Sea and space law

This blog is not Sea Law Probe, but it is familiar with the parallels between a certain failed instrument in space law on the one hand -- yes, the Moon Treaty -- and the widely accepted and ratified (by 155 nations) Law of the Sea Treaty (LoST) (or, as some prefer, UNCLOS).

Indeed the Moon Treaty (distinctly more lost than LoST appears to be), was in part modeled along the lines of the Law of the Sea Treaty, and in light of recent renewed
calls for the US Senate to ratify the LoST (which requires a two-thirds majority vote), opponents of ratification often cite, and understandably so, the convention's inauspicious and lamentable relationship with the Moon Treaty (which nobody calls upon the Senate to ratify).

Now, in The Space Review,
Taylor Dinerman switches gears on all this a bit. He considers the LoST in a new context, applying certain concerns therewith to another space treaty altogether -- just in time for the 40th anniversary of the Outer Space Treaty.

Taylor notes the "US State Department says that there is no connection between the LoST and the Outer Space Treaty..." and I agree. But he believes, "the same entropic process seems to be undermining both agreements and it is time to begin examining alternative arrangements."

(Some international treaties get
little respect, even on their anniversary.)

Taylor expresses a variety of concerns, including that the Treaty preamble's language, “exploration and use of outer space should be carried out for the benefit of all peoples. . . opens the way for an attempt at control and taxation of the commercial space activities by international bodies." Well so far there's no big push to resurrect a Moon Treaty-type regime. Taylor correctly notes the LoST but not the OST includes the famously debated "common heritage of mankind" language. He does not specifically mention the "province of all mankind" language which does appear in the OST Article I.)

Taylor worries about "the first major politico-legal space crisis" under the OST and he envisions, "after the first big crisis," a "Space Yalta," that "might, for example, agree that the US and China would keep control of those parts of the Moon on which they had established their respective bases and the surrounding areas." Actually, depending upon the meaning of "control" here, if conduct did not involve permanent appropriation of territory, this might work under the OST's principles of "exploration and use" as well as non-interference.

Given the now mostly familiar objections to parts of the Outer Space Treaty (typically Article II draws the most heat), many lawyers and space age folks remain open to ideas about how to move forward with law that better reflects and fits our new and evolving commercial space era. Making international law is complicated. It's perhaps not so terrible that the UN COPUOS will likely not agree on any new space treaty draft any time soon.

For now, initial attempts by space-faring nations to agree on rights and responsibilities for conduct concerning their space endeavors will encounter varying degrees of success; and early international space law may require revision, replacement or other action. Alas, law in this changing arena, like space itself, remains to be explored and settled.

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