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« Why Are We In Iraq? | Main | "The Soft Bigotry Of Low Expectations" »

A Bad Precedent?

I've been meaning to post about this for a while, but haven't had the time to get back up to speed on it, after all these years, but the Law of the Sea Treaty has reared its ugly head again, and once again, it's looking like it's stalling in the Senate, though the Bush administration seems to be supporting it, at least in theory. It went into force ten years ago, but the US has still not ratified it, and Doug Bandow explains why we shouldn't. Here's the part that concerns me the most as a space enthusiast:

The treaty's mining scheme is flawed in its very conception. Although many people once thought untold wealth would leap from the seabed, land-based sources have remained cheaper than expected, and scooping up manganese nodules and other resources from the ocean floor is logistically daunting. There is no guarantee that seabed mining will ever be commercially viable.

Yet this has not dimmed the enthusiasm of the Authority. Like the U.N., it generates lots of reports and paper and obsesses over trivia. Protecting "the emblem, the official seal and the name" of the International Seabed Authority has been a matter of some concern. Among the crises the Authority has confronted: In April 2002 the Jamaican government turned off its air conditioning, necessitating "urgent consultations with the Ministry of Foreign Affairs and Foreign Trade." A year later Jamaica used the same tactic in an ongoing battle over Authority payments for its facility. Oh yes, half of the Authority members are behind on their dues.

Were seabed mining ever to thrive, a transparent system for recognizing mine sites and resolving disputes would be helpful. But the Authority's purpose isn't to be helpful. It is to redistribute resources to irresponsible Third World governments with a sorry history of squandering abundant foreign aid.

Those familiar with the history of the L-5 Society may recognize this. The Law of the Sea Treaty was the model for the 1979 Moon Treaty, which, like the sea bottom, declared everything off planet the "province of all mankind." Here's the key part:

The 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.

In other words, if you or I were to go develop some extraterrestrial resource (and "moon" in this phrasing really means "moon and other celestial bodies") we would have to share in the proceeds with all other countries, including those that in no way contributed, per the decision of an as-yet-undefined international authority under the auspices of the United "Oil for Palaces corruption" Nations. I can't think of a better way to guarantee that space will not be developed, which is perhaps the intent of the authors.

While the L-5 Society was largely ineffectual in terms of achieving its goals, it did manage to almost singlehandedly prevent the US from ratifying this treaty (an issue that few others cared about at the time except a few bureaucrats at Foggy Bottom), and that in itself probably made the existence of the society worthwhile, even for as brief a time as it lasted. Just for historical interest, note some of the names in that L-5 history of people who were instrumental in defeating the treaty. In addition to Keith Henson and Carolyn Meinel, Eric Drexler and Chris Peterson, of more recent nanotechnology fame, were also lobbying hard for this outcome.

If the Law of the Sea Treaty is ratified by the US, it would set a precedent and make it harder to argue against similar ratification of the Moon Treaty (which while in force has not been ratified by a single spacefaring nation). I'd say, thanks, but no thanks to both.

Posted by Rand Simberg at April 13, 2004 05:16 PM
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"Were seabed mining ever to thrive, a transparent system for recognizing mine sites and resolving disputes would be helpful."

Would it be wise or unwise to push for such a system for space, as an attempt to preempt the neo-NIEO redistributionism/obstructionism inherent in the Law of the Sea and Moon Treaty?

Posted by T.L. James at April 13, 2004 07:39 PM

A few points of clarification:

The relevant portion of the Moon Treaty is article 10, not article 4. The portion you quote is a slight modification of article 1 of the Outer Space Treaty (which as you know the US is a party to). The benefit of all mankind language did raise some concerns during the drafting of the OST, but it was agreed that this was to be interpreted as a policy statement and did not create any binding legal duties.

The major problem with the Moon Treaty is article 10, which states "The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article". It is the commmon heritage of mankind language that is duplicated in the LOS Treaty.

