Recalibrating the Moon Treaty to the Domain of Development

Paper number

IAC-10,E7,1,22,x7497

Author

Mr. Utsav Mukherjee, India

Year

2010

Abstract

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“the Moon Treaty”), 1979 was brought in to address a question left open by the 1967 Outer Space Treaty: the status of private property rights. 

However, all it generated was a furore of extremely heated discussions which resulted in no major space faring nation signing up for the legislation which took about 5 years to even acquire the sufficient members to come into force. . It is generally considered a failure, even by its supporters. And by its own terms, it comes up for periodic review by the United Nations General Assembly. The first such review was scheduled to take place ten years after its entry into force. Although there was then no great interest among UN members in revisiting the Moon Treaty, a strong proposal for substantial reform might pique it now. This article aims to fulfil this need of the hour in a two-fold process.

Firstly, this article highlights and then critically analyses the four principle points of controversy regarding the Moon Treaty, that it:
1. Imposes a moratorium on exploitation of the resources of the moon and other celestial bodies until the establishment of a governing regime.
2. Requires establishment of a governing regime.
3. Prohibits private resource property rights.
4. Allows a governing regime to tax private enterprises.

While the Moon Treaty would no doubt be bad for space development if it were in force against the major space powers, its absence is not a sufficient condition for space development. The mere absence of regulation is not enough to encourage investment: there must be positive legal protection for property rights. Such protection is difficult to achieve in the absence of some sort of legal regime. And although it is conceivable that an appropriate regime might be provided via a unilateral approach employing only the municipal (domestic) law of individual nations, that is very much plagued with its own set of drawbacks. Therefore, the second section of the paper concentrates on redrawing the structure of the Moon Treaty, so as to incorporate the essential needs of fortification of property rights while maintaining the pillar of “common heritage of mankind” followed in space law, to ensure a common uniform legal regime across all space-faring nations with regards to the lunar resources.

Abstract document

IAC-10,E7,1,22,x7497.brief.pdf

Manuscript document

IAC-10,E7,1,22,x7497.pdf (🔒 authorized access only).

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