The Exploitation of Natural Resources of the Moon and Other Celestial Bodies pot

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies ..... 1.2 Space law and the natural resou

Th e Exploitation of Natural Resources of the Moon and Other Celestial Bodies

General Editor

F.G von der Dunk

University of Nebraska, College of Law, Space and

Telecommunications Law Program

Editorial Board

E Back Impallomeni, University of Padua

S Freeland, University of Western Sydney

J Gabrynowicz, National Remote Sensing & Space Law Center,

University of Mississippi

S Hobe, University of Cologne

R Jakhu, Institute of Air and Space Law, McGill University

F Lyall, University of Aberdeen

V.S Mani, Gujarat University

K.U Schrogl, German Aerospace Center DLR

L.J Smith, University of Bremen

VOLUME 4

Th e Exploitation of Natural Resources of the Moon and Other Celestial Bodies

A Proposal for a Legal Regime

By

Fabio Tronchetti

LEIDEN • BOSTON

2009

Tronchetti, Fabio.

Th e exploitation of natural resources of the moon and other celestial bodies : a proposal for a legal regime / by Fabio Tronchetti.

p cm (Studies in space law ; v 4)

Includes bibliographical references and index.

ISBN 978-90-04-17535-8 (hardback : alk paper) 1 Space mining Law and legislation

2 Natural resources Law and legislation 3 Moon International status I Title KZD3491.5.T76 2009

341.4’7 dc22

2009029668

ISSN 1871-7659

ISBN 978 90 04 17535 8

Copyright 2009 by Koninklijke Brill NV, Leiden, Th e Netherlands.

Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing,

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pr inted in the ne ther l ands

To the ever lasting memory of my beloved grandfather Fabio and grandmother Alba

For their love and example

“Th e Sanskrit word for “action” is “karma”, derived from the root

“kri” which means “to do”.

One does action and gets remunerated for it, in turn transferring this remuneration to others for work done by them.

Th us, fruit has arisen out of action, and action out of fruit From time immemorial, life has been conducted in this manner.

Th is is called the wheel of karma.

To act with the motive of gaining fruits is to invite bondage Relinquishing the fruits frees us from all miseries.”

Sri Swami Rama, Himalayan master

Acknowledgments xvAbbreviations xviiChapter 1 Introduction 1

1.1 Th e exploitation of natural resources of the Moon and other celestial bodies: a new opportunity of development for mankind 11.2 Space law and the natural resources of the Moon and other celestial bodies: the need for a legal regime 31.3 Th e natural resources of the Moon and other

celestial bodies 51.4 Overview of the analytical framework 6Chapter 2 Th e Outer Space Treaty, the Moon Agreement and

the 1996 Declaration on Space Benefi ts 92.1 Introduction 92.1.1 Th e background to the discussion on the legal status of outer space 92.1.2 Legal scholars and the status of outer

space 102.1.3 Th e United Nations and outer space:

defi ning the legal status of outer space

in the period 1958–1966 142.2 Th e Outer Space Treaty 182.2.1 Background and importance of the Outer Space Treaty 182.2.2 Article I of the Outer Space Treaty 202.2.3 Th e principle of freedom of exploration

and use 21

2.2.4 Th e principle of the exploration and use

of outer space for the benefi t and in the interest of all countries, and the

‘province of all mankind’ concept 23

2.2.5 Article II of the Outer Space Treaty 26

2.2.6 Th e application of the ‘non-appropriation’ principle to private operators and outer space resources 29

2.2.7 Articles VI and VII of the Outer Space Treaty 33

2.3 Th e Moon Agreement 38

2.3.1 Background and importance of the Moon Agreement 38

2.3.2 Th e 1979 Moon Agreement and the Outer Space Treaty 41

2.3.3 Th e ‘Common Heritage of Mankind’ concept and the natural resources of the Moon 45

2.4 Th e 1996 UNGA Declaration on S pace Benefi ts 61

2.4.1 I ntroduction 61

2.4.2 Th e roots of the 1996 Declaration on S pace Benefi ts: the developing States’ interpretation of Article I of the Outer Space Treaty 62

2.4.3 Th e draft ing history of the 1996 Declaration on Space Benefi ts 65

2.4.4 Th e 1996 Declaration on Space Benefi ts 77

2.4.5 Conclusion: what is the value of the 1996 Declaration on Space Benefi ts? 78

2.5 Conclusion 81

Chapter 3 Th e Common Heritage of Mankind 85

3.1 Introduction 85

3.2 Th e ‘Common Heritage of Mankind’: a new way for managing common areas beyond national jurisdiction 87

3.3 Th e origin and evolution of the ‘Common Heritage of Mankind’ concept 91

Contents ix

3.3.1 Introduction 913.3.2 From 1967 to 1971 923.3.3 1972–1974: new elements in the ‘Common Heritage of Mankind’ concept 983.3.4 1975–1979: further development of the ‘Common Heritage of Mankind’

concept 993.3.5 Th e 1980’s: the decline of the ‘Common Heritage of Mankind’ concept 1043.3.6 1980–1982: the failure of the 1982

Law of the Sea Convention 1043.3.7 Th e 1990’s: a second chance for

the ‘Common Heritage of Mankind’ 1103.3.8 Th e 1994 Implementation Agreement 1163.3.9 Th e ‘Common Heritage of Mankind’ and the Moon Agreement 1183.3.10 Th e emergence of a new interpretation of

the ‘Common Heritage of Mankind’

concept 1233.4 Th e legal status of the ‘Common Heritage of

Mankind’ concept: ‘Mankind’ as a new subject of international law? 1263.5 Conclusion 129Chapter 4 Th e management of international areas and their

limited natural resources: the examples of

Antarctica and ITU 1314.1 Introduction 1314.2 Antarctica 1324.2.1 Th e origins of the Antarctic Treaty

System 1324.2.2 Th e road to the Antarctic Treaty 1344.2.3 Th e 1959 Antarctic Treaty 1364.2.4 Th e Antarctic Treaty and the Outer

Space Treaty 1394.2.5 Th e Convention on the Regulation of

Antarctic Mineral Resources 1414.2.6 Th e Protocol on Environmental Protection

to the Antarctic Treaty 155

4.2.7 Th e Convention on the Regulation of the Antarctic Natural Resources: a lesson for the extraterrestrial resources regime? 1594.3 Th e geostationary orbit 1634.3.1 Exploiting the geostationary orbit 1634.3.2 Th e geostationary orbit and the frequency spectrum as limited natural resources? 1644.3.3 Th e allocation system of the orbit/

spectrum resource 1684.3.4 Th e limits and problems of the current

methods of orbit/spectrum allocation 1824.3.5 Th e ITU procedures for the management and allocation of the orbit/spectrum resource: a valuable example for the extraterrestrial resources regime? 187Chapter 5 Property rights in outer space: a crucial issue in the

wake of the commercialisation of outer space and its resources 1935.1 I ntroduction 1935.2 Immovable and movable property rights

