Taylor Dinerman's review of The Development of Outer Space: Sovereignty and Property Rights in International Space Law is full of misperceptions and distortions of my work.
"Thomas Gangale makes the case that it is now settled international law that there can be no private property on the Moon or on other bodies, at least as private property is understood here on Earth." Quite the contrary, I make the case that there can be a form of private property on the Moon and other celestial bodies under existing international law that ought to satisfy commercial interests.
"He makes the case that some sort of internationally recognized body, probably under UN control, will have to legitimate any commercial activity." This is untrue. No UN body is required to "legitimate" commercial activity. Obviously, disputes over conflicting interests may arise, and an international legal structure might be a preferred mechanism for resolving such disputes. Such a structure might develop organically along the lines that Declan O'Donnell envisions, rather than be imposed by new treaty law.
"He believes that there may be a way for private companies to harvest lunar resources without contravening the provisions of the OST, but he cannot clearly define how this would work." When the US and USSR returned samples from the Moon and their ownership of those samples went undisputed, it became instant customary law that extraterrestrial materials, once removed from their natural state, become property. Clearly defined, that is how it works. Furthermore, the Lockean principle of mixing soil and labor to create a property right was codified in the Moon Agreement.
"Gangale believes that the day of the nation-state is almost over...." This is untrue. I make the fairly obvious observation that the Westphalian nation-state system had a beginning only 360 years ago and is likely to have an end... someday. The weather forecast for tomorrow: the sky is not falling.
"He quotes former ultra-leftist German Foreign Minister Joschka Fischer...." To use Dinerman's own intellectually penetrating question, "So what?" I quote a hundred people, including ultra-rightists who never held any position of trust in any country.
"Since there is no authoritative interpretation of the [Moon] treaty, or of the OST for that matter, he chooses to use the Law of Treaties to push for an interpretation depending on such things as 'preparatory work' and 'negotiating history'." Having repeatedly demonstrated his contempt for truth, here Dinerman exposes his contempt for international law. I point out a fact that opponents have conveniently ignored for thirty years, that the transmittal document that accompanied the Moon Agreement contained the authoritative interpretation of provisions of the agreement that were points of contention. As for the Law of Treaties, I choose nothing, push nothing. It is a fact that the US has had the long-standing practice of abiding by the Law of Treaties despite its failure to ratify the convention, which is quite typical of US behavior in international law. Thus the US “chooses" to be "pushed" by the convention's provisions, among which is a formula for the interpretation of treaties.
"If the US had signed the Moon Treaty it would indeed have been negotiating 'under the gun'." This is preposterous; which nation has the most guns?
"If and when a private organization begins operations on the Moon, the [Outer Space] Treaty will face either ruin or major revision." An interesting assertion, but where is the supporting legal argument? The Outer Space Treaty is a declaration of principles; specifically, which principles would come into conflict when a private organization begins operations on the Moon?
"A good case can be made that since space operations are an essential enabling technology for all modern military forces, the peaceful uses clause of the treaty has already been rendered, in effect, null and void." In that case, Dinerman should present his good case; I suspect that he cannot. The use of military communications satellites, surveillance satellites, geodetic satellites, and other enabling technologies for military forces preceded the Outer Space Treaty, and the treaty was never intended to prohibit such uses.
A lot of what Dinerman dredges up is relevant rhetoric about his dislike of the European Union, arms control, the Land Mine Treaty, climate control, et cetera. His review is more about his own world-view than about my work: "The truth is that international law has been losing its legitimacy for decades." From this premise, it is clear that Dinerman has no object other than to cast doubt on the legitimacy of any work on the subject of international law that does not conform to his opinion.
There is no "racial put-down" in my book, and Dinerman's misrepresentation is nothing other than a pathetic attempt at character assassination by playing a “race card,” for it is scarcely conceivable that he could have failed to recognize the allusion to Rudyard Kipling's infamous "white man's burden" justification for subjugating and exploiting non-Europeans. Dinerman's purpose is further revealed by his likening my views to those of "slaveowners of the Old South." This is despicable.
The most open-minded statements in Dinerman's review are "Gangale may have the law on his side" and "He may be right." Perhaps this is what frightens him. But I may also be wrong; one cannot embark on any worthwhile intellectual journey without assuming that risk. Most frightening of all must be the fact that I am an apostate; I put my blind faith in thirty years of propaganda against the Moon Agreement… until I made a thorough study of the agreement and its associated documents. I found these, and the arguments in favor, to be overwhelmingly persuasive, while the arguments against ranged from manifest misinterpretations to monstrous distortions. I did not set out to vindicate the agreement, but that is where the data led me.
I invite any serious student of international space law to make his or her own voyage of discovery, and to engage in thoughtful discourse. I wonder when the citizen pro-space community will undergo a Reformation and challenge the orthodoxy of the self-anointed priestly class that presumes to hand down Truth from on high. It is the province of every person who prizes free intellectual inquiry to ask, "What is Truth?" For me, it is a journey, and certainly not a predetermined destination.
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Hello, I read and commented upon the review by Taylor Dineman over at The Space Review.
First of all I would recommend submitting a rebuttal as an article to The Space Review so as to capture the attention of others who read Dineman's review.
Next as you might well base such a rebuttal on what I'm now replying to I would stress the need to make a very clear distinction between the Outer Space Treaty and the Moon Treaty/Moon Agreement. The OST is international law while the Moon Treaty/Moon Agreement is not. This is a line which seems to be blurred in your reply and which in my opinion makes it hard to understand and/or agree or disagree with some of your thinking.
On a more personal note in my comment over at TSR the first two paragraphs were essentially the same as parts of what you've said in this reply. I'll add that in my opinion the OST is the best possible situation codifying freedom from Earth political and governmental interference outside Earth. The third paragraph of my comment is scathing and I sincerely apologize if --as seems to be the case-- it is entirely misdirected.
However beyond that I would say the the argument still stands against the Moon Treaty/Moon Agreement and in particular on the inherent contradiction between the Outer Space Treaty on one side and the Moon Treaty/Moon Agreement on the other, as I pointed out in my comment they are fundamentally opposed to each other.
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