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COMPARING THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND OUTER SPACE TREATY IN RESPECT TO EQUITABLE ACCESS AND THE PRINCIPLE OF COMMON HERITAGE OF MANKIND
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COMPARING THE UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA AND OUTER SPACE TREATY IN RESPECT TO EQUITABLE
ACCESS AND THE PRINCIPLE OF COMMON HERITAGE OF MANKIND
AUTHORED BY
- ARYAN SOOD
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Abstract
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The law applicable to the sea (United Nations
Convention on the Law of the Sea) and the law applicable to space (Outer
Space Treaty, 1967 and the Moon Agreement) share certain similar principles, through which they
can amend their workings. Both the treaties operate under the principle of
common human heritage and peaceful usage. However, specifically the Moon
Agreement cannot be directly compared to the United Nations Convention on the
Law of the Sea due to the inherent
difficulty in access
to the domains. However, certain
characteristics like the composition of the International Seabed Authority and the principle
of ‘Ocean Equity’
can be transferred to the Moon Agreement at a time when exploitation of
lunar resources become commonly accessible for nations. parallels and contrasts between
transit rights in maritime and outer space zones. There are also
aspects of distinctions in the sovereignty between territorial waters and high seas shape these rights. Outer space law, akin to high seas law, affords
transit rights, reflecting a shared emphasis on equitable access.
However, differences arise between space law and the law of the sea due to the existence of sovereign territorial waters where states can exercise a higher degree of
control, which isn’t the scenario in outer space.
Lastly, the principle of the Common Heritage of Humanity embodies the idea that
certain areas and resources, whether on Earth or beyond, are the common property
of humanity and should be utilized for the collective benefit of present and
future generations. These principles also manifest within UNCLOS and the Moon Agreement. These international agreements establish frameworks for the management and exploitation of
resources in areas beyond national jurisdiction, emphasizing equitable access,
environmental preservation, and the promotion of peaceful cooperation both on
Earth and in outer space.
Keywords: Peaceful purposes, Resource exploitation, Sovereignty, Treaty.
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Introduction
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The United
Nations Convention on the Law of the Sea (UNCLOS) and the treaties governing
outer space, such as the Outer Space Treaty and the Moon Agreement, share
fundamental principles centered on peaceful usage and the common heritage of
mankind. While both address equitable access
to resources beyond
national jurisdiction, the Moon Agreement faces unique challenges due to limited
accessibility. Nonetheless, parallels can be drawn,
particularly regarding transit rights, although distinctions in
sovereignty shape these rights differently in maritime and outer space zones.
The principle of the Common Heritage of Humanity underscores the collective responsibility for managing and preserving resources
both on Earth and beyond, as enshrined in these
international agreements.
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1. Constitution
of a Body Similar to ISA for the Moon Agreement and the Incorporation of
the Principle of Ocean Equity in the Context of Moon Resource Exploitation:
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The United
Nations Convention on the Law of the Sea (‘UNCLOS’) and
the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (‘1994 Agreement’) provides for the formation of the International
Seabed Authority (‘ISA’). In accordance with UNCLOS, Article
156 (2)[1], all States Parties
to UNCLOS are ipso facto
members of ISA. As of 18 May 2023, ISA has 169 Members, including
168 Member States and the European Union.
The ISA
consists of three main components: the Assembly, the Executive Authority, and
the Secretary-General. The Assembly,
comprising all ISA members, is responsible for establishing
general policies and budgets. The Executive Authority, a 36-person council
chosen by the ISA,
handles the approval of contracts related to seabed exploration and mining. The
Secretary- General, selected by the Assembly
for a four-year term upon recommendation from the council, oversees the implementation of ISA’s mandates
and operations. Together, these entities govern the utilization of international
seabed resources, balancing commercial interests with environmental concerns
and equitable distribution of benefits.
In the Moon
Agreement however, no such body has been contemplated. In terms of landing
probes, sending satellites, landing people on the moon or any other activity
that involves the usage of the moon, the States are given a freedom to do as
they please as long as they are not affecting
the ability of another nation
to access the moon. These
ideals combined with the idea of a country’s inability to claim
sovereignty over any part of the moon become inadequate when the countries could
soon possess the technology to exploit resources from the moon.
Such exploitation, without a proper framework to govern the same, may
cause friction between nations.
A body needs
to be established to ensure that the any
mission to the moon which may
require exploiting resources has been implemented in the same way/composition
as the ISA. Certain considerations, especially the fact that space is not accessible to most countries, and only a few,
could cause disparity in the exploitation of the resources of the moon. The
Moon Agreement does not take this into consideration and would certainly be subject to amendments if it was to
keep up equity when space technology develops manifoldly.
