The Way Forward:
An Implementation Agreement for the Moon Treaty

By Dennis O’Brien

Introduction

The United Nations’ consensus process, through its Committee on the Peaceful Uses of Outer Space (COPUOS), has accomplished much
over the decades, most notably helping to produce the five space treaties and related guiding principles. But it has failed to produce an
international framework of laws to facilitate humanity’s departure from our home planet. At the April 2019 meeting of their Legal
Subcommittee, a proposal by Greece and Belgium to use COPUOS to draft such a framework failed to achieve consensus. [1] At the same
meeting, Austria, one of the 18 current State Parties of the Moon Treaty, called on other nations to adopt it. [2] The Moon Treaty, with the
proper Implementation Agreement (IA), now offers the best hope for doing so. Such an agreement would need to address many issues, most
involving private enterprise and settlements. Although critics of the Moon Treaty have argued that it would hinder commercial/private space
activities, with the proper IA it would in fact enable them.

The Space Treaty Project (see end comments) has proposed a ten-paragraph Implementation Agreement that is based on four organizational
principles: 1) The legal framework must be comprehensive in scope and support all private activity; 2) Link private property rights with public
policy obligations; 3) Defer issues currently at impasse (e.g., monetary sharing of benefits) by creating a governance process for making future
decisions; 4) Build upon and integrate current institutions and processes. An analysis follows the text of the Agreement.

1. Proposed Implementation Agreement for Article 11 of the Moon Treaty

    Preamble: The provisions of this Agreement and the Treaty shall be interpreted and applied together as a single instrument. In the event
    of any inconsistency between this Agreement and the Treaty, the provisions of this Agreement shall prevail. After the adoption of this
    Agreement, any instrument of ratification or formal confirmation of or accession to the Treaty shall also represent consent to be bound by
    this Agreement. No State or entity may establish its consent to be bound by this Agreement unless it has previously established or
    establishes at the same time its consent to be bound by the Treaty.

    1. Creation of Agency

    The States Parties shall create as soon as is practicable an agency (“Agency”) to administer the provisions of the Agreement Governing
    The Activities Of States On The Moon And Other Celestial Bodies (“Treaty”) and this Implementation Agreement (“Agreement”).

    2 Licensing of Priority Rights

    The Agency shall be authorized to issue licenses to non-governmental entities (“NGE”) for the priority exploitation of resources.
    Exploitation of resources shall include but is not limited to a) the extraction of materials, b) the use of a location for any other commercial
    activity, and c) the use of a location for a settlement. Use by governments is authorized under Articles 8 and 9 of the Treaty. Use for
    scientific activity shall be classified as government, commerce, or settlement depending on the sponsor of the activity.

    3. Licensing Requirements

    The Agency shall issue a license upon the proper application by an NGE, provided that the applicant (a) is approved and supervised by
    a national government, (b) agrees to accept the public policy obligations of the Treaty as described in Paragraph 4, and (c) agrees to
    share technology as described in Paragraph 8. The license shall describe the extent, duration, and nature of the activity. The license shall
    be revoked if, at any time, a licensee fails to comply with this Agreement.

    4. Public Policy Obligations

    The public policy obligations of the Treaty that are applicable to NGE’s are as follows (detailed in the cited Treaty articles):
    1. Using outer space exclusively for peaceful purposes (3.1);
    2. Providing co-operation and mutual assistance (4.2);
    3. Informing the public of activities (including compliance with the Registration Treaty) and any scientific discoveries (5.1);
    4. Informing the public of any phenomena which could endanger human life or health, as well as of any indication of organic life (5.3);
    5. Protecting the environment (7.1);
    6. Preserving areas of “special scientific interest” such as historic landing sites (7.3);
    7. Allowing free access to all areas by other parties (9.2);
    8. Honoring the Rescue Treaty (10.1)
    9. Informing the public of the discovery of resources (11.6).

    5. Dispute Resolution

    Any dispute over the use/development of a specific area/resource shall first be addressed using the consultation process detailed in
    Article 15 of the Treaty. If that process fails, the dispute shall be resolved by binding arbitration in accordance with the 2011 Permanent
    Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. The Agency shall be a member of the
    Arbitration Panel.

    6. Collection and Use of Fees

    The Agency is authorized to collect a fee for the issuance of a license. By adoption of this agreement, the States Parties authorize the
    use of such fees for the administrative costs of the Agency. The collection and use of fees for any other purpose must be authorized by
    the States Parties. The States Parties shall create a process of governance for making such decisions as authorized under Article 18 of
    the Treaty. The States Parties are ultimately responsible for the cost of administration. The Agency shall be operated in a cost-effective
    manner.

    7. Standards and Practices

    The States Parties, in consultation with private enterprise and international organizations, shall develop technology standards and
    recommended practices for the safe use and development of space resources. Any dispute over the development and/or the application
    of such standards shall be resolved in accordance with Paragraph 5.

    8. Technology

    In accordance with Treaty Article 4, the States Parties shall develop a process for sharing technology on a mutually acceptable basis.
    Until or in the absence of such a process, NGE’s shall license technology at no more than market rates. Technology that is subject to
    export controls shall be excluded from these requirements to the extent necessary to comply with said controls. Any dispute over the
    sharing of technology shall be resolved in accordance with Paragraph 5.

