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Moon and Antarctica – legally safe?

My short article in New Scientist, arguing that the space powers are engaged in a new race to the moon that is best understood as a slow-motion re-run of the Antarctica story has provoked a wave of comment there. Since I intend to continue writing on this subject (and would welcome comments) I have decided to post a full reply here.

Most interesting to me has been law-inspired criticism and here’s a typical comment in full, from “lawroberts”:

Unfortunately for the author, Antarctica is an inappropriate analogy for the status of state claims to the Moon.

First, the claims of ownership that the author notes are a largely irrelevant,historical artifact. Antarctica is governed by international agreement – the Antarctica Treaty. The Antarctica Treaty effectively prohibits national claims and has deferred the issue of resource exploitation.

While it is true that a number of nations when signing the Antarctica Treaty reserved their pre-existing claims of jurisdiction and control, those rights only take effect in the event of the collapse of the Antarctica Treaty.

Anyone making a claim of the possibility of a future colonial model based upon pre-existing claim must take into account the fact that unlike Antarctica there are no surviving, pre-existing claims of state jurisdiction and control. In addition, the fact that the Outer Space Treaty represents a customary law standard makes it extraordinarily difficult to assert a future claim of national control even were the nation in question to renounce the OST.

The two central criticisms are that a) the kind of competitive colonisation I fear is nonsense as it is already illegal; and b)that the comparison with Antarctica is flawed as potential conflict there has been effectively pre-empted by the Antarctica Treaty. Here’s why I think both these criticisms are wrong.

Space law is adequate?

The Outer Space Treaty of 1967 states that “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”. That seems pretty clear. And indeed, the UN Office for Outer Space Affairs helpfully offers this Q&A:

Q “Can any State claim a part of outer space as its own?”

A. “No…. ” [for the reasons given above]

But the UN has a vested interest in such wishful thinking and to take all this at face value is flawed for two reasons. First, it mistakes our hopes for the rule of law for reality. A Banana Republic really is different from a Republic, even though it may in writing have an entirely Republican constitution and institutions. Nations repeatedly show themselves willing to violate international law, including often the space powers themselves. Eventually, as Israeli settlers know, occupation leads to ownership.

Second, the framework provided by the Outer Space Treaty is in fact brief and weak. For example, the US has argued that “peaceful uses” can include deploying weapons to defend its satellites, which, even if it is peaceful, is likely to give rise to an arms race. This is precisely why the Moon Treaty was drawn up -and, presumably, why the Moon Treaty has not been signed by the space powers. Various diplomatic attempts to strengthen the legal position have been going on for years without getting anywhere.

This is not to say the legal framework does not matter and will not constrain the activities of the space powers. But it will be entirely possible for the powers to proceed with a strategic contest for the moon for decades, staking de facto claims and building up their positions without violating any laws. The analogy is with the nations which have built up their nuclear capability without actually building any bombs, which Iran is currently accused of. The strategy is to develop your position without violating any treaty, to the point where the strategic aim (a bomb, control of part of the moon) becomes unstoppable. The fact that this activity does not violate any treaty and in that sense is legal, does not mean it will not lead to war.

As an illustration of the way things might develop, take a look at the scenario drawn up by the International Institute of Space Law in 1993 (pdf here).

Antarctica has been pacified?

The Antarctica Treaty is obviously helpful in reducing tensions. But it has notably failed to deal with the central question of who gets to exploit which resources. The treaty explicitly does not recognize,dispute, nor establish territorial sovereignty claims. And the facts on the ground show continued efforts to strengthen claims by, for example, Britain,Argentina and Chile, whose claims overlap. See this story from some oil people.