mining the moon- current and future exploitation regime
TRANSCRIPT
GHENT UNIVERSITY
FACULTY OF LAW
DEPARTMENT OF EUROPEAN, PUBLIC AND INTERNATIONAL LAW
ACADEMIC YEAR 2014-2015
MINING THE MOON: CURRENT AND FUTURE EXPLOITATION REGIME
Master Thesis for the Study Program
‘Master of Law’
Submitted by
PIETER DE CNUDDE
(01006022)
Promotor: PROF. DR. FRANK MAES
Commissaris: HENDRIK SCHOUKENS
I
Acknowledgements
I am using this opportunity to express my gratitude to the people who helped me, directly and
indirectly, with the writing of this thesis.
First and foremost, I would like to thank Prof. Dr. Frank Maes for allowing me to choose a
subject to my interests and helping me map out the exact issue of the subject. Without the
freedom given, it would not be possible to achieve this result.
Secondly, I would like to thank my family, especially my father who ignited my love for the
wondrous universe of space with movies such as ‘2001: A Space Odyssey’ and ‘Star Wars’,
my mother for her unconditional support and trust in me and my sister for helping me actively
correct this thesis.
Lastly, I would like to thank all my friends, who made these five years at Ghent University a
beautiful and unforgettable period.
Thank you.
Pieter De Cnudde
May 2015
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III
Abstract
Celestial bodies are full of resources with great economic potential. With private companies
getting involved in space activities, several issues arise i.e. the status of celestial bodies and
their resources, equality between states and environmental protection. The lack of an
international regulation surrounding these issues could result in an uncontrolled environment
on celestial bodies regarding exploitation.
This thesis encompasses two goals. Firstly, by analyzing the relevant legal instruments, a look
is given at what is possible today regarding exploitation rights on celestial bodies. The Outer
Space Treaty and the Moon Agreement are crucial in this process. Secondly, by analyzing the
exploitation regimes on similar areas to the Moon and outer space, alternatives are illustrated
for a future international exploitation regime. The similar areas, which are looked at, are
Antarctica, the deep seabed and the Geostationary Orbit.
The analysis of the Common Heritage of Mankind principle will form the bridge between
both goals. The Moon Agreement attempted to create an exploitation regime. However, it
failed due to the Common Heritage of Mankind principle. Thus, an analysis of this principle
should not be left out.
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V
Table of Contents
Acknowledgements ............................................................................................................ I
Abstract ............................................................................................................................... III
Table of Contents ............................................................................................................... V
Abbreviations and Acronyms ...................................................................................... IX
Chapter One: Introduction ............................................................................................. 1
1.1. Relevance and Purpose ........................................................................................................ 1 1.2. Definitions .............................................................................................................................. 4
1.2.1. Space Law ....................................................................................................................................... 4 1.2.2. Commercial Space Exploitation ............................................................................................... 4 1.2.3. Celestial Bodies ............................................................................................................................. 6
1.3. Resources on Celestial bodies ............................................................................................. 6 1.3.1 The Moon .......................................................................................................................................... 6 1.3.2 Planets and their Moons ............................................................................................................... 7 1.3.3. Asteroids and Comets .................................................................................................................. 9 1.3.4. Conclusion ....................................................................................................................................... 9
Chapter Two: Current Exploitation Regime .......................................................... 11
2.1. Relevant Legal Instruments ............................................................................................. 11 2.1.1. The Outer Space Treaty ............................................................................................................ 12 2.1.2. The Moon Agreement .............................................................................................................. 25 2.1.3. The Declaration on Space Benefits ....................................................................................... 34
2.2. Customary International Law ......................................................................................... 37 2.3. Soft Law ................................................................................................................................ 38 2.4. Relation between International and National Law ..................................................... 39 2.5. Exploitation Rights Today ................................................................................................ 40
2.5.1. The Regime under The Outer Space Treaty ....................................................................... 41 2.5.2. The Regime under the Moon Agreement ............................................................................ 42 2.5.3 Conclusion ...................................................................................................................................... 43
Chapter Three: The Principle of The Common Heritage of Mankind ........... 45
3.1. Legal Roots and Genesis of the Common Heritage of Mankind .............................. 46 3.1.1. The Res Communis Doctrine ................................................................................................... 46 3.1.2. The Need for a New Approach ............................................................................................... 47
3.2. Manifestations and Evolution of the Common Heritage of Mankind ..................... 49
VI
3.2.1. Common Heritage of Mankind and The Deep Seabed ................................................... 49 3.2.2. The Common Heritage of Mankind and Antarctica ........................................................ 58 3.2.3. The Common Heritage of Mankind and The Moon ........................................................ 63
3.3. Characteristics and Definition of The Common Heritage of Mankind .................. 70 3.3.1. Introduction ................................................................................................................................... 70 3.3.2. Characteristics .............................................................................................................................. 70 3.3.3. Definition ...................................................................................................................................... 71
3.4. Legal Status of The Common Heritage of Mankind ................................................... 73 3.4.1. Common Heritage as Customary International Law ....................................................... 73 3.4.2. Common Heritage as Jus Cogens .......................................................................................... 76
3.5. Conclusion ............................................................................................................................ 77
Chapter 4: Future Exploitation Regime ................................................................... 79
4.1. Introduction ......................................................................................................................... 79 4.2. The Resurrection of the Moon Agreement .................................................................... 80
4.2.1. The Moon Agreement in its current form ........................................................................... 80 4.2.2. Amending the Moon Agreement ........................................................................................... 80 4.2.3. Conclusion ..................................................................................................................................... 81
4.3. The Reinvention of the Common Heritage of Mankind ............................................. 82 4.3.1. The Common Heritage of Mankind in Future Space Law ............................................ 82 4.3.2. The Need for a New Approach ............................................................................................... 83 4.3.3. Conclusion ..................................................................................................................................... 86
4.4. Looking South for Solutions ............................................................................................. 86 4.5. The Geostationary Orbit and its Regime ...................................................................... 88
4.5.1. Introduction ................................................................................................................................... 88 4.5.2. The ITU .......................................................................................................................................... 89 4.5.3. Conclusion ..................................................................................................................................... 90
4.6. A Final Assessment ............................................................................................................. 91 4.6.1. Introduction ................................................................................................................................... 91 4.6.2. Where we are and Where to go .............................................................................................. 93 4.6.3. Conclusion ..................................................................................................................................... 94
Chapter 5: Bibliography ............................................................................................... 95
Legal Instruments ...................................................................................................................... 95 Treaties ....................................................................................................................................................... 95 Other International Instruments .......................................................................................................... 96 National Instruments .............................................................................................................................. 97
VII
Case Law .................................................................................................................................................... 97 Jurisprudence .............................................................................................................................. 97
Books ........................................................................................................................................................... 97 Journal Articles ..................................................................................................................................... 100
Miscellaneous ........................................................................................................................... 103 Scientific Books .................................................................................................................................... 103 Scientific Papers and Tables ............................................................................................................. 103 Magazine and news articles .............................................................................................................. 104 Institutes .................................................................................................................................................. 105
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IX
Abbreviations and Acronyms
A.F. L. Rev. Air Force Law Review
Am. J. Int’l L American Journal of International Law
Am. Soc’y Int’l L. Proc American Society of International Law Proceedings
ASILS Int’l L.J. ASILS International Law Journal
Aust. I.L.J Australian International Law Journal
B.C. Envtl. Aff. L. Rev. Boston College Environmental Affairs Law Review
Case W. Res. J. Int’l L Case Western Reserve Journal of International
Colum. J. Transnat'l L. Columbia Journal of Transnational Law
Conn. J. Int’l L. Connecticut Journal of International Law
COPUOS Committee on the Peaceful Uses of Outer Space
CRAMRA Convention on the Regulation of Antarctic Mineral
Resource Activities
Denv. J. Int’l L & Pol’y Denver Journal of International Law and Policy
Emory Int’l L. Rev Emory International Law Review
ESA European Space Agency
Eur. J. Int. L European Journal of International Law
Fordham L. Rev. Fordham Law Review
GA General Assembly
Geo. Int’l Envtl. L. Rev. Georgetown International Environmental Law
Review
Geo. Wash. J. Int’l L. & Econ. George Washington Journal of International
Law and Economics
Grove City C. J.L. Pub Pol’y Grove City College Journal Of Law And Public
Policy
He-3 Helium-3
HJIL Houston Journal of International Law
Hum. Rts. Q. Human Rights Quarterly
ICJ International Court of Justice
ICNT Informal Composite Negotiating Text
IISL Colloq. L. Outer Space IISL Colloquium on the Law of Outer Space
ILSA J. Int'l & Comp. L ILSA Journal of International and Comparative Law
Int’l J. International Journal
Int’l J. Marine & Coastal L. International Journal of Marine and Coastal Law
Int’l L. International Lawyer
ISA International Seabed Authority
X
ISNT Informal Single Negotiating Text
ITU International Telecommunication Union
J. Air L. & Com. Journal of Air Law and Commerce
J.L. & Tech Journal of Law and Technology
J. Nat. Resources & Envtl. L Journal of Natural Resources & Environmental Law
J. Space L. Journal of Space Law
Mich. J. Int’l L. Michigan Journal of International Law
NASA National Aeronautics Space Administration
NEA Near Earth Asteroid
NIEO New International Economic Order
Nw. J. Int’l L. &Bus. Northwestern Journal of International Law &
Business
Pub. L. Forum Public Law Forum
Rev. Jur. U.P.R Revista Juridica de la Universidad de Puerto Rico
RSNT Revised Single Negotiating Text
Rutgers L.J. Rutgers Law Journal
San Diego L. Rev. San Diego Law Review
Stan. Envtl. L. J. Stanford Environmental Law Journal
Suffolk Transnat’l L.J. Suffolk Transnational Law Review
Syracuse J. Int’l L. & Com. Syracuse Journal of International Law and
Commerce
UN United Nations
UNCLOS III The Third United Nations Convention on the Law of
the Sea
UNTS United Nations Treaty Series
UNOOSA United Nations Office for Outer Space Affairs
U.S.A.F. JAG L. Rev. The United States Air Force JAG law review
Va. J. Int’l L. Virginia Journal of International Law
Wm. & Mary L. Rev. William & Mary Law Review
Yale J. Int'l L. The Yale Journal of International Law
YBIL Asian Yearbook of International Law
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Chapter One: Introduction
1.1. Relevance and Purpose
To this day, space remains one of the most fascinating aspects of life. Its infinity is something
that has inspired every one of us since the dawn of man. Arts and sciences, young and old:
space is an inexhaustible source of inspiration to create and innovate. The known and mostly
unknown creates a challenge intriguing everybody on earth. Yet, over the last decades, little
by little, space has been revealed to us. Technology has helped us to explore and understand
the mysteries of space. It has become possible to discover more than ever imagined. From
behind a screen on earth, it is now possible to detect the substances of stars, planets and even
galaxies, light years away1. These technological possibilities expand every day. In addition to
this, the privilege of going into space is no longer reserved for astronauts and scientists.
Whereas space tourism has been a concept solely used in science fiction, it has now become
sheer reality. It is likely that this will also be the case with the future exploration and
exploitation of space. Mining asteroids, colonizing the Moon: all of these activities are
becoming more and more plausible. The start of a new Space Age, a more commercial one
than the last one, seems to be right in front of us.
Private companies play a substantial role in each of these evolutions. Whereas governments
had to cut budgets over the last years2, companies are now investing in the newest space
technology and new companies with highly futuristic goals are introduced3. This all shows
that space, and more importantly, celestial bodies are perceived commercially attractive. But
why are these so commercially attractive? Space transportation is very expensive; state of the
art technology does not come for free and still has enormous risks. The practical realization of
commercial space activities seems to be still in its infancy. However, even with these
struggles, there is a lot to gain with the exploitation of celestial bodies. The minerals (these
vary from Helium-3 to iron, carbon and even water) offered by these bodies are valuable
because of their rarity on earth4. They can be used to replace or supply fossil energy sources,
1 P. MASSEY and M. HANSON, "Astronomical Spectroscopy" in T. OSWALT, H. BOND (eds.), 2 L. KING, "With tight budget, NASA may see more private partnerships", USA Today 12 November 2013, http://www.usatoday.com/story/news/nation/2013/11/12/nasa-budget-private-sector/3510345/. 3 Companies such as Planetary Resources, Deep Space Industries, Virgin Galactic and SpaceX, 4 M. WILLIAMS, "Mining the Moon: Lab experiments suggest that future fusion reactors could use helium-3 gathered from the moon", MIT Technology Review 23 August 2007, http://www.technologyreview.com/news/408558/mining-the-moon/; S. CAMINITI, "The Billionaire’s race to harness the moon’s resources", CNBC 3 April 2014, http://www.cnbc.com/id/101531789; S. THOMAS, "Gold Rush in space? Asteroid miners prepare, but eye water first", Reuters 21 November
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to help build a base on the Moon or simply to use them in daily life. Whereas the cost is high
to start commercial activities in space, the profit will probably be higher. And thus the
exploitation of space is commercially attractive.
The importance of private companies in the future of space exploitation is also seen through
the collaboration with public entities, for example with the NASA. Recently, the NASA asked
private companies to fund and help with transportation into space5. In this way, governments
are able to compensate the budget cuts and private companies are able to acquire
authorization to maneuver activities in space. Whereas now the focus mostly lies on the
commercial transportation, the next step will be the exploitation of extraterrestrial resources.