in outer space 1965.3 Th e myth of immovable property rights in outer space: some preliminary considerations 1975.3.1 Th e non-appropriative nature of outer space: rejecting claims to immovable property rights in outer space 1985.3.2 Private claims of ownership and immovable property rights over the Moon and other celestial bodies 2025.3.3 Individual claims of the Moon and market

of extraterrestrial properties: the example

of Lunar Embassy and the case of Nemitz versus the United States 2035.3.4 Space commercialization versus the non- appropriation principle: the issue of property rights over natural

resources in outer space 2115.3.5 Conclusion 217

Contents xi

5.4 Movable property rights in outer space: the legal regime governing extraterrestrial natural resources 2185.4.1 Resource appropriation and use under the Outer Space Treaty 2205.4.2 Resource appropriation and use under the Moon Agreement 2255.5 Conclusion 231Chapter 6 Elements of a legal regime to govern the commercial

exploitation of extraterrestrial resources 2336.1 Introduction: is there a need for a dedicated

legal regime? 2336.2 Underlying foundations of the legal

regime required 2386.3 General characteristics of the legal

regime required 2416.4 Legal nature of the legal regime required:

towards an international agreement 2426.5 Purpose and main principles of the proposed

Agreement 2446.6 Th e institutional part of the Agreement 2466.6.1 Th e International Space Authority 2466.6.2 Characteristics of the International

Space Authority 2466.6.3 Th e Assembly 2476.6.4 Th e Council 2496.6.5 Membership of and decision-making in

the Council 2506.6.6 Th e Technical and Legal Committee 2526.6.7 Financing the Authority 2536.7 Th e exploitation of lunar resources: applicable

rules and licensing procedure 2546.7.1 Th e exploration of the lunar and other celestial bodies’ surface: general considerations 2546.7.2 Legal aspects of the exploration phase 2556.7.3 Th e application procedure 2576.7.4 Th e submission of an exploitative

working plan 257

6.7.5 Review of the plan 259

6.7.6 Th e license 260

6.8 Th e liability regime applicable to the exploitation of extraterrestrial resources 263

6.8.1 Th e Liability Convention and the exploitation of lunar and other celestial bodies’ resources 264

6.8.2 Liability for damage caused to the space environment 267

6.9 Th e proposed dispute settlement mechanism 269

6.9.1 Th e need for a dispute settlement mechanism: general introduction 269

6.9.2 Th e WTO dispute settlement mechanism: general aspects 272

6.9.3 Th e procedure for the settlement of disputes 274

6.9.4 First stage 274

6.9.5 Second stage 275

6.9.6 Th ird stage 277

6.9.7 Appeal 277

6.9.8 Aft er the DSB ruling 278

6.10 Th e dispute settlement mechanism of the proposed legal regime 278

6.11 Th e exploitation of lunar resources for the benefi t of all mankind 281

Chapter 7 Conclusion 287

annexes Annex 1 Draft International Agreement on the exploitation of natural resources of the Moon and other celestial bodies 293

Annex 2 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 311

Contents xiii

Annex 3 Convention on International Liability for Damage Caused by Space Objects 319

Annex 4 Convention on Registration of Objects Launched into Outer Space 331

Annex 5 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 337

Annex 6 1962 (XVIII) Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space 349

Legal documents 353

Treaties and conventions 353

Declarations, principles and documents 355

Case Law 359

Bibliography 361

Books 361

Ar ticles 365

Internet and web-based sources 378

Index 379

Th is book is a revised and enhanced version of my doctoral thesis, which

I successfully defended at Leiden University on 18 December 2008

As it has been said many times before, writing a PhD is a lonely and hard job Th e hours I sp ent in the lib rary looking for materials and at home on the PhD manuscript are countless

Numerous p ersons have contributed to the p rocess of writing and

fi nalising this book; I am much indebted to them for these contributions and helping me with my research

Firstly, I had the ho nor t o b e guide d a nd su pervised b y P rofessor Frans von der Dunk He always represented a support and a source of scientifi c in spiration His co mments a nd ad vices have co ntributed t o signifi cantly enhance the quality of this book

Secondly, I am thankful to Professor Elisabeth Back Impallomeni and

to Professor Henri Wassenbergh, for their comments to and remarks on

my PhD manuscript A sp ecial thanks als o goes to Professor Isabella Castangia, my fi rst mentor in the early years of my research in Italy

I would like to express my gratitude to my mother Marilena for the love she has shown my whole life No amount of thanks will ever come

to being suffi cient My love goes to my sister Silvia, her husband Marcello,

my nephews Riccardo and Chiara, my cousins Luigi and Simone, my aunt Maria Teresa, my father Carlo A special thank goes to the Arnold family for their unconditioned love Last, but of course not the least, my Kinga Th is book would have never seen the light of day without you

Fabio TronchettiLeiden, July 2009

COPUOS Committee on the Peaceful Uses of

DBS Direct Broadcasting Satellites

GATT General Agreement on Tariff s and Trade

IAF I nternational Astronautical FederatioICAO International Civil Aviation OrganizationICNT Informal Composite Negotiation TextICJ International Court of Justice

IFRB International Frequency Registration Board

IISL International Institute of Space Law

INTELSAT International Telecommunication Satellite

NASA (US) National Astronautics and Space

PCIJ Permanent Court of International Justice

UNCLOS United Nations Convention on

the Law of the SeaUNESCO United Nations Educational, Scientifi c and

UNISPACE United Nations Conference on the Exploration

and Peaceful Uses of OuterspaceUNOOSA United Nations Offi ce for Outer Space Aff airsUNTS United Nations Treaty Series

WARC World Administrative Radio Conference

1 W Shakespeare, Romeo and Juliet, act 2, sc 2.

2 P B Shelley, To the Moon.

3 G.G Byron, We’ll go no more a-roving.

4 T Hardy, At a Lunar Eclipse.

5 A det ailed a nalysis o f the na ture a nd co mposition o f thes e na tural r esources is provided at p 5.

Chapter 1

Introduction

1.1 Th e exploitation of natural resources of the Moon and other

celestial bodies: a new opportunity of development for mankind

For centuries, the M oon has r epresented a s ource o f in spiration a nd romance for poets and musicians Shakespeare dedicated to the Moon

a sonnet of his “Romeo and Juliet”.1 Shelley,2 Byron,3 and Hardy4 wrote poems in spired b y the M oon L udwig va n B eethoven co mposed a famous piano sonata entitled “Moonlight”

Once mankind really set its sights on the Moon, however, for decades the Moon became the ob ject of rivalry and competition between the two superpowers involved in the C old War, the U nited States and the Soviet Union Yet, since r ecently the st atus of the M oon has c hanged again With the b eginning of the X XIst century, marked by the end o f the bipolar competition between the East and the West of the world, by the globalization of the international economy, and by a renewed spirit

of collaboration among States, the Moon has become a great nity for all mankind, a new hope for the betterment of conditions of life

opportu-of the people on Earth

Th e Moon and the other celestial bodies of our solar system contain a vast amount of natural resources.5 Th ese resources can be removed by

their original location and utilized to produce energy both in situ and on

Earth once brought to our planet It has been estimated that the use of extraterrestrial r esources as a s ource o f ener gy no t o nly wi ll ha ve

6 S ee: http://news.bbc.co.uk/2/hi/science/nature/226053.stm; h ttp://www.upenn.edu/ gazette/0397/0397gaz2.html; h ttp://aerospacescholars.isc.nasa.gov/HAS/cirr/em/6/6 cfm.