    9. Cultural/Historical Sites

    The use or disturbance of any location on the Moon or other celestial body that is the site of a historical mission that occurred prior to the
    year 2000 is prohibited pending a final determination of the site's status as a Cultural Heritage Site. This prohibition applies to the
    location of any equipment and any evidence of presence (e.g., footprints, tracks). The States Parties shall develop standards and
    recommended practices for making such determinations or shall designate another entity/process for making such determinations that
    will be binding on the States Parties.

    10. Controlling Law; Rights of Individuals and Settlements

    In accordance with Treaty Article 12, the controlling law at any location shall be the law of the country that authorized/supervises the
    licensee using that location, subject to this Agreement and Treaty. However, nothing in this Agreement or in the Treaty shall be
    interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of
    settlements to seek autonomy and/or recognition as sovereign nations.

2. The Need for an International Framework of Laws to Create Property Rights

Why is this proposal necessary? As of May 2019, there is no internationally recognized mechanism for granting property rights to anyone for
any location or natural object in outer space. The current controlling international law is the Outer Space Treaty of 1967, which prohibits any
one country from establishing sovereignty anywhere in space:

Outer 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. [3]

Most countries agree that this prohibition prevents any country from granting property rights on its own authority. A small minority disagree,
large enough so that the potential for conflict has grown. Since one of the goals of law to avoid such conflicts, it is imperative to create the
international framework before they occur.

The Moon Treaty provides the international authority to grant property rights. Article 11 doesn’t prohibit ownership; it just prohibits any one
country from granting it:

    11.2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other
    means.
    11.3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any
    State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any
    natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of
    the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the
    subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in
    paragraph 5 of this article. . . .
    11.5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to
    govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible.” [4] (emphasis added)

The States Parties are thus authorized to create an international framework of laws that grants property rights, so long as they do it together.

The Hague International Space Resources Governance Working Group (“Hague Group”), a consortium of NGE’s, supports the creation of an
international framework for space resource activity in its proposed Building Blocks:

    5. International responsibility for space resource activities and jurisdiction over space products
    5.1 The international framework should provide that States and intergovernmental organizations shall be responsible for space resource
    activities authorized by them in accordance with their international obligations.
    5.2 The international framework should provide that space resource activities require prior authorization and continuing supervision by
    the appropriate State or intergovernmental organization.
    5.3 The international framework should provide that States and intergovernmental organizations shall exercise jurisdiction and control
    over space products used in space resource activities authorized by them. [5]

It is the international framework of laws that will create private property rights. Without it, private entities will have difficulty moving forward. The
uncertainty over the legitimacy of their “ownership” and ability to engage in commerce would make long-range financial planning, including
attracting investors, almost impossible.

3. The Use of Priority Rights

The Hague Group has also proposed the use of “Priority Rights” to establish personal property rights:

    6. Access to space resources
    6.1 The international framework should enable the unrestricted search for space resources.
    6.2 The international framework should enable the attribution of priority rights to an operator to search and/or recover space resources in
    situ for a maximum period of time and a maximum area upon registration in an international registry, and provide for the international
    recognition of such priority rights. The attribution, duration and the area of the priority right should be determined on the basis of the
    specific circumstances of a proposed space resource activity. [5]

The current prohibition on the ownership of materials applies only to materials “in place”, sometimes called in situ. [6] The license issued by the
Agency would allow a licensee to remove materials from in place. At that point the materials would become the personal property of the
licensee and marketable in accordance with any other applicable laws.

What about commerce that is not engaged in mining, such as space tourism? If an NGE wanted to establish a facility and/or engage in
activities on the Moon, it would apply for a license for priority use of a location for that purpose. In this example, the licensee would need to
honor the prohibition against disturbing cultural/historical sites as a condition for its license; the penalty for not doing so would be revocation of
the license.

The use of a location on the Moon for a settlement is also defined in the proposed Implementation Agreement as an exploitation of resources.
Settlors would likewise obtain a license for priority use of their chosen location that would provide the same or similar property rights that home
owners have on Earth. As with commercial activities, their license would be revoked if they did not comply with the Treaty’s public policy
obligations.

Expanding the definition of “exploitation of space resources” to include the use of any location for any private commerce or settlements allows
the creation of a comprehensive framework of laws that supports all private activity on the Moon and beyond. It is the only way to fulfill the
mission of the Moon Treaty - to facilitate humanity’s departure from our home planet.

4. The Creation of an Agency

Once the States Parties, through the Implementation Agreement, establish the requirements for a license, they will need to create an agency to
administer the process. The Agency in the proposed IA will be ministerial, not discretionary. It will not pass judgement on the merits of any use,
nor try to impose some universal “common law”. “The Agency shall issue a license upon the proper application by an NGE.” (IA paragraph 3)
The Agency will thus function like a Department of Motor Vehicles, focusing on licensing and registration, revoking a license if a licensee fails
to follow the “rules of the road”, but not making substantive decisions.