The problem is the absence of a coherent international regime for the exploitation of space
and its celestial bodies. The most basic legal instrument that created the framework of space
regulation is ‘The Declaration of Legal Principles Governing the Activities of States in the
Exploration and Uses of Outer Space’, known as the Outer Space Treaty. Unfortunately, but
not illogically 6 , exploitation activities are not regulated here. However, regulation of
exploitation rights has been the subject of several other international documents. The most
comprehensive document is ‘The Agreement Governing the Activities of States on the Moon
and Other Celestial Bodies,’ also known as the Moon Agreement. This treaty is mostly seen
as a failure due to lack of support in the international community7. Nevertheless, it can deliver
us great insights on the painful areas of exploitation regulation. Some even consider the Moon
Agreement to be a treaty that will have its role in the international community due to a
revival8.
It is important to stress out why an international regime is necessary for the exploitation of
space. As stated above, there are a lot of risks regarding space exploitation. Space
exploitation is not a contained activity, much can go wrong during the mining of resources on
the Moon. Also, in the future, space exploitation will be the result of the corporation between
states and private companies. This asks to be regulated in order to achieve the most optimal
2013, http://www.reuters.com/article/2013/11/21/us-space-mining-asteroids-idUSBRE9AK0JF20131121. 5 J. SANTINI, "NASA bets on private companies to exploit moon’s resources", Phys.org 9 February 2014, http://phys.org/news/2014-‐02-‐nasa-‐private-‐companies-‐exploit-‐moon.html . 6 The treaty dates back from 1967. Space exploitation by private companies was then not conceived as a possibility within the next decades. 7 K. COOK, "The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon Treaty", Geo. Int’l Envtl. L. Rev 1999, p669. 8 M. LISTNER, "The Moon Treaty: failed international law or waiting in the shadows? ", The Space Review 24 October 2011, http://www.thespacereview.com/article/1954/1.
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effects in a commercial sphere. On another level, the aspect of environment is important.
With exploitation comes a big risk of endangering the unique environment of space. The
current space debris is partly already a consequence of the commercial use of
telecommunications in space9. The need for an international regulation is also needed here to
guarantee the preservation of the unique ecology of space. Next to this, not all states have the
capacity to start commercial operations in space. States with the capacity and resources are
rather rare. In order to avoid the creation of more inequality between states, an international
treaty seems appropriate to provide some security. The role of the controversial Common
Heritage of Mankind principle plays a very substantial role in this context. A last argument
for facilitating an international regime for space exploitation is to create a well-arranged
market where commercial activities are organized as fair as possible for each party involved.
In this thesis, three topics will be researched in the following chapters:
-‐ Current Exploitation Regime: What is possible today concerning exploiting
resources of celestial bodies?
o Looking at the international treaties and resolutions, how is space
exploitation regulated?
-‐ The Common Heritage of Mankind Principle
o Is the principle a useful and realistic instrument for the exploitation of
extraterrestrial resources?
-‐ Future Exploitation Regime: What are possible alternatives for the regulation of
space exploitation?
o Looking at the regulations of similar environments, several mechanisms
can serve as an inspiration for regulating a regime concerning
extraterrestrial resources.
9 As seen in the video by ESA, "Space Debris – How it got there, what to do about it?", http://www.space.com/20828-‐space-‐debris-‐how-‐it-‐got-‐there-‐what-‐to-‐do-‐about-‐it-‐video.html.
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1.2. Definitions Before analyzing the existing legal framework on exploitation of celestial bodies, it is
appropriate to define some elements. Firstly, the legal sphere where the issue of exploitation
is situated, more specifically, space law. Secondly, the activity that is being undertaken:
commercial space exploitation. And lastly, the subject of the activity: celestial bodies.
1.2.1. Space Law
The United Nations Office for Outer Space Affairs (UNOOSA) defines space law as ‘the
body of law applicable to and governing space-related activities’10. This definition can also
be found as applied by other institutions11 . There are different sources of space law:
international treaties (including the five treaties from UNOOSA12), Customary International
Law, soft law (including the five principles governing outer space from UNOOSA13), national
law, case law, … In this thesis, the focus is laid on the treaties and principles given through
UNOOSA and Customary International Law. These form the basic and most important
sources of space law and are the necessary instruments to look for an international
exploitation regime.
1.2.2. Commercial Space Exploitation
1.2.2.1. Commercial The definition given by the Merriam-Webster dictionary describes commercial as ‘(1) viewed
with regard to profit, (2) designed for a large market’14. Another definition given by Van
Traa-Engelman is focused on the goal of commercial activities, which are ‘(1) to make profit
10 United Nations Office for Outer Space Affairs, http://www.unoosa.org/oosa/en/FAQ/splawfaq.html#Q1. 11 International Institute of Space Law, http://www.iislweb.org. 12 The five treaties are: The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies from 1967; The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space from 1968; The Convention on International Liability for Damage Caused by Space Objects, from 1972; The Convention on Registration of Objects Launched into Outer Space from 1975 and The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies from 1979. 13 The five principles are: The Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space from 1962; The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting of 1982; The Principles Relating to Remote Sensing of the Earth from Outer Space from 1986; The Principles Relevant to the Use of Nuclear Power Sources in Outer Space from 1992 and The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries from 1996. 14 "commercial", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/commercial.
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and (2) to secure a reasonable return of investment’15. Tatsuzawa uses in his paper the
definition given by Bourly: ‘"commercialization" means "sale", that is to say, the profit-
making transfer of goods and services’16.
From these definitions it is clear that commercial or commerce can be defined by its goal: to
make profit through sale. Commercial space activities can then be defined as: activities
performed in space in order to create products and/or services where the main result is to
make profit through the sale of them.
Three remarks can be made concerning this definition. First, it is important that no distinction
is made between private commercial activities and public commercial activities. It is not a
necessity that a private company solely performs the commercial activity. Secondly, not the
whole activity needs to be performed in space. GPS navigation can be seen as commercial
space activity because of the use of satellites in space. The fact that the end product is a GPS
bought by a consumer on earth does not mean that there is no commercial space activity. At
last, there can be room for other goals besides merely making profit. Exploration and
scientifical experiments can be conducted while performing commercial activities.
1.2.2.2. Space Exploitation In order to define space exploitation, defining exploitation itself is foremost necessary.
Merriam-Webster dictionary defines exploitation as ‘the action of making use of and
benefiting from resources’17. In combination with the element of outer space, the definition of
space exploitation can be formed as: the action of making use of and benefiting from
resources in outer space.
1.2.2.3. Commercial Space Exploitation To conclude, commercial space exploitation in this thesis is defined as: the action of making
use of and benefiting from resources that are exploited in outer space where the main goal
consists of making profit through the sale of products and/or services. In this definition, it is
not clear what ‘outer space’ exactly entails. This will be addressed when defining ‘celestial
bodies’. 15H.L. VAN TRAA-ENGELMAN, Commercial Utilization of Outer Space: Law and Practice, Dordrecht, Martinus Nijhoff Publishers, 1993, p20. 16K. TATSUZAWA, "The Regulation of Commercial Space Activities By The Non-Governmental Entities in Space Law", IISL 1989, http://www.spacefuture.com/archive/the_regulation_of_commercial_space_activities_by_the_non_governmental_entities_in_space_law.shtml. 17 "exploitation", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/exploitation.
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1.2.3. Celestial Bodies While the term is used in several international legal documents, there is no legal definition of
what celestial bodies exactly are18. This issue will be addressed in Chapter Two, while
analyzing the legal treaties.
The definition given by the Merriam-Webster dictionary is the following: ‘Masses of natural
matter located in space’19. The following question that arises: What is space? Merriam-
Webster defines space as ‘the region beyond earth’s atmosphere’20. It is generally accepted
that space begins when an altitude of 100 km above earth’s sea level is reached21. Thus
celestial bodies, in this thesis, are defined as: masses of natural matter located at or above an
altitude of 100 km above earth’s sea level. This includes primarily planets, stars, natural
satellites, comets, stars and asteroids.
1.3. Resources on Celestial bodies In the following part the riches of the Moon and other celestial bodies will be addressed and
practical appliances will follow to illustrate the commercial interest in outer space. This part
is only meant as a means to show the potential commercial interest in celestial bodies and will
only touch the resources of celestial bodies on a high superficial level.
1.3.1 The Moon The source of the commercial interest in the Moon clearly is Helium-3 (He-3). This is a rare
element on earth, due to the fact that the protection of the earth‘s atmosphere against the sun’s
solar winds prevents He-3 from reaching earth22. The Moon, however, doesn’t have any
atmosphere and has been absorbing He-3 into its rocks for over many years.
He-3 could be of great use in the medical world to provide e.g. non-radioactive lung
imaging23, but more importantly it could be used as a great energy resource24. The advantage
18 V. POP, Who Owns The Moon: Extraterrestrial Aspects of Land and Mineral Resources Ownership, Dordrecht, Springer, 2009, p35. 19 "celestial bodies", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/celestial-bodies. 20 "space", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/space. 21 F. VON DER DUNK, "International space law" in F. VON DER DUNK and F. TRONCHETTI (eds.), Handbook of Space Law, Cheltenham, Edward Elgar Publishing, 2015, (29) 67. 22 R. LEE, Law and Regulation of Commercial Mining of Minerals in Outer Space, Dordrecht New York, Springer, 2012, p52. 23 M. MCELLROY, "AAAS Workshop Explores How to Meet Demand for Helium-3 in Medicine, Industry and Security", American Association for the Advancement of Science, 23 April 2013,
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lies in its pollution-free features. It could be used in nuclear fusions as no pollution of
radioactive by-products is generated. This means that environmental friendly energy plants
could replace the now highly controversial nuclear plants25. He-3 could evidently also be used
on the Moon itself as an energy source for several activities or for activities departing from
the Moon.
However, there is one problem with He-3. Currently, the technology being used in nuclear
energy is called nuclear fission, which consists of splitting atoms. Yet, to get nuclear fusion
energy, which consists of the fusion of atoms, a huge amount of temperature is needed, which
is not easy on earth26. He-3 is a great source for fuel for the latter, nuclear fusion. In other
words, He-3 is the fuel for a technology, which is not yet developed fully. For now, there is
only a small reactor in place for fusions involving Helium-3, but currently, it is not been able
to generate net power output27 and has only been used for scientific research.
Other resources on the Moon are also present on earth itself (calcium, silicon, aluminum, iron
titanium, …)28. These can be used in our daily life but more importantly they can be used for
activities on the Moon itself. Iron and aluminum can be used for construction goals, while
silicon is of great value in the production of computer chips, lenses and fiber optics29.
1.3.2 Planets and their Moons In our solar system, there are seven other planets, excluding earth. Over the last years, the
planet Mars has gained a lot of attention in the context of possible colonization30 and space
http://www.aaas.org/news/aaas-workshop-explores-how-meet-demand-helium-3-medicine-industry-and-security. 24 B. COOPER, D. SCHRUNK, B. SHARPE and M. THANGAVELU (eds.), The Moon: Resources, Future Development, and Settlement, Berlin, Springer and Praxis, 2008, p22. 25 Supra M. WILLIAMS, n.4. 26 F. PETRESCU, Cold Nuclear Fusion: Germany 2012, Norderstedt, Books On Demand, p6. 27ESA, http://www.esa.int/Our_Activities/Preparing_for_the_Future/Space_for_Earth/Energy/Helium-3_mining_on_the_lunar_surface; R. LEWIS, "Space in the 21st Century", New York, Columbia University Press 1990, p143. 28 Supra B.COOPER et al. n.24, p xl; PERMANENT, http://www.permanent.com/lunar-geology-minerals.html. 29 Supra R. LEE n.22, p35. 30 E.g.: R. BRANDOM, "The Big Future: Can we colonize Mars?", The Verge 16 October 2014, http://www.theverge.com/2014/10/16/6984563/the-big-future-can-we-colonize-mars; R. HOLLINGHAM, "Five steps to colonizing Mars", BBC 30 October 2014, http://www.bbc.com/future/story/20141030-five-steps-to-colonising-mars ; X., "Martian Space Flight: Red Dreams", The Economist 1 June 2013, http://www.economist.com/news/science-and-technology/21578637-mars-has-always-been-shangri-la-space-buffs-two-new-private-missions-show; I. SAMPLE, "Mars One mission: a one-way trip to the red planet in 2024", The Guardian 9 February 2015, http://www.theguardian.com/science/2015/feb/09/mars-one-mission-a-one-way-trip-to-the-red-planet-in-2024.
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agencies have been interested in Mars all along, as has already been shown through the
robotic exploration of the planet31 . Mars, however, could also be interesting from an
economic point of view. Lots of rare metals are abundant on Mars (zinc, iron, sulphur, …)32,
which are of great value on earth. The planet Mercury also has minerals that could be of great
use (iron and titanium). Venus may contain valuable resources as well, but no real research
has been done there33. The four other planets, Jupiter, Saturn, Uranus and Neptune are
especially interesting because of the presence of He-3 and Hydrogen34. The latter could be of
great use as an alternative fuel source for transportation means35.
Except for Venus and Mercury, all other planets have natural satellites36. Natural satellites are
basically moons circulating a planet. These could also be commercially interesting for several
of their characteristics, some most likely the same as the Moon of the earth. Furthermore
some moons are even likely to contain water and ice37, which could be in the future of great
commercial use.
The big issue with the planets and their moons is the fact that they are incredibly hard to
reach. Where an exploitation mission to the Moon is already costly, difficult and on the verge
of being possible, space missions beyond the Moon are not very likely in the near future.
