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through the cost incurred in the event of strandings caused by force majeure. The CAB noted that the proposed rule would probably result in some increase in the price passengers pay for charter transportation, but considered this acceptable in light of its perception that the public was not willing to accept the uncertainty of being stranded as a normal aspect of charter travel. The CAB considered that a duty to return stranded passengers should be placed on airlines, since they are in a better position than charter operators to make alternative travel arrangements, to know the likelihood of many types of service disruptions, and to be accessible to the stranded charter passengers, especially abroad.

The original comment and reply deadlines of Aug. 25, 1980 and Sept. 9, 1980 were subsequently extended to Sept. 25, 1980 and Oct. 10, 1980 (45 Fed. Reg. 53488 (1980)).

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On July 29 and 31, 1980, the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation held hearings on the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, adopted by the United Nations General Assembly on December 5, 1979, under U.N.G.A. Res. 34/68, and opened for signature on December 18, 1979. Testifying on behalf of the Department of State on July 29, Roberts B. Owen, the Department's Legal Adviser, focussed upon those aspects of the treaty relating to the exploitation of non-terrestrial natural resources. In this context Mr. Owen discussed the Department's interpretation and views on the Moon Treaty, the development of United States policy with respect to the Treaty, and the Department's views upon the "common heritage of mankind" concept. Portions of Mr. Owen's prepared statement follow:

1967 Outer Space Treaty

In the debate over the Moon Treaty, it is essential to bear in mind the existence and consequences of the first and most important treaty negotiated by the Outer Space Committee-the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, generally known as the Outer Space Treaty. Because of the fundamental importance of this treaty in assessing and understanding the Moon Treaty and U.S. positions during its negotiation, I wish to place on the record some specific language from the Outer Space Treaty, to which the Senate gave its consent without reservation and which has been binding upon the United States for the past 13 years.

. . The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. [Article I]

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality . . . and there shall be free access to all areas of celestial bodies. [Article I]

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. [Article II] The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. [Article VI]

In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. [Article IX]

All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. [Article XII]

The development of United States policy with respect to the Moon Treaty obviously had to be carried out within the legal context established by the Outer Space Treaty, which is not only legally binding upon us but also generally regarded as the cornerstone of U.S. space policy and vital to American interests in outer space. In fact, as is the case with the three outer space treaties negotiated immediately prior to the Moon Treaty, the Moon Treaty essentially represents an elaboration of the basic principles of the Outer Space Treaty. Against that background the present inquiry relating to the Moon Treaty should focus, presumably, on those areas where the Moon Treaty goes beyond the 1967 Outer Space Treaty in order to see how such provisions may affect the interests of the United States.

Negotiating History and Other Background

My testimony will often refer to the negotiating history of the treaty. This serves two purposes.

First, the negotiating history of any treaty is obviously relevant to complete understanding of the treaty, and arguments either pro or con the treaty can be better analyzed and judged with knowledge of how the treaty text came to be what it is. As a legal matter, the preparatory work of a treaty and the circumstances of its conclusion are, of course, recognized by the Vienna Convention on the Law of Treaties to be a supplementary means of interpretation to be resorted to where the meaning of provisions is ambiguous or obscure. In this regard, the printing by the Committee on Commerce,

Science, and Transportation of Eilene Galloway's admirable study of the negotiating history of the treaty and the committee's intention to print, as part of the record of these proceedings, Professor Carl Christol's detailed article on the common heritage concept in the Moon Treaty are invaluable in enhancing a general understanding of the Treaty [see, post].

Second, in recent months there has arisen some controversy as to how the Treaty was negotiated. For example, accusations have been made that in June 1979 the United States delegation to the Outer Space Committee surrendered to a negotiating attack by the U.S.S.R. and certain less developed countries, with the result that the final Treaty represents essentially a Soviet-inspired text. The negotiating history of the Treaty corrects such inaccuracies and sheds light on other matters related to the Treaty.

The institutional context in which the Treaty was negotiated, i.e., the Outer Space Committee and its Legal Subcommittee, should also be understood, and the NASA witness [S. Neil Hosenball] will discuss this aspect in detail. In this connection I will only say that because these bodies operate on the consensus principle, under which no proposal may be adopted over the opposition of a Committee member, the Moon Treaty contains no provisions which were included over the objection of the United States or any other country. Such a process obviously necessitates a certain amount of accommodation to the interests and desires of others, but it also enables each state, including the United States, to protect fully its essential interests during the course of negotiations. Whether the United States adequately perceived its interests in the Moon Treaty negotiations has been questioned by critics of the Treaty, but it should be understood that our negotiators were in no way forced to accept provisions in the Treaty by being outvoted by a Soviet/Third World majority. There was no voting.

Finally, I will in my testimony make several references to the Law of the Sea (LOS) negotiations, either noting difficulties which critics of the Moon Treaty have with these negotiations or pointing out differences or similarities between the LOS negotiations and the Moon Treaty. It would be impossible to adequately address the Moon Treaty and the views of its critics without such references. However, I am not an expert on the LOS negotiations and do not intend to comment on their substance. The views of the Administration on the LOS negotiations are well known, and nothing in my testimony should be taken as in any way altering these views.

