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The UN space treaties and the common heritage principle
Viewpoint
The U N space treaties and the common heritage principle N. Jasentuliyana
The Moon Treaty, adopted by the UN's Outer Space Committee by c o n s e n s u s in 1979, has never been ratified by the major space powers although it is essentially only an elaboration of the non-controversial OuterSpace Treaty. The author discusses the international pofitical and economic climate of the time to explain the West's apparent withdrawal into self-interest. The controversy over the exploitation of lunar resources is preventing agreement on the other, more important issues covered by the Moon Treaty. The author argues that the successful INMARSAT organization could serve as a model for cooperation in exploiting the Moon's resources. A greater degree of understanding, humility, realism and generosity is needed before the problems can be resolved. N. Jasentuliyana is Deputy Director, Outer Space Affairs Division at the United Nations, New York, NY 10017, USA. This article is based on remarks made at the Space Age Publishing Foundation's Third Annual Space and the USA Symposium, 4 July 1986, Santa Clara, USA. The author wishes to acknowledge the asistance of Ralph Chipman of the United Nations Outer Space Affairs Division in preparing the article. The views expressed are those of the author and do not necessarily reflect the views of the United Nations.
296
In 1966, the United Nations General Assembly adopted the text of the Outer Space Treaty, based on broadly similar draft treaties submitted by the U S A and the USSR. The two texts were reconciled and some minor amendments made during the negotiations in the Committee on the Peaceful Uses of Outer Space, a few minor changes were made in the General Assembly, and the text was adopted by consensus. In January 1967, the Treaty was opened for signature and was signed in ceremonies held in the capitals of the three depositary governments, the USA, the USSR and the UK. Since then, the Treaty has been signed by 87 countries including all of the space powers. Its provisions are generally accepted by all countries. Of most importance to the present discussion are articles I and II. Article I provides that, 'The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind'. Article I1 provides that, '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'.
The phrase 'common heritage of mankind' does not appear in the Outer Space Treaty, although the underlying ideas are certainly there. The phrase does appear in the 1979 Moon Treaty. This Treaty, which was negotiated in the Legal Sub-Committee of the Outer Space Committee, was adopted by the Committee by consensus in 1979 and was endorsed by the General Assembly in the same year, again without dissent. The Moon Treaty is largely an elaboration of the principles of the Outer Space Treaty relating to the Moon and other bodies, and contains specific references to the natural resources of the Moon in article 11, as follows: 'The Moon and its natural resources are the common heritage of mankind . . . Neither the surface nor the subsurface of the Moon, or any part thereof or natural resources in place, shall become the property of any State, . . . organization, . . . or person.' Paragraph 5 of article 11 states that, 'States Parties to the 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 establishment of the international regime would be considered by a conference convened by the United Nations at the request of one-third of the states parties to the
S P A C E POLICY November 1986
Viewpoint
' S p a c e w a s seen as the last F r o n t i e r '
SPACE POLICY November 1986
Treaty. To date, the Moon Treaty has been ratified by six countries: Austria, Chile, the Netherlands, Pakistan, the Philippines and Uruguay. In accordance with its provisions, it entered into force in 1984, when Austria become the fifth country to ratify it. The Moon Treaty was negotiated and adopted with the full participation and agreement of the U S A and all other countries with space capabilities, but it is clearly ineffective without the signature or ratification by those countries. Furthermore, the Moon Treaty is essentially simply an elaboration of the Outer Space Treaty - which has never been challenged by any country. What then is the problem with the Moon Treaty? The answer seems to be that the world has changed between the time when the Outer Space Treaty was adopted and the Moon Treaty negotiated and now, and that 1979, particularly from the U S A ' s point of view, was a year of particular international change. From the mid-1960s to the late 1970s, d~tente was the theme of international relations; 1979 is often taken as the end of d~tente, signalled in particular by the Soviet intervention in Afghanistan in December of that year. In addition to this blow to East-West relations, 1979 was also the year of a further doubling of OPEC oil prices, exacerbating economic difficulties, and of the seizure of the US Embassy in Iran, contributing to the deterioration in North-South relations. It was at precisely this inauspicious moment that the Moon Treaty came up for approval. The West felt itself on the defensive vis-a-vis both East and South, and many felt that a more assertive position was required to defend its status. In this context, the Moon Treaty came to symbolize everything that was wrong with the developing international order and with the United Nations in particular. The USA, while not formally rejecting the Treaty, put off indefinitely its signature or ratification, and, in response, so did most other states. Early opposition to the Treaty, even before it was approved by the General Assembly, came from the L-5 Society, a private organization of enthusiasts