Although the manned exploration to Mars is the next probable goal in space exploration in the
next decades38, this is only remotely possible because of the similar environment with the
earth39. Exploitation and even exploration of other planets will be a matter situated in an even
further future.
31 ESA, http://exploration.esa.int/mars/. 32 Supra R. LEE n.22, p53. 33 Supra R. LEE n.22, p52. 34 G. FAURE and T. MENSING, Introduction to Planetary Science: The Geological Perspective, Dordrecht Londen, Springer, 2007, p335. 35P.E., "Hydrogen-powered cars: The future, finally", The Economist 15 February 2013, http://www.economist.com/blogs/schumpeter/2013/02/hydrogen-powered-cars?zid=293&ah=e50f636873b42369614615ba3c16df4a. 36 NASA, https://solarsystem.nasa.gov/planets/profile.cfm?Display=Moons. 37 ESA, http://www.esa.int/Our_Activities/Space_Science/Cassini-Huygens/Hot_water_activity_on_icy_moon_s_seafloor. 38 NASA, https://www.nasa.gov/content/nasas-journey-to-mars. 39 NASA, http://www.nasa.gov/vision/earth/environment/Sibling_Rivalry.html.
9
1.3.3. Asteroids and Comets The big space event in 2014 was the landing of the spacecraft Philae on the comet Rosetta40.
The objective was not fully realized; Philae landed not on the foreseen area41. However, it
was seen as a huge success. Whereas the purpose of the mission was solely scientific, it has a
great importance for extraterrestrial exploitation as the step towards exploiting a celestial
body such as an asteroid or a comet was partly manifested by the landing of a spacecraft on it.
Mining asteroids is however, a more popular idea than mining comets. This results from
differences between both, which makes the mining of asteroids more probable and much
easier. Most comets reside in the farther reaches of our solar system and have extended and
elongated orbits compared to the short circular orbits of asteroids.42 Adding to this that there
are NEAs (near earth asteroids) also contributes to the fact that mining asteroids is easier
because of their proximity.
There is a whole taxonomy for asteroids, which demonstrates their plurality with different
kinds and different features43. For NEAs, it is know that many of them are rich in metallic
compounds44 and water45. These resources could be used for sustaining satellites in space or
for life on earth.
Comets also contain valuable resources such as methane ice, ammonia, and water ice46. These
could as well be of commercial value. As mentioned before, however, the characteristics of a
comet, makes it a more difficult target for exploitation.
1.3.4. Conclusion It is now clear that there are a lot of extraterrestrial resources, which have great commercial
potential. However, the technology at hand still is in its infancy, which hints at the fact that
mining the Moon or asteroids will not be a matter for this decade. However, technological
40 V. BRYAN and M., SHEAHAN, "Europe makes space history as Philae probe lands on comet", Reuters 12 November 2014, http://www.reuters.com/article/2014/11/12/space-comet-idUSL6N0T232S20141112. 41 Supra V. BRYAN and M. SHEAHAN n.40. 42 G. GREENSTEIN, Understanding the Universe: An Inquiry Approach to Astronomy and the Nature of Scientific Research, Cambridge New York, Cambridge University Press, 2013, p289. 43 ESA, http://sci.esa.int/rosetta/47395-bowell-e-et-al-1978/. 44 Supra R. LEE n.22, p63. 45 M. ELVIS, "Prospecting Asteroids Resources" in V. BADESCU (ed.), Asteroids: Prospective Energy and Material Resources, Berlin New York, Springer, 2013, 81 (86). 46B. CUTRIGHT, "The Near-Earth Asteroids on the Pathway to Earth’s Future in Space" in W. AMBROSE, J. REILLY and D. PETERS (eds.), Energy Resources for Human Settlement in the Solar System and Earth’s Future in Space, Tusla, American Association of Geologists, 2013, 75 (83).
10
advancements and preparations point to the fact that it might become reality in the following
decades. Governments and companies take actions in order to prepare themselves to start
mining the solar system, two major companies already specialize in mining asteroids and are
doing tests and experiments47. The landing of Philae is a first concrete prove that shows the
tangibility of putting a robotic machine on a comet and space-faring nations like Russia and
China are preparing themselves to go (back) in space and look for the riches of the Moon48.
These evolutions demonstrate that the willingness of making the jump into space is present
and with the help of private industry, governments can really get involved again. Yet, the lack
of an international regime for mining extraterrestrial resources can create problems. On one
hand, it could slow down activities and thus discouraging innovation in space technology.
Looking at the current evolutions in the space sector, this is currently not the case. On the
other hand, it could create an uncontrolled environment for space activities, which would be
worse. The unique ecosystem of space could be in danger of getting harmed and there could
be a case of neo-colonization, where only space-faring nations would enjoy the fruits of outer
space. This should be avoided by the creation of an international controlled, commercial
environment for space activities.
47 K. HARTNETT, "The comet landing as a prelude to asteroid mining", The Bosten Globe 14 November 2014, http://www.bostonglobe.com/ideas/2014/11/14/the-comet-landing-prelude-asteroid-mining/WDUHGKNhsP3wLLPn6XT7qN/story.html. 48 J. SMITH, "Russia makes plans to mine the moon", KSL 2 December 2014, http://www.ksl.com/?nid=1012&sid=32515405; J. HEWITT, "China is going to mine the moon for Helium-3 fusion fuel", Extreme Tech 26 January 2015, http://www.extremetech.com/extreme/197784-china-is-going-to-mine-the-moon-for-helium-3-fusion-fuel.
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Chapter Two: Current Exploitation Regime The following chapter contains an analysis of the current status of extraterrestrial exploitation
on celestial bodies. Therefor, we look at the sources of space law relevant for space
exploitation. First, an overview of UNOOSA’s relevant legal instruments is given. Their
history and evolution is discussed, followed by an analysis in light of exploitation rights.
Secondly, a look is given at sources of law other than the treaties and principles of UNOOSA.
The importance and functions of Customary International Law and soft law is shortly
addressed. Thirdly, the aspect of the relation between international law and national law is
discussed, however only rudimentary. Important to illustrate is the potential use of national
space law and how this relates to international law. Lastly, the question of the status of
exploitation rights is discussed in order to look for a clear and final answer.
2.1. Relevant Legal Instruments
There are few important international instruments to look at concerning the exploitation of
celestial bodies. The first legal instrument that will follow is a look at ‘The Declaration of
Legal Principles Governing the Activities of States in the Exploration and Uses of Outer
Space’ of 1967, known as the Outer Space Treaty. This treaty forms the basis for international
space law. It can be seen as the Magna Carta of space law49.
Besides the Outer Space Treaty there is the ‘The Agreement Governing the Activities of
States on the Moon and Other Celestial Bodies‘ of 1979, known as the Moon Agreement.
This treaty is generally perceived as an international failure whereas the space-faring states
have not signed it. The reason of failure can mainly be addressed to the presence of the
principle of the Common Heritage of Mankind in the treaty50, which determines certain
conditions for exploitation. Nevertheless, it is an important document to analyze due to
several reasons i.e. it is the only international treaty where space exploitation is explicitly
handled and the Moon Agreement is a valid treaty entered into force where the parties have to
respect its provisions. Reasons exist to believe that the Moon Agreement can still have a role
in handling exploitation rights
Next to those two treaties, an analysis will follow of one of the five principles of UNOOSA
i.e. ‘The Declaration on International Cooperation in the Exploration and Use of Outer Space
49 H. QIZHI, "The Outer Space Treaty In Perspective", J. Space L. 1997, p25. 50 F. TRONCHETTI, "The Moon Agreement in the 21st Century: Addressing its potential role in the era of commercial exploitation of the natural resources of the moon and other celestial bodies’", J. Space L. 2010, p 489.
12
for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of
Developing Countries’, known as the Declaration on Space Benefits. With this principle, the
Outer Space Treaty is made slightly more understandable in light of exploitation rights. It is
important to note that this principle is soft law and not a treaty. This means that it is not
legally binding. However, soft law has a strong political value in the international community,
as will be discussed.
2.1.1. The Outer Space Treaty
a. History and Realization The first space activity dates back to 1957 when the Soviet Union launched the first artificial
satellite in space51. The following years a space race developed itself between the Soviet
Union and the United States of America. However, before that era, space was already a
subject of regulation52. Nevertheless, it was only after 1957 that the urge of a legal regulation
became apparent. With the Cold War overshadowing the period, safe regulation of space
became a priority.
Already in 1958, the UN General Assembly passed a resolution for the peaceful use of outer
space, wherein also the ad hoc committee, the ‘Committee on the Peaceful Uses of Outer
Space’ (COPUOS) was established. A year later COPUOS was established as a permanent
committee with its main task defined as ‘to review the scope of international cooperation in
peaceful uses of outer space, to devise programmes in this field to be undertaken under
United Nations auspices, to encourage continued research and the dissemination of
information on outer space matters, and to study legal problems arising from the exploration
of outer space53. Next to this encompassing committee, two subcommittees were established
i.e. The Legal Subcommittee and the Scientific and Technical Subcommittee. The decision-
making mechanism within those bodies was subjected to the rule of consensus54.
Part of the UN Secretariat, The United Nations Office for Outer Space Affairs was set up to
service the then ad hoc committee. In 1962, it was made part of the Department of Political
and Security Council Affairs, later to be transformed in the Outer Space Affairs Division of
that same Department. Finally it became the present Office for Outer Space Affairs in 1992,
51 NASA, http://history.nasa.gov/sputnik/. 52 J. BOSCO, "International Law Regarding Outer Space-An Overview", J. Air L. & Com. 1990, p612; I.DIEDERIKS-VERSCHOOR, V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Kluwer International, 2008, p1. 53 UNOOSA, http://www.unoosa.org/oosa/COPUOS/cop_overview.html. 54 V. KOPAL, "Outer Space – A legal issue: Origins of space law and the role of the United Nations" in C. BRÜNNER and A. SOUCEK (eds.), Outer Space in Society, Politics and Law, New York, SpringerWienNewYork, 2011, (219) 225.
13
which is a part of the Department of Political Affairs55. Their tasks vary from implementing
decisions of COPUOS and the General Assembly, supporting intergovernmental discussions
in the three committees and assisting the developing countries with space technology56.
The first move towards legal regulation was ‘The UN Declaration of Legal Principles
Governing the Activities of States in the Exploration and Use of Outer Space’. This resolution
was approved by the General Assembly in 1963. Containing several fundamental principles, it
became the basis for the drafting of the Outer Space Treaty. By making those principles
legally binding in a treaty, which became the Outer Space Treaty, a major success was
achieved: an agreement between the two superpowers of that time, i.e. The Soviet Union and
The United States of America and this during the Cold War. It is now the main treaty
concerning outer space. With 103 ratifications57, it can be seen as a major success in
international cooperation.
b. Exploitation Rights in the Outer Space Treaty
The question now is what is regulated under the Outer Space Treaty and more specifically,
whether the exploitation of resources on the Moon and other celestial bodies are regulated. In
order to answer this question, an analysis of the Outer Space Treaty will now follow.
b.1. Article I Outer Space Treaty
‘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.
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 in accordance
with international law, and there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, including the Moon and
other celestial bodies, and States shall facilitate and encourage international cooperation in
such investigation.‘58
55 UNOOSA, http://www.unoosa.org/oosa/en/OOSA/index.html. 56 Supra UNOOSA, n.54. 57 As of January 1st, 2015, UNOOSA, http://www.unoosa.org/oosa/en/SpaceLaw/treatystatus/index.html. 58 Article I of the Outer Space Treaty.
14
The first paragraph of article I contains two important elements. The exploration and use
shall be (1) carried out for the benefit and in the interests of all countries and it shall be (2) the
province of all mankind.
(1) Carried out for the benefit and in the interests of all countries
When using and exploring space, activities have to be carried out for the benefit and in the
interests of all countries. It is not clear what the practical consequence of this exactly entails.
Is it merely a vague, general principle showing a desire for international cooperation or does
it implies an obligation to share the benefits when using and exploring space? It seems that
general practice in space law tends to lean to the first interpretation59. The main arguments for
this interpretation are: the absence of a specific regime for a possible sharing mechanism, the
general formulation of the paragraph, which is rather vague and the interpretation given by
the Declaration on Space Benefits, which will be addressed later. Furthermore, no definitions
can be found of ‘benefits’ and ‘interests’ in the treaty. This is due to the fact that the majority
of authors see it as a moral obligation rather than a legal one60.
This results in the opinion that the sentence ‘carried out for the benefit and in the interests of
all countries’ merely implies international cooperation concerning space activities. An
illustration of this kind of international cooperation is the use of space technology to warn
countries in case of natural disasters61. It is also important to note that the article mentions ‘all
countries’, meaning not only the countries that are parties to the Outer Space Treaty.
(2) Province of all mankind
Secondly there is the principle of the province of all mankind. This principle is not the same
as the principle of the Common Heritage of Mankind, which will be addressed in Chapter
Three. The province of all mankind protects the interests of countries who do not possess the
technological resources to use and explore outer space62. It entails that space should be used
and explored in service of all mankind. Yet, because of the vagueness of the principle, some
authors are of the opinion that there should be no practical consequences given to it63.
59 R. LEE, Law and Regulation of Commercial Mining of Minerals in Outer Space, Dordrecht New York, Springer, 2012, p154. 60 Supra R. LEE n. 59, p157. 61 F. TRONCHETTI, Fundamentals of Space Law and Policy, New York, Springer, 2013, p7. 62 F. TRONCHETTI, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies, Leiden, Martinus Nijhoff Publishers, 2009, p23. 63 Supra R. LEE n.59, p216.