Historically, discussions leading to the Moon Treaty commenced in 1970 when Argentina pointed out to the Outer Space Committee's Legal Subcommittee that the use of the Moon's natural resources had already begun and that the 1967 Outer Space Treaty did not include specific regulations for this activity. Specifically, Argentina proposed a "Draft Agreement on the Principles Governing Activities in the Use of the Natural Resources of the Moon and Other Celestial Bodies," Article 1 of which provided that the natural resources of the Moon and other celestial bodies should be the "common heritage of mankind."

While no action was taken in the Outer Space Committee on the Argentine proposal, less than one year later Soviet Minister of Foreign Affairs Andrei Gromyko requested that the 26th session of

the U.N. General Assembly consider the "preparation of an international treaty concerning the Moon." A Soviet draft text was submitted on June 4, 1971.

The United States was not enthusiastic about this initiative because we did not regard the Soviet text as constituting a significant advance in outer space law as it existed at that time. For example, the Soviet draft treaty gave little attention to the issue of exploiting natural resources. As the Soviet delegate subsequently explained, the “. . . basic purpose [of the 1971 Soviet draft] was that there should not be included in the draft Moon Treaty a provision concerning the regime for the use and exploitation of the Moon's natural resources." [Emphasis added.]

Nevertheless, a review of the Soviet text suggested to the United States that the Soviet initiative might be converted into one which would positively carry forward United States interests. In particular, it was considered that there was potential benefit for the United States in having a treaty which would cover all celestial bodies in the solar system, would mandate notification of intended activities on celestial bodies and the dissemination of information on their results, and would lay the basis for a reasonable approach to the use of nonterrestrial natural resources.

Initial U.S. Positions on Exploitation Question

Regarding the matter of exploitation, the subject had occasionally arisen in the course of negotiations of the 1967 Outer Space Treaty, but no specific provisions on exploitation appear in the 1967 Treaty. The United States has long taken the position that Article I of that Treaty, which provides that: "Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States . . .," recognizes the right of exploitation. We were and are aware, however, that this view is not shared by all states or commentators, some of whom take the position that the nonappropriation provisions in Article VI of the 1967 Treaty preclude exploitation of celestial natural resources and their reduction to private property.

In 1972, then, the United States saw in the Soviet draft an opportunity to make clear that the prohibition against national appropriation of celestial bodies contained in the Outer Space Treaty did not preclude the exploitation of nonterrestrial natural resources for any of three purposes: scientific investigation (such as the return of lunar samples to Earth), the sustaining of missions on celestial bodies, and exploitation for commercial purposes. Thus, while the United States saw no urgent need for the Moon Treaty in 1972-and this remained our view throughout the seven-year course of the negotiations-we did consider that important U.S. interests, including those related to exploitation, could be advanced via a Moon Treaty.

In discussing the development of U.S. policy on the exploitation matter, I wish to stress that the United States constantly maintained several themes, which I would like to set forth and illustrate through references to the negotiating history of the Treaty.

First, the United States was willing to accept the concept that the natural resources of celestial bodies were the common heritage

of mankind. Indeed, it was the United States which first proposed the phrase in the course of active negotiations. However, the U.S. view was-and is-that this concept embodies no substantive rules or a predetermined form of legal regime, and the United States has consistently resisted efforts to give the phrase content which would be adverse to United States interests. In our view the phrase can acquire substantive meaning only by reference to the specific context in which it is employed.

Second, the United States has consistently rejected any suggestion that the Moon Treaty should impose a moratorium on unilateral exploitation of nonterrestrial natural resources pending the establishment of an international regime; indeed, we have insisted that even after such a regime is established, the right of unilateral exploitation will continue to be available to those states which do not choose to participate in such a regime.

Third, the United States has been aware of the vital role that American free enterprise can play in outer space, and the U.S. positions were designed to promote this role, both by ensuring that nothing in the Treaty would circumscribe this potential and by inserting into the Treaty certain rights which would be important to commercial exploitation by private or public entities.

Fourth, our negotiators obviously were aware of developments related to the Law of the Sea negotiations; the two negotiations were somewhat parallel in time, and the two negotiating_texts contain some common phraseology. However, the United States view was and is that the substance and meaning of the Moon Treaty should be determined independently of other international instruments and negotiations.

These were the principles which guided the United States when it inserted the exploitation issue into the Moon Treaty negotiations in 1972. . . . However, it should be clearly recognized that the three Administrations which approved the negotiating instructions on the Moon Treaty from 1972 to 1979, as well as to our negotiators, consciously took into account America's stake in outer space exploitation and the role private investment could play in such exploitation. As to the importance of these matters, I am sure that both critics and supporters of the Treaty are of one mind.

1972 U.S. Proposal on Exploitation

Returning to the negotiating history, the text on exploitation tabled by the United States during the very first negotiating round in April 1972 and the explanatory statement on this text by the U.S. representative, both of which may be found on page 14 of the Galloway Study [see, post], are an excellent illustration of the U.S. approach to the exploitation issue. The 1972 U.S. text contained the statement-the antecedent to Article 11 of the Moon Treaty-that "the natural resources of the Moon and other celestial bodies shall be the common heritage of all mankind.” Paragraph 3 of the U.S. text made reference to the need "for the encouragement of investment," and the U.S. statement made clear that at a conference to negotiate an exploitation regime "participants would need to bear in mind not only common goals of economic advancement but the need to encourage investment and efficient development as well."

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