7 See in this r espect the activities and the results achieved by the Ares I Crew Launch Vehicle Project operating within the Nasa See: http://spacefl ightsystems.grc.nasa.gov/ LaunchSystems/.

8 In this respect the United States has launched the Vision for future space exploration

in 2004 (s ee http://www.nasa.gov/externalfl ash/Vision/index.html) Th e Vision sees the return of astronauts on the Moon by 2020, the establishment of a permanent manned basis o n the l unar surface a nd use of the M oon as a basis f or future space exploration Th e fi rst step in the r ealization of the Vision has o ccurred on June 18,

fore-2009, when the Lunar Reconaissance Orbiter (LRO), whose main purpose is to study the physical nature of the Moon by focusing particular attention on the Polar Region, has b een la unched S ee f or f urther det ails: h ttp://lunar.gsfc.nasa.gov/mission.html

tremendous impact but also will have the capability to solve the energy crisis currently existing on Earth As is w ell known, the st ocks of raw materials are running out and experts estimate that fossil oil will be fi n-ished in thir ty to f ourty years Alternative ways for generating energy, such as usin g hydrogen, nuclear power, and solar power, have already been employed on Earth in order to try to solve this problem However,

it has been proven by scientists that the utilization of the natural resources

of the Moon and other celestial bodies will produce better results in this respect due to the quality and quantity of such resources.6

Keeping in mind such importance of lunar and other celestial bodies’ resources, their exp loitation may generate a la rge amount of b enefi ts and may contribute to improve the q uality of life on Earth Th er efore, there is a c lear ne ed f or a n a ppropriate legal r egime o rganizing this exploitation in an orderly and safe way, which – to the extent it does not exist – should be dealt with urgently

At the same time one may wonder why the exploitation of restrial resources has not yet started and, also, if such exploitation repre-sents a feasible option Th e possibility to mine and use the resources of the Moon and other celestial b odies is certainly more realistic than it perhaps sounds Th anks to signifi cant developments and innovations in space technologies and launch vehicles7 and to the renewed interests of States in the Moon and its resources, the day on which the exploitation

extrater-of the materials present on the lunar and other celestial bodies’ surface will start, is approaching fast.8

So, it may well be that a major reason for the fact that the tion of extraterrestrial materials has no t begun yet is the a bsence of

exploita-Introduction 3

China is also very active in the fi eld of the research and analysis of lunar resources It has st arted the M oon exploration programme w hich est ablishes: 1) a nalysis of the Moon’s composition by satellite; 2) the launch of a rover on the Moon’s surface by 2012; 3) a manned mission by 2017 China has launched on October 24, 2007, the fi rst space- craft of the p rogramme Chang’e-1, which is a imed at studying the co mposition and quality of the lunar resources China has al ready planned the launch of Chang’e 2 in order to install a lunar lander for the surface exploration of an area of the Moon See in this r espect: h ttp://www.spacedaily.com/reports/China_Moon_Mission_ChangE_1_ In_Good_Condition_999.html; h ttp://www.universetoday.com/2007/10/24/ chinese- moon-mission-blasts-off / On 14 September 2007 Japan launched the Selene mission whose purpose is t o analyze the Moon’s origin and its physical composition See for details: h ttp://www.jaxa.jp/projects/sat/selene/index_e.html I ndia has la unched i ts

fi rst mission to the Moon, Chandrayaan-1 on 22 October, 2008 Th e mission aims at mapping the entire lunar surface, both on the near and far side, in order to get a better knowledge of the minerals contained on the Moon and to facilitate the future perma- nent presence of human beings on its surface For information see: http://www.isro org/Chandrayaan/htmls/mission_sequence.htm.

specifi c rules establishing how this exploitation has to t ake place and the rig hts and duties of the pa rties involved B ecause of this uncer -tainty, both States and private operators interested in thes e resources might well have refrained from investing money and technologies in exploitative activities in outer space A sound legal regime to manage and regulate the exploitation of the natural resources of the Moon and other celestial bodies is the key, and this book aims at contributing to enhance it by its concrete proposals Such a legal regime not only will stimulate the pa rticipation o f S tates a nd p rivate o perators in this exploitation but w ill a lso c ontribute to it s s afe an d ord erly d e -

velopment

1.2 Space law and the natural resources of the Moon and other

celestial bodies: the need for a legal regime

As already indicated, one major reason to explain the fact that States and private operators have not started to exploit the resources of the Moon and other celestial yet is the absence of rules setting out how this exploi-tation should be carried out Th e major space la w treaties, indeed, do not co ntain a ny sp ecifi c r ule d ealing wi th th e u se o f e xtraterrestrial resources, and thus there is no clearcut regime dealing with it which has

9 Treaty on Principles Governing the Activities of States in the E xploration and Use

of O uter S pace, incl uding t he M oon a nd O ther C elestial B odies (O uter S pace Treaty): London/Moscow/Washington 27 J anuary 1967, in f orce 10 O ctober 1967;

and the 1979 Moon Agreement.10

Th e Outer Space Treaty, which represents the most im portant legal instrument of the system of space law and which establishes principles applicable to a ll activities to b e carried out in t he space environment, does not contain any specifi c reference to the use of space resources Not even the t erm “exploitation” is men tioned in the T reaty Th is does not mean, however, that the Treaty’s principles are not applicable directly or indirectly to the exploitation of extraterrestrial resources

Th e problem, however, as will be seen, is that such provisions are of a very general nature and do not provide the meaning of the terms used

Th eir vague character, combined with the uncertainty that they ate, lead to the conclusion that these provisions are not accurate enough

gener-to ensure the peaceful and orderly development of the exploitation of the resources of the Moon and other celestial bodies

Th e provisions of the Moon Agreement, whose purpose was to late the us e for scientifi c and commercial purposes of lunar and other celestial bodies’ resources, lose relevance when applied to the exploita-tion of extraterrestrial materials Some of its key provisions have been rejected by the majority of States, and none of the space-faring nations are Parties to the Agreement itself

regu-Th e consequence is, as we will see, that in order to ensure the safe, rational, peaceful and orderly exploitation of the resources of the Moon and other celestial bodies a lega l regime containing rules establishing how this exploitation has to be organized and carried out must be estab-lished On the one hand, this legal regime has to be based on the existing space law principles which, in the last f orty years, have provided com-prehensive direction and guidance to space activities On the other hand, the legal regime has to take into consideration the present state of space activities, in w hich private operators are playing a mo re relevant role day b y da y S uch o perators, w ho a re v ery in terested in exp loiting

1.3 Th e natural resources of the Moon and other celestial bodies

As r eferred t o, the M oon a nd the o ther celestial b odies o f o ur s olar system contain large quantities of natural resources