15
The problem is that no definition is given of the principle of the province of all mankind,
which results in several possible interpretations. These can diverge from perceiving the
principle as a moral guideline for international cooperation, to perceiving the principle as an
obligation of a more active international cooperation. The term ‘mankind’ also contributes to
several possible interpretations. Is this a new legal subject in international law or merely a
vague term to express the intention of a peaceful political cooperation on an international
level concerning activities in outer space? There is no consensus to what ‘mankind’ exactly
refers.
It is important to situate the principle in the period of the drafting of the treaty. The term
could have had a different interpretation back in 196764. Commercial space exploitation was
not seen as a mainstream possibility. The main purpose of the treaty was to ensure safe
conduction of activities in space between the nations and to exclude appropriation of it65. D.
Tan argues that the current interpretation of the principle includes the concept of sustainable
development66. The actions of the states and companies in outer space should respect the
environment and preserve it for future generations.
In the second paragraph of article I, there are three rights or freedoms to be found67: the
right of free access, the right of free exploration and the right of free use of outer space. These
freedoms confirm the status of outer space as a res communis area68. The content of this status
will be addressed when discussing article II of the Outer Space Treaty. Looking at the
formulation of paragraph 1, the freedoms of free exploration and of free use have to be read in
conjunction with that same paragraph. Therefor, they have to be carried out for the benefit
and in the interests of all countries. Consequently, this could mean that states need to respect
those freedoms and that it holds a negative duty not to interfere with any kind of those
activities. R. Lee describes this as logistical obligations69. The freedom of access only applies
to the access of celestial bodies, in contrary to the freedoms of use and exploration, which are
applicable to outer space and its celestial bodies. This could be read as an obligation not to
exclude anyone from access to celestial bodies70. Here, R. Lee speaks of a geographical
obligation71.
64 D. TAN, "Towards a New Regime for the Protection of Outer Space as the Province of All Mankind", Yale J. Int'l L. 2000, p163. 65 Supra D. TAN n.64. 66 Supra D. TAN n.64, p164. 67 Supra R. LEE n.59, p164 and F. TRONCHETTI n.62. 68 Supra F. TRONCHETTI n.62, p28. 69 Supra R. LEE n.59, p164. 70 Supra R. LEE n.59, p164. 71 Supra R. LEE n.59, p164.
16
Those obligations are of course hard to interpret because of the absence of any concrete
meaning or limitation. R. Lee argues that the Outer Space Treaty itself and the current state
practice make the interpretation of the obligations, implied by those freedoms, quite
broadly72. In light of exploitation rights, it is again clear that a legal regulation should bring a
definite and clear interpretation of the freedoms and their obligations.
Furthermore these freedoms have to be read together with the non-discrimination obligation
in the same paragraph. Resulting that states, no matter their economic degree of development,
have the right to explore and use outer space and celestial bodies and have on the same basis
access to those bodies73.
When focusing on the freedom of use, an essential term concerning exploitation rights is left
without a definition in the treaty itself and in its travaux préparatoires74 i.e. ‘use’. This results
in interpretation problems. The question is whether the exploitation of extraterrestrial
resources is included in this word?
A first interpretation holds that the word ‘use’ contains exploitation rights, stemming from the
classical distinction used in the treaty of the Polar Regions75. There, ‘exploration’ is referred
to as scientific research and ‘use’ is defined as any other activity than scientific research, thus
also exploitation of resources. One could argue, however, that when exploiting a celestial
body, both terms are applicable at once and no distinction exists in the action itself.
Furthermore, the Outer Space Treaty mentions the word scientific investigation several times,
however, not in relation to exploration76. For some authors this is an argument in favor of the
terms exploration and scientific research having different meanings77. Consequently, the
distinction used in the context of the Polar Regions would not be the same.78
R. Lee presents another distinction between the terms exploration and use. Looking at the
result of the activities a distinction is made. Exploration does not produce tangible benefits
whereas use of outer space does produce such benefits. In this interpretation exploitation
activities would also fall under the term use.
It is important to keep in mind the fact that during the drafting of the Outer Space Treaty,
commercialization of space resources hardly was an issue. Therefore, the lack of clear
72 Supra R. LEE n.59, p165. 73 Supra F. TRONCHETTI n.62, p23. 74 Supra F. TRONCHETTI n.61, p223. 75 Supra R. LEE n.58, p163. 76 Article I (3) and Article IX Outer Space Treaty. 77 Supra R. LEE n.58, p163. 78 Supra R. LEE n.58, p164.
17
definitions concerning those activities is understandable. The absence of such a definition has,
however, never stopped states in evolving towards commercial exploitation of space79. During
this evolution, no formal objections of any kind were made towards it. For F. Tronchetti, this
is an extra argument to interpret that the word ‘use’ encompasses commercial exploitation80.
An argument against these interpretations is that whereas the Moon Agreement explicitly
mentions exploitation rights, the Outer Space Treaty does not. However, both treaties need to
be regarded in the time period they originated. As mentioned before, during the drafting of
the Outer Space Treaty, exploitation did not belong to people’s mainstream thoughts. On the
contrary, during the drafting of the Moon Treaty in the years 1970-1979, the United States
had already put men on the moon. Consequently, the idea of ever exploiting a celestial body
became apparent.
b.2. Article II Outer Space Treaty
‘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.81’
Article II of the Outer Space Treaty is very relevant when looking at the status of outer space
and its celestial bodies. Combining article II and the freedoms mentioned in article I, the legal
status of outer space can be determined as res communis omnium82. The res communis theory
stands opposite the theory of res nullius. In the latter, states have the right to assert
sovereignty in certain areas. Literally translated it means ‘things for no one’. Res communis,
however, concerns certain areas that are open to everyone and are not subject to the law of
states83. Besides outer space, the deep seabed also has the status of being a res communis. The
combination of the freedoms of article I and the prohibition of national appropriation
described in article II, clearly illustrate the characteristics of the res communis doctrine.
Several interpretation problems appear when looking at article II. First, the precise (1)
application and scope is not clear. Are private companies included under article II and is only
national appropriation prohibited? Secondly, are (2) extraterrestrial resources included in
79 Supra F. TRONCHETTI n.62, p216. 80 Supra F. TRONCHETTI n.62, p223. 81 Article II Outer Space Treaty. 82 Supra F. TRONCHETTI n.62, p27. 83 K. BASLAR, The Concept of the Common Heritage of Mankind in International Law, The Hague, Kluwer Law International, 1998, p40 and J. CRAWFORD, Brownlie’s Principles of Public International Law, Oxford, Oxford University Press, 2012, p203. P. TAYLOR, An Ecological Approach to International Law: Responding to the Challenges of Climate Change, New York London, Routledge, 1998, p270.
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article II? The article speaks only of outer space and celestial bodies, but is silent on their
resources. Lastly, some definitions of key words are left out i.e., (3) celestial bodies and (4)
outer space. What is the legal meaning of those terms?
(1) Application and scope
On the first level, article II does not mention private companies in light of appropriating outer
space. So, the question arises whether article II applies to private entities or only to states.
This question is about the application of article II. On the second level, article II only speaks
of national appropriation and does not mention private appropriation. This is on the level of
the scope of the article.
In general, it is accepted that article II also applies to private companies. The main argument
supporting this, is the combination of article II with article VI of the Outer Space Treaty,
which declares:
‘States Parties to the Treaty shall bear international responsibility for national
activities in outer space, including the Moon and other celestial bodies, whether such
activities are carried on by governmental agencies or by non-governmental entities, and for
assuring that national activities are carried out in conformity with the pro- visions set forth in
the present Treaty. 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. When activities are carried on in outer space,
including the Moon and other celestial bodies, by an international organization,
responsibility for compliance with this Treaty shall be borne both by the international
organization and by the States Parties to the Treaty participating in such organization.84’
In other words, states have the obligation of authorizing and supervising activities of their
private entities in space. They bear international responsibility for those activities. Thus, if a
state is prohibited of appropriating outer space and its celestial bodies, it cannot grant
authorization to do so to private entities. This interpretation is generally followed by authors85
and has also been confirmed by The Board of Directors of the International Institute of Space
84 Article VI Outer Space Treaty. 85 Supra F. TRONCHETTI n.62, p29.
19
Law. The latter explicitly declared that activities of non-governmental entities are national
activities in the context of space law86.
Regarding the scope of article II, it is unclear whether private appropriation also is prohibited.
Some authors interpret the absence of the word ‘private’ in the article as the possibility that
private companies could appropriate outer space and its celestial bodies. Gorove already
stated in 1967 that:
’Thus, at present, an individual acting on his own behalf or on behalf of another
individual or a private association or an international organization could lawfully
appropriate any part of outer space, including the moon and other celestial bodies.87’
R. Lee also shows the possibility of private appropriation by making the distinction between
asserting sovereignty and appropriation88. National appropriation in article II would only refer
to sovereignty rights and consequently open possibilities for property rights for private
entities.
Opposite to that interpretation, F. Tronchetti gives three arguments to show that article II
prohibits private appropriation as well89. Looking at the status of outer space, being a res
communis, appropriation by either a public or a private entity is not possible. The travaux
préparatoires reinforce this, i.e. the drafters of the treaty clearly show their intention to
exclude property rights in space in general, thus also towards private companies90.
A second argument is about the characteristic of rights over immovable property i.e. a piece
of land. Appropriation of the latter only is possible if a state or an entity with the authority has
jurisdiction concerning that property. However, it is not possible for states to have jurisdiction
concerning immovable property in space. It would be plausible that a certain international
body receives such kind of jurisdiction, however this is currently not the case.
The third argument is the same argument as the one used for the application of article II.
When combining article II and VI states are obligated to authorize and supervise the activities
of non-governmental entities. As a consequence, states cannot permit appropriation by private
86 Board of Directors of the International Institute of Space Law, http://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf. 87 S. GOROVE, "Interpreting Article II of the Outer Space Treaty", Fordham L. Rev. 1969, p351. 88 R. LEE, "Article II of the Outer Space Treaty: Prohibition of State Sovereignty, Private Property Rights, or Both?", Aust. I.L.J. 2004, p130. 89 Supra F. TRONCHETTI n.62, p29 and p199. 90 Supra F. TRONCHETTI n.62, p199.
20
companies due to the fact that states themselves lack the power of claiming sovereignty over
outer space and its celestial bodies.
(2) Extraterrestrial Resources
In light of exploitation rights, it is important to analyze whether article II also refers to the
extraterrestrial resources offered by outer space and its celestial bodies. Either the Outer
Space Treaty includes extraterrestrial resources in article II, meaning that appropriation of
them is prohibited. Or either article II excludes extraterrestrial resources, which makes
appropriation of them possible, giving room for exploitation under the treaty.
Both interpretations have their followers in the literature. Following the first hypothesis,
extraterrestrial resources are confined in article II. One of the main arguments given is that no
distinction is made between outer space and its resources; therefore, its resources are always
included. Another argument is that the appropriation of resources would be in violation with
article I, which declares that all activities should be in benefit and in the interests of all
countries91.
However, in general, the second hypothesis is followed. Following this interpretation,
appropriation of resources is allowed. The main argument for this is the analogy with the deep
seabed. The deep seabed also is a res communis and appropriation of the area is also
forbidden. However, there is no such prohibition towards its natural resources. It is also
argued that the exploitation of extraterrestrial resources is part of the freedom of use of outer
space92. As argued above, the term ‘use’ also holds the term ‘exploitation’, thus the freedom
of use confined in article I, makes article II not applicable towards those resources.
(3) Defining Celestial Bodies
As mentioned before, there is currently no legal definition of the term celestial bodies. This
poses a problem, as it is essential to legally determine what celestial bodies are when it
concerns exploitation rights. This is important as to whether asteroids and comets are
perceived as celestial bodies under the Outer Space Treaty. If so, article II is applicable and
appropriation is prohibited, on the contrary, if they are not perceived as such, appropriation is
possible.
91 D. GOEDHUIS, "Some Recent Trends in the Interpretation and the Implementation of the Rules of International Space Law", Colum. J. Transnat'l L.1981, p219. 92 Supra F. TRONCHETTI n.62, p221.
21
In literature, there are several interpretations regarding the term celestial body. The main
point is to determine whether celestial bodies are a spatial extension (and immovable) or a
material extension (and thus movable). Two general views exist concerning the determination
of the legal status of celestial bodies: the (a) functionalist approach and the (b) spatialist
approach93. Next to those, there are (c) other approaches of interpreting the term, which will
only be mentioned shortly.
(a) The Functionalist Approach
In the functionalistic view, an object, which is deemed movable by nature, can legally be
determined as movable. The determination is thus made by looking at the function of the
object in question. An asteroid, however, may be used for exploitation or for several
navigational goals or even as a base for certain activities. In other words, the determination
would depend on the function of a comet or asteroid. On the one hand, if a comet or asteroid
is used in its spatial dimension, it would be seen as a celestial body, thus not open for
appropriation. On the other hand, if being used in their material dimension, they would be
seen as a movable object, and thus open for appropriation94. The question arises consequently,
how to determine the function of such a body?
(b) The Spatialist Approach
In this interpretation, a distinction is made based on the size of the object. If exceeding a
certain size, the object is determined immovable. Immediately the problem of this approach
becomes clear. How is the size determined which serves as the measure of distinction. It is
obvious that the Moon is a celestial body and a tiny piece of rock as big as a coin, is not. But
what with rocks with sizes in between those two? Obviously, it is not clear where the line is
drawn.