for space colonization, which argued that the Treaty would doom free enterprise initiative in outer space and subjugate US interests to those of developing Third World nations. The State Department of the Carter admin i s t r a t i o n d e f e n d e d the T r e a t y , arguing that it simply established general rules for the orderly and safe development of natural resources and that it contained no more restrictions than the 1967 Outer Space Treaty. The L-5 society argued that the Treaty would impose a moratorium on private enterprise exploitation and control by collectivist Third World countries at the expense of industrialized countries. Neil Hosenball, general counsel of N A S A and head of the US delegation to the Outer Space Committee, replied that the Treaty would not impose a moratorium, but 'permits orderly attempts to establish that such exploitation is in fact feasible and practicable, by making possible experimental beginnings and then pilot operations'. Members of Congress meanwhile were beginning to receive mail opposing the Treaty, and some were beginning to talk of putting off the Treaty and revising its provisions. It would appear that for the enthusiasts of the L-5 Society, and subsequently for a variety of others, space was seen as representing a new frontier, possibly the last frontier, for the pioneer spirit and an escape from the labyrinthine politics and complexities of life on Earth. The President of L-5 was quoted as saying, 'For those of us who plan to go into space, it's a give-mel i b e r t y - o r - g i v e - m e - d e a t h kind of issue.' The provision that all lunar facilities were to be open to inspection by any other government was also seen by the would-be space pioneers as an oppressive restraint on freedom. Underneath these symbolic and emotional issues, the basic practical question was whether the Treaty would promote or hinder lunar enterprises, and, at least implicitly, whether private activity would be governmentcontrolled or completely free. As the State Department noted, this issue of government control had been resolved in the 1967 Outer Space Treaty, in its provision that governments were re-
297
Viewpoint
'I do not believe that anarchy is a viable alternative'
298
sponsible 'for assuring that national activities are carried out in conformity with the provision of the Treaty . . . whether such activities are carried out by governmental agencies or by nongovernmental entities'. This principle, which reappears in the Moon Treaty, is fundamental to the entire existing framework of space law. An assertion of absolute freedom for private initiative and rejection of the principle of g o v e r n m e n t responsibility would simply abolish international space law. For all the limitations of the current regime of space law, at a time when more and more countries are becoming directly involved in space, I do not believe that anarchy is a viable alternative. The State Department and NASA, both at the time and, I believe, now, support the principle of government regulation of private space activities to ensure that they conform to the USA's international responsibilities. The debate over the Moon Treaty was heavily influenced by the similar debates over the Law of the Sea, particularly over its common heritage of mankind principle and the negotiations concerning the international SeaBed Authority, which had, it was argued, effectively restrained sea-bed mining through its requirements of transfer of technology from the advanced countries for the benefit of the less advanced. In the Law of the Sea Convention, which is still controversial, the USA was at least getting some guarantees of freedom of navigation in return for its concessions, while in outer space, it was gaining no rights that it did not already have in practice. According to the L-5 Society, 'The principle of common heritage is a vital component of Third World demands for massive redistribution of wealth and has been applied to deep-sea resources, high technology, the electromagnetic spectrum, and now outer space . . . It is ultimately aimed at equating the economic position of North and South.' The opposition to the Moon Treaty was clearly not simply a reaction to specific practical problems created by its provisions; in fact, the provisions are quite general and abstract and the practical effects totally speculative
now and for the foreseeable future. It was rather the concepts of internationalism that were, and remain, at issue. In fact, I believe, it is in large measure precisely the generality of the Treaty that is the problem - that it leaves too much open to interpretation. Many people are now inclined to interpret any UN treaty, particularly one dealing with relations between developed countries and the Third World, in the most negative possible way, looking for problems that may or may not really exist. I would like to propose that the best way to resolve the issue of lunar resources might be to negotiate a specific mechanism for international cooperation in the exploitation of those resources; if the practical issues could be resolved, the currently insoluble issue of the general principles of international relations could be set aside. However in practice this proposal is premature, in that a practical operational mechanism cannot be set up without far more information than we have now concerning the economics of lunar operations, and acquiring this information will probably require exploratory and pilot operations. Nonetheless, it might be useful to consider what mechanism might be appropriate and to proceed by considering mechanisms that have already been successfully established for using outer space cooperatively for economic purposes. The particular example I would like to choose as a model is INMARSAT, since it was initiated by the UN system, it is open to participation by all countries, and it is functioning very successfully as a commercial operation. After the feasibility and desirability of maritime satellite communications had been demonstrated, largely by the US M A R I S A T system, the UN specialized agency concerned, the International Maritime Organization, discussed the issue. It decided to convene, in 1975, an international conference to establish a global maritime satellite system. The conference established INMARSAT as a commercial operating entity modelled after the highly successful INTELSAT. INM A R S A T is open to all countries
