Moon Treaty - Two Issues

Two of the issues that caused the Moon Treaty to be so much more contentious than the Outer Space Treaty are: the use of the term "common heritage of mankind", and the protection of the environment of the Moon. [1]

Article 11 of the Moon Treaty stirred up controversy around the sentence “the moon and its natural resources are the common heritage of mankind…” [2], mainly because the term "common heritage of mankind" is not defined in the treaty. According to Berryhill, such unclarity leads to interpretations derived from political, economic or legal predispositions. [3] One such worry is that the less developed countries unable to participate in space exploration could use this term to benefit of a future distribution of resources. [4] However, it is important to keep in mind the frame in which the Moon Treaty was developed. It was the time when humans barely touched the Moon and euphoria was dominating the human spirit. It was a time when the less developed countries had a chance to have their voice heard. Such a situation dominated the debates at the UN, mainly because these countries together had a strong voice, unlike the countries involved in space exploration at the time. [5]

The definition of the term "common heritage of mankind” implies the possession of all humans, but that also means that "all humans", or mankind should be considered an individual invested with property rights, subject of international law. [6] However, states had different opinions on this matter. USSR expressed that individual property rights are out of the question, and therefore by individual in this case one must understand state or country. Argentina favored less developed countries and their participation in equal sharing of the resources. [7] Hungary pointed that even if mankind is not clearly defined, it exists and should benefit from a common heritage. The United States preferred to focus on the debate over the term "common heritage" than discussing whether mankind is subject to the international law. [8] One of the issues brought up was that by focusing on the idea of common heritage of mankind, exploration and exploitation were linked together [9], generating an interest for profit rather than scientific development.

Another controversy is the environmental protection of the Moon and its resources, especially as mentioned above, the term "common heritage of mankind" implies the full and shared access of all states to the lunar resources. Article 4 of the Moon Treaty emphasizes that any exploration of the Moon has to consider the interest of the future generations. [10] In this spirit, Article 7 calls the explorers to “prevent the disruption of the existing balance of its [the moon’s] environment”. [11]  Unfortunately, the environment protection offered by the language of the treaty is limited, by only specifying  the avoidance of harmful contamination, without underlining what would be the circumstances of this stipulation. [12] In the meantime, terms like "harmful contamination" can be interpreted. One explanation for this lack of clarity is the fact that the Moon's environment was still unknown at the time the treaty was debated, and therefore it would have been hard to express clearly what is it that needs protection. [13] It is also important to bear in mind that exploration will inevitably somehow disturb the environment of the Moon, but articles 6 and 8 of the Moon treaty allow exploration for scientific purposes, such as collecting samples or land a spacecraft on the surface, actions that are not considered harmful. [14]

As space exploration develops, a treaty such as the Moon Treaty will probably need revision in accordance with the new developments in the field. So far, the treaty has worked as a mean to offer the entire mankind a chance to benefit from Moon exploration.

Notes:

[1] Berryhill, Katie J. 1996. The Moon Treaty: A Survey of Selected Legal Issues, 1.

[2] Ibid, 3.

[3] Ibid, 3.

[4] Ibid, 4.

[5] Ibid, 6.

[6] Ibid, 7.

[7] Ibid, 8.

[8] Ibid, 9.

[9] Ibid, 10.

[10] Ibid, 18.

[11] Ibid, 18.

[12] Ibid, 19.

[13] Ibid, 20.

[14] Ibid, 20.