However, the precedential value of the LOS Treaty to the Moon Treaty would likely be minimal at this point. First off, the quote above shows that the Moon Treaties use of the common heritatge language is self referential, i.e. it is defined by the requirements of the subsections of the article. Furthermore, Treaties often have different definitions for the same term. That being said, many scholars look to the interpretation of the LOS to give meaning to the Moon Treaty language. More importantly, the paragraph that the Treaty indicates defines the common heritage concept calls for a regime to be created dealing with property rights on the Moon. The biggest danger of the LOS "enterprise" being modelled in the Moon Treaty is in this future regime. However, there is no indication (even in the yearly UNCOPUOS reports) that any State is interested in creating a regime anytime soon.

All of this is probably of loose relevance because the US has explicitly rejected the Moon Treaty as it is currently drafted (not hung up the ratification, but flat out rejected). There is little indication other States are likely to start ratifying it either. Even the scholars who fight so hard to defend the justice of the common heritage concept are dubious as to whether any International (let alone domestic) court would find it to be binding customary law (so as to bind even States that have not ratified it). Even if the deep sea bed is found to be the common heritage (which it effectively has been), this is not precedent for extending the concept to the Moon without having a customarily accepted Moon Treaty, or being party to the Moon Treaty.

Another problem with holding up the LOS on account of space law is that even if the common heritage concept is nebulous, if the Moon Treaty is accepted for any reason there are enough specific provisions to do the damage to business. Article 10 specifically denies property rights to private parties (closing the loophole in the language of the OST). Article 10 also specifically includes equitable sharing (although only as a principle).

The most likely way to cement our rights in the Moon is to get there quick and start using it for private purposes (I know this is hardly a new idea). This is how we avoided problems with GEO slots and radio frequency use, which are now allocated by the Internatinal Telecommunications Union (without causing problems for the US given that we were standing on enough good spots to begin with and can argue for unequal usage rights based on efficient allocation of resources--remember equitable use only very rarely means equal sharing).

As a very minor nit, Australia has ratified the Moon Treaty. While it is not strictly a spacefaring nation in that it does not have a national launch vehicle, it does have a launch site that is being considered by Space Adventures for future suborbital launches and some domestic space industry (enough to justify having a relatively comprehensive system of licensing for private space activities).

Posted by Nathan Horsley at April 13, 2004 08:16 PM

I'm not sure what you mean by "flat out rejected," Nathan. IIRC, Jimmy Carter signed the thing (yet another reason to regret my one and only vote for a Democrat for president).

Posted by Rand Simberg at April 14, 2004 10:04 AM

I sure remember the Moon Treaty battle, the phone tree calls and all. I'm glad I was part of that. In hindsight, there were a lot of problems with the main L5 proposals. It would have required space construction that completely dwarfs anything we have done, a "Construction Shack" that makes ISS looks like a joke, etc. But then, we had just recently gone from nothing to the moon in a decade, though many had thought THAT was impossible, so ...

And we were going to solve the Energy Crisis. It was a given that oil was almost gone. Even the President told us we were going to have to learn to live with severe limits. There were a few naysayers, but they received little press, and few took them seriously ...

That's when I learned to look at the things Everybody Knows a little more carefully, and take pronouncements of doom with a grain of salt.

Posted by VR at April 14, 2004 05:52 PM

First, to correct myself, the common heritage concept is discussed in article 11, not 10, of the Moon Treaty.

Rand, I cant find the source for an affirmative rejection by the congress that I referred to (I was talking about the congress when I said US). IIRC, rather than merely languishing without vote like the LOS, the Moon Treaty was strongly rejected in the Senate (largely due to the L5 lobby). I admit I could be conflating this memory with the reaction of the State department.

As for Carter signing it, I cant find any reference to the US signing or not, but the UN record has the US as neither a signatory nor a party to the Moon Treaty. If it was signed at one point, this signature has been withdrawn. That would be noteworthy in itself in that normally the signature just sits so our diplomats can blaim congress for lack of action. If this happened it could be what Im thinking of with the rejection. I need to go look at the source docs again.

Posted by Nathan Horsley at April 15, 2004 05:38 AM

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