The 1979 Moon Agreement

The 1979 Moon Agreement was considered and elaborated by the Legal Subcommittee from 1972 to 1979. The Agreement was adopted by the General Assembly in 1979 in Resolution 34/68. It was not until June 1984, however, that the fifth country, Austria, ratified the Agreement, allowing it to enter into force in July 1984.

The Agreement reaffirms and elaborates on many of the provisions of the 1967 Outer Space Treaty as applied to the Moon and other celestial bodies, providing that those bodies should be used exclusively for peaceful purposes, that their environments should not be disrupted, that the United Nations should be informed of the location and purpose of any station established on those bodies.

In addition, the 1979 Moon Agreement provides that the Moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible. The 1979 Moon Agreement applies to the Moon and all other celestial bodies within the Solar System other than the Earth, including orbits or other trajectories to or around them.

However, after entering into force in 1984, having secured a sufficient number of ratifications, it is still unratified by any major space-faring power such as the United States of America, and unsigned by the majority of states/nations. Therefore, at this point it is of no direct relevance to current space activities.

But what of the future? Improved perspectives might perhaps appear on the horizon when exploratory missions to the Moon and Mars will become more realistic. Such missions have, incidentally, been receiving more and more attention among International Space Law experts in recent years. Conferences have been organised; a new race to the Moon and its resources is about to begin.

Foreword

The UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE are “Text of treaties and principles governing the activities of States in the exploration and use of outer space, adopted by the United Nations General Assembly”. The United Nations has the responsibility, in the legal field, to develop and codify international law. Because outer space was an environment of a new nature, “extraordinary in many respects” and “unique from the legal point of view”, and because its human conquest started in the tense climate of the 1950s, the international community had to rapidly legislate about it.

Recently, human activities and international interaction in outer space have become realities. Through the efforts of the United Nations Committee on the Peaceful Uses of Outer Space and its Legal Subcommittee, a number of significant contributions to the law of outer space have been made in the 1950s, 1960s and 1970s; formulation of international rules to facilitate international relations in outer space. The United Nations has therefore become “the place” or “a focal point” for international cooperation in outer space and for the formulation of necessary international rules. The extension of international law to outer space has been gradual and evolutionary; commencing with the study of questions relating to legal aspects, proceeding to the formulation of principles of a legal nature and, then, incorporating such principles in general multilateral treaties.

A significant first step was the adoption by the General Assembly in 1963 of the “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space”. This text is the genesis of what has become known as “Space Law”. The years that followed saw the development within the United Nations of five general multilateral treaties, which incorporated and developed concepts included in the Declaration of Legal Principles:

  1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (General Assembly resolution 2222 – XXI) entered into force on October 10, 1967;
  2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (General Assembly resolution 2345 – XXII) entered into force on December 3, 1968;
  3. Convention on International Liability for Damage Caused by Space Objects (General Assembly resolution 2777 – XXVI) entered into force on September 1, 1972;
  4. Convention on Registration of Objects Launched into Outer Space (General Assembly resolution 3235 – XXIX) entered into force on September 15, 1976;
  5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (General Assembly resolution 34/68) entered into force on July 11, 1984.

The United Nations oversaw the drafting, formulation and adoption of five General Assembly resolutions, including the Declaration of Legal Principles. These are:

  1. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted on December 13, 1963 (General Assembly resolution 1962 – XVIII);
  2. Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, adopted on December 10, 1982 (General Assembly resolution 37/92);
  3. Principles Relating to Remote Sensing of the Earth from Outer Space, adopted on December 3, 1986 (General Assembly resolution 41/65);
  4. Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted on December 14, 1992 (General Assembly resolution 47/68);
  5. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, adopted on December 13, 1996 (General Assembly resolution 51/122).

The United Nations states, in the collection of Space Law texts (available freely on the U.N.’s website), that “The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, could be viewed as furnishing a general legal basis for the peaceful uses of outer space and providing a framework for the developing law of outer space. The four other treaties may be said to deal specifically with certain concepts included in the 1967 Treaty. The space treaties have been ratified by many Governments and many others abide by their principles. In view of the importance of international cooperation in developing the norms of space law and their important role in promoting international cooperation in the use of outer space for peaceful purposes, the General Assembly and the Secretary-General of the United Nations have called upon all Member States of the United Nations not yet parties to the international treaties governing the uses of outer space to ratify or accede to those treaties as soon as feasible”. Let’s now look at the Magna Carta of space law and the main principles it enacted in 1967.

The 1979 Moon Agreement

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, was adopted on December 5, 1979, opened for signature on December 18, 1979, and entered into force on July 11, 1984. As a follow-on to the 1967 Outer Space Treaty, the 1979 Moon Agreement intended to establish a regime for the use of the Moon and other celestial bodies similar to the one established for the sea floor in the United Nations Convention on the Law of the Sea.

In its Preamble, we read the following: “Recognizing that the Moon, as a natural satellite of the Earth, has an important role to play in the exploration of outer space”, then “Desiring to prevent the Moon from becoming an area of international conflict”, and finally, “Bearing in mind the benefits which may be derived from the exploitation of the natural resources of the Moon and other celestial bodies”. Those three sentences appear the most important in the 1979 Moon Agreement’s Preamble. The Moon has an important role to play in the exploration of outer space, it cannot become an area of international conflict, and the exploitation of the natural resources of the Moon (and other celestial bodies) might become a commercially profitable activity.