As for the Moon, it presents vast amount of mineral resources uted uniformly across its surface a nd subsurface It has b een demon-strated tha t the M oon is rich in al uminum, ir on, si licon, o xygen, hydrogen, chromium, manganese, potassium, and other minerals Th es e minerals can be utilized in their original form or refi ned into structural and electrical materials Th ey can be brought back to Earth or used for life su pport o f a p ermanent l unar basis o r as r ocket p ropellant F or instance, oxygen and hydrogen are contained in the lunar regolith at all latitudes Oxide minerals such as limonite or olivine can be removed as water vapor by warming up these minerals wi th hydrogen Th e water vapor which is obtained can be condensed and electrolyzed into hydro-gen, and the oxygen is liquefi ed Th ese components can be used as life support or propellant for rockets.11 Another potential use of the l unar minerals is as fuel for a solar powered satellite system, usually referred as SPS Th e SPS system would basically collect solar energy in space, con-vert it to electricity and send it to Earth via microwave beams

distrib-Th ere is als o e vidence tha t the l unar p oles co ntain a mounts o f waterice It is still not well known how vast this amount is In case of presence of a large amount of water, this could have an enormous impact

in terms of potential usage as rocket propellant or life-support materials for astronauts

Th e most val uable r esource co ntained o n the M oon is H elium-3 Helium-3 represents, indeed, the main reason behind the attention and interests that States and private operators are showing with respect to the Moon and to the possibility to exploit its resources

12 In this respect, the use of Helium-3 to produce and distribute energy may be seen as

a means to reach one of the p urposes of the Kyoto Protocol to the United Nations Framework C onvention o n Clima te Cha nge, na mely tha t co ntained in Article 2 requiring that: “Each Party included in Annex I, in achieving its quantifi ed emission limitation and reduction commitments under Article 2, in order to promote sustain- able development shall: research on, and promotion, development and increased use

of, new and renewable forms of energy, of carbon dioxide sequestration technologies and of advanced and innovative environmentally sound technologies”.

For the text of the Kyoto Protocol to the United Nations Framework Convention

on Climate Change see: http://unfccc.int/resource/docs/convkp/kpeng.html.

13 See: Sci/Tech Moon map aids discovery, http://news.bbc.co.uk/1/hi/sci/tech/226053

.stm and supra, n 11.

Helium-3 is an isotope, scarcely present on Earth but abundant on the Moon, which combined with other materials, such as deuterium, can be used as fuel in fusion power reactors Th e value of Helium-3 is that it can generate nuclear power and, as a co nsequence, energy in a c lean way, namely through a p rocess of nuclear f usion w hich do es not produce toxic waste Th anks t o thes e sp ecial c haracteristics the extrac tion o f Helium-3 is likely to have a huge impact on the way energy is produced and distributed on Earth Helium-3, indeed, has the potential to replace fossil fuels and other substances as primary source of energy on Earth.12

It has been estimated that twenty-fi ve tonnes of Helium-3 can provide all the power that the United States needs in a year.13

As to the resources contained in the celestial bodies others than the Moon, it has been estimated that some 1400 Near Earth Asteroids with

a diameter larger than one kilometer cross the Earth’s orbit around the Sun Th ese asteroids are easy t o be reached from the M oon Some of these ast eroids a re dead co mets wi th la rge a mounts o f wa ter; o thers contain vast amounts of iron Also the two Martian moons, Phobos and Deimos, contain vast quantities of minerals

1.4 Overview of the analytical framework

Th is book starts with a critical comparative approach among the legal regimes r egulating t he ac tivities in o uter sp ace, o n t he hig h s eas, in Antarctica an d i n t he ge ostationary or bit, i n ord er to fi nd o ut w hat elements a nd c haracteristics o f thes e r egimes ca n b e us ed w hen

2 Th ere is a n ur gent ne ed t o de velop a f ull-fl edged legal r egime t o regulate t he e xploitation of t he re sources of t he M oon an d ot her celestial bodies and ensure its peaceful, orderly and successful devel-opment.

3 Such a legal regime should be developed having in mind the lessons learnt from the failures of the 1982 L aw of the Sea Convention and the Moon Agreement

4 Such a legal regime must be able to attract and obtain the acceptance

of developed States and private companies on the one hand and of developing States on the other

Th e analysis is structured through six further Chapters as follows.Chapter Two deals with the Outer Space Treaty and the Moon Agree-ment It aims to show the importance and applicability of the provisions

of these international treaties with respect to the exploitation of terrestrial resources

extra-Chapter Th ree focuses on the history and evolution of the ‘Common Heritage of Mankind’ concept Particular attention is pa id to the 1982 Law of the S ea Convention Th is Chapter also points out the potential impact of the 1994 I mplementation Agreement of Part XI of the 1982 Law of the S ea Convention on the s etting up of the regime regulating the exploitation of lunar and other celestial bodies’ resources

Chapter Four analyzes the legal regimes applicable to the Antarctica and the geostationary orbit, addressing also the possibility that certain rules of these two regimes may well be transported and applied to the legal framework aimed at regulating the exploitation of extraterrestrial materials

Chapter Five deals with the issue of property rights in outer space It shows the inadequacy and vagueness of the existing space law regime in this respect

Chapter S ix p roposes a legal r egime t o g overn the exp loitation o f the natural resources of the M oon and other celestial b odies A draft

international agreement containing such a legal regime is submitted in Annex 1.

Chapter S even co ncludes t his b ook, a nd une quivocally a rgues t he need for establishing a legal regime to regulate the exploitation of natu-ral resources of the M oon and other celestial b odies, preferably along the lines of the legal regime discussed in the previous Chapter and the concrete proposal attached in Annex 1

14 In this regards, see C.W Jenks, International Law and Activities in Space, ICLQ (1956),

p 99, and J.C Cooper, ICLQ Vol 4 (1951), p 411 Many scholars also focused on the problem of the defi nition of boundaries between air and outer space Th is aspect is

not analysed in this work For the study of this issue see: N.M Matte, Aerospace Law (1969), Vol I, p p 20 ss, A M eyer, L’importance d’une limite entre l’espace aérien et

extra-atmosphérique, 11 Zeitschrift für Luft recht und Weltraumrechtsfragen (Z.L.W.)