The Hague Group has called for “The designation or establishment of an international body or bodies” responsible for the identification of best
practices, governance of an international registry, and other functions:

    17. Institutional arrangements
    The international framework should provide for:
    a) The establishment and maintenance of a publicly available international registry for registering priority rights of an operator to search
    and recover space resources in situ;
    b) The establishment and maintenance of an international repository, in addition to the international registry, for making publicly available:
    i. Information and best practices;
    ii. The list of designated and internationally endorsed outer space natural and cultural heritage sites; and
    iii. The list of designated and internationally endorsed sites of scientific interest;
    c) The designation or establishment of an international body or bodies responsible for:
    i. The identification of best practices;
    ii. The listing of designated and internationally endorsed outer space natural and cultural heritage sites, and sites of scientific interest;
    iii. The monitoring and review of the implementation of the international framework as well as its modification or amendment; and
    iv. The governance of the international registry, the international repository and any other mechanism that may be established for the
    implementation of the international framework. [5] (emphasis added)

The proposed Agency would be such a body, with the licensing of NGE’s added to the above portfolio. It is the granting and/or revocation of
such licenses that allows the enforcement of all other provisions of any international framework of laws for private activity in outer space.

5. Assessing a Fee

Perhaps the most contentious issue in space law is the proposal to use the profits of space commerce for income distribution to non-
spacefaring countries. Article 11 of the Moon Treaty requires some sort of sharing of the benefits of resource development:

    11.7. The main purposes of the international regime to be established shall include:
    (a) The orderly and safe development of the natural resources of the moon;
    (b) The rational management of those resources;
    (c) The expansion of opportunities in the use of those resources;
    (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the
    developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the
    moon, shall be given special consideration. [3]

The Hague Group Building Blocks state that “The international framework should not require compulsory monetary benefit-sharing” (12.2),
though it also proposes that “Operators should be encouraged to provide for benefit-sharing.” (12.3) [4] The same section lists other ways in
which the benefits of space exploration and development can be shared:

    12. Sharing of benefits arising out of the utilization of space resources
    12.1 Bearing in mind that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries
    and humankind, the international framework should provide that States and intergovernmental organizations authorizing space resource
    activities shall provide for benefit-sharing through the promotion of the participation in space resource activities by all countries, in
    particular developing countries. Benefits may include, but not be limited to enabling, facilitating, promoting and fostering:
    a) Development of space science and technology and of its applications;
    b) Development of relevant and appropriate capabilities in interested States;
    c) Cooperation and contribution in education and training;
    d) Access to and exchange of information;
    e) Incentivization of joint ventures;
    f) Exchange of expertise and technology among States on a mutually acceptable basis;
    g) Establishment of an international fund. [4]

Some fear that the statement “The moon and its natural resources are the common heritage of mankind” in the Moon Treaty (Art. 11.2) [3]
requires the literal sharing of all mined materials or the proceeds of their sale. It does not. The very same sentence in the Treaty continues
“which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.” Paragraph 5 then explicitly
empowers the development of resources:

States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the
exploitation of the natural resources of the moon as such exploitation is about to become feasible. (Art. 11.5) [3]

Article 11.7, as quoted above, defines the “equitable sharing” of benefits. Compulsory monetary sharing is not explicitly required, nor is it
prohibited. It is an option to be considered by the States Parties.

The proposed Implementation Agreement defers a decision on this most controversial issue. It instructs the States Parties to create a
governance process that can make such a decision in the future, along with any other substantive decision. The Agency’s authority will be
limited to ministerial actions. By the terms of the IA, which the States Parties will adopt, the Agency will only have the authority to collect fees to
cover its own administrative costs. That provision is consistent with the Hague Group’s recommendation, as the fees will be used only for
administration, not benefit-sharing.

How would such fees would be structured? The implementation agreement for the Convention for the Law of the Seas (CLOS) allows NGE’s to
pay the fee either as a standard amount up front or as a percentage of profit at a later date. [6] The fee for a settlement, if any, would likely be
less than for an income-producing use. The Agency should allow the greatest flexibility for payment of fees in the name of encouraging activity,
not restricting it. The Agency would follow any directive concerning fees given to it by the Sates Parties through their ongoing governance
process (see below).

Ultimately, the States Parties are responsible for the cost of administration. If a State Party does not want it’s NGE’s to pay the fee and instead
wants its national government to bear the cost of administration, it can grant a tax credit for the amount of the fee to any NGE required to pay it.
This process would guarantee funding for administration while giving individual State Parties control over who pays it.

In short, it is not necessary to resolve the issue of monetary benefit sharing at this time in order to empower space commerce and settlements.
Other types of benefit sharing will be implemented while a framework for collecting fees is established. Doing so will help build capacity while
building confidence in all interested parties for substantive decisions that must be made later.