Article 1 of the 1979 Moon Agreement is important as it defines what the Agreement is about, to what object it should apply. “1. The provisions of this Agreement relating to the Moon shall also apply to other celestial bodies within the solar system, other than the Earth, except insofar as specific legal norms enter into force with respect to any of these celestial bodies. 2. For the purposes of this Agreement reference to the Moon shall include orbits around or other trajectories to or around it. 3. This Agreement does not apply to extraterrestrial materials which reach the surface of the Earth by natural means”. The 1979 Moon Agreement applies to all celestial bodies within the Solar System, and specific laws might appear (for Mars for example). The 1979 Moon Agreement also applies to orbits around the Moon and other trajectories to or around the Moon. Finally, meteorites do not fall under the 1979 Moon Agreement.

Article 2 notably states that “All activities on the Moon, including its exploration and use, shall be carried out in accordance with international law, in particular the Charter of the United Nations”. Article 3 restates that “1. The Moon shall be used by all States Parties exclusively for peaceful purposes” and adds details about potential military activities: “2. Any threat or use of force or any other hostile act or threat of hostile act on the Moon is prohibited. It is likewise prohibited to use the Moon in order to commit any such act or to engage in any such threat in relation to the Earth, the Moon, spacecraft, the personnel of spacecraft or manmade space objects. 3. States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. 4. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the Moon shall also not be prohibited”.

Article 4 of the 1979 Moon Agreement concerns “the benefit and the interests of all countries, the principle of cooperation and mutual assistance, and international cooperation”. Article 5 notably states that “1. States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of their activities concerned with the exploration and use of the Moon. Information on the time, purposes, locations, orbital parameters and duration shall be given in respect of each mission to the Moon as soon as possible after launching, while information on the results of each mission, including scientific results, shall be furnished upon completion of the mission”.

It also adds that “2. If a State Party becomes aware that another State Party plans to operate simultaneously in the same area of or in the same orbit around or trajectory to or around the Moon, it shall promptly inform the other State of the timing of and plans for its own operations”. Article 6 of the 1979 Moon Agreement notably states that “2. In carrying out scientific investigations and in furtherance of the provisions of this Agreement, the States Parties shall have the right to collect on and remove from the Moon samples of its mineral and other substances. Such samples shall remain at the disposal of those States Parties which caused them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation. States Parties may in the course of scientific investigations also use mineral and other substances of the Moon in quantities appropriate for the support of their missions”.

Article 7 of the 1979 Moon Agreement is the continuation of the Planetary Protection principle exposed in Article IX of the 1967 Outer Space Treaty: “1. In exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise”.

Article 8 of the 1979 Moon Agreement enounces that “1. 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. 2. For these purposes States 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”.

Article 9 of the 1979 Moon Agreement declares that “1. States Parties may establish manned and unmanned stations on the Moon. A State Party establishing a station shall use only that area which is required for the needs of the station and shall immediately inform the Secretary-General of the United Nations of the location and purposes of that station”. It then specifies that “2. Stations shall be installed in such a manner that they do not impede the free access to all areas of the Moon of personnel, vehicles and equipment of other States Parties conducting activities on the Moon in accordance with the provisions of this Agreement or of article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”. That article might become more and more relevant in the upcoming years, with the potential projects of establishing stations on the Moon.

Article 10 of the 1979 Moon Agreement was inspired by Article V of the 1967 Outer Space Treaty and says that “States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the Moon”.

Article 11 of the 1979 Moon Agreement, the longest of the Agreement, is important since it concerns in situ resource utilization and potential space mining activities. It states that “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. 2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. 3. 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”.

4. States Parties have the right to exploration and use of the Moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement. 5. 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. This provision shall be implemented in accordance with article 18 of this Agreement. 6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the Moon”.

7. The main purposes of the international regime to be established shall include: (a) The orderly and safe development of the natural resources of the Moon; (b) The rational management of those resources; (c) The expansion of opportunities in the use of those resources; (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration. 8. All the activities with respect to the natural resources of the Moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement”.

Article 12 of the 1979 Moon Agreement declares that “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”.

Article 14 of the 1979 Moon Agreement is the continuation of Article VI of the Outer Space Treat and affirms that “States Parties to this Agreement shall bear international responsibility for national activities on the Moon, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in this Agreement. States Parties shall ensure that non-governmental entities under their jurisdiction shall engage in activities on the Moon only under the authority and continuing supervision of the appropriate State Party”.

Concluding remarks on the 1979 Moon Agreement

The treaty was finalised in 1979 and, after satisfying the condition requiring five ratifying states, it entered into force for the ratifying parties in 1984. As of July 2019, eighteen states only are parties to the 1979 Moon Agreement. The objection to the 1979 Moon Agreement that is often raised is that the 1979 Moon Agreement requires that extracted resources (and the technology used to that end) must be shared with developing countries that have not invested funds or assumed risks to enable use of lunar resources.