 12. Malina, F. J., Report of the 2nd Lunar International Laboratory (LIL) Discussion Panel, Mar del Plata, 6 October 1969. Astronautica Acta 15, 235 (1970).