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The legal framework governing activities in space in general and on or around the moon in particular has been a matter of great contestation. Collaboration has been the major casualty. The major players in space have jealously guarded their rights over exploration in space and the resources of the moon and other celestial bodies.
That is why all the major players in space have either not signed or not ratified the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, better known as the moon treaty or moon agreement. It was finalised in 1979 and came into force for ratifying parties in 1984 on the lines of the United Nations Convention on the Law of the Sea, which regulates the use of oceanic resources. The agreement turns jurisdiction of all heavenly bodies (including the orbits around such bodies) over to the international community.The legal framework governing activities in space in general and on or around the moon in particular has been a matter of great contestation. Collaboration has been the major casualty. The major players in space have jealously guarded their rights over exploration in space and the resources of the moon and other celestial bodies.
That is why all the major players in space have either not signed or not ratified the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, better known as the moon treaty or moon agreement. It was finalised in 1979 and came into force for ratifying parties in 1984 on the lines of the United Nations Convention on the Law of the Sea, which regulates the use of oceanic resources. The agreement turns jurisdiction of all heavenly bodies (including the orbits around such bodies) over to the international community. Drafted by the United Nations Committee on the Peaceful Uses of Outer Space, it stipulates that all activities on the moon and other celestial bodies in the solar system must conform to provisions that, broadly speaking, try to subject activity in space by individual nations to the control of the international community because space is a common resource of humankind.
But the treaty remains a dead letter as a list of countries that have ratified it makes abundantly clear (see box: Spaced out ) and space exploration continues to be governed by the less stringent Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, also known as the outer space treaty, which was sponsored, significantly, by the us, the uk and the Soviet Union and came into force in 1967.
The outer space treaty did impose some regulation on space exploration, but the most important of these were aimed at keeping space demilitarised, an important concern at the height of the Cold War. Otherwise, it did not impose undue restrictions on space exploration and research. National governments of countries carrying out space explorations were, in fact, made liable and responsible for all missions undertaken by them or organisations within their jurisdiction -- this included responsibility for causing damage. There were areas in which there were provisions for bilateral co-operation within or outside of international forums. But as far as regulation went, it was pretty laissez faire , with a perfunctory injunction to keep the un secretary-general informed about broad details of missions in the interests of international co-operation.
Crucially, the treaty said: "Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies." Given national capabilities for space research then and now, it is obvious in whose favour the treaty loaded the dice.
The outer space treaty offers other benefits. For instance, though it says celestial bodies are "the common province of all mankind", the treaty only says countries cannot claim outer space or other celestial bodies as colonies. It permits the use of their resources, even if that is only through silence. The countries that are planning lunar missions in the coming years, even though they haven't spelt out their plans out clearly, have it in their agenda to explore the possibility of exploiting valuable minerals and chemicals that may be found on the moon.
One such material, often talked about, is helium-3, a radioactive isotope of the gas helium. Embedded widely in the lunar dust over almost 4 billion years, helium-3 is possible material for future nuclear fusion reactors, which are expected to use technologies that are environmentally benign. Helium-3 reaches the moon as a component of solar wind
along with hydrogen, ordinary helium, carbon and nitrogen. Former Apollo astronaut, Harrison H Schmitt, writes in a recent book, Return to the Moon, that 2 sq km of lunar surface contains about 100 kg of helium-3 to a depth of 3 metres. This is enough to provide 1,000 mw of power for a year. One tonne of helium-3 can supply 10 million mw, one-sixth of uk's requirement for one year.
The moon treaty tried to move beyond the rhetoric of cooperation to introduce provisions that would make it more possible to realise the objective of using the resources of space and the fruits of space in a more equitable manner. The treaty reiterates that the moon should be used for the benefit of all states and all members of the international community and not be used to foster international conflict. To these ends, the treaty:
Bans any military use of celestial bodies, including weapon testing or use as military bases;
Bans all exploration and use of celestial bodies without international consensus or the benefit of other states;
Requires that the un secretary-general be notified of all celestial activities (and discoveries resulting from them);
Declares all states have an equal right to conduct research on celestial bodies;
Says any samples obtained during research activities, have to be made available, at least in part, to all countries/scientific communities for research;
Bans altering the environment of celestial bodies and requires states to take measures to prevent accidental contamination;
Bans states from claiming sovereignty over any territory of celestial body;
Bans ownership of any property by any organisation or person, other than international and governmental agencies;
Requires all resource extraction and allocation to be made by an international regime.
Countries with a stake in space exploration and lunar missions are not
The major space players, which reserve their rights to return to the moon for human colonisation and exploitation of lunar minerals, object to the "common heritage of all mankind" clause of the treaty, says S R Bhat, chair of space law at the Jawaharlal Nehru University in Delhi (see p50). This clause specifies that all resources in space belong equally to all nations. The use or extraction of such resources by one nation is, therefore, against this treaty.
Legal experts working closely with the us government had also objected to a clause in the moon treaty that stipulates "equitable sharing of lunar resources", saying it was similar to a clause in the law of the sea treaty that laid down that an international authority will govern and conduct all resource extraction, with a hefty share of the proceeds going to less-developed countries regardless of whether they have any investment in the activity or not. The us establishment argued that this would discourage -- if not prevent --development of lunar resources.
Also, the moon treaty, like the Antarctic treaty, sought to limit the use of the moon to scientific purposes, clearly prohibiting space tourism and other non-scientific uses, which hasn't gone down well.