CYIL 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. 39 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. 40 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.” 41 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”. 42 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 39 See UN Document A/AC 105/115, working document of India, from 27 March 1973. 40 See UN Document A/AC 105/ C.2/ SR 246, 1976, p. 7. 41 See UN Document A/AC 105 /PV 203,1979, p. 22. 42 See Haanappel, P. C., Article XI of the Moon Treaty, 23th Colloquium on the Law of Outer Space, Tokio 1980, p. 32.