6. Governance for Substantive Decisions

If the Agency is ministerial, how will substantive decisions be made? Since the Moon Treaty and its Implementation Agreement are functions of
international law, the States Parties can, by consensus (unanimous consent) make any such decision; they are the ultimate legislature. But
obtaining the consensus of all parties to a treaty can be cumbersome, so international organizations such as the United Nations and the
European Union have created structures of ongoing governance for making such decisions. The Moon Treaty itself envisions such ongoing
governance, even requiring a review of any implementation agreement every 10 years (Article 18). [4]

The governance structure most relevant to space law is the one created by the Convention on the Law of the Seas (“CLOS”). The CLOS
established a governing entity separate from the United Nations, composed of an Assembly made up of all Member States and an executive
Council made up of 36 states who are chosen by the Assembly. Membership on the Council consists of five sub-groups to assure that all
interests and interested parties are served. For example, four members are from countries who each consume more than 2% of the world’s
consumables of potentially developable sea resources; 18 members are chosen to assure geographic diversity. (Agreement on Part XI, Annex
3) [7]

Since the Moon Treaty (Art.4) and even the Outer Space Treaty (Art. 1) require that “the exploration and use of outer space shall be carried out
for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development” [4][3], the sub-groups for
governance will help insure that the “interests of all countries” are represented.

Although consensus is preferred, it is possible under the CLOS to make decisions in both the Assembly and the Council by a simple majority
for procedural matters and by two-thirds majority for substantive matters. All decisions on financial matters, including the charging of any fees,
the administrative budget, and the use of any income “shall be based on the recommendations of the Finance Committee” that is chosen by
the Executive Council.  Decisions of the Finance Committee on substantive matters must be by consensus. (Agreement on Part XI, Annexes 3,
9) [7] This is still a high bar, but not as difficult as consensus by all States Parties for all substantive decisions.

The proposed Implementation Agreement requires the States Parties to create a form of governance to make such substantive decisions. By
deferring the decision on direct monetary transfers till then, the proposed IA is able to focus on the other ways by which the benefits of space
exploration and development can be shared with all of humanity. Just as the Moon Treaty calls for governance of activities as they become
technologically possible, the Implementation Agreement envisions adaptive governance to make decisions as they become politically possible.

7. Sharing Information

One of the ways of sharing the benefits is to share information. The proposed Implementation Agreement confirms that NGE’s will have the
same obligations as the States Parties concerning the sharing of information. This begins with their obligations under the Registration Treaty:

    Article IV
    1. Each State of registry shall furnish to the Secretary-General of the United Nations, as soon as practicable, the following information
    concerning each space object carried on its registry:
    (a) name of launching State or States;
    (b) an appropriate designator of the space object or its registration number;
    (c) date and territory or location of launch;
    (d) basic orbital parameters, including:
    (i) nodal period;
    (ii) inclination;
    (iii) apogee;
    (iv) perigee;
    (e) general function of the space object. [8]

Article 5.1 of the Moon Treaty requires more detailed information:

    States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to
    the greatest extent feasible and practicable, of their activities concerned with the exploration and use of the moon. Information on the
    time, purposes, locations, orbital parameters and duration shall be given in respect of each mission to the moon as soon as possible
    after launching, while information on the results of each mission, including scientific results, shall be furnished upon completion of the
    mission. In the case of a mission lasting more than sixty days, information on conduct of the mission, including any scientific results, shall
    be given periodically, at thirty-day intervals. For missions lasting more than six months, only significant additions to such information
    need be reported thereafter. [4]

Article 5.3 of the Moon Treaty would also require NGE’s to promptly report “any phenomena they discover in outer space, including the moon,
which could endanger human life or health, as well as of any indication of organic life.”

Finally, Article 11.6 of the Treaty would require NGE’s to disclose the discovery of any natural resources. Such discoveries would not be
considered proprietary information. This interpretation is consistent with the Hague Group’s Building Blocks, depending on their definition of
sharing “the results of space resource activity.” Section 13(e) lists the type of information that should be shared:

    13. Registration and sharing of information
    (e) Provide . . . information and best practices on . . . space resource activities . . . including:
    i. The purposes, locations, orbital parameters and duration of space resource activities;
    ii. The nature, conduct, and locations of space resource activities and associated logistic activities, for example deployment of stations,
    installations, equipment and vehicles;
    iii. The results of space resource activities;
    iv. Any phenomena discovered in outer space which could endanger human life or health, as well as of any indication of life;
    v. Any harmful impacts resulting from space resource activities authorized by them and the measures planned or implemented to redress
    such impacts. [5]

The COPUOS Legal Sub-Committee has recently released a draft guidance document that summarizes the intent of the five space treaties,
indicating a similar scope of what information should be shared:

    48. The registration regime contained in the outer space treaties aims at the exchange of information on the nature, conduct, locations
    and results of space activities, in particular by submitting registration data to the Secretary-General of the United Nations and
    establishing national registries. States shall set up a national registry and additionally submit information to the United Nations Register
    maintained by the Office for Outer Space Affairs. [9]

Although the Moon Treaty itself describes the above as obligations of the States Parties, the Implementation Agreement would clarify that all
such obligations also apply to NGE’s (see 2.4 above). If the procedures detailed in the Registration Treaty are used, the NGE’s would report to
a national registry maintained by a State Party, then the State Party would report to an international registry maintained by the United Nations.
The proposed Implementation Agreement would expand the information contained in the current international registry but would still be easily
manageable.

8. Sharing Technology

Although the proposed Implementation Agreement defers the issue of direct monetary transfers, it does specifically address the issue of
sharing technology.

