Proceedings of the Workshop - United Nations Office for Outer ...

22 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS(because of a lack of financial and technicalopportunities).But for precisely that last reason the absence ofmany states from the latter category is quite surprising.As any effective application of the common heritage ofmankind-principle to the moon would result in arelatively beneficial position for the developing states atlarge, their almost comprehensive absence amongstparties (and signatories) would not seem to make sense.This analysis in any case precludes justification of anyattitude which lays the blame for non-adherence to theMoon Agreement squarely with the industrialised states.Therefore, while I could agree with the author that thesolution of 1979 at that time seemed to provide anadequate compromise, any such adequacy in retrospectmust surely be seen to have evaporated fairly quicklyand comprehensively. The ‘solution’ failed to appeaseeither ‘side’ of the ‘dividing line’, if one wants to phraseit in those terms. To the extent that there is anyelaboration of the principle of the common heritage ofmankind at all - which I find missing, particularly whenone compares again with the Law of the SeaConvention - it has failed to draw more than marginalsupport. I would concur with Professor Böckstiegel’scomment made in 1993 at the IISL Colloquium in Graz,that the Moon Agreement is dead. It certainly has notbeen revived since then.Nevertheless, whether focused on exploitation ofthe moon or seen from a wider perspective - includinge.g. the exploitation of (opportunities in) outer space forsatellite communications or satellite remote sensingpurposes - it might be worthwhile to contemplate towhat extent sector-specific regulations should beallowed to regulate economic activities in the absence ofcoherent and comprehensive economic regulatoryprinciples similar to what space law stricto sensucurrently provides e.g on the military uses of outerspace or on liability issues.7. I respectfully disagree with the author’s evaluationof the remote sensing principles as presenting acompromise, fair or not, between the interests of sensedand sensing states. It may be that the particularResolution has been accepted by consensus, and thatmay be a valuable thing, too. Also, the rights of thesensed state are (indeed) made reference to.Yet, the Resolution itself does not provide any details ofpre-existing rights or even indicate any, let alone furtherelaborate such rights. In view of the fact that at thesame time the freedom of undertaking space activitiesis explicitly reconfirmed in the guise of freedom ofremote sensing, it is obvious that the Resolution leavesno room for prior consent of the sensed state, orexclusive or even preferential access to the data. Allthat remains, is the ‘non-discrimination’ principle - i.e.sensed states can at least assume not to be treatedworse than other states interested in the same data -and this is moreover not an absolute principle, butmerely presented as a basis for data distribution,subject moreover to the ‘reasonable cost terms’-provision. This may be fair or not - largely dependingupon your perspective on the structure of the worldeconomy and society - but it can hardly be called acompromise.8. The author rightly touches again upon the lack ofdefinition o f ‘outer space’, which lies at the basis of thediscussions on any existence of a right of (innocent)passage for a spacecraft through foreign airspace andon the status of the geo-stationary orbit. These issuesalso relate to the functionalism-spatialism dichotomy,and provide proof that discussion thereof is not merelya theoretical exercise, but has some very concrete legalramifications which may shortly take the shape ofpractical disputes.As touched upon in the paper, for example thediscussion as to whether ITU should not be given thelead in providing for and elaborating the legal regimefor (use of) the geo-stationary orbit directly stem fromthese problems. Efforts to discuss this matter withinUNCOPUOS should therefore be applauded, even if anumber of important states are still averse to conclusivesteps in this regard. To the extent that such adversity isfed by private enterprise, wishing to avoid any undueconstraints on their commercial activities, it might betime to tackle these issues head-on.9. The subject of space debris and relatedenvironmental concerns, of crucial importance to thefuture of the whole space endeavour if not of humanityas such, is rightly given a prominent place in the paper.I agree with the author that, at this point, the ball laysin the court of the technicians, and in the wake thereof