Governance for Substantive Decisions. If the Agency is ministerial, how will substantive decisions be made? Since the Moon Treaty and its Implementation Agreement are functions of international law, the States Parties can, by consensus (unanimous consent) make any such decision; they are the ultimate legislature. But obtaining the consensus of all parties to a treaty can be cumbersome, so international organizations such as the United Nations and the European Union have created structures of ongoing governance for making such decisions. The Moon Treaty itself envisions such ongoing governance, even requiring a review of any implementation agreement every 10 years (Article 18). [6] The governance structure most relevant to space law is the one created by the Convention on the Law of the Seas (“CLOS”). The CLOS established a governing entity separate from the United Nations, composed of an Assembly made up of all Member States and an executive Council made up of 36 states who are chosen by the Assembly. Membership on the Council consists of five sub-groups to assure that all interests and interested parties are served. For example, four members are from countries who each consume more than 2% of the world’s consumables of potentially developable sea resources; 18 members are chosen to assure geographic diversity. (Agreement on Part XI, Annex 3) [9] Since the Moon Treaty (Art.4) and even the Outer Space Treaty (Art. 1) require that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development” [6][4], sub-groups for governance would help insure that the “interests of all countries” are represented. Although consensus is preferred, it is possible under the CLOS to make decisions in both the Assembly and the Council by a simple majority for procedural matters and by two-thirds majority for substantive matters. But all decisions on financial matters, including the charging of any fees, the administrative budget, and the use of any income “shall be based on the recommendations of the Finance Committee” that is chosen by the Executive Council. Decisions of the Finance Committee on substantive matters must be by consensus. (Agreement on Part XI, Annexes 3, 9) [9] This is still a high bar, but not as difficult as consensus by all States Parties for all substantive decisions. The proposed Implementation Agreement requires the States Parties to create a form of governance to make such s...
Governance for Substantive Decisions. Since the Moon Treaty and the Model Implementation Agreement are functions of international law, the States Parties can by consensus (unanimous consent) make any substantive decision; they are the ultimate legislature. But obtaining the consensus of all parties to a treaty can be cumbersome, so international organizations such as the United Nations and the European Union have created structures of ongoing governance for making such decisions. The Moon Treaty itself envisions such ongoing governance, even requiring a review of any implementation agreement every 10 years (Article 18). [5] The proposed IA requires the States Parties to create a form of governance to make such substantive decisions, including the decision to charge fees or otherwise monetarily share the benefits of the use of outer space. Just as the Moon Treaty calls for governance of activities as they become technologically feasible, the Model Implementation Agreement envisions adaptive governance that can make decisions as they become politically feasible.