SPACE POLICY November 1986
Viewpoint which wish to invest in it and currently has 44 members, including the USA, the USSR and other developed and developing countries, with capital investment shares ranging from 30% for the U S A to 0.05% for some of the smaller users. The Organization has a one-country-one-vote Assembly of Parties which reviews activities and makes recommendations to the Council. The Council, whose members may be either governments or designated private entities, establishes the policies of the organization and makes the important financial and operational decisions, with voting power based on investment share. I N M A R S A T is only one example of a successful international space organization. Many other organizations have been set up in various ways, as intergovernmental or nong o v e r n m e n t a l organizations, with open or limited membership, for operational purposes or for coordination or exchange of information. In general, international space activities have been carried out by establishing or using an organization whose structure is appropriate for the particular activity, from the political, economic and technical viewpoints. It should be noted that the United Nations does not conduct any space operations. The United Nations principles of universal m e m b e r s h i p , national sovereignty and national equality are appropriate for an organization whose primary purpose is to provide a forum for debate and for the e l a b o r a t i o n of generally accepted principles of international law. This structure is not appropriate for commercial operational activities. I have mentioned I N M A R S A T , not because it offers a perfect parallel to lunar resource exploitation, but because it demonstrates that a UN initiating role, government supervision, and commercial, private enterprise are not incompatible. It might be useful, if risky, to speculate as to how lunar resources might be exploited. It would seem that development of lunar resources will be such an enormous undertaking as to make international participation in some form essential. The advanced technology necessary will require an
SPACE POLICY November 1986
international network of contractors and subcontractors; the capital investment will require tapping of the international capital markets; and the scale of production necessary to justify the investment will require international marketing of the products. Furthermore, it is hard to imagine space activities of this scope occurring without government supervision and, at least at the beginning, government support. In the case of the Shuttle and Spacelab, for example, despite great efforts by N A S A and ESA, industry has been quite reluctant to make major investments in space industrialization where the payoff may be decades away. If lunar development will necessarily involve international cooperation and government involvement, the question is what form of international cooperation is appropriate. The Moon Treaty and the Convention on the Law of the Sea were negotiated over approximately the same time period and the language and concepts they contain show some similarities. An analogy between the Sea-Bed Authority and the lunar resource exploitation regime is perhaps natural, but I would argue that the link should not be exaggerated. In fact, the wording of article 11 in the Moon Treaty relating to the common heritage principle specifies that the meaning of that phrase relates only to the provisions of the Moon Treaty and not, for example, to the interpretation of the same phrase in the Law of the Sea. Clearly, at present one cannot conclude that the proposed structure of the Sea-Bed Authority is a successful example of international cooperation and should therefore be taken as an example for lunar resources. It may evolve successfully, but for the moment we need not feel constrained to follow it. It is for this reason that I have looked for other examples and chosen I N M A R SAT. One of the technical questions which may prove to be relevant in considering this issue is the question of whether we are dealing here with limited natural resources or an inexhaustible resource. From my limited understanding of the geology of the Moon, it would seem that there are
299
Viewpoint
'The question of lunar resources is preventing agreement on the important issues'
300
