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In the fictional 2003 book The Next Continent (p. 241-252), set in 2030, the Moon Treaty is used in the UN International Court of Justice to put a commercial project at the south pole of the moon on hold. The project was being conducted by a Japanese company, and while Japan never signed the Moon Treaty, it is argued (in the fictional plot line) that customary international law applies to the situation. Supposedly, the Moon Treaty bans use of the moon's resources for commercial purposes. The majority of their tourist-oriented moon palace is made of lunar ice, so in-situ resource use is unavoidable. In this case, the plaintiff is the US government, whose competing NASA moon base is scientific and not for profit.

Legally, how realistic is this? The author seems to have done his research. I want to know if these arguments are legally sound, legally weak, or laughable.

AlanSE
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    Related question Can you buy land on the moon? – James Jenkins Mar 19 '14 at 14:48
  • The Moon Treaty has no bearing. It is a failed treaty. Only a 15 countries signed and ratified it, and not a single one of those is capable of putting anything into orbit. – David Hammen Mar 19 '14 at 15:42
  • @DavidHammen That's why they had to invoke the customary law principle. The argument requires that the Moon Treaty fits the criteria to be considered under the common law principle. 15 nations might be sufficient for this, I honestly don't know. Until we have another international framework that supplants its authority, I'm not sure if we can absolutely rule it out. – AlanSE Mar 19 '14 at 15:58
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    @AlanSE The problem with the UN is that they have no real power. Whatever an UN court says doesn't matter in an international dispute. What matters in international politics is which countries are willing to take sides in a dispute and how far they are willing to go to defend their side. International law is made by diplomats, not judges and lawyers. – Philipp Mar 19 '14 at 16:25
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    This question appears to be off-topic because it is about international law and politics, not about space exploration. – Philipp Mar 19 '14 at 16:32
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    Space law is important to space exploration. – David Hammen Mar 19 '14 at 16:35
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    @Philipp Space law is on topic here, as you will see if you peruse the [tag:law] tag. – called2voyage Mar 19 '14 at 18:29
  • @called2voyage but this isn't about space law. It is about whether or not an agreement only signed by a few countries is applicable for common law in international politics. That's a topic for http://politics.stackexchange.com – Philipp Mar 19 '14 at 18:55
  • @Philipp But you forgot the part where that agreement happens to be the Moon Treaty and the question is specifically asking about its relevance to space exploration. – called2voyage Mar 19 '14 at 19:40
  • @called2voyage But it doesn't matter at all in this case if it's a treaty about the moon or about growing dandelions or whatever. It's a question about international law which is not in our area of expertise. – Philipp Mar 19 '14 at 19:46
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    @Philipp There are a number of questions (see Question Links) on this site which technically require legal expertise to answer fully, but which we deem on topic. One you have even answered. A few of them are international in nature. We don't have to answer them to the degree of certainty required of a legal expert's answer, and they obviously should not be taken as official legal advice. This question is not seeking legal advice; it is seeking a rough estimate of repercussions for curiosity's sake. – called2voyage Mar 19 '14 at 19:56
  • Question Links: 1 2 3 4 5 6 – called2voyage Mar 19 '14 at 19:57
  • @called2voyage I have reviewed your question links and agree they all remain on topic, although some do so narrowly. This one, however, seems to be asking about the validity of legal arguments, and thus should probably be migrated. – Jerard Puckett Mar 20 '14 at 01:37
  • I had not seen the politics stack exchange before. That's a constructive suggestion, because users there might legitimately have relevant experience. I would not have a problem with moving it there. – AlanSE Mar 20 '14 at 02:13
  • @AlanSE All right, if you want to migrate I can help with that. – called2voyage Mar 20 '14 at 11:05
  • @JerardPuckett I can definitely see your point. Personally, I don't think this one is particularly an outlier compared to the others, but since the OP is fine with migration there's no reason for me to push against it. – called2voyage Mar 20 '14 at 11:06
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    @AlanSE Politics has said this post is definitely on topic there and they would accept it, but they warn that it might get quite a few downvotes there because it is considered trivial knowledge in politics that the Moon Treaty does not block commercial use of the moon's resources--and they would expect you to have already known this through research. – called2voyage Mar 24 '14 at 13:23
  • @called2voyage Trivial? The book I'm referencing states, in no uncertain terms, that the treaty prohibits use of moon's resources for commercial purposes. I read through the treaty text, and I can't easily agree. The author may have been mistaken in that interpretation. Of course that complicates matter, because the use of common law doesn't matter if the first premise is incorrect to begin with. However, the treaty does call for an international process to decide how the resources can be used. Commercial use in the absence of this process seems like a clear violation by my reading. – AlanSE Mar 24 '14 at 13:41
  • @AlanSE I'm just communicating to you what Politics has communicated to me. – called2voyage Mar 24 '14 at 13:42
  • @AlanSE Perhaps you should highlight more that it would regulate commercial use, not outright block it. As that seems to be the case based on your interpretation of the treaty. – called2voyage Mar 24 '14 at 13:44

2 Answers2

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Wildly unrealistic for many reasons, but I'll just focus on the legal ones. First, as you say, the Moon Treaty is not widely ratified. Those countries that HAVE ratified the Agreement are of course subject to its provisions. But lets set that aside since here we are assuming that the countries in question aren't parties to the Moon Treaty.

It is possible for provisions of a treaty to become applicable even to non-parties if over time the international community comes to recognize them as having passed into customary international law. BUT there are very specific criteria for that, as well as some caveats. First, the criteria. To find out whether a specific rule is part of customary international law (CIL) you have to look at two things. (1) Practice. Do a wide variety of states do or refrain from doing the things stated in the rule you are investigating? You need broad adherence to the rule. (2) Opinio juris, which basically means "belief in legality". That means that not only do many countries need to be following the rule, THEY MUST SPECIFICALLY SAY THEY ARE FOLLOWING IT BECAUSE THEY BELIEVE IT TO BE LEGALLY REQUIRED. That's a very high bar, and the Moon Treaty absolutely does not pass it. I can't think of a single non-party to the Treaty that has ever said that any provision of the Treaty is legally binding on non-parties.

So that answers the question. A few additional notes for completeness. First, treaties don't pass into CIL as a whole all at once. You look at individual provisions and do the inquiry one by one. For example, with regard to the Outer Space Treaty, Article I about freedom of access to space has almost certainly passed into CIL, but many other articles (say on emergency assistance) likely have not.

Finally, EVEN IF A RULE IS CIL, individual countries can still opt out if they have "persistently objected" to the formation of that customary rule. This is why you see countries like the United States repeatedly say negative things about the Moon Treaty, for example, JUST IN CASE the international community ever decides that portions of it have become customary, because even then, the United States would have persistent objector status and not be bound by those customary rules.

So that's the legal answer. There are of course all sorts of enforcement problems as well, but those are for another discussion.

SpaceLawyer
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There exists a Moon Treaty, but this is only signed and ratified by 16 countries, none of them capable of space travel. India is a signatory, and now has its own space program, but has not ratified it. Even though treaties exist, the UN has no overruling power over independent nations, thus making the actual relevance of the treaty disputable.

The Moon Treaty does not strictly ban commercial use of Lunar resources, but it is insufficient to actually provide a good framework if the issue turns up. When Lunar resource harvesting is becoming a reality, it must be replaced with a more solid international agreement.

Together with many other fields of space law, there are a lot of ambiguity and untested cases related to the Moon treaty. It may not be possible to determine if the treaty would hold in the case of a dispute, being hugely dependent on international politics.

SE - stop firing the good guys
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