Ocean equity
is the fairness of how people are treated in ocean industries and how policies
are developed and implemented.[2] Access to ocean resources is often distributed inequitably, with many benefits
going to a few while the most vulnerable bear the most harm from development.
For example, only a few countries can afford deep-sea science, which means many
countries don’t have access to that data. Obviously, all of this is subject to
the fact that by the time exploiting resources from the moon would become common for nations, by when the access to the moon would become considerably
easier, similar to how countries are slowly growing in terms of access to the
resources of the ocean. A concept of ‘Space
Equity’ would ensure equitable exploitation of the resources of the moon
and ensure that no country continuously exploits the lunar resources which may
cause other nations to lose their opportunity to do the same. This can only be
ensured by an appropriate composition of the newly created administrative body.
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2. Transit rights in maritime zones and outer space:
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The concept
of innocent passage
is a fundamental principle in the law of the sea, governing
the rights and obligations of vessels navigating through the territorial waters of coastal states. It delineates
the permissible activities of foreign ships passing through these waters,
ensuring both the rights of coastal states to regulate maritime traffic for
security and environmental protection and the rights of other states to
navigate freely on the high seas.
Territorial waters
are defined as the area extending up to 12 nautical miles from a coastal state’s baseline[3]. Within
this zone, coastal
states exercise sovereignty[4], subject
to the rights of innocent passage and other lawful uses
recognized under international law. The principle of innocent passage, enshrined
in the United Nations Convention on the Law of the Sea (UNCLOS), grants foreign vessels the right to traverse these waters peacefully, without engaging in any activities prejudicial to the peace, good
order, or security of the coastal state.
The scope
of innocent passage
encompasses various activities, including navigation, overflight, fishing, and scientific
research, provided they are conducted in a manner consistent with the
principles of non-interference and due regard for the rights of the coastal
state[5].
However, certain activities are expressly prohibited during innocent passage,
such as military exercises, intelligence gathering, and weapons testing.
High seas,
on the other hand, refer to the marine areas beyond the territorial waters
of any state. These areas are considered res communis[6], belonging
to all nations and subject
to the freedoms of navigation and overflight, as well as other lawful
uses such as fishing and scientific research. Unlike in territorial waters,
where coastal states enjoy sovereignty, no single state has jurisdiction over
the high seas. Instead, they are governed by customary international law and
UNCLOS provisions, which establish a legal framework for the peaceful
use and conservation of marine resources.
The distinction between territorial waters
and the high seas is crucial in determining the rights
and obligations of states and vessels operating in maritime areas. While
coastal states have primary jurisdiction over their territorial waters, they
must respect the rights of innocent passage accorded to foreign ships.
Conversely, on the high seas, all states enjoy equal rights and freedoms,
subject only to the limitations and obligations prescribed by international
law, and this includes the right of transit passage[7]
as enumerated in UNCLOS.
UNCLOS
provides detailed rules and procedures concerning innocent passage, including
notification requirements, safety regulations, and environmental protection
measures. States are obligated to respect these provisions and ensure compliance by vessels navigating through their territorial waters. Additionally, UNCLOS
establishes mechanisms for dispute resolution and international cooperation to address issues
arising from the exercise of rights and freedoms
at sea.
Space law, much like the law of the sea, governs the activities of states
and entities in a realm beyond national
jurisdiction. In the absence of sovereign territory in outer space[8], the principles
of freedom of access and transit play a crucial role in ensuring the peaceful
and equitable use of this domain. While there exists no concept such as
“innocent passage” in outer space law due to
the lack of any sovereignty in outer space,
there is a right of transit
passage enjoyed by all states similar to the scenario in
High Seas.
The Outer
Space Treaty of 1967, a foundational document in space law, establishes the
principle that outer space is free for exploration and use by all states,
without discrimination or territorial appropriation. This treaty,
ratified by over 100 countries, sets forth fundamental principles guiding
the activities of states in space, including
the principle of freedom of access.
The Outer Space Treaty stipulates that outer space, including the Moon and
other celestial bodies, is not subject to national appropriation by any means,
and all states have the right to freely explore and use outer space[9].
Within this
framework, the concept of transit passage emerges as a corollary to the
principle of freedom of access[10].
Transit passage in outer space refers to the unimpeded passage of spacecraft
through outer space, including through celestial bodies’ orbits or spheres of
influence, without interference from other states.
This right ensures
that spacecraft can traverse
space freely and safely, facilitating space exploration, satellite deployment, and other activities
essential to the peaceful use of outer space.