not the rich deposits of valuable ores that exist on Earth; it appears that the Moon is relatively homogeneous. Some of the proposed uses of lunar materials are for building materials for lunar bases or space stations or for extracting oxygen for liquification for rocket fuel. Such exploitation would not limit any subsequent exploitation by other countries and hence should not require any compensation to countries not involved in the exploitation. If, on the other hand, mining of the Moon or other bodies involves limited and exhaustible resources, then all countries would have a potential interest in the value of the resources and the situation would be rather more complex. However, I would suggest that this situation is so speculative that an attempt to resolve it now would not be productive. The objections to the Treaty seem to derive mainly from the belief that it prejudges the nature of the mechanism that might be established to promote international cooperation in the exploitation of lunar resources. I do not think that the Treaty in fact necessarily limits the possibilities and I do not think it would be appropriate to limit them at this time. On the other hand, I think it must be recognized that the Treaty could be interpreted to allow a majority of countries to impose a decision on a minority, and that there would probably be countries in the UN which would not be adverse to taking such a confrontational course. I do not want to minimize the difficulty of reaching agreement on this issue or the time that would be required to negotiate a generally acceptable agreement. I should note that the Committee on the Peaceful Uses of Outer Space has always operated on the basis of consensus and did so in the case of the Moon Treaty. There is, of course, much in the Moon Treaty in addition to paragraph 5 of article 11, and the other articles are of much greater immediate importance. The Moon Treaty provides that nuclear weapons and military bases are banned from the Moon, that countries shall make available the scientific results of their lunar exploration activities, that countries retain ownership of their lunar facilities
whether manned or unmanned, and that such facilities may not restrict the movement of other countries' equipment. The general acceptance of these principles would be a significant step in ensuring international cooperation in space and avoiding conflict. If I have concentrated here on the question of lunar resources, it is not because that is the most important issue, but that it is preventing agreement on the important issues. Given the highly speculative nature of the question of when and how the resources of the Moon will be exploitable, and therefore given the undesirability of now defining a mechanism for promoting international cooperation in such exploitation, the solution to the impasse might be some sort of agreement, either formal or informal, that the Treaty does not prejudge this question, and that all possibilities would be open for discussion at the appropriate time. At such a time, further experience with international organizations established for commercial space operations could be taken into account. The debate over this issue, and in general over the concept of the common heritage of mankind, is based in large part on distrust, and perhaps in particular on distrust between the USA, as the greatest economic and technological power in the world, and the Third World, which includes the poorest countries in the world. As long as the present great disparities between rich and poor in the world exist, and they are certainly not going to disappear in our lifetimes, a degree of conflict between the two is unavoidable. The real economic and technological power of the USA and the formal voting power of the Third World in the United Nations makes it the preeminent forum for that conflict. In fact that conflict has dominated the UN during the period we are discussing, from 1979 to the present. As a result, there has been some tendency over the past few years to assume that no agreement is possible between the two sides, that the rich and the poor are irreconcilably at odds. I believe, however, that this attitude is both unduly pessimistic and ungenerous. The last decade has severely dis-
SPACE POLICY November 1986
Viewpoint rupted the fabric of international relations. The problems of refugees, terrorism, the rise and fall of oil prices, international debt, a slowing down in economic growth, unemployment and other issues have greatly exacerbated the problems of international cooperation while emphasizing our international interdependence. I think that it must be admitted that most countries have not responded well to the challenge. There have been unreasonable demands from the poor and a lack of responsibility and generosity from the rich. The two attitudes have tended to feed each other in a destructive cycle. I believe, however, that there has been some movement in the past two years away from the politics of rhetoric and confrontation and towards a politics of cooperation. The agreement this year in the Outer Space Committee on principles on remote sensing from outer space is an example of a more pragmatic spirit of cooperation. The Third World agreed to recognize the legitimacy of global
SPACE POLICY November 1986
collection of satellite data concerning natural resources, and the developed countries agreed to guarantee access to the data and to provide assistance in using the data. Given a reasonable spirit of cooperation, this agreement should be in the best interests of both sides. The impasse of the Moon Treaty was largely a result of international political circumstance, centring on the disruptive events of 1979, but also reflecting deeper divisions and differences in the world. Given the current slow and very tentative improvement in relations between rich and poor, it might be well to put off for a while any attempt to solve the problem of the principles to govern the exploitation of lunar resources and simply agree to leave the question entirely open for the moment. Perhaps by the time the need for a mechanism arises, the world will contain a somewhat greater degree of understanding, humility, realism and generosity.
