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Conflicts in the Interpretation of the Leading Principles of the Moon Treaty of 5 December 1979
Published online by Cambridge University Press: 21 May 2009
Extract
On the 5th December 1979, the General Assembly of the UN adopted a Resolution commending an “Agreement Governing the Activities of States on the moon and other celestial bodies”, the Draft of which was agreed to by the UN Committee on the Peaceful Uses of Outer Space (COPUOS) on 3 July 1979.
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References
1. See UN Doc. A/RES/34/68.
2. See UN Doc. A/34/20, 1979.
3. Treaty on Principles Governing the Activities of States in the Exploration and use of Outer Space (1967); Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched in Outer Space (1968); Convention on International Liability for Damage caused by Space Objects (1973); Convention on Registration of Objects Launched into Outer Space (1976); Agreement Governing the Activities of States on the Moon and other Celestial Bodies (1979).
4. See on the concept of the Common Heritage of Mankind as applied to the seabed, in particular Dupuy, R. J., The Law of the Sea, Current Problems (Leiden, 1974)Google Scholar.
5. Art. 32 of the Vienna Convention of the Law of Treaties (1969) provides that in the interpretation of a Treaty, recourse may be had to the preparatory work if its meaning is ambiguous or obscure.
6. See UN Doc. A/AC.105/C.2/ C.71.
7. See UN Doc. A/AC.105/C.2.
8. See UN Doc. A/AC.105/C.2.
9. See UN Doc. A/AC.105/C.2/SR.290 at 7.
10. A thorough survey of these opinions has been given in Professor C.Q. Christol's article, “The Common Heritage of Mankind Provision in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies”, shortly to be published in the International Lawyer.
11. See UN Doc. A/AC.105/PV.203 at 26.
12. See Press Release, USUN 107 (79).
13. In his article “Legal Aspects of the Utilization of Outer Space”, published in this Review, 1970 p. 33 et seq., the present writer commented on the views of a number of authoritative writers on Art. II.
14. Insofar as the interpretation of the treaties in general is concerned, special attention may be drawn to the study by ProfessorBos, M., “Theory and Practice of Treaty Interpretation”, published in Issues I and II (1980) of this ReviewGoogle Scholar, in which he has given a magisterial analysis of the methods and rules of treaty interpretation.
15. See the statement made by the Swedish delegate on 30 March 1979 (UN Doc. A/AC.105/C.2/SR 312 at 4) and that made by the Chilean delegate on 10 July 1979 (UN Doc. A/AC. 105/PV.1967 at 6); see also the statement made by the Maltese Ambassador to the UN Dr. Pardo, quoted by Luard, Evan, The Control of the Seabed (London, 1974) at 86Google Scholar.
15a. See American Journal of International Law, 04 1980, Vol. 74, no. 2, at 420Google Scholar.
16. See International Space Activities 1979. Hearings before the Sub-Committee on Space Science and Application of the Committee on Science and Technology, US House of Representatives 96th Congress 1st Sess. 5 and 6 September 1979, at 108.
17. See UN Doc. A/AC.105/PV.203 at 22.
18. The text of this paragraph reads as follows: “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”.
19. See Cheng, , The Moon Treaty, Current Legal Problems (1980) at 230Google Scholar.
20. See Cheng, , op.cit., supra at 232Google Scholar.
21. See American Journal of International Law supra n. 15 at 423.
22. See American Journal of International Law supra n. 15 at 424.
23. See UN Doc. A/AC.105/PV.203 at 25.
24. See American Journal of International Law supra n. 15 at 426.
25. In the meeting of COPUOS on 16 July 1979, the American delegate, Mr. Hosenball, declared: “Art. Ill is a clear statement of the principle that celestial bodies and those orbits around them are to be only for peaceful – that is non-aggressive – purposes”. See UN Doc. A/AC.105/PV 203, at 22.
26. See Goedhuis, , “An Evaluation of the Leading Principles of the Treaty on Outer Space of 27 January 1967”, this Review, Vol. XV at 24 et seqGoogle Scholar.
27. See ProfChristol, C.Q., The International Law of Outer Space, Naval War College, International Law Studies (Washington, 1966) at 268 et seqGoogle Scholar.
28. See General Assembly Resolutions S-10/2, par. 80.
29. See UN Doc. CD/9 of 26 March 1979.
30. See ProfO'Connell, D.P., The Influence of Law on Sea Power (Manchester University Press, 1975) at 156Google Scholar.
31. See, e.g., Scoville, Herbert Jr and Tsipis, KostaCan Space Remain a Peaceful Environment? Occasional Paper of the Stanley Foundation, 07 1978Google Scholar.
32. According to a recent article in The Times from Reuter's correspondent on the US Space Shuttle to test later weapons (Washington, 6 January 1981) some defence analysts believe that later versions of the shuttle will be armed with laser weapons to attack satellites or to engage in space battle.
33. See Asbeck, FankThe Militarization of Space ADIU Report, Vol. 2, no. 204/05 1980Google Scholar.
34. Contrary to the present writer's opinion, ProfessorGorove, , in his Studies in Space law, its Challenges and Prospects (Leyden, 1977) at 87Google Scholar submits that par. 1 of Art. IV of the Outer Space Treaty prohibits an orbiting missile killer or laser, regardless of whether or not it was intended for defensive or offensive purposes. In his book he further suggests (at 91) that it would be more productive to abandon the artificial and essentially relative distinction between peaceful and military purposes or peaceful and aggressive purposes and focus instead on the prohibition or permission of the particular activitiy involved. In his opinion it would be better to identify those activities which constitute minimal threats [emphasis supplied] to national security and permit those regardless of the ultimate purpose for such activities or their conduct by military personnel. In view of the unlikelihood of States agreeing on a definition of what activities constitute “a minimal threat to their security” one may have strong doubts regarding the support which Professor Gorove's proposal would be able to receive.
35. See International Space Law (Moscow, 1976) at 91Google Scholar.
36. See The Legal Regime of the Moon, Proceedings of the 14th Colloquium on the Law of Outer Space, 1972 at 50. In his lectures to the Académie de Droit International de La Haye, Zhukov remarked in the same sense: “Le Traité de l'Espace de 1967 établit pour la Lune et les autres corps célestes le régime de démilitarisation compléte”. See Hague Recueil, 1978 III at 257.
37. To quote Mr. Albornoz, the representative of Ecuador in COPUOS on 10 July 1979: “We have heard that a single Power has already spent $50 billion in 20 years for military space objects”, see UN Doc. A/AC.105/PV.197 at 28.
38. See “Military Installations, Structures and Devices on the Seabed”, American Journal of International Law (10, 1980) Vol. 74, no. 4 at 817Google Scholar; see also Luard, Evan, The Control of The Seabed (London, 1974) at 105Google Scholar.
39. See Resolution of the UN General Assembly of 17 December 1970 (2749 XXV).