While the Outer Space
Treaty guarantees the freedom of transit passage,
it also imposes
certain obligations on states
to ensure the safety and security of space activities. States are required
to conduct their space
activities in accordance with international law[11],
including the prevention of harmful
interference with the space activities of other states and the protection of the space environment from contamination or
damage.
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3. The Common Heritage of Humanity with special reference to
the UNCLOS and the Moon Treaty
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The principle
of the common heritage of humanity (CHM) marks a pivotal development in
international law, emphasizing the collective ownership and stewardship of
certain natural resources and spaces for the benefit of all humanity. This
principle is foundational in understanding the legal frameworks governing
the world’s oceans
and outer space, particularly
through the United Nations Convention on the Law of the Sea (UNCLOS) and the
Moon Agreement (Moon Treaty). This analysis delves into the conceptualization
of CHM and its legal application in UNCLOS and the Moon Treaty.
The CHM
concept emerged as a response to the growing recognition of certain global
commons- areas beyond
national jurisdiction, such as the high seas,
the ocean floor,
and outer space, that require collective management to prevent
exploitation and ensure
equitable benefit sharing[12]. The legal and ethical foundation of CHM advocates for no state or individual owning these spaces; instead, they are to be managed
cooperatively for the common good. This approach is aimed at promoting sustainable development, protecting the environment for future
generations, and ensuring that developing countries can access the resources
found in these commons.
The UNCLOS, concluded
in 1982, embodies the CHM principle through its comprehensive legal framework
governing the world’s
oceans. The genesis
of UNCLOS can be traced
back to the initiatives of Maltese ambassador Arvid Pardo, who, in 1967, called for the seabed and ocean floor beyond national jurisdiction
to be recognized as CHM[13].
This led to the establishment of UNCLOS, which formalized the legal status of
the ocean’s resources as a shared heritage.
Part XI of UNCLOS
specifically deals with the seabed,
the ocean floor, and the subsoil thereof, beyond the limits of national
jurisdiction, declaring these and their resources as the common heritage of
mankind[14].
It introduces a regime prohibiting appropriation by states or persons[15],
assigning all rights to resources to humanity as a whole, with the
International Seabed Authority (ISA) designated to act on humanity’s behalf[16]. The ISA’s mandate
includes ensuring equitable sharing
of financial and other benefits
from seabed activities, emphasizing the needs of developing states and the protection
of the marine environment[17].
The 1979 Moon Treaty
extends the application of CHM beyond Earth, applying
it to the moon and its
natural resources. Article 11(1)[18]
of the Moon Treaty explicitly designates the moon and its resources as the
common heritage of mankind, setting a precedent for the non- appropriation
principle in outer space. The Treaty, however, has been ratified by only a few
states, partly due to disputes over the management regime for resource exploitation[19].
Despite limited ratification, it attempts to lay down a framework for equitable
benefit sharing and peaceful exploration, hoping to defer detailed regulations
to the future.
While both
UNCLOS and the Moon Treaty are grounded in the CHM principle, their
applications and the scope of governance differ significantly. UNCLOS has
achieved broad acceptance and provides
a detailed regulatory framework for the oceans, including mechanisms for dispute resolution and the protection of the
marine environment. In contrast, the Moon Treaty, with limited ratification,
remains largely aspirational, lacking a concrete mechanism for enforcing its
provisions on resource sharing and environmental protection.
Another key
difference lies in the institutions established by these treaties. UNCLOS
established the ISA, a concrete body with the authority to regulate mineral
resource activities on the seabed. The Moon Treaty, meanwhile, lacks a similar
established authority to oversee its provisions, leaving the details of its
implementation vague.
A fundamental
aspect of the CHM principle is the prohibition of sovereignty claims over
common heritage areas and resources. Under UNCLOS, no state can claim or
exercise sovereignty over the high seas or the seabed and its subsoil beyond
national jurisdiction. Similarly, the Moon Treaty prohibits
any country from claiming sovereignty over the moon or
other celestial bodies, embodying the principle of non-appropriation.
This prohibition
is crucial in preventing the monopolization of global commons by powerful
states or private entities, ensuring
that the benefits
derived from these
areas are shared
equitably among all nations. It represents a shift from traditional
concepts of sovereignty and property rights,
proposing a model
of stewardship and cooperative management for spaces and resources
deemed to belong to all humanity.
The laws
governing outer space and the high seas share a significant similarity in that
neither domain allows for the assertion of sovereignty by any single nation.
The principle upheld by the Convention on High Seas is that the high seas
belong to no one country and cannot be claimed as such; they are accessible to
all nations, as stated in Article 2[20].
This concept is further reinforced by Article 87[21]
of the United Nations Convention on the Law of the Sea, which asserts that the
high seas are open to both coastal and landlocked countries alike, ensuring
equal access regardless of geographical location.