301
The U N space treaties and the common heritage principle N. Jasentuliyana
The Moon Treaty, adopted by the UN's Outer Space Committee by c o n s e n s u s in 1979, has never been ratified by the major space powers although it is essentially only an elaboration of the non-controversial OuterSpace Treaty. The author discusses the international pofitical and economic climate of the time to explain the West's apparent withdrawal into self-interest. The controversy over the exploitation of lunar resources is preventing agreement on the other, more important issues covered by the Moon Treaty. The author argues that the successful INMARSAT organization could serve as a model for cooperation in exploiting the Moon's resources. A greater degree of understanding, humility, realism and generosity is needed before the problems can be resolved. N. Jasentuliyana is Deputy Director, Outer Space Affairs Division at the United Nations, New York, NY 10017, USA. This article is based on remarks made at the Space Age Publishing Foundation's Third Annual Space and the USA Symposium, 4 July 1986, Santa Clara, USA. The author wishes to acknowledge the asistance of Ralph Chipman of the United Nations Outer Space Affairs Division in preparing the article. The views expressed are those of the author and do not necessarily reflect the views of the United Nations.
296
In 1966, the United Nations General Assembly adopted the text of the Outer Space Treaty, based on broadly similar draft treaties submitted by the U S A and the USSR. The two texts were reconciled and some minor amendments made during the negotiations in the Committee on the Peaceful Uses of Outer Space, a few minor changes were made in the General Assembly, and the text was adopted by consensus. In January 1967, the Treaty was opened for signature and was signed in ceremonies held in the capitals of the three depositary governments, the USA, the USSR and the UK. Since then, the Treaty has been signed by 87 countries including all of the space powers. Its provisions are generally accepted by all countries. Of most importance to the present discussion are articles I and II. Article I provides that, 'The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind'. Article I1 provides that, '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'.
The phrase 'common heritage of mankind' does not appear in the Outer Space Treaty, although the underlying ideas are certainly there. The phrase does appear in the 1979 Moon Treaty. This Treaty, which was negotiated in the Legal Sub-Committee of the Outer Space Committee, was adopted by the Committee by consensus in 1979 and was endorsed by the General Assembly in the same year, again without dissent. The Moon Treaty is largely an elaboration of the principles of the Outer Space Treaty relating to the Moon and other bodies, and contains specific references to the natural resources of the Moon in article 11, as follows: 'The Moon and its natural resources are the common heritage of mankind . . . Neither the surface nor the subsurface of the Moon, or any part thereof or natural resources in place, shall become the property of any State, . . . organization, . . . or person.' Paragraph 5 of article 11 states that, 'States Parties to the 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 establishment of the international regime would be considered by a conference convened by the United Nations at the request of one-third of the states parties to the
S P A C E POLICY November 1986
Viewpoint
' S p a c e w a s seen as the last F r o n t i e r '
SPACE POLICY November 1986
Treaty. To date, the Moon Treaty has been ratified by six countries: Austria, Chile, the Netherlands, Pakistan, the Philippines and Uruguay. In accordance with its provisions, it entered into force in 1984, when Austria become the fifth country to ratify it. The Moon Treaty was negotiated and adopted with the full participation and agreement of the U S A and all other countries with space capabilities, but it is clearly ineffective without the signature or ratification by those countries. Furthermore, the Moon Treaty is essentially simply an elaboration of the Outer Space Treaty - which has never been challenged by any country. What then is the problem with the Moon Treaty? The answer seems to be that the world has changed between the time when the Outer Space Treaty was adopted and the Moon Treaty negotiated and now, and that 1979, particularly from the U S A ' s point of view, was a year of particular international change. From the mid-1960s to the late 1970s, d~tente was the theme of international relations; 1979 is often taken as the end of d~tente, signalled in particular by the Soviet intervention in Afghanistan in December of that year. In addition to this blow to East-West relations, 1979 was also the year of a further doubling of OPEC oil prices, exacerbating economic difficulties, and of the seizure of the US Embassy in Iran, contributing to the deterioration in North-South relations. It was at precisely this inauspicious moment that the Moon Treaty came up for approval. The West felt itself on the defensive vis-a-vis both East and South, and many felt that a more assertive position was required to defend its status. In this context, the Moon Treaty came to symbolize everything that was wrong with the developing international order and with the United Nations in particular. The USA, while not formally rejecting the Treaty, put off indefinitely its signature or ratification, and, in response, so did most other states. Early opposition to the Treaty, even before it was approved by the General Assembly, came from the L-5 Society, a private organization of enthusiasts
