What is the Moon Treaty and is it still useful?

The Moon Treaty was designed to regulate various space activities, including resource utilization. The Moon Treaty, however, is of questionable use – it has few signatories and it has not gained international traction. To learn more about the Moon Treaty and its relevance, we spoke to Michelle Hanlon, an Associate Director of the National Center for Air and Space Law at the University of Mississippi. She is also the Co-Founder and President of For All Moonkind, an organization that advocates protecting human cultural heritage in outer space and is an observer organization on the United Nations Committee on the Peaceful Uses of Outer Space. Professor Hanlon shares her perspective on the Moon Treaty’s relevance today. She also provides insight on how individuals with legal backgrounds can participate in the space sector.

What is the Moon Treaty and what is its status?

The Moon Agreement or Moon Treaty, formally the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, is the last of five international treaties regarding space activities that were negotiated in the late 1960s and early 1970s.

The intent of the Moon Treaty was to offer more specific regulation of the activities of nations in space. To be clear, the Agreement does not prohibit the use and exploitation of natural resources in space. Instead, it requires parties to establish an international regime to govern such use.

Many consider the Moon Agreement a failure. To date, it has been ratified by only 18 nations – none of which has completed a mission to the Moon. Notably missing are the countries which are most active in space, including the United States, Russia, China, Japan, and Germany. India and France have signed but not ratified the Agreement.

Whatever label or asterisk that may be attached to the Moon Agreement, we would do well to remember that in space – and in life – failure is nothing more than a stepping stone to success.

Should it be implemented or discarded?

Unfortunately, I believe that while we can take many lessons and concepts from the Moon Agreement, ultimately it must be discarded and used as a foundation upon which to build new understandings about the governance and regulation of activities in space.

Some would say the biggest challenge for the implementation of the Moon Agreement are four little words found in Article 11(1). While the Outer Space Treaty characterizes space as the “province of all mankind”, the Moon Agreement seems to go one step farther. It labels space the “common heritage of [hu]mankind”.

The meaning of the progression from “province” to “common heritage” has been the subject of countless debates, legal expositions, and commentaries. The fact of the matter, though, is that neither construct offers a legal rule. “Common heritage” in particular is an imprecise concept that the Moon Agreement fails to enumerate. Compounding this ambiguity is a confluence of history. The Moon Agreement was prepared in the shadow of the Convention of the Law of the Sea. The Convention politicized the notion of common heritage and assured its evolution into an unwieldly, ungainly, overbroad, and divisive term.

Consider that it is generally agreed that there are five elements to consider when declaring an area the common heritage of humankind:

1. The area is not subject to appropriation.

2. All countries share in the management of the area.

3. The benefits derived from exploitation of resources in the area must be shared with all, regardless of participation.

4. The area must be used for peaceful purposes.

5. The area must be reserved for future generations.

The Outer Space Treaty already covers the first and fourth points – outer space is not subject to national appropriation and must be used for peaceful purposes. I hardly think any nation would disagree with the need to use an area sustainably so as to reserve it for future generations. Thus, it’s points two and three that generate the biggest concern.

At first glance, it appears that to implement the concept of common heritage of humankind, an international body must be created to redistribute wealth and technology among nations.

Indeed, in response to implementing provisions in the Convention on the Law of the Sea, President Ronald Reagan criticized the concept of international management, stating that “no national interest of ours could justify handing sovereign control over two thirds of the Earth’s surface over to the Third World”. As to the sharing of benefits? Reagan was definitely set against what he called a “free ride” at the expense of the US.

Reagan cast the Law of the Sea Treaty as being intentionally designed to promote a new world order – a form of global collectivism – that seeks ultimately the redistribution of the world’s wealth through a complex system of manipulative central economic planning and bureaucratic coercion. Reagan blamed this on what he called the distorted interpretation of the noble concept of the Earth’s vast oceans as the common heritage of humankind.

Pretty scathing. Note, though, that Reagan did not suggest that the oceans are NOT the common heritage of humankind. He instead said the Law of the Sea Treaty had distorted the interpretation of that concept.

The Moon Agreement was collateral damage in this distortion.

Indeed, the Moon Agreement allows for private ownership of natural resources that have been extracted. It requires the establishment of a governing regime to manage the extraction of space resources. That regime may or may not impose prohibitive fines after a company has already undertaken to mine. The Moon Agreement certainly appears to set the stage for implementing some sort of sharing, though how sharing would happen remains indeterminate.

In short, the treaty won’t implement necessary laws until mining is feasible – yet the very structure of the treaty and the uncertainty surrounding it discourages the research and investment necessary to make mining feasible.

It should be noted that it is in the best interests of all parties – whether a developing or a developed nation – to implement a fair and supportive system. Because indeed, the whole world WILL benefit from space resource utilization whether directly or indirectly. Making the cost of sharing prohibitive helps no one.

We also clearly need some sort of regime in place. Space exploration and utilization activities need assurances of safety and stability. Such activities need a certain level of legal security. And people carrying out those activities need to know the cost of that security – the complete level of their financial investment, including any licenses and fees.

The Moon Agreement was ahead of its time. What Ronald Reagan called the noble concept of common human heritage of humankind was in its infancy. Even then it was understood that this concept would not benefit from a “one-size-fits-all” approach. It was hoped that parties would evolve with the times and develop a bespoke regime for space – or at least parts of it.

But the Moon Agreement was doomed by its own uncertainties and the growing pains of a hortatory message that is not really new or groundbreaking – we are all in this together.

I am not convinced that the Moon Agreement can be saved from the weight of this baggage. I am convinced, though, that we can turn the Moon Agreement’s “failure” into success.

How did you become interested in air and space law, and what do you recommend to people who would like to enter the field?

Personally, I am a consummate “Trekkie”. However, since I was not inclined to science and engineering, I thought space was off limits for me and so I became a lawyer. After practicing business law for 25 years, I embraced the fact that we, humanity, are on the threshold of our spacefaring future. I decided that I wanted to do everything I could to expedite, support, and ease our transition to becoming a spacefaring species.

But even more, it’s impossible to escape space! Nearly everything we do relies on space in some way, from withdrawing money at the ATM to mapping traffic to determining the fastest way to the airport.

And everything we do in space benefits humanity – sometimes immediately, as with satellite communications and Earth observations – and sometimes in the long-term – think about technologies developed for space that are now ubiquitous on Earth. Yes, I am going to mention to age-old Velcro example.

The most important thing to recognize is that the ultimate goal of planetary exploration is not to turn our backs on this Earth, but to figure out how to be better humans on our Earth.

If you would like to become a space lawyer, I recommend that you enroll in our LLM program here at the University of Mississippi. Our courses are offered online and the program can be taken full- or part-time from anywhere in the world. Had to say that!

Honestly, the space law community is one of the most welcoming and friendly in the world. If you are interested in space law, reach out to me and other space lawyers and we will happily offer guidance and advice.

Perhaps the most important thing you can do is engage with space issues and make sure your elected representatives – and your neighbors – understand the importance of space to our daily lives and our future. Too many people simply do not understand. While there are many exciting commercial space ventures, the fact is that, like the airline industry in its infancy, our infant space industry needs a little help and protection from the government. Spending tax dollars to nurture a sustainable future is a wise investment.