(c) Other Approaches
V. Pop describes several other approaches among which the control approach. Influenced by
the cannon shot rule that was used in the law of the sea, an object is determined movable if
the ability of moving it is present95. The problem here is the very nature of space where
everything moves. Planets move around the sun and around themselves. This is also true for
93 V. POP, Who Owns The Moon: Extraterrestrial Aspects of Land and Mineral Resources Ownership, Springer Netherlands 2009, p51. 94 V. POP, "Legal Considerations on Asteroid Exploitation and Deflection" in V. BADESCU (ed.), Asteroids: Prospective Energy and Material Resources, Berlin New York, Springer, 2013, (659) 662. 95 Supra V. POP n.93, p53.
22
comets and asteroids. Another additional condition could solve this problem e.g. by
investigating whether an object can be moved by human intervention, it would become easier
to determine whether an object is a celestial body or not96. However, as human intervention is
getting more technologically sophisticated, the definition of a celestial body would evolve
with the human capacity of moving objects in space. Another approach would be to look at
the legal status of icebergs. Yet, their legal status also is unclear. Icebergs are being used as a
floating mineral and thus in their material dimension97. If this would apply for comets and
asteroids, they would be open for appropriation, as they would be perceived as floating
minerals.
(4) Outer Space
Similar to celestial bodies, there is no legal definition of outer space. The definition of outer
space is important regarding the issue of exploitation. If an object such as a comet or an
asteroid would be seen as not residing in space, it would fall under the rules of air law, which
are highly different with respect to those of space law. Here also, several approaches exist to
define when space exactly begins. In the international community, however, a general
accepted ‘border’ exists i.e. the Karman Line. It lies 100 kilometers above earth’s sea level
and represents the end of earth’s atmosphere and the beginning of space. At this altitude, a
speed greater than orbital velocity would be required for an aircraft to stay in flight. Because
of the general acceptance98, it is not necessary to analyze other possible approaches in detail.
b.3. Article VI and VII Outer Space Treaty
As mentioned above, article VI makes states responsible for (non-)governmental activities in
space and on celestial bodies. This is a significant article since it makes states active
participants in space activity independent of whether the activities are scientific or
commercial in nature and independent of whether the activities are conducted by public or
private entities. A state will be held responsible if it acts against the obligations, which it is
supposed to follow, in respect to the treaty. This can be derived from the term ‘responsibility’
in international public law99. The consequence of responsibility is that the state has to provide
96 Supra V. POP n.93, p53. 97 Supra V. POP n.93, p57. 98 F. VON DER DUNK, "International space law" in F. VON DER DUNK and F. TRONCHETTI (eds.), Handbook of Space Law, Cheltenham, Edward Elgar Publishing, 2015, (29) 71. 99 Supra F. TRONCHETTI n.62, p34.
23
reparation in forms of compensation or satisfaction100. There is no condition of damage here;
the breach of an obligation suffices.
Article VII can be mentioned in the same context as article VI, whereas it regulates the
liability of states.
‘Each State Party to the Treaty that launches or procures the launching of an object
into outer space, including the Moon and other celestial bodies, and each State Party from
whose territory or facility an object is launched, is internationally liable for damage to
another State Party to the Treaty or to its natural or juridical persons by such object or its
component parts on the Earth, in air space or in outer space, including the Moon and other
celestial bodies.’101
The major difference with article VI is the condition of damage. If merely an obligation is
breached, but no damage is present, article VII is not applicable. If there is some kind of
damage, article VII is applicable. When it concerns the liability of states in space, another
treaty is used, which elaborates solely on the issue of liability: The Liability Convention of
1972. Herein, a definition of damage is given. This treaty will not be discussed in this thesis.
Important in light of exploitation, is the responsibility and liability of the States concerning
commercial space activities, as discussed.
b.4. Article IX Outer Space Treaty
‘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. States Parties to the Treaty shall pursue studies of outer space,
including the Moon and other celestial bodies, and conduct exploration of them so as to avoid
their harmful contamination and also adverse changes in the environment of the Earth
resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt
appropriate measures for this purpose. If a State Party to the Treaty has reason to believe
that an activity or experiment planned by it or its nationals in outer space, including the
Moon and other celestial bodies, would cause potentially harmful interference with activities
of other States Parties in the peaceful exploration and use of outer space, including the Moon
and other celestial bodies, it shall undertake appropriate international consultations before
100 Article 34 of the Responsibility of States for Internationally Wrongful Acts 101 Article VII Outer Space Treaty.
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proceeding with any such activity or experiment. A State Party to the Treaty which has reason
to believe that an activity or experiment planned by another State Party in outer space,
including the Moon and other celestial bodies, would cause potentially harmful interference
with activities in the peaceful exploration and use of outer space, including the Moon and
other celestial bodies, may request consultation concerning the activity or experiment.’ 102
Article IX is another important article regarding the exploitation of space. It covers the issue
of protecting the environment of space. R. Lee interprets the article in such way that harmful
contamination should be avoided when studying and exploring space and its celestial
bodies103. However, when investigating in more detail, this is not the case. Article IX inserts a
positive obligation towards states. The parties to the treaty need to actively conduct research
in order to check whether activities are harmful towards the environment. This holds an extra
responsibility with respect to the activities of non-governmental entities in space. The article
does not mention a definition of what exactly harmful contamination is. Probably, this will be
defined on a case-level basis.
The second part of the article concerns planned activities which could be harmful to the
freedoms of article I, paragraph 1 and to the peaceful purpose of the Outer Space Treaty. A
major responsibility is placed with the state itself to evaluate whether an activity is harmful.
Next to this, it appears to be applicable only on planned activities and not on completed
activities. Thus, the article holds no retrospective evolution of the harmful interference of an
activity104. Here as well, no definition is given of harmful interference. A possibility could
entail to describe a harmful interference as any interference of the freedoms given by the
Outer Space Treaty. In the end, case law will decide whether an activity is harmful.
b.5. Article X, XI and XII These articles are mostly obligations and guidelines regulating the exchange of information
for international cooperation regarding space activities. Article XII declares that installations,
stations and equipment shall be open to representatives of state parties. Article XI holds the
obligation of giving information concerning the activities conducted in space. This is also
applicable for exploitation activities of both public and private kind105. Article X concerns the
promotion of international cooperation between states in space activities. States are able to
request observations of space activities performed by other states. Approval for such activities
102 Article IX Outer Space Treaty. 103 Supra R. LEE n.59, p192. 104 Supra R. LEE n.59, p192. 105 Due to the fact that State Parties are responsible for the activities of private companies located in their state.
25
lays with the acting states and should be made on an equality basis. Further conditions are
determined between the states themselves.
c. Conclusion When looking for an answer with respect to extraterrestrial exploitation in the Outer Space
Treaty, there is no clear-cut answer as to the regulation of exploitation rights. However, state
practice and general opinion in legal literature show three important conclusions. Firstly,
exploitation of extraterrestrial resources is allowed under the Outer Space Treaty. The
freedom of use of outer space and its celestial bodies confirms this. Secondly, the non-
appropriation clause in article II only applies to space and its celestial bodies and not to their
natural resources. This means that those resources can be subjected to appropriation
analogous to the resources in the deep seabed. And lastly, private commercial space activities
are allowed in space, but States are responsible for them, meaning that commercial entities
are also subjected to the provisions of the Outer Space Treaty.
However, several lacunas are still present in the Outer Space Treaty. Definitions of terms
such as ‘benefit’, ‘interests’,‘celestial bodies’ and ‘use of outer space’, … are omitted. We
have addressed the importance of these terms. Whereas there are already concrete plans to
mine celestial bodies, there is no certainty of when an asteroid is a celestial body.
Consequently, the possibility exists that companies could appropriate asteroids. It is thus clear
that a more vast and defined regulation is needed. The following section attempts to find a
solution for these issues in the Moon Agreement.
2.1.2. The Moon Agreement
a. Background and realization In 1969, after Neil Armstrong set foot on the Moon as the first human being, it was clear that
human access to this celestial body became reality. The idea of putting people on the Moon
and subjecting it to them belonged no longer to science-fiction. Many possibilities arose with
respect to activities on the Moon, with exploitation being one of them.
Already in 1966, there were propositions regarding a treaty with the sole purpose of
governing the exploration of the Moon and other celestial bodies. These propositions
originated from the United States of America and the Soviet Union106 . However, no
agreement was reached and the subject disappeared in the shadows of the Outer Space Treaty.
The matter came back in the spotlights in 1969 when several countries proposed to discuss
106 United Stated Departement of State, http://www.state.gov/t/isn/5181.htm
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legal issue of activities on the Moon, among which a regulation regarding the natural
resources of celestial bodies. In that same year, Argentina submitted a proposal for a treaty107,
where the Moon and its resources were described as being Common Heritage of Mankind.
This was the start of the controversial determination of the legal status of the Moon.
During the following years, the drafting of a new treaty was in the works. Issues as military
use and legal status were addressed. After 25 proposals and elaborate discussions in the Legal
Subcommittee and in COPUOS, The Agreement Governing the Activities of States on the
Moon and Other Celestial Bodies, commonly known as the Moon Agreement, was adopted
and opened for signature by the General Assembly on 18 December 1979108. The Moon
Agreement entered into force in 1984 after the fifth ratification by Austria. This was fifteen
years after the first man on the Moon109.
Currently, there are sixteen countries that have ratified the agreement and four that have
signed the agreement110. Already, one of the problems of the Moon Agreement is originated
here. As only a very limited number of countries have ratified the treaty (the Outer Space
Treaty has 103 ratifications), it has not a lot of credibility and does not hold much support in
the international community111. One of the main reasons for this is the introduction of the
principle of the Common Heritage of Mankind in the treaty. This poses a threat to a lot of
industrialized states, more specifically to their economical interests. The precise issue of this
principle and the controversial elements surrounding it will be addressed in Chapter Three.
Today, the Moon Agreement is considered as a failed legal instrument. It is, however,
important to analyze this instrument. To this date, it is the only international treaty in which
exploitation of extraterrestrial resources is explicitly regulated. More importantly, it is useful
to investigate the reasons why it failed, especially when setting up a new legal regime. Next
to this, the Moon Agreement is a valid treaty that entered into force. The State Parties are thus
obligated to respect its provisions, even if it is generally seen as a failed treaty. It is also
important to note that the Moon Agreement may not be as dead as perceived. Although
unlikely, if other states will ratify it, it will gain the legal value it was supposed to receive.
107 Supra F. TRONCHETTI n.62, p48. 108 UNOOSA, http://www.unoosa.org/oosa/en/SpaceLaw/treaties.html. 109 UNOOSA, http://www.unoosa.org/oosa/SpaceLaw/moon.html. 110 UNOOSA, http://www.unoosa.org/pdf/limited/c2/AC105_C2_2014_CRP07E.pdf. 111 Supra F. TRONCHETTI n.50, p500.
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b. Exploitation rights in The Moon Agreement
The Moon Agreement can be seen as a direct extension of the Outer Space Treaty. On the one
hand it confirms many of the principles laid down in the Outer Space Treaty and on the other
hand, it provides elaboration regarding certain elements. Central to the Moon Agreement is
however article 11.1, where the principle of the Common Heritage of Mankind is introduced.
For the purpose of clear overview, the analyses of the Moon Agreement will be done in two
parts: The Moon Agreement as an extension of the Outer Space Treaty and The Moon
Agreement and the Common Heritage of Mankind112.
b.1. The Moon Agreement as an extension of the Outer Space Treaty
The Moon Agreement confirms the principles and freedoms laid out in the Outer Space
Treaty. Its scope, however, is different. It only applies to celestial bodies in the solar system
and excludes extraterrestrial materials that have reached the surface of the earth. It is
important to note, that when the agreement makes reference to the Moon, it includes orbits
and trajectories around it and other celestial bodies113. Compared to the Outer Space Treaty,
the formulation and delineation is an improvement. Whereas the Outer Space Treaty mentions
outer space and its resources, it is questionable whether this applies to every celestial body
present in outer space.
Article 2 and 3 of the Moon Agreement are clearly the equivalents of articles III and IV of the
Outer Space Treaty. They address respectively the issue of handling in accordance to the
international law with international cooperation and the issue of military activities in space,
such as placing weapons around the orbits of the Moon. Moreover, article 4.2 also addresses
the issue of mutual international cooperation within the exploration and use of outer space.
Article 4.1 addresses the principles of article I (1) of the Outer Space Treaty:
‘The exploration and use of the moon shall be the province of all mankind and shall
be carried out for the benefit and in the interests of all countries, irrespective of their degree
of economic or scientific development. Due regard shall be paid to the interests of present
and future generations as well as to the need to promote higher standards of
living and conditions of economic and social progress and development in accordance with
the Charter of the United Nations.’114
112 As done by F. TRONCHETTI in his book supra n.62. 113 Article 1.1 and 1.2 of the Moon Agreement. The same principle applies in this thesis; when referring to the Moon, other celestial bodies are meant as well. 114 Article 4.1 of the Moon Agreement.
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Analogous to the Outer Space Treaty, no definition is given of the terms ‘benefits’, ‘interests’
and ‘province of all mankind’. An extra (moral or legal?) obligation is introduced i.e.
consideration has to been given to the interests of present and future generations and the need
to promote higher standards of living. The mentioning of present and future generations can
perhaps be seen as a step towards a definition of the term ‘mankind’.
