Czech Yearbook Vol. 4 2013

JAN ONDŘEJ

CYIL 4 ȍ2013Ȏ

Concerning exploration, the Agreement on the Moon does not contain

any

explicit provision

which would

forbid

states or other persons to appropriate the

explored resources. A clear unambiguous conclusion cannot be drawn from the text

of the Agreement in this sense. Since no such activity has taken place on the Moon

so far, and therefore no such practice developed, it is necessary, when discussing the

permissibility of exploration, to derive from the sense of Article 32 of the Vienna

Convention on the Law of Treaties and its recourse to the preparatory work of the

treaty (travaux préparatoires). During the negotiations over the proposal of the

Agreement on the Moon in the legal subcommittee COPUOS, it was mainly the

developing countries who supported the moratorium, while the other states were

against it. Developing countries put the moratorium on exploration of resources on

the Moon and other celestial bodies through until the creation of an international

regime in the prepared text.

The delegation of the former East Germany, however,

proposed in 1976 that the moratorium… to be omitted, because Article I of the Space

Treaty allows all states without discrimination of any kind, on a basis of equality and

in accordance with international law, free exploration and use and free access to

outer space, including the moon and other celestial bodies.

The wording contained

in the proposal of the developing countries is not part of the accepted text of the

Agreement on the Moon of 1979. An important issue for the interpretation of the

fact that no moratorium is placed until the establishment of an international regime

is also the position of the representative of the USA at the COPUOS session in 1979.

According to the proclamation of Mr. Hosenball, “the proposal of the Agreement

does

not place any moratorium

on exploitation of natural resources until the establishment

of an international regime. The draft agreement places no moratorium upon the

exploitation of the natural resource of celestial bodies pending the establishment

of an international regime. This permits orderly attempts to establish that such

exploitation is in fact feasible and practicable by making possible experimental

beginnings, and then, pilot operations, a process by which we believe we can learn

if it will be practicable and feasible to exploit the mineral resources of such celestial

bodies.”

In relation to this position, as Haanappel states: “from the perspective of

consensual analysis of the procedure used by COPUOS, in the sessions over draft of

international agreements the most important is that the position of Mr. Hosenball

did not give rise to protest from other representations and so can be interpreted as if

it received their approval”.

Even before the establishment of an international regime the activity of states

concerning natural resources should not be unlimited. In the sense of Article 11,

paragraph 8 all activities with respect to the natural resources of the moon shall be

See UN Document A/AC 105/115, working document of India, from 27 March 1973.

See UN Document A/AC 105/ C.2/ SR 246, 1976, p. 7.

See UN Document A/AC 105 /PV 203,1979, p. 22.

See Haanappel, P. C., Article XI of the Moon Treaty, 23th Colloquium on the Law of Outer Space,

Tokio 1980, p. 32.