The Moon Treaty’s reference to the Common Heritage of Mankind (“CHM”) has raised concerns about the status of intellectual property rights.
One commentator has suggested that:

“They [developed countries] would also be required to surrender technology developed by private industries under their jurisdiction for
extracting extraterrestrial resources so that developing nations could participate in the activity of acquiring those resources as well.” [10]

The conflict over the meaning of the CHM is central to the debate over Moon Treaty. More than anything else, it is keeping Treaty from being
adopted, as some claim that the concept grants sweeping powers to international organizations while others fear precisely that. [11]

The middle way is to define what the CHM means for particular circumstances. The Moon Treaty itself tells us that the CHM is what we choose
to make it:

    Article 11
    1. The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this
    Agreement, in particular in paragraph 5 of this article. . . .
    5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern
    the exploitation of the natural resources of the moon as such exploitation is about to become feasible. [4] (emphasis added}

Consider how the IA for the Convention for the Law of the Seas, which also uses the CHM concept, describes the sharing of technology:

    Section 5: Transfer of Technology
    (a) The Enterprise, and developing States wishing to obtain deep seabed mining technology, shall seek to obtain such technology on fair
    and reasonable commercial terms and conditions on the open market, or through joint-venture arrangements;
    (b) . . . States Parties undertake to cooperate fully and effectively with the Authority for this purpose and to ensure that contractors
    sponsored by them also cooperate fully with the Authority;
    (c) As a general rule, States Parties shall promote international technical and scientific cooperation with regard to activities in the Area
    either between the parties concerned or by developing training, technical assistance and scientific cooperation programmes . . . [7]

Article 12 of the Hague Group’s Building Blocks also calls for an “exchange of expertise and technology among States on a mutually
acceptable basis” as part of sharing the benefits of space development with all countries (see Assessing a Fee, above.) [5]

The proposed Implementation Agreement for the Moon Treaty calls upon the States Parties to engage in such a cooperative process. As a
backup, it requires the licensing of technology for fair market value, as in the CLOS. Although such a provision would require private
companies to share technology, it would also mandate that they are paid a fair and reasonable amount for its use (note also the Hague Group’
s suggestion of an “international fund” to help developing countries pay for needed technology). An exception is made for technologies that
have been barred from export for national security reasons. The proposed IA would thus protect private economic interests and national
security interests while ensuring that less-developed nations have the technical capacity to share in the development of space resources.

9. Developing Standards and Practices

The Implementation Agreement requires the States Parties to develop standards and recommended practices (SARP’s) for the development
of outer space resources. This does not diminish the efforts of private enterprise and international organizations who are already doing so. It is
not meant to create a super-agency that will override efforts that have been developing organically. Rather, it requires the States Parties work
with NGE’s, providing them a seat at the table and a legal foundation for their work. The International Organization for Standards (ISO) [12], the
Hague Resources Group [5], the Moon Village Association [13], and For All Moonkind [14] are examples of such organizations.

These organizations use extensive outreach and inclusive working groups to harness the knowledge and expertise of interested parties,
particularly commerce, academia, and civil society. The Moon Village Association, for example, has workgroups for Architectural Concepts &
Issues; Moon Village Standards; Human Factors; Moon Markets, Missions & Economics; Mission & Markets Requirements Data;
Coordination & Cooperation; Moon Village & Exploration Analogues; Cultural Considerations; and Outreach/Education. [13]

Article 11.5 of the Moon Treaty instructs us to establish the international framework of laws concerning the exploitation of resources “as such
exploitation is about to become feasible.” Article 18 establishes a process for ongoing review. [4] The Treaty thus anticipates that there will be
ongoing advances in technology that will require a constant updating of the best standards and practices. It is essential for the States Parties
to integrate the work of the NGE’s. Otherwise a vast pool of talent and innumerable hours of work will be wasted. The Treaty and
Implementation Agreement will lack organizational support and may well fail.

10. Protecting Historical/Scientific Sites

Article 7.3 of the Moon Treaty authorizes the preservation of sites of scientific interest:

States Parties shall report to other States Parties and to the Secretary-General concerning areas of the moon having special scientific interest
in order that, without prejudice to the rights of other States Parties, consideration may be given to the designation of such areas as
international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of
the United Nations. [4]

The organization For All Moonkind has declared as its primary mission the preservation of all historic landing sites on the Moon, including the
boot prints and tracks left by explorers and rovers, not just as cultural/historical sites but also for scientific research, e.g., to study the effects of
solar radiation and micrometeor strikes on surfaces newly exposed by such activity:

    Declaration of Objectives and Agreements Regarding Cultural Heritage in Outer Space
    This Declaration has as its primary objective the collaboration and participation of all Parties to ensure that Cultural Heritage Sites in
    Space are recognized for their outstanding value to humanity and consequently preserved and protected for posterity as part of our
    common human heritage. . . .
    The Parties do hereby agree to:
    1.  Work together and with For All Moonkind to address the uncertainties with respect to current space law in relation to human heritage
    in space by developing, adopting and amending from time to time as may be necessary, progressive standards and recommended
    practices and procedures (“SARPs) dealing with the protection and preservation of Cultural Heritage Sites in Space on a general and a
    site-by-site basis, as the case may be. SARPs are intended to promote and facilitate the exploration and use of space, while balancing
    development and preservation.  SARPs may take into consideration any national recommendations and guidelines implemented by
    national governments in respect of their own space objects.
    2.  Work with For All Moonkind to assure that each of their space activities, including any activities implemented before the development
    of relevant SARPs, whether on the Moon or elsewhere, will avoid disturbance and damage to any protected Cultural Heritage Sites in
    Space.
    3.  Work together and with For All Moonkind to assure that any entity seeking access to space through or with their services also agrees
    to assure that each of their space activities, whether on the Moon or elsewhere, will observe the SARPs, and in any event, avoid
    disturbance or damage to any protected Cultural Heritage Sites in Space.
    4.  Comply with any SARPs promulgated and agreed pursuant to Section 2(1) above. [14]

It is unclear whether a new organization will be established to meet these goals or if the task will be given to an existing organization. [15] Until
such decisions are made and procedures in place, the proposed Implementation Agreement prohibits “the use or disturbance of any location
on the Moon or other celestial body that is the site of a historical mission that occurred prior to the year 2000.” (Paragraph 9)

11. Cooperation, Assistance, and Rescue

Article 4 of the Moon Treaty requires cooperation among all States Parties:

    4.2 States Parties shall be guided by the principle of co-operation and mutual assistance in all their activities concerning the exploration
    and use of the moon. International co-operation in pursuance of this Agreement should be as wide as possible and may take place on a
    multilateral basis, on a bilateral basis or through international intergovernmental organizations. [4]

Article 10 requires assistance and rescue for humans on the Moon:

    1. States Parties shall adopt all practicable measures to safeguard the life and health of persons on the moon. For this purpose they
    shall regard any person on the moon as an astronaut within the meaning of Article V of the Treaty on Principles Governing the Activities
    of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies [Outer Space Treaty] and as part of
    the personnel of a spacecraft within the meaning of the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return
    of Objects Launched into Outer Space [Rescue Treaty].
    2. States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the moon. [4]

The proposed Implementation Agreement would confirm that NGE’s also have the same obligations. It integrates the Rescue Treaty [16] into
the international framework of laws concerning private activity in space, just as it integrates the Registration Treaty into the sharing of
information.

What about sharing essential but scarce resources, such as water? Article 4.2 of the Moon Treaty includes a mandate to cooperate:

States Parties shall be guided by the principle of co-operation and mutual assistance in all their activities concerning the exploration and use
of the moon. International co-operation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral
basis, on a bilateral basis or through international intergovernmental organizations. [4]

The proposed Implementation Agreement confirms that NGE’s also have that obligation. As with other activities, if there is no mutual
agreement on the sharing of resources, then the dispute resolution process described in Article 5 of the agreement (consultation, arbitration)
will be used. As with technology, if a resource is developed by a licensed NGE, the default process requires resources to be shared through
the marketplace at a price that assures a return of investment but is not monopolistic.

Currently private organizations such as the Hague Group, the Moon Village Association, and For All Moonkind are supplementing the work of
COPUOS and national governments in sorting out what it means to cooperate and assist. The Moon Treaty and the proposed IA call for
incorporating the work of such organizations in developing the international framework of governance.

12. Controlling Law

The Outer Space Treaty requires all space activities to be approved and supervised by a national government.

    States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other
    celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that
    national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental
    entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the
    appropriate State Party to the Treaty.
    - Outer Space Treaty, Article VI [3]

Both the Outer Space Treaty and the Moon Treaty extend a country’s laws to cover their nationals and objects.

    A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such
    object, and over any personnel thereof, while in outer space or on a celestial body.
    - Outer Space Treaty, Article VIII [3]

    1. States Parties shall retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the
    moon. The ownership of space vehicles, equipment, facilities, stations and installations shall not be affected by their presence on the
    moon.
    - Moon Treaty, Article 12 [4]

Thus, the controlling law for any location will be the law of the country that authorized and supervises activity at that location. There will also be
extra-territoriality, i.e., a country’s laws will apply to its nationals if nationals travel beyond the geographic limits of the registered area of
activity, even if they enter the area of activity of another country. Since all countries are bound by the treaties they have adopted, their national
laws would be subject to the five space treaties, including the Moon Treaty and its Implementation Agreement.

13. Resolution of Disputes

Article 15 of the Moon Treaty details a process for resolving disputes. It begins with a process for avoiding them – mutual inspection:

    Each State Party may assure itself that the activities of other States Parties in the exploration and use of the moon are compatible with
    the provisions of this Agreement. To this end, all space vehicles, equipment, facilities, stations and installations on the moon shall be
    open to other States Parties.
    - Moon Treaty, Art. 15.1 [4]

The proposed Implementation Agreement confirms that this obligation also applies to NGE’s, part of their public policy obligation to share
information as a way of sharing the benefits of space exploration and development with all of humanity.