Article 5 handles the information obligations concerning exploration and use of the Moon
(and thus celestial bodies). Its equivalent can be found in article XI of the Outer Space Treaty.
It also mentions the responsibility of states to alert the international community and the public
in case of discovering a phenomenon in outer space that could endanger human life. Thus, the
scope of this article reaches further than to only celestial bodies. Clearly this is the
responsibility mentioned in article IX of the Outer Space Treaty. However, no definition is
given of the word phenomenon. Broadly interpreted, this could mean any activity of other
states as well as natural occurrences.
Article 6 mentions the freedom of scientific investigation for all state parties without any
discrimination. This confirms the freedom of scientific investigation mentioned in article I (3)
of the Outer Space Treaty. However article 6 adds a concrete consequence to it. It provides
states with the freedom to remove minerals (and thus resources) and other substances. Of
course, this must happen in light of scientific research, however it is not clear what this
exactly entails. Article 6 furthers promotes international cooperation between the states when
conducting scientific research. The Moon Agreement again gives a more specific explanation
of the content of a rather vague term, i.e. freedom of scientific investigation.
The environmental protection of celestial bodies is regulated by article 7.1, the equivalent of
article IX Outer Space Treaty:
1. In exploring and using the moon, States Parties shall take measures to prevent the
disruption of the existing balance of its environment whether by introducing adverse changes
in that environment, by its harmful contamination through the introduction of extra-
environmental matter or otherwise. States Parties shall also take measures to avoid harmfully
affecting the environment of the earth through the introduction of extraterrestrial matter or
otherwise.115
Under the Outer Space Treaty, states have the obligation of actively conducting research in
order to avoid harmful contamination of the environment. This obligation is not mentioned in
the Moon Agreement. Instead, there is only an obligation when using and exploring celestial 115 Article 7.1 of the Moon Agreement.
29
bodies i.e. measures should be taken against disrupting the existing balance and against
harmful contamination. Here again, vague terms are used i.e. ‘measures’, ‘harmful’, and
‘contamination’. Moreover, the article does not mention when the existing balance is
disrupted. The responsibility of states to report any harmful activity or interference is, as
mentioned before, included in article 5.
The freedom of access can be found in articles 8 and 9. Article 9.2 explicitly mentions free
access of all areas of the Moon. This free access has to occur in accordance to article I of the
Outer Space Treaty116. Article 8 encompasses the practical consequences of that freedom:
‘Personnel, space vehicles, equipment, facilities, stations and
installations may move or be moved freely over or below the surface of the moon.117‘
However, the freedom of access also holds limitations. If all states have freedom of access, it
has to be used in such way to not interfere with other states. No clear limitations are
mentioned however.
Article 11 is the centerpiece of the Moon Agreement. The most important elements are
confined in it i.e. the Common Heritage of Mankind (which will be addressed in the next
part), prohibition of appropriation, the status of resources and the freedom of use and
exploration.
‘1. The Moon and its natural resources are the common heritage of mankind, which
finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this
article.
2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of
use or occupation, or by any other means.
3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural
resources in place, shall become property of any State, international intergovernmental or
non-governmental organization, national organization or non- governmental entity or of any
natural person. The placement of personnel, space vehicles, equipment, facilities, stations and
installations on or below the surface of the Moon, including structures connected with its
surface or subsurface, shall not create a right of ownership over the surface or the subsurface
of the Moon or any areas thereof. The foregoing provisions are without prejudice to the
international regime referred to in paragraph 5 of this article. 116 Article 9.2 of the Moon Agreement refers to Article I Outer Space Treaty. 117 Article 8 of the Moon Agreement.
30
4. States Parties have the right to exploration and use of the Moon without discrimination of
any kind, on the basis of equality and in accordance with international law and the terms of
this Agreement.
5. States Parties to this Agreement hereby undertake to establish an international regime,
including appropriate procedures, to govern the exploitation of the natural resources of the
Moon as such exploitation is about to become feasible. This provision shall be implemented
in accordance with article 18 of this Agreement.
6. In order to facilitate the establishment of the international regime referred to in paragraph
5 of this article, States Parties shall inform the Secretary-General of the United Nations as
well as the public and the international scientific community, to the greatest extent feasible
and practicable, of any natural resources they may discover on the Moon.
7. The main purposes of the international regime to be established shall include:
1. (a) The orderly and safe development of the natural resources of the Moon;
2. (b) The rational management of those resources;
3. (c) The expansion of opportunities in the use of those resources;
4. (d) An equitable sharing by all States Parties in the benefits derived from
those resources, whereby the interests and needs of the developing countries, as well as the
efforts of those countries which have contributed either directly or indirectly to the
exploration of the Moon, shall be given special consideration.
8. All the activities with respect to the natural resources of the Moon shall be carried out in a
manner compatible with the purposes specified in paragraph 7 of this article and the
provisions of article 6, paragraph 2, of this Agreement. 118‘
Paragraph 2 confirms the non-appropriative nature of the Moon. It is in spirit a copy of article
II of the Outer Space Treaty. Important, however, is the absence of the word ‘resources’. This
word is used in the Moon Agreement, but is left out in article 11.2 implying that the natural
resources of the Moon are available for appropriation119. This vision is also defended in this
thesis. Regarding the extent of the scope and the application of private appropriation, the
same interpretation problems arise as with article II of the Outer Space Treaty i.e. are private
118 Article 11 of the Moon Agreement 119 K. COOK, "The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon Treaty", Geo. Int’l Envtl. L. Rev 1999, p666.
31
companies included in the provision and is private appropriation prohibited. However it
seems that paragraph 3 can illuminate this aspect.
Paragraph 3 states that there is no existence of public or private ownership or property rights
on celestial bodies and their natural resources in place120. A contrario, once extraterrestrial
resources are exploited, meaning that they are not in place anymore, appropriation should be
possible121. Where article 11.2 implies that these natural resources are subject to possible
appropriation, this is immediately limited by article 11.3. The distinction is made by the status
of those resources. Once exploited, appropriation is possible.
Paragraph 4 reflects the given freedoms of article I (1) of the Outer Space Treaty: the
freedoms of exploration and use in combination with a non-discriminatory clause. The
liability and responsibility of State Parties are regulated in article 14, in the same spirit as
regulated by the article V and VII of the Outer Space Treaty.
b.2. The Moon Agreement and the Common Heritage of Mankind
An analysis of the content and meaning of the Common Heritage of Mankind is handled in
Chapter Three of this thesis. There, also the influence of the principle is discussed in light of
the failing of the Moon Agreement122. This section only demonstrates the effect of the
Common Heritage of Mankind principle in the Moon Agreement.
Paragraph 1 of article 11 states that the Moon and its resources are the Common Heritage of
Mankind. It further declares that the precise expression of this principle is solely to be found
in paragraph 5 of the same article. As a consequence, other legal documents where the
principle is manifested cannot be used to help define the Common Heritage of Mankind in the
Moon Agreement123. So to look at the effect of the principle, a closer look at paragraph 5 is
needed.
Paragraph 5 describes the obligation of State Parties to establish an international regime with
procedures in order to govern the exploitation of resources on the Moon. Only when
exploitation is about to become feasible, the establishment of such regime is needed.
Currently, exploitation has become feasible, however any initiative to create such a regime
has not happened.
120 Supra F. TRONCHETTI n.62, p42. 121 Supra F. VON DER DUNK n.98, p103. 122 Supra F. TRONCHETTI n.62, p46. 123 Supra F. TRONCHETTI n.50, p507.
32
The exact content of such a regime is further elaborated on in paragraph 7 of article 11. The
main purposes of such a regime includes: the orderly and safe development, a rational
management, an expansion of opportunities and an equitable sharing mechanism in the
benefits. All of these purposes concern the resources of celestial bodies. Important in light of
exploitation rights is that exploitation only can happen under the concept of the Common
Heritage of Mankind124. The term exploitation is thus extracted from freedom of use of outer
space and is quarantined in article 11.
Any other provisions concerning the practical manifestation of such a regime, what the
benefits would be and how to share benefits in an equitable manner, are not specified in a
concrete fashion. The goal of the treaty was to handle the details of a regime when
exploitation would become feasible. That goal has its expression in an obligation of setting up
a regime to govern extraterrestrial exploitation125. Article 18 also dictates that ten years after
the treaty went into force, it would come under review and the possible concrete
implementation of article 11.5 as well. This however did not happen in 1994126.
Another issue that had a role in the failure of the Moon Agreement is whether a moratorium is
present on the Moon. If no clear regime is established and exploitation is feasible, are the
parties to the treaty allowed to start mining activities? An argument in favor of a moratorium
in the Moon Agreement is the presence of the Common Heritage of Mankind127. Article 11.5
sets an obligation to establish a regime for exploitation in case exploitation becomes feasible.
In other words a regime is needed before exploitation could take place128. Another argument
is article 6.2. Herein, extraction from extraterrestrial resources is only allowed in a limited
way in light of scientific investigation. These arguments are used to illustrate the presence of
a legal moratorium. However, general opinion in literature rejects this. The authors of the
Moon Agreement have rejected the word moratorium several times during negotiations129.
India made a proposal for inserting a moratorium, but the United States stated they would not
accept the agreement if there was a provision of that kind130. Another argument against a legal
moratorium is that the freedom of use of outer space is already granted in article I of the
124 Supra F. TRONCHETTI n.50, p507. 125 Article 11.5 of the Moon Agreement. 126 Supra R. LEE n.59, p266. 127 D. MARKO, "A Kinder, Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and a Proposed Alternative", J. Nat. Resources & Envtl. L. 1992-93, p313. 128 Supra D. MARKO n.127. 129 S. COOPER, "The 1979 Agreement Governing The Activities on The Moon and Other Celestial Bides: Does It Create A Moratorium on The Commercial Exploitation of The Moon’s Natural Resources?" J. L.& Tech. 1990, p77. 130 A. BLASER, "The Common Heritage in its Infinite Variety: Space Law and the Moon in the 1990’s", J.L. & Tech. 1990, p85.
33
Outer Space Treaty. Therefor article 11.5 ‘cannot be the conditional grant of a new right and
it does not purport to be a limitation on an existing right’131.
There have also been arguments to show that the Moon Agreement contains a de facto
moratorium132. The absence of a definition of the Common Heritage of Mankind principle is
perceived as dangerous towards the interests of developed countries. It has no clear meaning
and may be interpreted in several ways. Concretely, developed countries interpret the Moon
Agreement in such way as if there is no moratorium present, in contrast to developing states.
The latter assume exploitation is only possible with a regime in place, established according
article 11.5133. Developed countries fear this broad interpretation that basically implies
common ownership134, which is not in line with a free market economy. Developed countries
look as well at the role of the Common Heritage of Mankind in the deep seabed, where there
was a moratorium present on exploiting mineral resources before the establishment of a
regime135. However, as mentioned before, the Common Heritage of Mankind principle finds
its expression solely in the Moon Agreement136, so the deep seabed regime is not relevant.
Another argument for a de facto moratorium is the vagueness of the Moon Agreement,
making investors and companies rather reluctant to start operations in space. Investments are
very costly and contain huge risks. A regime that possible would not meet the interests of
companies, could withhold any exploitation in space137. However, this last argument does not
hold up in the present time as companies are starting to make plans to go into space.
The majority of authors reject the idea of a moratorium in the Moon Agreement138. Yet, the
Common Heritage of Mankind would only make sense if it includes a moratorium within,
which of course contradicts the conclusion that the Moon Agreement does not contain one.
Again, this shows the vagueness and difficulty of the Common Heritage of Mankind
principle. Several interpretations can be made with very different outcomes.
c. Conclusion Without a doubt, the Moon Agreement is an important instrument. It is the first that tries to
regulate the exploitation of extraterrestrial resources. Furthermore, it confirms and puts some
provisions of the Outer Space Treaty in a clear light. However, it also raises some questions.
131 N. GRIFFIN, "Americans and The Moon Treaty", J. Air L. & Com. 1981, p755. 132 Supra D. MARKO n.127, p314. 133 Supra F. TRONCHETTI n.61, p55. 134 Supra D. MARKO n.127, p297. 135 Supra N. GRIFFIN n.131, p751. 136 Article 11.1. Moon Agreement 137 Supra D. MARKO n.127, p314. 138 Supra S. COOPER n.129, p77; supra D. MARKO n.127, p313 and supra F. TRONCHETTI n.62, p230.
34
These questions relate to the issue whether a moratorium is present in the concrete meaning
of the Common Heritage of Mankind principle and to the precise status of extraterrestrial
resources. Developing states would incline to answer differently on these questions compared
to developed states139.
The different views towards the Moon Agreement clearly are the reasons why it has little
support in the international community and more importantly, no support with the space-
faring states. The failure of the Moon Agreement is analyzed in the next chapter, which
discusses in detail the Common Heritage of Mankind principle and the evolution of a
regulation for the exploitation of the deep seabed. An understanding of both these elements is
necessary in order to shed light on the unpopularity of the agreement.
Comparing the regime of exploitation rights under the Outer Space Treaty and the Moon
Agreement, a huge difference is seemingly present: exploitation rights are explicitly regulated
in the Moon Agreement, some uncertainties present in the Outer Space Treaty are solved and
property rights are explicitly banned for states and non-governmental entities. However, no
detailed regulation is provided, regulation concerning environmental protection is also nearly
absent and there are a lot of uncertainties in light of extraterrestrial exploitation. As a result,
the difference between both instruments may not be that different after all.
