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From Ad Astra, Volume 21 Number 3, Fall 2009

The Future of Space Could Be LOST

Editorial by Greg Allison

Why should space advocates and entrepreneurs care about a UN treaty establishing rules for the world’s oceans? Because that convention — the Law of the Sea Treaty — places road blocks in the way of future resource development on the open seas, setting a precedent that will likely impede the development of space as well.

The U.S. already complies with most of the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), also known to its detractors — including the NSS Policy Committee — as the Law of the Sea Treaty (LOST). However, President Reagan rejected LOST in 1982 because of the nature of its rules for developing the resources of the unclaimed ocean and the seabeds beneath it. Instead of treating those areas either as a “noman’s-land” or as open seas, the UN declares them, in a lofty-sounding phrase, to be “the common heritage of mankind.” In practice, this phrase means that the unclaimed parts of the ocean are community property, owned by everybody but subject to a new UN bureaucracy called the International Seabed Authority (ISA).

Under LOST, the ISA has the authority to decide who explores for and mines the resources of the deep seabed. Any individual company wishing to develop the seabed must:

  • Pay the UN a $250,000 application fee
  • Explore a minimum of two sites, but give one site to the UN for every two sites explored
  • Pay a portion of earnings from the seabed to ISA for its own expenses and to compensate other nations that are hurt by price shocks from developing these new resources.

ISA’s governing board consists primarily of developing nations historically hostile to U.S. interests. Although the U.S. can try to form a coalition of nations in an attempt to block an ISA action, the U.S. would have no formal veto power under the treaty. And lastly, ISA expects the companies developing the deep seabed to sell the UN or developing nations the proprietary technologies used for the work. This effectively makes the UN or developing nations competitors on territory the company paid to explore. (The treaty no longer “requires” this technology transfer, but the end result is still the same.)

This international regime creates many impediments to developing the seabed, and offers few good choices for American businesses. They either relinquish substantial portions of their future profits and proprietary technologies to the UN or forego the opportunity altogether. Now fastforward 10 or 20 years, and imagine these same regulations applied to the resources of space — ice on the Moon or metals in asteroids; would American businesses willingly submit to this regime when the cost of space efforts is already prohibitively expensive? Probably not. And yet, by endorsing LOST, we would be opening the space economy to just such a plan.

In 1979, the U.S. Senate rejected the Moon Treaty, a precursor of LOST, based on pressure brought to bear by one of the National Space Society’s founding organizations, the L5 Society. Then, as now, we fought against the Moon Treaty because a similar UN-controlled bureaucracy would have gained control over all resources developed in space. Indeed, the discredited Moon Treaty uses the very same “common heritage” language that is used by the Law of the Sea Treaty. Even the Soviet Union — the preeminent anti-American power of the day — did not sign the Moon Treaty. If we accept LOST, we will face even greater pressure to accept its space-based offspring.

Private enterprise is crucial for developing a permanent civilization on dangerous frontiers. Government might pave the way, but if people are to stay and make these undeveloped areas a worthwhile, long-term concern, they must have commerce, including the right to develop and profit from local resources. If the private sector does not develop the deep seabeds or the resources of the solar system, it is unlikely that governments, which cannot afford to finance such activities out of their own treasuries, will do so. The U.S. already follows and benefits from the bulk of LOST, but its ratification will set an ugly precedent. If we do compromise our goals and accept it, the future of the space economy will truly be LOST.

Greg Allison is National Space Society's Policy Committee Chairman


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