To the moon & beyond: the United States and the future of international space law.

• Author: Miller, Christopher C.

1. INTRODUCTION

   The exploitation of lunar resources and the permanent occupation of the Moon, whether by the United States, private companies, or by other spacefaring nations, are no longer science fiction fantasies, but are inevitable advancements that will one day confront the United States. (1) In the absence of a comprehensive international treaty, any attempt by the United States or any other nation to establish a permanent base on the Moon or to bring back to Earth lunar resources could give rise to international conflict. (2) Along with the key advantages the Moon can offer, the available resources presently known to exist on the Moon are extremely valuable and could represent the future solution to the world's energy needs. (3) Consequently, it is in the United States' best interests to be a part of the formation and development of an international treaty outlining the legal implications of mining and utilizing the Moon. (4)

   The purpose of this Note is to explain why a comprehensive international treaty regarding the Moon is needed and what specific type of treaty the United States should pursue. (5) Part II of this Note will describe why the world needs a new treaty delimiting rights on the Moon and defining the present state of the law regarding the Moon. (6) Part III of this Note will provide a historical perspective of other international agreements that will most likely provide the basis and structure of a future Moon treaty. (7) Drawing upon these past international agreements, Part IV will illustrate what type of outer space treaty is in the best interest of the United States. (8) In conclusion, Part V states why the United States should be part of the formation of a new outer space treaty and why the United States should demand a treaty that is based on the principles set out in Part IV. (9)

2. FACTUAL BACKGROUND

   1. Why Space Law?

      1. Helium-3 and its Potential

         Vast arrays of natural resources exist on the Moon. (10) Among them is the isotope Helium-3 (He-3), which has shown to exist in high abundance in lunar soil. (11) He-3 is significant for its potential use as a clean and safe fuel for thermonuclear fusion power reactors. (12) Rarely found naturally on Earth, the amount of He-3 which is estimated to exist on the Moon could supply Earth's energy needs for centuries; until it is possible to extract even larger sources of He-3 from other planets in our solar system. (13)

         Estimated to boast a population of around 392 million by 2050, this increase in the U.S. population necessarily means an increase in overall energy consumption. (14) It is well documented that relying on fossil fuels is unsustainable and harmful to the environment; therefore, seeking alternative energy sources is and will continue to be an important strategic and economic investment for the United States. (15) While utilizing renewable natural resources on a significantly large scale has shown to be economically and environmentally unfeasible, nuclear power, on the other hand, could hold the solution to help meet the future energy needs of the United States. (16)

         Fission power is the type of nuclear power used today in the United States and other countries employing nuclear technology. (17) Fission power, however, is an unattractive solution to the energy needs of the future because it has several safety and long-term viability issues. (18) Fusion power, on the other hand, offers several distinct advantages over fission power, including the lack of radioactive waste, an inexhaustible supply of fuel, and its unsuitability for use in the production of nuclear weapons. (19)

         While highly attractive in theory, in reality, billions of dollars have been spent developing controlled nuclear fusion as a possible source of electrical power, with little success. (20) Current fusion power research efforts, which have focused on the fusion of deuterium (D) and tritium (T), face significant hurdles to commercialization in the foreseeable future. (21) A "second generation" approach to fusion power, however, involving the fusing of D and He-3, offers less challenging engineering and fewer environmental and safety obstacles than the D-T-fueled fusion process. (22) Furthermore, a "third generation" approach to fusion power, fusing He-3 with itself, boasts even greater safety and efficiency marks than the D-He-3 process. (23) The D-He-3 application has been demonstrated at continuously increasing power levels for several years in laboratory research reactors and significant numbers of He-3-He-3 reactions in a controlled environment have recently followed. (24) With this future technology in mind, the estimate that the amount of He-3 found on the Moon could produce "ten times as much energy as is contained in Earth's recoverable coal, oil, and gas combined," demonstrates the invaluable benefit of He-3's potential application. (25)

      2. Other Potential Uses

         In addition to He-3 mining, the Moon offers the United States other potential uses, including a location for further research and a stepping stone for exploration of other parts of the solar system, such as Mars or an asteroid. (26) The presence of He-3 and large quantities of water make the Moon a realistic location for a permanent outpost that could support such exploration. (27)

         As exciting as these possibilities may seem, the economic and political feasibility for the United States to carry out any of these ambitious projects have been cast into doubt. (28) In 2010, President

         Obama sent the U.S. spaceflight program on a new course, skipping over the Moon and concentrating on more distant destinations, namely an asteroid or Mars. (29) At a time when the United States is setting its sights elsewhere, Russia, China, India, Japan, and the European Space Agency have all recently conducted or intend to conduct lunar missions, and some have announced intentions to send humans to the Moon to establish a permanent lunar outpost. (30) Even with the United States' new direction and objective, "[l]unar science and lunar exploration is alive and well in NASA," and a return to the Moon is not out of the question. (31) A deep-space program that focuses on taking astronauts beyond low-Earth orbit would likely include the Moon as part of "any long-term sustainable human presence in space." (32)

   2. Current Space Law

      Space law is "the body of law applicable to and governing space-related activities." (33) Only two treaties associated with space law are relevant to this Note. (34) Treaties are the only binding source of international law with respect to the Moon. (35) Because the United States is the only country to have visited the Moon and has done so only several times, there is not yet enough actual practice to create customary international law. (36)

      1. The 1967 Outer Space Treaty

         Described as "the 'Magna Carta' for exploration and use of outer space," the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (OST), is the first comprehensive treaty governing outer space activities. (37) The treaty, which has been ratified by the United States, entered into force in 1967. (38) One hundred countries, including all the major spacefaring nations, are party to the OST, and there are an additional twenty-six non-party signatories. (39)

         The first three articles of the OST reflect the guiding principles that have governed the United Nations' efforts to regulate space-based activities. (40) Article I states that outer space, including the Moon and other celestial bodies, "shall be the province of all mankind," its exploration and use "shall be carried out for the benefit and in the interests of all countries," and shall be free for "all States without discrimination of any kind." (41) Article I also requires that the exploration and use of outer space shall benefit all countries "irrespective of their degree of economic or scientific development." (42) Article II of the OST in its entirety states: "[o]uter 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." (43) Article III mandates that "[s]tate Parties to the Treaty shall carry on activities in the exploration and use of outer space ... in accordance with international law ... in the interest of maintaining international peace and security and promoting international co-operation and understanding." (44)

         Although Article II bans exclusive territorial claims, the OST does recognize that parties to the treaty may establish stations and installations on the Moon and other celestial bodies. (45) Article IV places some restrictions on this privilege by prohibiting nuclear weapons, the establishment of military bases, and the testing of any type of weapon in outer space. (46) With respect to possible mining activities, while the treaty allows a party to make "use" of the Moon, nothing in the treaty explicitly bars mining or ownership over resources removed from the Moon. (47) Even though the OST is considered to be the most comprehensive agreement regulating activities in space, it unfortunately offers only abstract, sweeping statements of undefined principles that "provide[] very little practical guidance for precisely how to implement its edicts." (48)

         Unfortunately, the OST has "very little substantive value in providing guidance to states that aspire to make the Moon more than a decorative ornament in the night sky." (49)

      2. The 1979 Moon Treaty

         In 1979, in response to the introduction of lunar materials to Earth, i.e., moon rocks, as a result of NASA's Apollo Lunar Landing Program and the general realization of the potential for large-scale lunar resource exploitation, the United Nations Committee on the Peaceful Uses of Outer Space proposed the adoption of a new treaty. (50) The Agreement Governing the Activities of States on the Moon and...