Copyright © 2014 by Thomas Gangale
On LinkedIn, Vid Beldavs comments regarding the Draft Protocol on Property Rights to the Treaty Governing the Activities of States on the Celestial Bodies of the Solar System:
The ideas are interesting and logically self-consistent, but appear to the in contradiction to the Outer Space Treaty of 1967 and certainly are inconsistent with the Moon Treaty of 1979. From the Wiki on the Outer Space Treaty "The treaty explicitly forbids any government from claiming a celestial resource such as the Moon or a planet, claiming that they are the common heritage of mankind.[3] Art. II of the Treaty states that "outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". There is no provision in the draft protocol for addressing the Common Heritage of Mankind doctrine in the Treaty. Since the Outer Space Treaty is generally recognized as foundational for international space law passage of an agreement like the proposed draft protocol would require the annulment of the Outer Space Treaty and the passage of the protocol by the UN General Assembly. It seems like a non-starter.One would hope that Mr. Beldavs's understanding of outer space law is not restricted to whatever Wiki says.
The draft Solar System Treaty and its protocols are indeed consistent with the 1967 Outer Space Treaty, and I challenge him to explain his position using specific references to both treaties. Furthermore, Article 2 of the Outer Space Treaty is hardly the final word regarding national appropriation. Customary international law was exhibited by state practice between 1969 and 1974, when six Apollo missions and two Luna missions "used" the Moon by returning some of it to Earth, and these lunar samples were indeed "appropriated" by the governments that conducted these missions.
Mr. Beldavs's claim that the draft Property Rights Protocol is inconsistent with the 1979 Moon Agreement is entirely without merit. The latter obligated states parties to undertake to negotiate at some future time a legal regime to manage the development of extraterrestrial resources; the former establishes such a regime.
The draft Solar System Treaty is a rewrite of the Moon Agreement which preserves about 90% of language of the latter document in a effort to salvage that failed treaty. This rewrite deliberately excludes reference to the Common Heritage of Mankind doctrine for two reasons: first, it was a primarily cause for its political defeat in the US, and secondly, it was largely devoid of meaning as phrased in the Moon Agreement.
Mr. Beldavs's statement that the "proposed draft protocol would require the annulment of the Outer Space Treaty and the passage of the protocol by the UN General Assembly" exhibits a complete lack of understanding of the treaty process. The UN General Assembly does not "pass" treaties and protocols, nor can it "annul" them, as it is not a legislative body. Treaties are made among states, not by the United Nations.
The bottom line is that property rights regarding the Moon and other celestial bodies do indeed exist, as evidenced by state practice. The intent of Property Rights Protocol to the Solar System Treaty is to provide a regime of legal certainty, consistent with international law, that will facilitate the efficient development of extraterrestrial resources.
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