Commentary | The Moon Treaty is dead. Discuss.

NASA’s latest groundbreaking discovery in October 2010 that the moon may be home to water, silver, mercury, and other natural resources has made the moon a hot topic once again. This discovery means that the moon’s resources could be useful to us here on Earth, and our anthropocentric nature gets us excited as soon as we discover that we may be able to “exploit” something.

The “exciting” news came just a few weeks before Ram Jakhu, a professor of space law at McGill, gave a lecture that has had a huge impact on the way I view the dynamic nature and potential of law. Jakhu is one of the few people who argues that the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies – a.k.a. the Moon Agreement – is not a failed treaty, despite that it has only been ratified by thirteen countries since its creation in 1979 and that none of those nations are space-faring. In treaty terms, those statistics mean that the treaty has a negligible effect on actual spaceflight… So far, that is.

I recalled a conversation I had with the director general (DG) of a prominent space agency in 2009. He asked me if his country should ratify the Moon Agreement. The answer I gave him then was in line with the thinking of the day, and right out of the texts that I’d been exposed to. “The Treaty is a failed treaty, and no major space power has signed it because it calls for the establishment of an international regulatory regime to create and oversee an equitable system to share resources.”

I answered with one sentence and that was it.

The main problem here is the word “share.” Who is going to invest millions to get to the Moon, set up shop, and then “share” the profits? The treaty in effect creates a moratorium on commercial development.

Well, that was me in 2009.

Following the lecture at McGill, I took a close look at the treaty again and wondered, has everyone been reading the same treaty? This treaty grants rights to use resources in a way that is currently not expressly permitted under general international space law and avoids the need for determination of a legal regime to protect private property rights before the establishment of the envisioned international regime. (In essence, under the Moon Agreement, you can use resources unless it’s internationally prohibited, and prohibition will be difficult without the regulatory regime!).

Even if the regime is established and sharing is required, commentators missed the part that says that the sharing must be “equitable.” What’s the difference between equitable sharing and paying royalties or tax? In all earthly endeavours, if you are going to use natural resources, you have to pay some charge or tax to the people that actually own or control the resources, n’est-ce pas? Well, as no one owns the moon, you pay the tax to an international body! To me, it’s the same thing.

So back to those NASA findings. The presence of water means that we could potentially have a human base on the moon. A human base means that we could potentially establish operations. As we continue to discover benefits outside our planet, the Moon Agreement is a readymade “suggested” legal framework, which can be used as a foundation to establish an equitable framework in support of the aspirations of signatories. So how can anyone say the moon treaty is dead?

If I were to see that space agency DG again, our conversation about whether his country should sign the Moon Agreement would be a lot lot longer!

Timiebi Aganaba is a LLM Air and Space Law student. Write her at timiebi.aganaba@mail.mcgill.ca.


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