Fly Me to the Moon: Why the Moon Treaty Failed

The moon has always held a strong hold over the human race since time immemorial. She has remained physically unchanged in millennia (save for a few new craters here and there), yet our perception of her has been constantly evolving.

The conquest of the moon began with the conquest of space. What began as simple military rivalry escalated by 1952 to a full-scale Space Race with the launch by the USSR of the first artificial satellite, Sputnik 1. This created fears in the American populace, the presence of a Russian eye in the sky fueling the Cold War paranoia. This then lead to the US Congress enacting the National Aeronautics and Space Act, which created the National Aeronautics and Space Administration, more popularly known as NASA.

NASA is basically an agency established by the Federal government of the United States to handle all military and non-military space projects. Contrary to popular belief, although NASA was responsible for planting the American flag on the moon, it does not and cannot claim the moon in the name of the United States . That is because nobody can own the moon.

The United Nations, in the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” more popularly known as the “Outer Space Treaty,” declared space to be the “province of all mankind.”[1] Article I states:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.[2]

One of the common misconceptions of the average person is that the United States owns the moon, because there is an American flag flying there, and because it was the first to lay claim over it. This is definitely not the case. The American flag was planted in July 20, 1969 ; the Outer Space Treaty, on the other hand, was entered into force two years earlier, on October 10, 1967 . And since the space powers the USA and the USSR are signatories of this treaty (of which the Philippines is also a signatory), they are bound by the provisions of the treaty.

Article II of the same treaty further strengthens the claim by stating:

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.[3]

while the second paragraph of Article IV also prevents occupations that are military in nature:

The establishment of military bases, installations and fortifications x x x on celestial bodies shall be forbidden.[4]

The Outer Space Treaty was actually patterned after the Antarctic Treaty of 1959, lifting from it the provisions on “peaceful purposes”[5], “freedom from scientific investigation”[6], and “international scientific cooperation”[7], among others. The only difference is that in the Antarctic Treaty, previous territorial claims and territorial sovereignty are actually recognized. The reason for this is that Antarctic Treaty went into full force and effect after explorer nations had already established their presence in the Antarctic, and this is of course in order to protect any territorial rights they may have already acquired prior to the enactment of the treaty. The Outer Space Treaty, on the other hand, was enacted specifically to prevent any explorer nation to acquire any territorial rights in space, and was timely enacted before the first human ever set foot on the moon.

Yet despite the prohibition on territoriality and ownership in the Outer Space Treaty, might the mighty spacefaring nations find a loophole around this treaty and actually end up with lunar territories?

The answer to that is yes, it is possible. The space powers may soon be singing a different tune, thanks to the United Nations's Resolution 34/68, or the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” (more popularly known as the “Moon Treaty”). The Moon Treaty incorporates much of the provisions of the Outer Space Treaty. Paragraphs 1 and 3 of Article I of the Outer Space Treaty are carried over almost verbatim into the first paragraphs of Articles 4 and 6, respectively, of the Moon Treaty, while the Outer Space Treaty ban on military occupations (paragraph 2 Article IV) is carried over to the Moon Treaty's paragraph 4 Article 3.

What is interesting with this, however, is that the Outer Space Treaty's Article II, regarding non-appropriation, has been pushed down to the third paragraph of Article 11 of the Moon Treaty. At first glance, this gives the impression that the non-appropriation clause's importance has been pushed to the background, but this is in fact qualified by the succeeding paragraph:

Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.[8]

This would then lead us to the assumption that ownership of the moon might seem to be a far-off cry, but as stated above, paragraph 5 of the same article proposes the establishment of an international regime that would handle the appropriations, should that day come.

States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible x x x.[9]

This provision clearly negates the impression that the lunar surface is forever free from ownership. Appropriation is actually possible as soon as it becomes feasible to exploit the moon's resources. But the feasibility of exploiting the resources is subject to the international regime, which will by then probably be the most powerful body when it comes to appropriation of lunar land.