(1962) p 106, J.C Cooper, Th e Problem of a defi nition of “air space”, First Colloquium

on t he L aw of Outer Space (1958), P roceedings, p 38, J C C ooper, High Altitude

Flight a nd N ational S overeignty, in S ymposium (1956) p 3, J C H ogan, Legal Terminology for the Upper Regions of the Atmosphere and for the Space Beyond the Atmosphere, 51 AJIL (1957) p 362, M.S McDougal, H.D Lasswell & I.A Vlasic, Law and Pu blic O rder i n S pace, N ew H aven, 1963, p 329, P rince H v on H annover, Problems in establishing a legal boundary between air space and space,Proceedings of

the First Colloquium on the Law of Outer Space (1958), p 29 Not all t he scholars agreed on the importance of the establishment of a boundary between air and outer

space, In this regard see D Goedhuis, Some Trends in the Political and Legal Th inking

on the Conquest of Space, 9 Nederlands Tidschrift voor International Recht, (1962),

activ-15 N.M Matte, Aerospace Law, Toronto (1969), pp 99–105; E Galloway, Consensus

deci-sion m aking b y t he U nited N ations Co mittee o f t he P eaceful U ses o f Ou ter S pace,

7 Journal of Space Law 3 (1979); M Benkö & K.U Schrogl, Th e UN Committee on the

Peaceful Uses of Outer Space, in International Space Law in the Making: Current Issues

in the UN Committee on the Peaceful Uses of Outer Space, France (1993), pp 1–18.

the orderly, rational and s afe de velopment of space ac tivities In t his regard, both legal s cholars and the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) played a key role in defi ning the legal status of outer space and in establishing the principles directed

to govern the exploration and use of the outer space and its resources COPUOS, of course, was established in particular to codify and also to develop legal rules pertaining to the activities of States and other players

in outer space.15

Th e exploitation of such resources was not considered feasible at the time those principles were laid down Th erefore, they did no t contain any specifi c reference to exploitative activities of outer space resources Still, such principles may be interpreted, at least indirectly, as also refer-ring to space exploitation For instance, as it will largely be analyzed in Chapters Five and Six, it may be argued that the term “use”, contained in such p rinciples em bodies t hat o f “exploitation” a nd t hat, as a co nse-quence, the exploitation of outer space resources is a form of use

2.1.2 Legal scholars and the status of outer space

Th e main issue t hat legal s cholars dealt with in t he period 1957–1966 was the defi nition of the status of outer space, where one of the key top-ics of the debate was whether State sovereignty was applicable to outer space Today it may be widely recognised that State sovereignty does not apply to outer space as a whole and that States cannot claim exclu-sive rights over outer space or its parts, but not all scholars agreed with this statement in the early years of space law Roughly speaking, schol-ars co uld b e co nsidered to ad here to o ne o f tw o ma in s chools o f thought

Th e fi rst school suggested applying the concept of res nullius to outer space and celestial b odies Res nullius is a t erm used in Ro man law to

mean a thing without an owner Th is thing does not belong to anybody

but may be appropriated by anyone Th e term res nullius is also used in

the systems of civil law when they refer to things possible to be owned

Th e Outer Space Treaty, the Moon Agreement 11

16 For further explanations of the concept of res nullius see: I B rownlie, Principles of

Public International Law, Oxford, Sixth ed., (2003), p 158; M.N Shaw, International Law, Cambridge, Fift h ed., (2004), pp 424–426, 432–438.

17 Th e application of the res nullius concept to outer space was, for instance, was held by

A Haley, Space Law – Th e Development of Jurisdictional Concepts, in Proceedings of

the Eighth International Astronautical Congress, (1958), p 170 Other authors sidered the defi nition of the status of celestial bodies as a separate issue from that of the status of outer space as a w hole Th ese authors proposed to consider the Moon

con-and the other celestial bodies as res nullius Th is view was supported by: C Horsford,

Th e La w o f S pace, J.B.I.P.S (1955), p 144; E F asan a nd F G ross, D as Rec ht des

Weltraumes, O.J.Z., (1961), p 114; B Cheng, From Air Law to Space Law, C.L.P.,

(1960), p 234 For a good overview of the theories and debates on the status of the

Moon and other celestial bodies see, J.C Cooper, Who Will Own the Moon? Th e need

for an answer, 32 J Air & L Comm (1966), p 155.

18 See J Verplaetse, Can Individual Nations Obtain Sovereignty over Celestial Bodies?, in

Proceedings of the Th ird Colloquium on the Law of Outer Space (1961), p 311.

19 See B Cheng, Th e Extra-terrestrial Application of International Law, in 18 C urrent

Legal Problems (1965), p 143.

by a natural or juridical person.16 Outer space consequently should be considered an area which is not under the sovereignty of any State and hence susceptible of being occupied and acquired by States

Th us, t he proponents of such t heory recognised t he p ossibility for States to make claims to outer space a nd its resources.17 For example, with reference to sovereignty claims with regards to the Moon, Verplaetse

stated t hat: “ in hist ory a ny res w hich is no t under a uthority ca n b e

brought under authority (…) Th erefore, the obvious conclusion is that individual nations can obtain sovereignty over such parts of a celestial bodies u pon w hich t heir p ower is p roperly v ested”.18 Al so P rofessor Cheng wrote that: “But extra celestial bodies such as the Moon and other

planets must prima facie be regarded as res nullius which, like the New

World and the continent of Africa at one time, are susceptible of being appropriated a s n ational t erritory th rough e ff ective occupation”.19

However, t he p roposal to co nsider o uter sp ace as a res nu llius was

adhered to only by a minority of scholars

By contrast, the theory on the legal status of outer space proposed by the scholars belonging to the second school of thought gained general

acceptation Th ese s cholars a greed up on t he res c ommunis o mnium character of outer space Also the term res communis omnium derives

from Roman law, and usually refers to objects or things that are available

20 See in t his respect, I B rownlie, supra, n 16, a t p 159; M.N S haw, supra, n 16, a t

pp 413, 424 Th e concepts of terra communis and terra nullius both specifi cally refer

to a territory Th e latter refers to a territory that belongs to no one and can be priated; t he f ormer indica tes a t erritory inca pable o f o wnership a nd co ntrol a nd

appro-open for free exploration and use See in t his respect, M.N S haw, supra, n 16, a t

pp 432–434.

21 Th e res c ommunis o mnium c haracter o f o uter space was held , f or in stance, b y J.E Faria, Draft to a n International C ovenant for O uter Sp ace, P roceedings of t he

Th ird Colloquium on the Law of Outer Space, (1960), p 26; K.B Keating, Th e Law

and the Conquest of Space, 25 J Air & L Comm (1958), p 182; McDougal and Lipson, Perspectives for a Law of Outer Space, Legal Problems of Space Exploration, Washington

(1961), p 417; E P epin, Introduction to Space Law, 4 N.Y.L.F (1958), p p 258–262;

M Smirnoff , Legal Status of Celestial Bodies, 28 J Air & L Comm (1961–62), p 290;

Y Korovin, Conquest of Outer Space and Some Problems of International Relations,

International Aff airs (1959), p 90, and many others.