for space colonization, which argued that the Treaty would doom free enterprise initiative in outer space and subjugate US interests to those of developing Third World nations. The State Department of the Carter admin i s t r a t i o n d e f e n d e d the T r e a t y , arguing that it simply established general rules for the orderly and safe development of natural resources and that it contained no more restrictions than the 1967 Outer Space Treaty. The L-5 society argued that the Treaty would impose a moratorium on private enterprise exploitation and control by collectivist Third World countries at the expense of industrialized countries. Neil Hosenball, general counsel of N A S A and head of the US delegation to the Outer Space Committee, replied that the Treaty would not impose a moratorium, but 'permits orderly attempts to establish that such exploitation is in fact feasible and practicable, by making possible experimental beginnings and then pilot operations'. Members of Congress meanwhile were beginning to receive mail opposing the Treaty, and some were beginning to talk of putting off the Treaty and revising its provisions. It would appear that for the enthusiasts of the L-5 Society, and subsequently for a variety of others, space was seen as representing a new frontier, possibly the last frontier, for the pioneer spirit and an escape from the labyrinthine politics and complexities of life on Earth. The President of L-5 was quoted as saying, 'For those of us who plan to go into space, it's a give-mel i b e r t y - o r - g i v e - m e - d e a t h kind of issue.' The provision that all lunar facilities were to be open to inspection by any other government was also seen by the would-be space pioneers as an oppressive restraint on freedom. Underneath these symbolic and emotional issues, the basic practical question was whether the Treaty would promote or hinder lunar enterprises, and, at least implicitly, whether private activity would be governmentcontrolled or completely free. As the State Department noted, this issue of government control had been resolved in the 1967 Outer Space Treaty, in its provision that governments were re-
297
Viewpoint
'I do not believe that anarchy is a viable alternative'
298
sponsible 'for assuring that national activities are carried out in conformity with the provision of the Treaty . . . whether such activities are carried out by governmental agencies or by nongovernmental entities'. This principle, which reappears in the Moon Treaty, is fundamental to the entire existing framework of space law. An assertion of absolute freedom for private initiative and rejection of the principle of g o v e r n m e n t responsibility would simply abolish international space law. For all the limitations of the current regime of space law, at a time when more and more countries are becoming directly involved in space, I do not believe that anarchy is a viable alternative. The State Department and NASA, both at the time and, I believe, now, support the principle of government regulation of private space activities to ensure that they conform to the USA's international responsibilities. The debate over the Moon Treaty was heavily influenced by the similar debates over the Law of the Sea, particularly over its common heritage of mankind principle and the negotiations concerning the international SeaBed Authority, which had, it was argued, effectively restrained sea-bed mining through its requirements of transfer of technology from the advanced countries for the benefit of the less advanced. In the Law of the Sea Convention, which is still controversial, the USA was at least getting some guarantees of freedom of navigation in return for its concessions, while in outer space, it was gaining no rights that it did not already have in practice. According to the L-5 Society, 'The principle of common heritage is a vital component of Third World demands for massive redistribution of wealth and has been applied to deep-sea resources, high technology, the electromagnetic spectrum, and now outer space . . . It is ultimately aimed at equating the economic position of North and South.' The opposition to the Moon Treaty was clearly not simply a reaction to specific practical problems created by its provisions; in fact, the provisions are quite general and abstract and the practical effects totally speculative
now and for the foreseeable future. It was rather the concepts of internationalism that were, and remain, at issue. In fact, I believe, it is in large measure precisely the generality of the Treaty that is the problem - that it leaves too much open to interpretation. Many people are now inclined to interpret any UN treaty, particularly one dealing with relations between developed countries and the Third World, in the most negative possible way, looking for problems that may or may not really exist. I would like to propose that the best way to resolve the issue of lunar resources might be to negotiate a specific mechanism for international cooperation in the exploitation of those resources; if the practical issues could be resolved, the currently insoluble issue of the general principles of international relations could be set aside. However in practice this proposal is premature, in that a practical operational mechanism cannot be set up without far more information than we have now concerning the economics of lunar operations, and acquiring this information will probably require exploratory and pilot operations. Nonetheless, it might be useful to consider what mechanism might be appropriate and to proceed by considering mechanisms that have already been successfully established for using outer space cooperatively for economic purposes. The particular example I would like to choose as a model is INMARSAT, since it was initiated by the UN system, it is open to participation by all countries, and it is functioning very successfully as a commercial operation. After the feasibility and desirability of maritime satellite communications had been demonstrated, largely by the US M A R I S A T system, the UN specialized agency concerned, the International Maritime Organization, discussed the issue. It decided to convene, in 1975, an international conference to establish a global maritime satellite system. The conference established INMARSAT as a commercial operating entity modelled after the highly successful INTELSAT. INM A R S A T is open to all countries