Similarly, the
Outer Space Treaty, through Article 1[22],
declares outer space to be free for exploration and use by all states.
This provision covers
all celestial bodies,
including the moon, planets, and asteroids, promoting
the idea that space is a domain beyond national claims[23].
However, while this freedom is broad, it is not without its limits. All
activities in outer space must adhere to established principles of international law, ensuring that the exploration and use of
outer space are conducted responsibly and with consideration for the rights and interests of all nations.
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Conclusion
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The principles of equitable resource
management, non-appropriation, and shared responsibility embodied in the common heritage of humanity are fundamental to both the UNCLOS and the Moon
Treaty. While UNCLOS has established concrete mechanisms through the ISA for
the governance of ocean resources, the Moon Treaty’s
implementation remains aspirational due to limited
ratification and the absence of a similar regulatory body. Nonetheless, both
treaties highlight the importance of cooperative management and equitable access
to resources in areas
beyond national jurisdiction. As humanity continues to explore and exploit
resources in both the oceans and outer space, it is imperative to uphold these
principles to ensure sustainable development and the collective benefit of
present and future generations.
[1] United Nations Convention on the Law of the Sea, art.
156 (2), Dec. 10, 1982, 1833 U.N.T.S. 397.
[2] Osterblom, H., Wabnitz, C. C., & Tladi, D. Towards
ocean equity. (2020).
[3] United Nations Convention on the
Law of the Sea, art. 3, Dec. 10, 1982, 1833 U.N.T.S. 397.
[4] United Nations Convention on the
Law of the Sea, art. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
[5] Peter. B. Walker, “What is Innocent
Passage?” 21 Naval War College Review 53, 54 (1969).
[6] Hugo Caminos & Vincent P. Cogliati-Bantz,
“The Legal Regime of Straits: Contemporary Challenges & Solutions” 155
(Cambridge University Press 2014)
[7] United Nations Convention on the Law of the Sea, art.
38, Dec. 10, 1982, 1833 U.N.T.S. 397.
[8] Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies, art.2, Jan. 27, 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205.
[9] Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies, art.1, Jan. 27, 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205.
[10] Isaak I. Dore, “International Law and the Preservation
of the Ocean Space and Outer Space as Zones of Peace: Progress and Problems”, 15
Cornell Int’l L.J. 1, 6 (1982)
[11] Morton S. Jaffe, “International Law
and Space Exploration”, St. Louis U. L.J. 68, 71 (1960).
[12] Taylor, Prue. “The Common Heritage of Mankind: A Bold
Doctrine Kept Within Strict Boundaries.” Wealth of the Commons, January 1,
2023. Accessed April 2, 2024. https://wealthofthecommons.org/essay/common- heritage-mankind-bold-doctrine-kept-within-strict-boundaries.
[13] Anitha Krishnamurthy & Tejas Krishnamurthy, “INTERNATIONAL
LAW & SPACE LAW: COMPARISON WITH LAW OF SEAS”, 4 JLSR 255, 259 (2018).
[14] United Nations Convention on the Law of the Sea, art.
136, Dec. 10, 1982, 1833 U.N.T.S. 397.
[15] United Nations Convention on the Law of the Sea, art.
137, Dec. 10, 1982, 1833 U.N.T.S. 397.
[16] United Nations Convention on the
Law of the Sea, art. 140, Dec. 10, 1982, 1833 U.N.T.S. 397.
[17] United Nations Convention on the
Law of the Sea, art. 143-145, Dec. 10, 1982, 1833 U.N.T.S. 397.
[18] Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer Space, Including
the Moon and Other Celestial Bodies, art.11, Jan. 27, 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205.
[19] Carol R. Buxton, Property in Outer Space: The Common Heritage
of Mankind Principle vs. the First in Time, First in Right, Rule of Property, 69
J. AIR L. & COM. 689 (2004). https://scholar.smu.edu/jalc/vol69/iss4/3.
[20] United Nations Convention on the
Law of the Sea, art. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
[21] United Nations Convention on the
Law of the Sea, art. 89, Dec. 10, 1982, 1833 U.N.T.S. 397.
[22] Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, art.1, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
[23] Tanja Masson Zwaan, Space law in the 21st century, in
CURRENT DEVELOPMENTS IN AIR AND SPACE LAW, 208 (Singh R, et al, ed., 2012).
Article Information
COMPARING THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND OUTER SPACE TREATY IN RESPECT TO EQUITABLE ACCESS AND THE PRINCIPLE OF COMMON HERITAGE OF MANKIND
Authors: ARYAN SOOD
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/18
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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