2.1.3. The Declaration on Space Benefits
a. Background and realization In 1996, the General Assembly adopted ‘The Declaration on International Cooperation in the
Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking
into Particular Account the Needs of Developing Countries’, better known as the Declaration
on Space Benefits. This was the result of the ongoing discussion on how to interpret article I
of the Outer Space Treaty, which declares that exploration and use of outer space (including
its celestial bodies) is to be carried out for the benefit and in the interests of all countries140.
Different views towards the practical consequence of the article I of the Outer Space Treaty
were hold by developing countries on one hand and developed countries on the other. The
latter accepted that the article was a limitation regarding the use of outer space, but they
argued the article did not determine how the benefits ought to be shared. This was something
that states could determine themselves. The developing countries, in contrast, interpreted the
article as an obligation towards developed countries to conduct space activities on an active
139 Supra F. TRONCHETTI n.62, p56. 140 Article I of the Outer Space Treaty.
35
international cooperative level141. The proposed regulation in the Moon Agreement, where a
regime was to be established for the equitable sharing of natural resources only divided the
developing and developed states more.
On request of the developing countries, the whole issue was part of the agenda of COPUOS
in 1986, since a clear stand on this was nowhere to be found in practice yet142. Initially, the
draft of the Declaration on Space Benefits was one with big practical impact. There were
clear obligations related to the cooperation and the effective transfer of financial and
technological resources originating from industrialized states to less industrialized ones.
However, the developed countries did not agree with the extensive obligations and refused the
initial draft. Arguing that they already cooperated with different countries on several levels of
space development, an obligation for forced cooperation would be a breach of their
sovereignty143.
After finding common ground in the proposal of France and Germany, the negotiations began
in 1995 resulting in the final draft of the Declaration on Space Benefits. Central to the
document is the international cooperation between states. The industrialized states, more
specifically the space-faring ones, have the responsibility to promote the development of
space science towards developing states. This is not meant as a form of forced cooperation
but instead focuses on the existing relations between developed and developing states on
space development144. Next to this, the participation of cooperation depends on the states
themselves.
Looking at the initiative of the declaration and the result, the gap between both could not be
bigger. The developing nations wanted to have a clear interpretation of article I of the Outer
Space Treaty, with an obligation towards the developed states concerning exploration and use
of space. However, the result is an interpretation, which is seemingly more in the interests of
the developed states.
b. The Declaration on Space Benefits and Exploitation Rights The Declaration on Space Benefits is important on two levels. On the one hand it delivers an
authoritative interpretation of article I of the Outer Space Treaty, on the other hand, it sheds a
possible light on the content of the Common Heritage of Mankind principle in space law.
Comparing to the little support of the Moon Agreement, the Declaration is passed by the
141 L. VIIKARI, "Natural Resources on the Moon and Legal Regulation" in V. BADESCU (ed.), Moon: Prospective Energy and Material Resources, Berlin New York Springer, 2012, (519) 543. 142 Supra L. VIIKARI n.141, p544. 143 Supra L. VIIKARI n.142. 144 Supra F. TRONCHETTI n.62, p78.
36
General Assembly and thus serves as a guideline for all the states of the United Nations. It is
however, not legally binding as a treaty as much as it is a political instrument.
As mentioned above, the Outer Space Treaty does not elaborate on how to interpret that use
and exploration of outer space shall be carried out in the benefit and interests of all countries.
The Declaration on Space Benefits determines that this provision has to be seen in context of
international cooperation and promotion on the level of space technology. It is based on free
participation of states and holds no obligations concerning the sharing of obtained benefits.
However, the declaration raises its own questions. Again, the lack of definitions of the terms
‘benefit’ and ‘interests’ raises interpretation problems. There is an absence of any sharing of
benefits, which was an essential element for the developing states. As a result, it is clear that
developed states have protected their interests. The fact that states decide themselves how
promoting of international cooperation should be conducted, leaves all the freedom to them.
The Declaration on Space Benefits is also important regarding a possible interpretation of the
Common Heritage of Mankind principle. For the first time, commercial activities are placed
on the same level as state activities145. Whereas the goal was to have a clear sharing
mechanism of benefits, the result is a delineation of the context wherein the Common
Heritage of Mankind could be situated. It is clear that there is a free market approach towards
the principle, where developed states conduct their cooperation (and thus sharing of
knowledge) on a voluntarily basis. It is important to note that the principle is not mentioned in
the Outer Space Treaty and that the principle only has a role in the Moon Agreement.
However, if the principle would successfully be inserted in space law, the Declaration on
Space Benefits could have a great value in interpreting the principle.
c. Conclusion At first sight, the Declaration on Space Benefits may have little importance concerning
exploitation of extraterrestrial resources. However, whereas the main instrument for
exploitation rights in space still is the Outer Space Treaty, the Declaration on Space Benefits
provides an important interpretation on one of the basic principles. Within this interpretation,
it shows flexibility towards economical space activities. It provides freedom towards
industrialized states and their non-governmental entities interested in space exploration and
exploitation. It is however saddening that the instrument protects their interests on such a high
level. Consequently, the moral guideline of article I Outer Space Treaty keeps up appearances
as the power of space activities still lies with the industrialized states. The voluntary basis of
space participation is the main point which stands opposite of the intentions and hopes of the
145 Paragraph 4 Declaration on Space Benefits and supra L. VIIKARI n.141, p544.
37
developing countries. On the upside, states can be more focused on their own space
development and on investing in and conducting space activities.
2.2. Customary International Law Next to treaties and UN Declarations, another important source of law is Customary
International Law. It contains a strange phenomenon of law creation. It is a more dynamic
and thus more uncertain source of law than treaties146. Its genesis is found in article 38 of the
ICJ Statute: ‘international custom, as evidence of a general practice accepted as law’147. It is
generally accepted that Customary International Law is derived from two elements: State
practice on the one hand and opinio juris on the other hand148. State practice is the persistent
conduct originating from states. This has to be combined with the belief that persistent
conduct is the consequence of a legal obligation, which is the opinio juris149. In this thesis, it
will be researched if and which norms are Customary International Law and what effect this
has on exploitation rights in space.
It is generally believed that the most basic principles of the Outer Space Treaty are part of
Customary International Law and already existed before the treaty itself150. As a consequence,
not only State Parties are bound by these principles, all other nations are. The principles of the
freedom of use and exploration of space and the non-appropriation principle are examples of
crystallized customary law151. Although the general acceptance of Customary International
Law, it is admitted that there is a paradox: there is so little state practice to establish a clear-
cut case of Customary International Law152.
Concerning exploitation rights, it is important to look for any customary rules concerning the
sharing of benefits derived from extraterrestrial exploitation. Foremost, it is important to look
at the Moon Agreement and the Common Heritage of Mankind principle. The customary
status of the latter is discussed in the following chapter. As for the Moon Agreement, it is
little discussed that the treaty has any value of customary law concerning its provisions about
146 A. SOUCEK "Outer Space – A Legal Issue: International Law" in C. BRÜNNER and A. SOUCEK (eds.), Outer Space in Society, Politics and Law, New York, SpringerWienNewYork, 2011, (294) 296. 147 Article 38(1) (b) of the Statute of the International Court of Justice. 148 E. KADENS, E. YOUNG, "How Customary is Customary International Law", Wm. & Mary L. Rev. 2013, p888. 149 R. BAKER, "Customary International Law in the 21st Century: Old Challenges and New Debates", Eur. J. Int. Law 2010, p174; J. GOLDSMITH, E. POSNER, "A Theory of Customary International Law",p5, http://www.law.uchicago.edu/files/files/63.Goldsmith-Posner.pdf. 150 Supra V. POP n.93, p38. 151 Supra F. TRONCHETTI n.62, p28. 152 Supra R. LEE n.59, p103.
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the sharing of benefits153. Next to this, article I (1) of the Outer Space Treaty can be seen as
customary law, but the fact that ‘the use and exploration of space shall be carried out in the
benefit and interests of all countries’ has lost any value concerning forced sharing obligations
of benefits as a result of the interpretation by the Declaration on Space Benefits, makes it of
little importance.
Due to the lack of space activities by most countries and the character of Customary
International Law, the influence on exploitation rights remains a tricky aspect. For now
Customary International Law is seemingly not of big importance towards exploitation.
However, with the revival of interest in space and new space powers coming into the picture,
it could become a more important instrument in the future. For now the aspects of non-
appropriation, the freedoms of use and exploration of outer space and environmental
protection are the main points for exploitation rights in Customary International Law.
However the content and scope remains vague. Keeping in mind that article III Outer Space
Treaty refers to international law, other Customary International Law is also applicable. For
example environmental custom law could also be applied in space154. However, it is clear that
the need for a more detailed and specific legal regime is desirable.
2.3. Soft Law Soft law is a source of law peculiar to international law. Under soft law there exists a variety
of legal instruments such as declarations, recommendations, resolutions, guidelines. A
definition that is generally accepted is ‘all those social rules generated by State[s] or other
subjects of international law which are not legally binding but which are nevertheless of
special legal relevance.’155 Soft law has gained a lot of popularity in the last years in the
formation of space law. The last treaty dates back from 1979 and is perceived as a failure.
Since that time, there has been a standstill of law making in space law. This problem partly is
solved through soft law. Soft law seems a useful instrument to lay down certain principles and
guidelines for a unified space regulation. It thanks its popularity due to the non-binding aspect
and its flexibility. In a strict legal way it does not have any binding value. Politically and
morally, however, it provides guidelines for states. An illustration of soft law is the
Declaration on Space Benefits, which has been discussed above.
153 Supra V. POP n.93, p49; T. NELSON, "The Moon Agreement and Private Enterprise: Lessons from Investment Law", ILSA J. Int'l & Comp. L 2011, p402. 154 Supra A. SOUCEK n.146, p382. 155 Supra F. VON DER DUNK n.98, p25.
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Soft law has a great potential towards regulating exploitation rights in space. Basic principles
can be laid out and it does not have the strict character of a treaty. It can also be a useful step
towards the transformation to legally binding principles156 and to the creation of Customary
International Law157. Towards private entities, soft law also is a useful instrument. States will
only benefit from private entities acting in accordance with recommendations or resolutions
because of the political and moral value.158 No doubt that the future of space law is dependent
on the creation of more soft law. With the commercialization of space, the flexibility of soft
law seems an ideal instrument towards aligning the international space community in the
same direction on several levels.
2.4. Relation between International and National Law Next to space law on an international level, space law on a domestic level exists as well.
Several states have their own space policies and rules. The relation between international and
national is therefor important. The issue concerns the fact how they relate to each other and
whether they limit each other. In the next part, this will be shortly addressed.
The whole institution of domestic law is divided into several subdivisions such as public law,
private law and administration law, etc. Space law is not limited to one of those i.e. it has
aspects in every corner of domestic law. Obviously, the main part is situated in public and
administrative law.
Nations never renounced their sovereignty concerning space law. The nature of the subject
primarily implies an international approach. Where treaties are silent on certain topics, states
have the right to determine how to regulate those topics. Looking at the more advanced space
states, this has already happened159. Next to this, the activities of private companies can be
regulated in national space law. When space technology was in its infancy, only states or
international corporations were active in the field. Recently, private companies have started to
show interest in space and its resources. Commercialization and private actors formed a new
element in space law. National law concerning space activities thus became more important
and its importance will only grow.
156 F. TRONCHETTI, "Hot Issues and their handling: Soft Law" in C. BRÜNNER and A. SOUCEK (eds.), Outer Space in Society, Politics and Law, New York, SpringerWienNewYork, 2011, (619) 621. 157 Supra F. TRONCHETTI n.156, p624. 158 I. MARBOE, "National space law" in F. VON DER DUNK and F. TRONCHETTI (eds.), Handbook of Space Law, Cheltenham, Edward Elgar Publishing, 2015, (127) 131. 159 E.g. National Space Policy of the United States of America, https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf.
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National law offers great advantages towards the private space sector. Where a dispute
mechanism on an international level is absent or vague, this is not the case on a national level.
Moreover, national law also is directly applicable160. The problem, however, is when national
laws differs between states resulting in possible chaos concerning space activities. The best
scenario for all states consists of a unified space regime, with enough autonomy, but this is
complicated to reach with different interests on political and economical levels. International
law is a great instrument for this, but never seems to reach beyond the superficial surface of
regulating the basic elements. Initiatives from different countries and organizations have been
made to create awareness regarding space law i.e. they propose some basic laws that should
be elementary in space law161. Since this thesis is meant to look at the status of exploitation
rights in the present international regime, there will be no extensive look at national space
law. Its existence is however important.
Looking at international treaties, provisions often refer to state responsibility of space
activities conducted by public and private entities. Moreover, article IV of the Outer Space
Treaty formulates the obligation towards states for authorizing space activities and
supervising them. Thus there exists double responsibility for states. On the one hand they are
responsible for the actions of private entities, on the other hand they are obligated to supervise
those activities and their accordance to the Outer Space Treaty. This is a fortunate
consequence; the basic principles of the Outer Space Treaty are part of Customary
International Law and thus impose themselves towards every state and every private entity.
There is of course the problem of vague provisions, but even on the most controversial
elements, there is a tendency of agreement towards them. As mentioned before, soft law is
also a useful instrument in this issue. It may not have binding power towards states and
organizations but states would only benefit when soft law is followed by private enterprises
because of its political and moral value.
2.5. Exploitation Rights Today After researching the relevant legal instruments concerning exploitation rights, it can be
concluded that in the present time, there are two legal regimes for exploitation of
extraterrestrial resources on an international level i.e. the legal regime under the Outer Space
Treaty and the legal regime under the Moon Agreement. However, the result of those two
regimes may not be that different.