SPACE POLICY November 1986
Viewpoint which wish to invest in it and currently has 44 members, including the USA, the USSR and other developed and developing countries, with capital investment shares ranging from 30% for the U S A to 0.05% for some of the smaller users. The Organization has a one-country-one-vote Assembly of Parties which reviews activities and makes recommendations to the Council. The Council, whose members may be either governments or designated private entities, establishes the policies of the organization and makes the important financial and operational decisions, with voting power based on investment share. I N M A R S A T is only one example of a successful international space organization. Many other organizations have been set up in various ways, as intergovernmental or nong o v e r n m e n t a l organizations, with open or limited membership, for operational purposes or for coordination or exchange of information. In general, international space activities have been carried out by establishing or using an organization whose structure is appropriate for the particular activity, from the political, economic and technical viewpoints. It should be noted that the United Nations does not conduct any space operations. The United Nations principles of universal m e m b e r s h i p , national sovereignty and national equality are appropriate for an organization whose primary purpose is to provide a forum for debate and for the e l a b o r a t i o n of generally accepted principles of international law. This structure is not appropriate for commercial operational activities. I have mentioned I N M A R S A T , not because it offers a perfect parallel to lunar resource exploitation, but because it demonstrates that a UN initiating role, government supervision, and commercial, private enterprise are not incompatible. It might be useful, if risky, to speculate as to how lunar resources might be exploited. It would seem that development of lunar resources will be such an enormous undertaking as to make international participation in some form essential. The advanced technology necessary will require an
SPACE POLICY November 1986
international network of contractors and subcontractors; the capital investment will require tapping of the international capital markets; and the scale of production necessary to justify the investment will require international marketing of the products. Furthermore, it is hard to imagine space activities of this scope occurring without government supervision and, at least at the beginning, government support. In the case of the Shuttle and Spacelab, for example, despite great efforts by N A S A and ESA, industry has been quite reluctant to make major investments in space industrialization where the payoff may be decades away. If lunar development will necessarily involve international cooperation and government involvement, the question is what form of international cooperation is appropriate. The Moon Treaty and the Convention on the Law of the Sea were negotiated over approximately the same time period and the language and concepts they contain show some similarities. An analogy between the Sea-Bed Authority and the lunar resource exploitation regime is perhaps natural, but I would argue that the link should not be exaggerated. In fact, the wording of article 11 in the Moon Treaty relating to the common heritage principle specifies that the meaning of that phrase relates only to the provisions of the Moon Treaty and not, for example, to the interpretation of the same phrase in the Law of the Sea. Clearly, at present one cannot conclude that the proposed structure of the Sea-Bed Authority is a successful example of international cooperation and should therefore be taken as an example for lunar resources. It may evolve successfully, but for the moment we need not feel constrained to follow it. It is for this reason that I have looked for other examples and chosen I N M A R SAT. One of the technical questions which may prove to be relevant in considering this issue is the question of whether we are dealing here with limited natural resources or an inexhaustible resource. From my limited understanding of the geology of the Moon, it would seem that there are
299
Viewpoint
'The question of lunar resources is preventing agreement on the important issues'