What is most interesting here is that if ownership and property rights on the moon are given stricter scrutiny under the Moon Treaty, why then are the thirteen lone signatories all non-spacefaring nations? To answer that, we must again look at the original treaty, the Outer Space Treaty. According to Glenn Harlan Reynolds, one of the leading authorities right now on extraterrestrial property rights, “[b]oth the United States and the Soviet Union wanted to reach the moon first but, in fact, each was more worried about what would happen if they arrived second. Fears that the competition might trigger World War III led to the 1967 Outer Space Treaty, which was eventually ratified by 62 countries.”[10] The Outer Space Treaty was signed by the two major space powers with the intent of preventing whoever landed on the moon first from claiming it. It followed the principle “if we cannot own the moon, nobody can.”

Taking off from this same premise, and seeing that the Outer Space Treaty might fail to address ownership by private individuals, the UN decided to draft the Moon Treaty, which gave stricter provisions as to the acquisition of lunar property. This was of course in 1979, when both the US and USSR have already been making successful back-and-forth trips to the moon, and it has apparently been clear to them that if they had known what the original Outer Space Treaty would prohibit them from acquiring, they would not have signed the treaty in the first place. This now explains why the states that ratified the Moon Treaty were those nations who had no active space programs and who wished to be protected from any abuse by the space powers. The states that did have active space programs of course recognized the potential of lunar conquest, and refused to ratify any further treaties that would curtail any rights they may acquire.

The failure of the Moon Treaty to put its intent into full force and effect can not only be attributed to the prohibition on owning extraterrestrial property, but also on some of its provisions regarding ownership in space. First of all, there is an obligation placed on all explorer states to make available to “the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable”[11] their discoveries, data, and “any phenomena they discover in outer space, including the moon, which could endanger human life or health, as well as of any indication of organic life.”[12] There is also the obligation to “report to other States Parties and to the Secretary-General concerning areas of the moon having special scientific interest.”[13] The provision on the “freedom of scientific investigation on the moon by all States Parties”[14] apparently does not include the right to secrecy regarding scientific discoveries.

Though ownership of the moon or any celestial body is not possible, the Moon Treaty actually grants the right of usufruct over the moon in favor of the State Parties to the agreement. Despite the “right to exploration and use of the moon without discrimination of any kind,”[15] scientific samples, like lunar soil and rocks, cannot be owned; the states parties to the treaty are only allowed the rights “to collect on and remove from the moon samples of its mineral and other substances.”[16] Although full usufruct of these samples is granted to the State Party, full ownership is not divested. The samples shall only “remain at the disposal of those States Parties which caused them to be collected and may be used by them for scientific purposes.”[17]

The use of the moon without ownership is further discussed in Article 7 of the Moon Treaty. The first paragraph states that “States Parties may pursue their activities in the exploration and use of the moon anywhere on or below its surface, subject to the provisions of this Agreement”[18] while the second paragraph enumerates the following:

x x x State Parties may, in particular:

(a) Land their space objects on the moon and launch them from the moon;

(b) Place their personnel, space vehicles, equipment, facilities, stations and installations anywhere on or below the surface of the moon.

Personnel, space vehicles, equipment, facilities, stations and installations may move or be moved freely over or below the surface of the moon.[19]

What it basically says is that although no one can own the moon, any state party may use the moon, and not just for landing space objects and space vehicles. Although military occupation is not allowed, the treaty allows state parties to “establish manned and unmanned stations on the moon,” under the limitation that “[a] State Party establishing a station shall use only that area which is required for the needs of the station.”[20]

The Moon Treaty not only discusses future property rights on the moon, but also present and existing property rights of the State Parties. Paragraph 1 of Article 12 makes it clear that the State Parties still retain ownership of moveable property on the moon.

States Parties shall retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the moon. The ownership of space vehicles, equipment, facilities, stations and installations shall not be affected by their presence on the moon. (emphasis added)[21]

This right was carried over from Article IX of the Outer Space Treaty, except that the objects subject to usufruct are specifically enumerated in the Moon Treaty. This means that a moon buggy that carries the American flag will be considered as American property, no matter where on the moon it is located. There can be no such thing as a Russian rover accidentally wandering into American territory, because there are no national territories in the first place.

