Transnational Law Blog

Today, The Arctic Sea - Tomorrow, The Moon

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.    

Who Owns the Moon and Its Valuable Resources?

Global warming may be the first threat to humanity that comes to mind when considering the problems our generation has to grapple with over the course of the next 50 years, but our generation is also facing a cataclysmic energy shortage. It is estimated that in 2050 the world's population of humanoids will be 9 billion. A population of that size would have to generate 102.2 terawatts to maintain the use of energy at the rate enjoyed by today's population, which is a mere 13.5 terawatts of energy. Producing the necessary amount of energy for the world's future population is not possible through terrestrial means alone. The energy that will sustain our future on Earth is to be found on the moon, or that's what Buzz Aldrin and Taylor Dinerman argue in a recent article entitled, "Let's Go Back to the Moon."

Last December the United States unveiled its intentions to return to the moon by 2020 and to build a permanent base by 2024. “Our objective is to create a enduring sustainable human and robotic presence that will open up vastly greater opportunities for science, research and technological development,” Shana Dale NASA’s Deputy Administrator explained. An estimated 13,000 terawatts of solar energy hit the moon, and once a base has been established, power plants can be built that harness the energy and send it back to Earth. The article by Alrdin and Dinerman stresses the importance of privatizing the moon. An interesting article at the Volokh Conspiracy Blog points out that an appropriate property rights regime should be established prior to building a base and extracting resources. The Volokh Conspiracy Blog argued:

While some government-owned facilities in space and on the Moon are probably inevitable and desirable, imposing government ownership on all property beyond Earth orbit, as the conventional interpretation of the 1967 Outer Space Treaty seems to do, is a recipe for disaster. A vast socialist empire in space is no more likely to be a good idea than earthbound socialist empires have been.

The Outer Space Treaty (OST) was signed and ratified by the US, making it binding federal law under the Supremacy Clause, and it states that the moon is community property and not the exclusive property of any particular nation. Under the treaty, any benefits derived from outer space or the moon are to be reaped by all nations. It is unclear how this has been changed by the US's new space policy, which declares sovereignty over the entirety of outer space and the moon, but it would appear that any benefits derived from a moon base would have to be shared with everyone on Earth. If the US wanted to change this fact, then it would have to extract itself from the OST.

The Constitution describes how to enter into a treaty but it is silent about how to terminate a treaty. Depending on the mood of the Supreme Court, the President could unilaterally terminate the treaty under the precedent set in Goldwater v. Carter, 444 U.S. 996 (1979). The Court held in Goldwater that a dispute between Congress and the President arising from the President's unilateral decision to terminate a treaty with Taiwan was not reviewable because each branch had not taken action to assert its full constitutional authority. The other option for terminating the OST, which is much less controversial, is to legislate federal statutes that would supersede the OST according to the last in time rule.

Of course, all of this assumes that the US would want to extract itself from the OST. The article by Aldrin and Dinerman posited another option; namely, private entities could lease land long term and pay rent to the UN. The Volokh Conspiracy Blog seemed to argue that the long term leasing scheme would not work and that such a "socialist empire" is a "recipe for disaster." However, long term land leases seem to be working just fine in China (if you ignore the illegal takings), and it is very probable that such a scheme would work on the moon.

Whatever scheme is adopted for property rights on the moon, the exploitation of outer space and celestial bodies is inevitable, and it will fall upon transnational law to sort out the messy details. Would the moon be considered a territory of the US not unlike Puerto Rico and Guantanamo Bay? If so, would the rights and privileges of the Constitution apply to people on the moon? Could the US military detain enemy combatants on the moon in an attempt to take them out of the reach of the Supreme Court's jurisdiction? If a tourist is injured while vacationing on the moon, what tort laws apply? Traditional transnational law in the US says that the law of the place where the tort occurred would apply (lex loci delicti), but what are the laws of the moon?! Does this make an analogy to Puerto Rico even more relevant? The hypotheticals are infinite, but it brings the discussion back to something mentioned in the Volokh Conspiracy Blog article: should these laws be established before humans begin settling on the moon? The obvious answer seems to be yet another question: have the laws ever been established prior to humans setting out to homestead?