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not the rich deposits of valuable ores that exist on Earth; it appears that the Moon is relatively homogeneous. Some of the proposed uses of lunar materials are for building materials for lunar bases or space stations or for extracting oxygen for liquification for rocket fuel. Such exploitation would not limit any subsequent exploitation by other countries and hence should not require any compensation to countries not involved in the exploitation. If, on the other hand, mining of the Moon or other bodies involves limited and exhaustible resources, then all countries would have a potential interest in the value of the resources and the situation would be rather more complex. However, I would suggest that this situation is so speculative that an attempt to resolve it now would not be productive. The objections to the Treaty seem to derive mainly from the belief that it prejudges the nature of the mechanism that might be established to promote international cooperation in the exploitation of lunar resources. I do not think that the Treaty in fact necessarily limits the possibilities and I do not think it would be appropriate to limit them at this time. On the other hand, I think it must be recognized that the Treaty could be interpreted to allow a majority of countries to impose a decision on a minority, and that there would probably be countries in the UN which would not be adverse to taking such a confrontational course. I do not want to minimize the difficulty of reaching agreement on this issue or the time that would be required to negotiate a generally acceptable agreement. I should note that the Committee on the Peaceful Uses of Outer Space has always operated on the basis of consensus and did so in the case of the Moon Treaty. There is, of course, much in the Moon Treaty in addition to paragraph 5 of article 11, and the other articles are of much greater immediate importance. The Moon Treaty provides that nuclear weapons and military bases are banned from the Moon, that countries shall make available the scientific results of their lunar exploration activities, that countries retain ownership of their lunar facilities
whether manned or unmanned, and that such facilities may not restrict the movement of other countries' equipment. The general acceptance of these principles would be a significant step in ensuring international cooperation in space and avoiding conflict. If I have concentrated here on the question of lunar resources, it is not because that is the most important issue, but that it is preventing agreement on the important issues. Given the highly speculative nature of the question of when and how the resources of the Moon will be exploitable, and therefore given the undesirability of now defining a mechanism for promoting international cooperation in such exploitation, the solution to the impasse might be some sort of agreement, either formal or informal, that the Treaty does not prejudge this question, and that all possibilities would be open for discussion at the appropriate time. At such a time, further experience with international organizations established for commercial space operations could be taken into account. The debate over this issue, and in general over the concept of the common heritage of mankind, is based in large part on distrust, and perhaps in particular on distrust between the USA, as the greatest economic and technological power in the world, and the Third World, which includes the poorest countries in the world. As long as the present great disparities between rich and poor in the world exist, and they are certainly not going to disappear in our lifetimes, a degree of conflict between the two is unavoidable. The real economic and technological power of the USA and the formal voting power of the Third World in the United Nations makes it the preeminent forum for that conflict. In fact that conflict has dominated the UN during the period we are discussing, from 1979 to the present. As a result, there has been some tendency over the past few years to assume that no agreement is possible between the two sides, that the rich and the poor are irreconcilably at odds. I believe, however, that this attitude is both unduly pessimistic and ungenerous. The last decade has severely dis-
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Viewpoint rupted the fabric of international relations. The problems of refugees, terrorism, the rise and fall of oil prices, international debt, a slowing down in economic growth, unemployment and other issues have greatly exacerbated the problems of international cooperation while emphasizing our international interdependence. I think that it must be admitted that most countries have not responded well to the challenge. There have been unreasonable demands from the poor and a lack of responsibility and generosity from the rich. The two attitudes have tended to feed each other in a destructive cycle. I believe, however, that there has been some movement in the past two years away from the politics of rhetoric and confrontation and towards a politics of cooperation. The agreement this year in the Outer Space Committee on principles on remote sensing from outer space is an example of a more pragmatic spirit of cooperation. The Third World agreed to recognize the legitimacy of global
SPACE POLICY November 1986
collection of satellite data concerning natural resources, and the developed countries agreed to guarantee access to the data and to provide assistance in using the data. Given a reasonable spirit of cooperation, this agreement should be in the best interests of both sides. The impasse of the Moon Treaty was largely a result of international political circumstance, centring on the disruptive events of 1979, but also reflecting deeper divisions and differences in the world. Given the current slow and very tentative improvement in relations between rich and poor, it might be well to put off for a while any attempt to solve the problem of the principles to govern the exploitation of lunar resources and simply agree to leave the question entirely open for the moment. Perhaps by the time the need for a mechanism arises, the world will contain a somewhat greater degree of understanding, humility, realism and generosity.
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