The race to "discover " the Arctic and make claims of sovereignty is an unexpected and interesting consequence of global warming. The resultant legal precedents could lay the foundation for parsing out future claims of sovereignty on the Moon. How to determine who will own the Moon is a question many space lawyers are contemplating as the new space race gets underway. These issues concerning the Arctic and the Moon are addressed in a recent article in Wired magazine entitled, Today, Countries Battle for a Piece of the Arctic. Tomorrow? The Moon.
The article describes what is being called the Cold Rush, which is a rush to claim the billions of barrels of oil thought to be under the Arctic that have only become reachable since global warming has melted hundreds of thousands of miles of Arctic ice. Canada, Denmark, Norway, Russia, and the United States all have borders along the Arctic, and they have all been doing some saber rattling in regards to their claims of the Arctic black gold. For instance, in August, Russia was busily working to take possession of the Arctic Sea by planting a titanium Russian flag on the seabed underneath the Arctic Sea (see here), and Canada responded by shifting military forces into the Canadian Arctic (see here).
Julian Ku at the Opinio Juris blog argued that the issue of who has sovereignty over the Arctic Sea and its black gold should be resolved by reference to the Continental Shelf Commission and the International Seabed Authority pursuant to the UN Convention on the Law of the Sea Treaty (UNCLOS), which gives countries the right to claim the continental shelf extending from their territory under the sea (see here). Russia and Canada are both parties to UNCLOS and the United States is not. According to Ku, this means that the US could not invoke UNCLOS to challenge Russian claims of sovereignty in the Arctic but Canada could.
In the Wired article, Joanne Gabrynowicz, an international space law expert and a contributing member of the Res Communis blog, is quoted as saying, "The seabed, high seas, Antarctica, and space are, as a matter of law, global commons. What happens in one can be argued to be legal precedent in the others."
She is undoubtedly correct in her conclusion, and since China, Japan, Russia, and the United States are all vying for a piece of the Moon in the near future, it is imperative that we pay attention to how the Arctic problem is resolved. The Wired article concludes with this somber thought:
It's been several hundred years since a virgin patch of Earth was successfully claimed by anyone. Now that we may be facing valuable unsullied territory again, it would be wise to come up with a better system. Do we really want to see a repeat of the Americas, colonial Africa, or the Middle East? "As I tell my students, when humans have a conflict there are only two options: to reach agreement or to fight," Gabrynowicz says. "Even agreeing to disagree or doing nothing simply puts these options further into the future; it does not create additional options. At the level of nations, these options are law or war."
One thing is for sure, international law is on the precipice of a major evolution. The major differences between the Arctic situation and the Moon can be seen in the type of treaties that have been signed. UNCLOS provides some form of dispute resolution, and even if the US is not a party to UNCLOS, it might still be considered customary international law (CIL). However, when we look to the Moon, the only treaty we have to really consider is the Outer Space Treaty (OST), which is devoid of any dispute resolution clauses-- it merely states that the moon is community property and not the exclusive property of any particular nation, and any benefits derived from outer space or the moon are to be reaped by all nations.
New precedents are also being set by litigation resulting from the war on terror, which are altering how the Courts interpret treaties and CIL. We might see a clever attorney asserting an argument from the Hamdan case in regards to CIL, arguing whether the US is even bound by UNCLOS. Moreover, unlike the Arctic Sea, the only nation to have ever planted a flag on the moon (yet) is the US. In theory, it can be argued that all nations share a border with the moon but the opposite argument that no nations share a border with the moon can be just as easily asserted. We also have to consider the effect of the new US space policy, which declares sovereignty over the entirety of outer space and celestial bodies.
Least to say, it will be fascinating to see what kind of arguments and precedents result from the Arctic Sea disputes and how those will be applied to the Moon. Although both fall under the doctrine of res communis, there are differences between the high seas and outer space, including the vast geopolitical consequences of dominance in space as compared to dominance on the high seas. The value of oil cannot be compared to the value of military dominance, and this is another reason that precedents being set during the war on terror will have an influence on how the US-- if not the entire world-- approaches the issue(s) of who owns the moon. Countries should be more proactive about how these issues should be resolved prior to making claims on the moon. Hopefully, as people in the know, we can be the catalyst encouraging new treaties and creating forums for dispute resolution.