22 See D Goedhuis, Air Sovereignty and the Legal Status of Outer Space, ILA Report of

the 49th Conference, (1960).

to all and cannot be owned by anyone, not even a State (such as the air

and the seas) Th e res communis principle is also used in private law to

refer to things which are not subject to private ownership and which are ruled by the principle of freedom of use for all Space scholars use the

term res communis omnium to point out the fact that no State’s

sover-eignty can be exercised in outer space, because it represents an area of common interest of all mankind It is also possible to confer upon outer

space t he st atus o f terra c ommunis as distin guished b y t hat o f terra

nullius.20

According to their view then, outer space, comprising the Moon and other celestial bodies, cannot be subject to appropriation by any State, and would consequently be open for exploration, use and exploitation

by all S tates on a bas e of equality Outer space ma y not be subject to occupation and appropriation by any State and no o ne is allo wed to claim s overeignty r ights over outer space o r its pa rts.21 For exa mple, Professor Goedhuis stated that: “Th e idea that States which succeed in landing vehicles on the moon or other celestial b odies would be able, under existing international law, to establish a claim of sovereignty is a fallacious one, such a c laim would be inapt even if t he analogous ter-restrial law were assumed to apply without modifi cation in the celestial sphere”.22 Professor Mayer, by underlining the importance to protect the interest of all ma nkind in t he process aimed at defi ning the status of

Th e Outer Space Treaty, the Moon Agreement 13

23 A Meyer, ILA Report of the 49th Conference (1960), p 7.

24 Th e term res extra commercium comes from Roman Law where it refers to things

outside co mmerce, i e no t sub ject t o p rivate o wnership o r tra nsaction U sed in international law it means an object or a territory which is not subject to national ap- propriation, but it is open to all Th us, all States share a common interest in the man-

agement of activities in an area defi ned as res extra commercium and, consequently,

only States of the world acting collectively can provide for legal co nditions to any

activity in t his a rea F or t he co ncept o f res ext ra c ommercium s ee, W.G Vegting,

Domaine Public et Res Extra Commercium, Alphen aan den Rijn, Samson (1950).

25 See C.W Jenks, supra, n 14, p 99.

26 Th e res extra commercium character of outer space was also argued by D Goedhuis,

see ILA: Report of the 48th Conference (1958), p 329.

outer space, wrote that: “Celestial bodies are res communis omnium, thus

not capable of appropriation”.23

Other s cholars defi ned o uter space as a res ext ra c ommercium, in

order to emphasize the fact that outer space must be considered an area outside commerce and, therefore, not subject to national appropriation and open to all, and that jurisdiction over such an area should be vested

with the United Nations Th e term res extra commercium also comes

from Roman law where it refers to things outside commerce, that is not subject to private ownership or transaction Used in international law, it refers to an object or a territory that is not subject to national appropria-tion, but it is open to all.24 Th us, all States share a common interest in the

management of activities in an area defi ned as res extra commercium

and, consequently, only States of the world acting collectively can vide for legal co nditions to any activity in t his area Professor Jenks,25

pro-who represented the major proponent of such an interpretation, wrote that: “By reason of the basic astronomical facts, space beyond the atmos-

phere of the Earth is and must always be a res extra commercium

incapa-ble of appropriation by the projection into such space of any particular sovereignty based on a fraction of the earth’s surface”.26

Th e ide a of outer space as a res c ommunis o mnium was als o

sup-ported by various exp ert institutions t hat de alt with t he problem of the defi nition o f t he legal st atus o f o uter space F or exa mple, t he International L aw A ssociation (IL A), d uring i ts 49t h C onference, adopted an unanimous resolution on the legal r egime of outer space which declared: “Outer space a nd celestial bodies should be u tilised only for peaceful purposes to the greatest common profi t of all mankind

27 ILA: Report of the 49th Conference, 1960 (Hamburg), p 267 Th e same view was also supported b y t he D avid D avies Memorial I nstitute in i ts 1962 Dra ft C ode w hich

states: “Outer Space, and celestial bodies therein, are recognized as being res

commu-nis omnium, free for exploration and use by all States in conformity with the

provi-sion of this Draft Code, and neither outer space nor celestial bodies in it are capable

of appropriation or exclusive use by any State”, in Fift h Colloquium (1962), p 4 Also the Interamerican Bar Association stated that all outer space shall be deemed res com-

munis and not terra nullius, in W.A Hyman: Th e Magna Charta of Space, Proceedings

of the Fift h Colloquium on the Law of Outer Space, (1962), p 6.

28 For a broad analysis of the work of the United Nations on outer space in the period

1958–1966 s ee: G Gal , Space L aw, N ew Y ork, B udapest, (1969), p 127; P G Dembling & D.M Arons, Space Law and the United Nations: Th e Work of the Legal

Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space,

32 J Air & L Comm (1966), p 329; C.W Jenks, Space Law, London, (1965), p 53;

E Back Impallomeni, Spazio Cosmico e Corpi Celesti nell’Ordinamento Internazionale,

Padova, (1983), pp 6–9.

29 UN Res 1348 (XIII), 13 December 1958.

in accordance with the principles of the United Nations Charter”, and

“Outer space may not be subject to the sovereignty or other exclusive rights of any State”.27

Th us, in sum during the period 1957–1966 the res communis omnium

character of outer space gained widespread acceptance Th is is larly true if we consider not only the proposals of the scholars and other scientifi c institutions, but also the work of the United Nations Com-mittee on the Peaceful Uses of Outer Space As will be analysed in the

particu-following paragraph, the application of the res communis omnium

prin-ciple to outer space, represented the basis on which COPUOS built up the legal status of outer space

2.1.3 Th e United Nations and outer space: defi ning the legal status of

outer space in the period 1958–1966

From 1958 the United Nations started to focus on the problems of the defi nition of the legal status of outer space.28 On 13 December 1958, the General Assembly passed Resolution 1348 (XIII)29 which established an

Ad Hoc Committee on the Peaceful Uses of Outer Space One o f the purposes of this Committee was to study “the nature of the legal prob-lems w hich may a rise in t he ca rrying out of programmes t o exp lore outer space” Th e Ad Hoc Committee met f or the fi rst time o n 6 M ay

1959 One of the fi rst actions taken by the Ad Hoc Committee was the

Th e Outer Space Treaty, the Moon Agreement 15

30 See Final Report of the Ad Hoc Committee, UN Doc No A/4141 (1959), pp 61–70

See also E Galloway, Th e United Nations Ad Hoc Committee on the Peaceful Uses of

Outer S pace A ccomplishments a nd I mplications f or Le gal Pr oblems, in S econd

Colloquium on the Law of Outer Space (1960), p 30.

31 UN Res 1472 (XIV), 12 December 1959.

32 See para 1, UN Res 1472 (XIV).

33 See para 2, UN Res 1472 (XIV).

34 See para 4, UN Res 1472 (XIV).

35 UN Res 1721 (XVI), 20 December 1961.

36 Preamble para 1, UN Res 1721 (XVI).

37 Preamble para 2, UN Res 1721 (XVI).

establishment of a Legal Subcommittee Th ere was a general agreement that it was not possible to identify all the legal problems regarding the peaceful uses of outer space, but some of those were susceptible of pri-ority treatment Particularly, the Legal Subcommittee recognised that, aft er t he pr actice of St ates du ring t he s atellite pro grammes of t he International G eophysical Year, wi thin t he co ntext o f p eaceful us es:

“outer space is freely available for exploration and use by all in ance with existing or future law or agreement”.30

accord-One ye ar aft er t he est ablishment o f t he A d H oc C ommittee, t he General Assembly by means of Resolution 1472 (XIV)31 created the per-manent Committee on the Peaceful Uses of Outer Space, whose man-date was t o analyze the nature of legal issues t hat may arise from the exploration of outer space Resolution 1472 als o provided some of the guiding principles for the peaceful use of outer space, such as the com-mon interest of mankind as a w hole in f urthering the peaceful use of outer space;32 the exploration and use of outer space should be carried out only for the betterment of mankind and for the benefi t of all States irrespective of the stage of their economic or scientifi c development;33

and the importance of international cooperation in the exploration and exploitation of outer space for peaceful purposes.34

An important step towards the defi nition of the status of outer space was made in 1961 w hen t he G eneral A ssembly ado pted Res olution

1721.35 Th is Resolution recognised “the common interest of mankind in furthering th e pea ceful u ses o f o uter s pace”36 and st ressed t hat “ the exploration and use of outer space should be only for the betterment of mankind and to the benefi t of States irrespective of the stage of their economic de velopment”.37 M oreover, t he Res olution co mmended t o

States “for their guidance in the exploration and use o f outer space the

38 See para 1 (a, b), UN Res 1721 (XVI) (emphasis added).

39 See UN Res 1962 (XIII), 13 December 1963.

40 Th e Resolution 1962 was the result of the work of the Legal Subcommittee which was established on 1962 Dur ing the 1962–63 S essions of the Legal Subcommittee, in- deed, most debates concerned the opportunity of recommending the adoption of a much binding document containing principles directed to govern space activities In this regards, the United States, in UN Doc N A/AC.1/881 (1963), the Soviet Union,

in UN Doc N A/AC.105/C.2/L.6 (1963), the United Arab Republic, in UN Doc N A/AC.105/C.2/L.6 (1963) a nd t he U nited K ingdom, in UN D oc N A/A C.1/879 (1963) submitted draft proposals on basic principles guiding outer space activities.

following principles”, in pa rticular that international law, including the

Charter of the United Nations, applies to outer space and celestial ies; and that outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject

bod-to national appropriation.38

Th us, for the fi rst time, certain legal principles governing the tion and use of outer space r eceived the formal imprint of a G eneral Assembly Resolution As it appears clearly, the United Nations supported

explora-the application of explora-the res communis principle to explora-the exploration and use

of outer space, and denied the applicability of the res nullius concept by

stating that outer space and celestial b odies are not subject to national

appropriation One of the reasons of the refusal to apply the res nullius

concept was related to the fact that one of the main concerns during the development of the regime of outer space was to prevent future confl ict

in space Th e application of the res nullius concept would have led

man-kind in t he opposite direction Indeed, if S tates had b een free to gain property rights on outer space by occupation or by other means, the risk

of war between them would have increased signifi cantly

Th e most im portant r esult ac hieved d uring t he p rocess a imed a t defi ning t he legal st atus of outer space ho wever was t he adoption of Resolution 1962 (X VIII), en titled “ Declaration o f L egal P rinciples Governing the Activities of States in the Exploration and Use of Outer Space”, by the General Assembly on 13 December 1963.39 Th e Declaration represented the fi rst accepted codifi cation of basic principles governing outer space activities40 by all existing members of COPUOS

Th e Declaration contained a list of principles that States would have had to comply with in t heir exploration and use of outer space Th es e principles were the following:

Th e Outer Space Treaty, the Moon Agreement 17

41 For an explanation of the meaning and the characteristics of a c ustomary rule see:

D Vereshchetin & G.M Danilenko, Custom as a source of international law of outer

space, 13 J Sp L 113 (1985); B Cheng, Studies in international space la w, Oxford,

(1997) 188; A Cassese, International Law, Oxford, (2005), 168.

42 Th e la tter was t he o pinion, f or exa mple, o f US Am bassador S tevenson a nd t he Australian representative, in UN Doc A/549/Add/I of November 27 (1963).

1 Th e exploration and use of outer space shall b e carried out for the benefi t and in the interest of all mankind

2 Th e space exploration and use is to be free for all States on the basis

of equality and in accordance with international law

3 Outer space a nd celestial b odies are not subject to national priation by claim of sovereignty, use, occupation or any other means

appro-4 States are responsible for national space ac tivities, whether carried

on by governmental agencies or by non-governmental entities; and

5 States retain jurisdiction and control over space ob jects carried on their register and are internationally liable for damages

Th e Declaration marked a signifi cant step forward in international space law and future manned activities in outer space Not only did it establish fundamental principles regulating space activities, but it also provided the basis u pon which further development of international space la w itself could proceed Th e D eclaration, indeed , constituted t he f unda-mental basis of the1967 Outer Space Treaty, which, in large part, was to reaffi rm the Declaration’s principles

Th e importance of the Declaration was also stressed in the statements

of the representatives of the governments, although not all States shared the same view on the legal val ue of that document Indeed, while the representative of France described the Declaration as “being just a dec-laration of intention”, the greater part of States expressed the view that the legal principles contained in the Declaration refl ected international customary law41 as it was accepted by the members of the United Nations and made clear their willingness to respect such principles in the explo-ration and use of outer space.42

Th e point raised by the French delegation was of primary importance and ca ught t he a ttention o f t he o ther delega tions I n his sp eech t he French representative pointed out that despite its importance and politi-cal impact, the Declaration did not create binding rules and that, there-fore, its principles had t o be inserted in a legall y binding instrument,

43 For an analysis of the 1969 Vienna Convention on the Law of Treaties, in particular,

and of treaty law, in general, see: Sir I Sinclair, Th e Vienna Convention on the Law of

Treaties, Manchester (1973); T.O Elias, Th e Modern Law of Treaties, New York (1974);

P M alanczuk, Akehurst’s M odern I ntroduction t o I nternational L aw, S eventh ed , London (1997), pp 35–39; R.Y Jennings, Treaties, in M Bedjaoui (ed.), International

Law: Achievements and Prospects, Dordrecht, Boston, London (1991), pp 135–179.

namely an international treaty Th e French representative was of course formally correct in this respect Despite being an important instrument for the progress of law in a certain fi eld of activity and despite having a high p olitical im pact, a U nited N ations G eneral A ssembly (UN GA) Declaration as such is not a binding instrument, and its legal value is not comparable to that of an international treaty When becoming Party to

a treaty, a State commits itself to comply with the rights and duties nounced by that treaty, and is actually automatically obliged to do so In case it fails to meet the terms of the treaty, it will violate the treaty itself and it will be internationally responsible towards all the other Parties to that treaty or towards a specifi c Party whose rights have been violated.43

pro-Th ese principles are not applicable with regard to the violation of the terms of a UNGA Declaration Th e State ‘responsible’ for such violation may incur political and diplomatic problems but will not face legal con-sequences for its actions

Aft er the acceptance of the Declaration by the UN General Assembly, more and more States started sharing the concerns of the French delega-tion on the legal status of the Declaration itself Th e urgency to provide its principles with a str onger legal p ower began to spread among the members of COPUOS Th e road towards the Outer Space Treaty, thus, was open Hence, during the following sessions of the Legal Subcommittee (1964–1966) the issue of setting up a treaty containing and enlarging the Declaration’s principles in order to give them a binding value was put at the cen tre o f t he S ubcommittee’s ag enda Th ese ac tivities le d to t he adoption and entry into force of the Outer Space Treaty in 1967

2.2 Th e Outer Space Treaty

2.2.1 Background and importance of the Outer Space Treaty

Th e 1967 Treaty on Principles Governing the Activities of States in the Exploration a nd Use o f Ou ter S pace, inc luding t he Moon a nd o ther

Th e Outer Space Treaty, the Moon Agreement 19

44 For a broad analysis of the Treaty see: C.Q Christol, Th e Modern International Law of

Outer Space (1982) New York, p 21 ss; B Cheng, supra, n 41, p 20 ss; M.N Andem, International Le gal Pr oblems i n t he P eaceful E xploration a nd U se o f Ou ter S pace

(1992), Rovaniemi, p 30 ss.