Despite the fact that State Parties retain full ownership of their moveable properties, the Moon Treaty again grants the right of usufruct of space vehicles, equipment, facilities, stations, and installations in favor of other State Parties. The right of usufruct was already present in the Antarctic Treaty, but only in the “freedom of access at any time to any or all areas of Antarctica”[22], and the right to have “all areas of Antarctica, including all stations, installations and equipment within those areas, and all ships and aircraft at points of discharging or embarking cargoes or personnel in Antarctica x x x open at all times to inspection by any observers.”[23]

The first right of usufruct is in favor of anyone in distress: “States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the moon.”[24] But this is nothing new, as the same provision also appears in the United Nations Convention on the Law of the Sea, more popularly known as the Law of the Sea. It just basically follows the “Good Samaritan” principle of doing unto others what you would want others do unto you.

The second right of usufruct is much more explicit, as seen in Paragraph 1 of Article 15: “[A]ll space vehicles, equipment, facilities, stations and installations on the moon shall be open to other States Parties”[25]. That doesn't make it any more clearer. This provision was taken from Article XII of the Outer Space Treaty:

All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity” (emphasis supplied)[26]

except that the reciprocity phrase was discarded, clearly showing the intention that the usufruct in favor of the other State Parties should be absolute. This is in consonance with another provision from the Outer Space Treaty that was modified in the Moon Treaty. Since the Outer Space Treaty was signed by both spacefaring and non-spacefaring nations alike, the first paragraph of Article X gives non-spacefaring State Parties the right “to be afforded an opportunity to observe the flight of space objects launched by those [spacefaring] States.”[27] Carried over to the Moon Treaty, it gives State Parties access to all information and data gathered by the spacefaring State Parties, not just access to observe shuttle and rocket launches.

Through the Moon Treaty, future acquisition of property by the sovereign states of Earth is still clearly prohibited, and their present property rights have been burdened by granting the right of usufruct in favor of the other State Parties. It then becomes pretty obvious why the only nations bound by this treaty are non-spacefaring nations. It required too many obligations on the part of the spacefaring states, obligations that would definitely prove disadvantageous in the long run. No state in its right mind, after pouring billions into its space programs, would allow such free access to other State Parties, when they were the ones who did all the dirty work. So as long as this treaty does not bind the space powers, and as long as the space powers continually pursue their outer space interests, and until a more solid international treaty is drafted especially binding on the spacefaring nations, the status of extraterrestrial property rights will continue to remain on shaky ground.



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[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Art. I, Jan. 27, 1967 , http://www.unoosa.org/oosa/en/SpaceLaw/gares/html/gares_21_2222.html [hereinafter Outer Space Treaty].
[2] Id.
[3] Id. at Art. II.
[4] Id. at Art. IV(2).
[5] The Antarctic Treaty, Art. I, Dec. 1, 1959 , untreaty.un.org/unts/1_60000/30/18/00058863.pdf [hereinafter Antarctic Treaty].
[6] Id. at Art. II.
[7] Id. at Art. III.
[8] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Art. 11(3), Dec. 18, 1979 , untreaty.un.org/unts/60001_120000/12/23/00023117.pdf [hereinafter Moon Treaty]
[9] Id. at Art. 11(5).
[10] Glenn Harlan Reynolds, Who Owns the Moon? The Case for Lunar Property Rigts, Popular Mechanics, 2008.
[11] Art. 5(1) of Moon Treaty.
[12] Id. at Art. 5(3).
[13] Id. at Art. 7(3).
[14] Id. at Art. 6(1).
[15] Id. at Art. 11(4).
[16] Id. at Art. 6(2).
[17] Id.
[18] Id. at Art. 7(1).
[19] Id. at Art. 7(2).
[20] Id. at Art. 8(1).
[21] Id. at Art. 12(1).
[22] Art. VII(2) of Antarctic Treaty.
[23] Id. at Art. VII(3).
[24] Art. 10(2) of Moon Treaty.
[25] Id. at Art. 15(2).
[26] Art. XII of Outer Space Treaty.
[27] Id. at Art. X(1).