The exploration of space is an inspiring and fulfilling goal in itself, fueled by mankind’s innate curiosity and search for knowledge. However, space exploration could be more than just knowledge. With significant amounts of aluminum, iron, magnesium, oxygen, and silicon on the moon, and millions of tons of iron, nickel, and cobalt inside a single asteroid, space provides a wealth of untapped resources. The market value of the metal deposits within a single one-kilometer asteroid has been estimated at one trillion US dollars.
The exploration of space introduces complex international issues in a new and growing field of law. For example, the very first step into space with the first Earth-orbiting satellite created the question of where Earth’s atmosphere ends and space begins. A clear line between air and space is necessary to mark where a country’s sovereign airspace ends. Currently a clear definition is still missing from international space law, and a few countries have even tried to claim sovereignty of overhead satellites. Other issues introduced by space technology include jurisdiction and conflict of law aboard the different modules of the International Space Station, damage from space debris, and liability for damage caused by spacecraft such as the Soviet satellite Cosmos 954 which crashed into Canada. Like the air and the oceans on Earth, space is an environment all nations share, and something we have to protect with international cooperation. What one nation does in space affects every other.
The United Nations (“UN”) formed the Committee on the Peaceful Uses of Outer Space (“COPUOS”) in 1958 to address these new international issues of space law. COPUOS has passed five international treaties.
These first four treaties articulate important principles that govern international cooperation in space, such as the prohibition of any claims of sovereignty in space, the use of space only for peaceful purposes, assistance to distressed astronauts, registration of space objects, and each country’s liability for its space activities. These principles are very similar to those in the Antarctic Treaty, signed in the middle of the Cold War in 1959, which reserves Antarctica for peaceful scientific exploration and no further territorial claims. However, only ten countries have ratified the fifth space treaty passed by the UN, the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies (the “Moon Treaty”).
The Moon Treaty provides that “[t]he Moon and its natural resources are the common heritage of mankind”, and that “[t]he exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development”. Moreover, the Moon Treaty declares that the moon is not subject to any claim of sovereignty, nor any claim of ownership by “any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person”. Thus, no individual, company, or government can claim any private property on the moon. The Moon Treaty calls for its signatories to “establish an international regime...to govern the exploitation of natural resources of the Moon”, and to ensure “[a]n equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries...shall be given special consideration”. This international regime has not been created.
The United States objected to the Moon Treaty due to the “common heritage of mankind” language. The common heritage (“CH”) principle poses several problems. First, it prevents future settlers from ever establishing settlements on the moon by denying them the most fundamental private property rights. Leaving the problem of permanent settlement aside, however, the CH doctrine does not provide any incentive for companies to invest in the expensive technology necessary to explore and mine the moon. Moreover, the CH doctrine cannot function without the international governing regime that the Moon Treaty called for and that was never formed. Without such an entity, “[i]t is unlikely the developed nations, once they obtain resources at high risk and cost, would ‘equitably’ distribute space resources ‘for the benefit and in the interests of all countries.’”
Thus, if we are to prevent claims of ownership in space yet still benefit from the wealth of space’s resources, an international forum such as the UN must step up to oversee the process. The UN has several options which would encourage exploration without abandoning the goals of international cooperation and space as the province of all mankind.
One solution is the formation of an international entity to grant licenses and leases to companies that wish to mine the moon. The company would be allowed to sell the materials it mines on the moon for full profit until it has recouped all start-up costs. At that point, the company would split its profits, perhaps keeping half and returning half to the international regime that would equitably distribute it. In this situation, the world benefits from the moon’s resources, the knowledge gained through space exploration, and the technological advances that the space program would undoubtedly create. The company would have an incentive to invest in the costly first steps to get to the moon, guaranteed to break even and make future profits for the duration of its lease – but not granted any permanent property rights.
The UN could also look to the United Nations Convention on the Law of the Sea (the “LOS Convention”), which set up a similar system for the regions of the ocean beyond the limits of national jurisdiction. The LOS Convention creates an “Authority” which grants mining rights to corporations, and an “Enterprise” which competes with these corporations and distributes its mining profits to developing nations. Thus, corporations have an incentive to invest in mining activities, but the Enterprise assures that the benefits are shared by all nations, since the resources belong to them all.
We have the technological capability to return to the moon and exploit its resources. We should not let the laudable goals of benefiting all nations prevent any nations from benefiting. As a technologically advanced nation, the United States has an obligation to the rest of the world to explore space, not to refrain from exploring it.
