Fifty years after the Promethean achievement of Apollo 11, the major space-faring nations are showing a renewed interest in missions to the Moon. While in the 1960s, the decision to land humans on the Moon was perceived as a strategic political instrument between the two blocs, now in the 21st century, a considerably increased number of space actors complicate the scene with multiple sectoral and national interests.
The commercialisation and privatisation of space activities leads to new challenges which raise the issue of the role of the international legal framework. In this context, the Agreement Governing the Activities of the States on the Moon and Other Celestial Bodies of 1979 (“Moon Agreement”) should be able to play a relevant role. The treaty establishes guidelines on future uses of Earth’s moon and outer space. The form of the international regime introduced in the Moon Treaty has yet to be fleshed out, but it is probable that it would be similar in form to the international regime called “The Enterprise”, which was proposed in Part XI of the 1994 Agreement of the Law of the Sea Convention to oversee the mining of mineral resources in the world’s oceans. If the international regime envisioned by the Moon Treaty takes a form similar to that of the Enterprise, developed nations would be required to relinquish a portion of the resources extracted from the Moon and other celestial bodies. They would also be required to surrender technology developed by private industries under their jurisdiction for extracting extraterrestrial resources so that developing nations could participate, as well. Due to the fear of this ‘socialisation’ of outer space, the three major space faring nations (“the Big Three”) are non-parties to the Moon Treaty, which has led to the opinion that the Moon Treaty is a failure. The true test of the Moon Treaty both as treaty and customary law will not be seen until the exploitation of extraterritorial resources becomes technically and economically feasible. The question is when that time comes, will the shadow of the Moon Treaty have grown sufficiently to blanket parties and non-parties alike under the penumbra of customary international law?
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