45 By the year 2008, 98 States have ratifi ed the Treaty and an additional 27 have signed

it For an analysis of the negotiations of the Outer Space Treaty and the draft pro posal of the United Stated and the Soviet Union see: P.G Dembling & D.M Arons,

-Th e evolution of the Outer Space Treaty, J Air & L Comm 33 (1967), p 419; H Qizhi,

Th e Outer Space in Perspective, Proceedings of Fortieth Colloquium on the Law of

Outer Space (1997), p 52.

celestial bodies (hereinaft er the Outer Space Treaty), is considered the

Magna Charta of space law.44 Its provisions, containing rules and ples regulating the exploration and use of outer space have provided the legal basis on which space activities have developed during the last 40 years Th e importance of the Outer Space Treaty is also stressed by the fact that its principles have received wide acceptance and that all space-faring nations are Parties to it.45 From an historical point of view, the draft ing a nd entry into f orce o f t he Treaty r epresented a r emarkable achievement of the international community, especially if we consider that the negotiations of the Treaty took part in the middle of the Cold War One reason behind the agreement on the provisions of the Treaty was the urgent need, expressed by various delegations during the 1965–

princi-66 sessions of the Legal Subcommittee, to draft a treaty containing ciples for the conduct of activities in o uter space b efore the expected manned lunar landing by the United States or the Soviet Union

prin-Th e most relevant feature of the Treaty is that, by its entry into force, States were, for the fi rst time, legally obliged to follow a set of rules and principles in ca rrying o ut t heir ac tivities in o uter space E ven if t he Treaty did establish neither a system to enforce its provisions nor a way

of solving the disputes among States on the interpretation and tion of its rules, the binding legal val ue of the Treaty itself has ne ver been under discussion

applica-Th e 1967 Ou ter Space Treaty restated some of the provisions tained in the UN Resolutions 1472, 1721 and 1962, but also went further

con-by expanding some of them, as well as con-by laying down new rules aimed

at making the exploration and use of outer space feasible and ensuring that it would proceed in an orderly manner

However, it must be remembered that the Outer Space Treaty was a treaty o f p rinciples Th is fac t im plied tw o co nsequences Fir stly, t he

46 See Art I, para 1, Outer Space Treaty.

47 See Art I, para 2 and Art II, Outer Space Treaty.

48 See Art IV and Art III, Outer Space Treaty.

49 See Art VIII, Outer Space Treaty.

50 See Art VI and Art VII, Outer Space Treaty.

51 For a broad analysis of Article I see, e.g N Jasentuliyana, Review of Recent Discussions

Relating to Aspects of Article I, in Proceedings of the Th irty-Second Colloquium on

the Law of Outer Space (1989), p 7; Z Qiwu, Some Refl ections on the Most Important

Principles of Outer Space Law: To Th e Common Interest of All Mankind, in Proceedings

of the Th irty-Second Colloquium on the Law of Outer Space (1989), p 25; G Gal ,

supra, n 28, p 139; E Galloway, Th e United States and the 1967 Treaty on Outer Space,

in Proceedings of the Fortieth Colloquium on the Law of Outer Space (1997), p 18.

Treaty was not directed to solve and regulate all aspects of space ties On the contrary, in the view of its draft ers, the Treaty had to pro-vide the basis on which to establish future rules regulating more specifi c issues of space law Secondly, the Outer Space Treaty was written in gen-eral terms and, most of the time, without providing the legal meaning of the terms used Th is feature led many scholars to hold diff erent interpre-tations on the legal value of its provisions

activi-Among the principles laid down by the Outer Space Treaty the most important are: the exploration and use of outer space must be carried out for the benefi t of all States;46 outer space is free for exploration and use by all States and cannot be annexed by any State;47 activities in outer space must be for peaceful purposes and in acco rdance with interna-tional law and the Charter of the United Nations;48 States retain jurisdic-tion and control over the objects launched into outer space under their authorisation;49 and States are responsible for all space activities of their nationals and liable for any damages caused by these activities.50

Amongst t hese, t he provisions t hat defi ne t he legal st atus of outer space have the largest direct impact on the possible future use of outer space and its resources for commercial purposes Th erefore, the atten-

tion will be particularly paid to Articles I and II clarifying the res

com-munis omnium character of outer space.

2.2.2 Article I of the Outer Space Treaty

Article I is oft en described as containing the most important principles

of the Outer Space Treaty, providing guidance to the entire Treaty and having a direct impact on all space activities.51

Th e Outer Space Treaty, the Moon Agreement 21

52 Th e developing States played also an important role during the draft ing of the Treaty

Th e insertion, e.g., of the expression “irrespective of their degree of economic and scientifi c development” was t he result of the pressure made, among others, by the

representative of Brazil, Rep 63, p 9 See Dembling & Arons, supra n 45, p 425.

53 One classical feature of international areas defi ned as res communis omnium is t he

existence o f t he f reedom o f access, exp loration a nd us e Ar t II, 1958 G eneva

Article I declares that:

celestial bodies shall be carried out for the benefi t and in the interests of all countries, irrespective of their degree of economic and scientifi c develop-ment, and shall be the province of all mankind 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 o f equality and in accordance with the international law, and there shall be free access to all areas of celestial bodies Th ere shall be freedom of scientifi c investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”

One of the main goals of the draft ers of the Treaty was to establish a legal regime of outer space which could take into account not only the needs and rights of the States directly involved in space ad ventures, but also those of all mankind Th e adoption of the ‘province of all mankind’ con-cept and the statement that the exploration and use of outer space shall

be carried out in the interest of all States make clear that in the view of its draft ers, the Outer Space Treaty represented an opportunity to defi ne

a legal syst em governing States’ activities in o uter space wi thin which every human somehow would have the opportunity to enjoy the benefi ts derived from space activities and in which the common interests of all mankind would be protected Not surprisingly therefore, that the devel-oping States played an important role during the draft ing of the Treaty too Th e insertion, e.g., of the expression “irrespective of their degree of economic a nd s cientifi c de velopment” was t he r esult o f t he p ressure made, among others, by the representative of the Brazil.52

2.2.3 Th e principle of freedom of exploration and use

Article I (2) est ablishes one of the most im portant principles, namely the freedom of exploration and use of outer space Th is principle, which

confi rms the res communis character of outer space,53 was incorporated