Article 15 goes on to describe levels of dispute resolution, beginning with consultations between the States Parties. Any other State Party can
join in the consultations, and any State Party can request the assistance of the Secretary-General of the United Nations. If consultations fail to
resolve the dispute, the States Parties are instructed to “take all measures to settle the dispute by other peaceful means of their choice
appropriate to the circumstances and the nature of the dispute.” (Art. 15.3)

The Hague Space Resources Governance Working Group has recommended the use of arbitration as a “peaceful means” for resolving
disputes, especially between NGE’s:

    18. Settlement of disputes
    The international framework should encourage recourse by States, intergovernmental organizations and operators to the amicable
    resolution of disputes, for example by developing procedures for consultation or promoting the use of the 2011 Permanent Court of
    Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. [5]

The proposed Implementation Agreement commits all parties to binding arbitration if they are not able to resolve their disputes through
consultation. The Rules referenced above allow the parties to choose the arbitrators. The proposed IA requires that the Agency itself shall be
part of the arbitration panel. This would be an expansion of the role of the Agency beyond its ministerial function of issuing licenses for priority
rights. Yet it may be the one body that can provide institutional continuity and consistency of decisions. Establishing the protocols for dispute
resolution may be the most difficult task in creating the Implementation Agreement.

14. Settlements

Including settlements (along with non-extracting commercial activities) in the definition of “exploitation of resources” is essential for creating an
international framework of laws that is sufficiently comprehensive to include all private and public activity. It is also the only way to negate the
prohibitions against ownership in both the Outer Space Treaty and the Moon Treaty (see above). This is done by interpreting “the exploitation
of the natural resources of the moon” in Article 11.5 to include the use of any location on the Moon for any purpose.

This interpretation is consistent with other provisions Article 11, such as 11.4, which asserts a universal “right to exploration and use of the
moon” and 11.7, which states that “the main purposes of the international regime to be established shall include: (a) The orderly and safe
development of the natural resources of the moon.”  “Use” and “development” are terms common to the management of real estate, which is
consistent with the call for “The rational management of those resources” in 11.7(b). [4] Including all private activity within the scope of the
Moon Treaty provides the authority, support, and protection that those activities require. If the purpose of 11.5 is to permit use and
development of the Moon, then it must have the same scope as the prohibition against ownership in 11.3.

When the Moon Treaty was first proposed, some individuals and NGE’s, led by the L5 Society (now merged with the National Space Society),
opposed it because there were no provisions for establishing private settlements with their own governance. [17] They pointed again to
Articles 11.2, which states that “the moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation,
or by any other means” and 11.3’s prohibition against ownership (above) [4] As explained above, the international framework of laws
authorized by Article 11.5 overrides those prohibitions. The proposed Implementation Agreement specifically authorizes the establishment of
private settlements.

For those who wish to establish independent nations on the Moon or elsewhere in space, the Treaty’s prohibitions are actually helpful. First, the
ban on sovereignty stops the States Parties from establishing permanent colonies. Second, the proposed Implementation Agreement will
provide settlements the protection of legal recognition and support. Third, the Implementation Agreement confirms that a settlement can seek
autonomy and/or independence through established international protocols. [18]

15. Individual Rights

Applying international law to settlements can be challenging. What if an inhabitant of a settlement sought asylum in another country’s facility?
The Moon Treaty and the Outer Space Treaty contain certain provisions that seem to say that their country of origin retains jurisdiction, and can
have them returned (see Controlling Law, above).

Do the treaties require the person to be returned?  This would conflict with the Universal Declaration of Human Rights (“UDHR”), which states
in Article 14.1 that "Everyone has the right to seek and enjoy in other countries asylum from persecution." [19] The proposed Implementation
Agreement incorporates the protections of the UDHR. As explained above, this would override national law and allow an individual to remove
themselves from the legal authority of one country and enter the authority of another.

The hopes and dreams of individuals and groups to create new societies in outer space are just as important as the entrepreneurship of those
seeking to engage in space commerce. Both must be recognized, honored, and nurtured if humanity is to leave our home planet in a
sustainable manner. The proposed Implementation Agreement states that “nothing in this Agreement or in the Treaty shall be interpreted as
denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek
autonomy and/or recognition as sovereign nations.” (Art. 10) Any international framework of laws must acknowledge and incorporate these
protections, or it will fail. Indeed, it will never be adopted.

Conclusion: The Next Step in Adaptive Governance

The proposed Implementation Agreement is not meant to resolve every issue in space governance. Rather, it is meant to provide the minimum
framework of international law that is necessary for public and private activity on the Moon and beyond. It builds upon current institutions and
processes while creating new governance for issues that are not yet ripe for resolution. It links private property rights with public policy
obligations, recognizing the importance of both in the grandest of public-private partnerships.

The Moon Treaty itself acknowledges that such adaptive governance is necessary:

    Article 11.5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures,
    to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. (emphasis added) [4]

In addition, Article 18 requires a review of any implementation agreement ten years after it goes into effect. [4] It is not necessary, or even
desirable, to create comprehensive rules for governing the solar system at this time. But it is necessary to create the basic framework so that
both technology and governance itself can evolve to the next level.

The Hague Group’s Building Blocks endorse this approach:

    Introduction
    Guided by the principle of adaptive governance, the Working Group considered it neither necessary nor feasible to attempt to
    comprehensively address space resource activities in the building blocks: space resource activities should be incrementally addressed
    at the appropriate time on the basis of contemporary technology and practices.

    4. Principles
    4.2 The international framework should be designed so as to a) incrementally regulate space resource activities at the appropriate time
    (principle of adaptive governance). [5]

Adaptive/evolving governance is also part of the United Nations’ Thematic Priorities for outer space:

    2. Legal regime of outer space and global space governance: current and future perspectives. (c) Studying legal mechanisms to foster
    an international regime of responsibility and liability to cope with present and future challenges to the safety, security and sustainability of
    outer space activities . . .

    7. Capacity-building for the twenty-first century: Define new innovative and effective approaches to overall capacity-building and
    development needs as a fundamental pillar of global space governance. [20]

At this moment in time, it is space law itself that needs capacity building. The current framework is inadequate, resulting in endless arguments
over the meaning of outdated agreements. The time has come craft a new agreement that will facilitate the sustainable exploration and
development of outer space. In the Spring of 2019, the Moon Treaty, with a proper Implementation Agreement, offers humanity’s best way
forward to becoming a space-faring species.

(Dennis O’Brien is an attorney and former member of the NASA-Hastings Research Project. He is currently President of The Space Treaty
Project, a California nonprofit. The Project is an organizational member of the Moon Village Association; Mr. O’Brien is a member of their
Coordination & Cooperation Workgroup. For more information, including a petition in support of the Moon Treaty, please go to www.
spacetreaty.org.)

Endnotes

[1] Proposal for Working Methods and Work Plan of the Working Group on Legal Aspects of the Exploration, the Utilization and the
Exploitation of Space Resources, offered by Greece and Belgium on April 11, 2019. It failed to achieve the required consensus.

[2] Johnson, Chris, Austria recommends that States become party to the Moon Agreement, Report from UN-COPUOS Legal Subcommittee
meeting, April 8, 2019.

[3] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial
Bodies (also known as the Outer Space Treaty). 108 countries are parties to the treaty, while another 23 have signed the Treaty but have not
completed ratification.

[4] Agreement Governing The Activities Of States On The Moon And Other Celestial Bodies (also known as the Moon Treaty). 18 countries are
parties to the Treaty; another 4 have signed the Treaty but have not completed ratification.

[5] The Hague International Space Resources Governance Working Group, Draft Building Blocks for the Development of an International
Framework on Space Resource Activities. A revised version of the Building Blocks is expected by November 2019. For more information on
the composition and processes of the Hague Group, see
https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-space-resources-governance-working-group.

[6] Force, Melissa K., Moon Agreement and Property Rights (video), and its referenced PowerPoint presentation, Space Law Principles That
Encourage Extraterrestrial Resource Extraction and Investment, Nov. 5, 2013. Ms. Force is currently general counsel for the New Mexico
Spaceport Authority.

[7] Agreement Relating to the Implementation of Part XI of the Convention of the Law of the Sea. 167 countries are parties to the Convention.

[8] Convention on Registration of Objects Launched into Outer Space. 69 countries are parties to the Convention. The actual registrations of
space objects, by year or by country, are also available at linked site.

[9] Draft guidance document under UNISPACE+50 thematic priority 2. “Legal regime of outer space and global governance: current and future
perspectives”, Working paper submitted by the Chair of the Working Group on the Status and Application of the Five United Nations Treaties
on Outer Space, A/AC.105/C.2/L.310, (April 2019)

[10] Listner, Michael, The Moon Treaty: Failed International Law or Waiting in the Shadows?, The Space Review, Oct. 24, 2011.

[11] See, e.g., Hanlon, Michelle, Challenges for the Implementation of the Moon Agreement (video), April 7, 2019. Ms. Hanson is a founder and
current vice-president of For All Moonkind.

[12] International Organization for Standards (ISO) (search “space” for specifics).

[13] Moon Village Association Working Groups.

[14] For All Moonkind, Declaration of Objectives and Agreements Regarding Cultural Heritage in Outer Space. For All Moonkind is an official
non-voting Observer of UN-COPUOS.

[15] The Times Editorial Board, A World Heritage site on the moon? That’s not as spacey as it sounds, Los Angeles Times, February 22,
2019. See also Hanlon, Michelle D., The Case for Protecting the Apollo Landing Areas as Heritage Sites, Discover, February 19, 2019.

[16] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.

[17] Henson, H. Keith and Lucas, Arel, Star Laws, *Reason* Magazine, Aug. 1982. Mr. Henson was a founder and the first president of the L-5
Society; Ms. Lucas was the editor of L-5 News. The L-5 Society has since merged with the National Space Society. See also Michael A. G.
Michaud, Reaching for the High Frontier: Chapter 5, National Space Society (1986)

[18] See, e.g., Centre for a Spacefaring Civilization, Space Settlement Governance: An Overview of Legal and Policy Issues (2019)

[19] Universal Declaration of Human Rights.

[20] United Nations Office of Outer Space Affairs, Unispace+50 Thematic Priorities (2016)