160 Supra I. MARBOE n.158, p128. 161 Supra I. MARBOE n.158, p129.
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2.5.1. The Regime under The Outer Space Treaty The Outer Space Treaty does not contain specific regulation concerning exploitation. It does
not even mention the word ‘exploitation’. However, it is generally accepted that the right to
exploit space and its celestial bodies is given through the freedom of use of outer space.
Secondly, the non-appropriation principle deflects property rights in space and on celestial
bodies. There is no mentioning of private appropriation, and the opinion on this is issue is
divided. Most legal scholars agree that article II of the Outer Space Treaty prohibits private
appropriation. However this is still contested by some162. The question whether appropriation
of natural resources is prohibited is not answered. Yet, the literature deems it possible. As a
consequence, article II of the Outer Space Treaty would thus only be applicable to outer space
and its celestial bodies and not to their natural resources. Regarding the relation of states and
private entities, the most important aspect is the responsibility of the states towards their
private entities. The obligation only strengthens this responsibility. Looking at a possible
sharing regime of benefits derived from space activities, the Declaration on Space Benefits
cleared the vagueness of article I of the Outer Space Treaty a little bit. Promoting space
development and international cooperation is needed and depends on the goodwill of
developed states towards developing sates. However, the degree of participation is
determined by the states themselves, this to the advantage of the developed countries.
Environmental protection is handled in the Outer Space Treaty, but not in the context of
possible exploitation. Therefor, it is difficult to determine what exactly the duties of
governmental and non-governmental entities could be.
It is clear that the Outer Space Treaty only sets the very primary outlines for a regime of
exploitation. Key elements such as environmental protection, property rights considering
resources, relations between developed and developing states are left out or only slightly
touched. Next to this, the conclusions made so far are only determined through interpretation.
The opposite view towards exploitation in space still exists in a minority view i.e. the
possibility of private appropriation. This shows that the regime under the Outer Space Treaty
is far from a clear-cut regime. Yet, for the states that did not ratify the Moon Agreement this
is the only international legal instrument concerning exploitation rights, how rigid as it may
be.
As stated previously, soft law and national law are ideal instruments to fill the gaps in
international law. One could however argue that the gap concerning exploitation rights is too
big a gap to solve through these instruments. Environmental protection, for example, asks for
a regulated international regime. Hopefully space law regulations will revive in the 162 Supra R. LEE n.88
42
international community in order to solve the incoherence and vagueness of this current
exploitation regime.
2.5.2. The Regime under the Moon Agreement For the State Parties of the Moon Agreement, the legal regime of exploitation of
extraterrestrial resources is regulated under that treaty. Mostly, the Moon Agreement
reaffirms the basic principles set out in the Outer Space Treaty and elaborates on some of
them. As discussed, private property rights regarding celestial bodies are here explicitly
deflected. The appropriation of natural resources however is allowed once exploited. No
certainty exists as to whether there is a moratorium on the exploitation of resources and until
a regime has been established, this will remain an issue. Another issue concerning the Moon
Agreement is the introduction of the Common Heritage of Mankind principle. The Moon and
its resources are considered to have that legal status. Whereas the concrete manifestation of
the principle finds its expression in the agreement, no clear view or interpretation is given
towards a practical implementation. It includes an aspect of equitable sharing of the benefits
derived from exploitation, but no clear explanation on how this can be done. On the aspect of
environmental protection, the principles laid down in the Outer Space Treaty are confirmed.
No concrete regulation is present.
The Moon Agreement has its value because it explicitly addresses the topic of exploitation.
However, it lacks clarity. Although it elaborates on some questions raised by the Outer Space
Treaty, it raises lots of questions itself. Where it is generally accepted that it implements no
moratorium, there could be, however, the presence of a de facto moratorium. This stems from
the introduction of the Common Heritage of Mankind principle. The vagueness of those
consequences makes it hard to define how exactly exploitation is regulated. Eventually, it has
the same problems as the Outer Space Treaty; no clarity, different interpretation toward key
provisions and addressing some issues too little.
Moreover, it has the problem of credibility. Looking at its current status, the Moon
Agreement does not have any support in the international community. Due to the little
support, any creation of Customary International Law of provisions of the agreement is very
unlikely. This makes it much harder to set out the regime it was ought to establish. It also
hints at the fact that the Common Heritage of Mankind principle is maybe not an appropriate
instrument when it concerns extraterrestrial exploitation. However, it is a treaty that entered
into force and which is legally binding for the State Parties.
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2.5.3 Conclusion After examining the two regimes that regulate the exploitation of natural resources, the result
of both can be seen as similar. Currently, no clear regime is present on how exploitation
should be conducted on celestial bodies. Too many questions are still raised without a definite
answer. Since space exploitation is on the verge of happening, this clearly is a problem. Soft
law and national law are not sufficient to secure certain aspects of space, certainly not
towards environmental protection and equal access and use. The issue of the gap of space
development between developed and developing states also asks for an international
regulation. Finding common ground between both interests and ideals may, however be a
never-ending task. Looking for a solution should happen on the level of international law for
the arguments given above.
In the following chapter, the principle of the Common Heritage of Mankind and its effects
will be investigated. An attempt will be made to answer the question whether this principle
could secure equality of states or whether the principle merely is an idea, only causing
vagueness and not providing practical solutions. The failure of the Moon Agreement will also
be investigated in light of the principle.
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45
Chapter Three: The Principle of The Common Heritage of Mankind The principle of the Common Heritage of Mankind is an important and a controversial
principle in international law. As mentioned before, no closed definition of the principle
exists. This is due to the possibility of different interpretations and to the fact that the
application can differ dependable of the area. Currently, it occurs in two legal treaties i.e. in
the Third United Nations Convention on the Law of the Sea (UNCLOS III) and in the Moon
Agreement.
The need for an analysis of this principle originates from the failure of the Moon Agreement
and its possible role in the future regulation of extraterrestrial exploitation on celestial bodies.
Article 11.1 of the Moon Agreement has been the subject of many disputes and many
discussions. It is thus important to understand what exactly the Common Heritage of Mankind
represents and to understand its manifestation in the context of space exploitation.
The Common Heritage of Mankind is often linked with three areas: the deep seabed, the
Moon and Antarctica. Those three areas are similar to one another in respect to their
environments. Each of them is unique, hard to reach and full of resources with great
economic potential. To conduct activities in these areas, high-end technology and much
money is needed. The deep seabed and its resources are generally accepted to be the Common
Heritage of Mankind. For the State Parties of the Moon Agreement, the Moon and its
resources are considered to be Common Heritage of Mankind. The little support of the Moon
Agreement on an international level, however, raises doubt as to whether it can really be seen
as such. Generally, Antarctica is not seen as the Common Heritage of Mankind. However,
some authors claim that the principle is applicable to the area163.
The analysis begins with a look at the legal roots of the principle and its introduction in the
international law community in general. Secondly, an analysis follows of the deep seabed,
Antarctica and the Moon. The role and evolution of the Common Heritage of Mankind in
these is addressed. Thirdly, after having a grasp on what the manifestations and
interpretations of the principle are, the characteristics are discussed and a general view of the
principle follows. Lastly, the status of the principle in the international law is analyzed. It may
seem counter-intuitive to discuss the manifestation of the principle followed by a general
view of it. However, the Common Heritage of Mankind is a complex and flexible principle
and thus it is appropriate to firstly discuss its practical use and evolution, and next an attempt
to provide a general view.
163 A. OUDE EFLERINK, D. ROTHWELL, The Law of the Sea an Polar Maritime Delimitation and Jurisdiction,The Hague New York, Martinus Nijhoff Publishers, 2001, p92.
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3.1. Legal Roots and Genesis of the Common Heritage of Mankind
3.1.1. The Res Communis Doctrine
The legal roots of the Common Heritage of Mankind principle can be found in the theory of
res communis. This theory was constructed in Roman Law. Res communis means ‘the
property of all’164. This is the opposite of res nullius, which means that certain areas belong to
nobody and people or states can subject it165. It was in his book Mare Librium that Grotius
argued that the high seas should be res communis166. As mentioned above, the Outer Space
Treaty also applied the res communis principle to outer space and added the principle of
province of mankind to it.
When an area is considered res communis, no state is able to make a sovereignty claim on it.
Thus, it cannot be appropriated by states167. As a consequence, the area is considered to be
free for all. Every person thus has the right to access the area and to exploit its resources. Res
communis, however, hold no obligations towards a ‘sharing and caring mechanism’. It is free
for all, but it it is every man for himself. Sustainable management in order to protect the
environment is also left out. The res communis doctrine does, however, contain a negative
obligation i.e. states or persons cannot hinder other states or persons from accessing the area
and conducting activities on it.
It is clear that the res comminus doctrine was a workable one in the past. But with the
increasing importance and potential of resources offered by several areas, the danger arose
that these areas and resources were for the exclusive use of the developed countries. With the
first-come, first-served approach implicit to res communis, states with the most developed
technology are able to exploit these areas, whereas developing countries are left behind. The
res communis doctrine has been further addressed in the Fisheries Jurisdiction Case. Here,
two elements are identified regarding areas under res communis: they may not be
appropriated and use of them belongs to all people equally 168. The latter element was
threatened on several areas. In order to secure the equality between all people concerning the
free exploitation and free access of those areas, a new principle was needed. Where the
164 K. BASLAR, The Concept of the Common Heritage of Mankind in International Law, The Hague, Kluwer Law International, 1998, p41. 165 K. MILUN, The Political Uncommons: The Cross-Cultural Logic of the Global Commons, Burlington Farnham, Ashgate Publishing, 2011, p57. 166 R. LEE, Law and Regulation of Commercial Mining of Minerals in Outer Space, Dordrecht New York, Springer, 2012, p231. 167 A. AUST, Handbook of International Law, Cambridge New York, Cambridge University Press, 2005, p40. 168 B. LARSCHAN, B. BRENNAN, "The Common Heritage of Mankind Principle in International Law", Colum. J. Transnat’l L. 1983, p315; Fisheries Jurisdiction (U.K. v. Ice.), 1974, I.C.J. 3, 2 February 1973.
47
Common Heritage of Mankind may not be an expansion, modification or new version of the
res communis doctrine169, it has its legal roots in the res communis doctrine.
3.1.2. The Need for a New Approach
In light of equality between states on the one hand and the richness of several areas on the
other hand, a new approach was needed. K. Baslar describes two parameters, which led to the
legal creation of the Common Heritage of Mankind principle: the technology parameter and
the scarcity parameter170.
As mentioned, res communis works with the first-come, first-served principle. In the past, it
was possible to establish a certain amount of equality between independent states. However,
with the growing independence of several states around the mid 1900s, new states had to
adapt to the rising growth of technological evolutions. These technological evolutions made it
easier to exploit and access areas such as the deep seabed, Antarctica and outer space. New
states however had not any resources at their disposal to adapt such new technology.
Consequently, the openness of the res communis doctrine restricted itself to only developed
states. Legally, there were no property rights following res communis, in practice however,
they clearly existed171. This is the so-called technology parameter.
The second parameter of scarcity has to be placed in the context of Roman law172. Resources
such as fish and wild animals were considered abundantly present. However, as the
population increased in an exponential manner and as existing technology resulted in easier
exploitation and easier access, resources were becoming scarce. As an illustration, minerals in
the deep seabed are of great potential to the economic world. High-end technology is required
to exploit them. Exploitation under a res communis regime would imply that fish or minerals
were for the exclusive use of developed countries and that the developing countries would not
have the opportunity to benefit from these scarce resources. Thus, it is clear that the
combination of the two parameters i.e. technology and scarcity demonstrates that the res
communis doctrine could not deliver equality in a 20th century context. Hence, the ‘natural’
birth of the Common Heritage of Mankind principle.
There are important differences between the res communis principle and the Common
Heritage of Mankind. The former inserts a negative obligation towards States. States cannot
appropriate a certain area but they have lots of freedoms with it. No restrictions are made
169 Supra K. BASLAR n.164, p39. 170 Supra K. BASLAR n.164, p43. 171 Supra K. BASLAR n.164, p44. 172 Supra K. BASLAR n.164, p45.
48
regarding exploitation and economic activities, even military exercises are allowed. Here of
course, states need to respect the status of the area in order for the principle to work173. The
Common Heritage of Mankind principle inserts, on its turn, a positive obligation. States need
to cooperate in order to manage activities in the area. Exploitation of the area is no longer a
decision to make by the state itself. Moreover, the principle includes an obligation regarding
the distribution of benefits made through exploitation. The area is also exclusively for
peaceful activities.
The evolution towards a new approach happened during the 1960s. The Common Heritage of
Mankind was introduced in the area of the high seas and in outer space almost
simultaneously174. Although it was mentioned during the discussions of the Outer Space
Committee, it never reached the final draft of the treaty. The term was literally used in the
speech of Ambassador Pardo in 1967 where he argued that the "[t]he seabed and the ocean
floor are a common heritage of mankind and should be used and exploited for peaceful
purposes and for the exclusive benefit of mankind as a whole. "175
The emerging of the Common Heritage of Mankind has to be placed within the principles of
the New International Economic Order. These principles were only introduced in the 1970s
by the United Nations, but the spirit they represent began already after World War II. The
huge wave of decolonization in the continents of Africa and Asia led to a considerable
amount of newly independent states. However, practice showed that there only was de jure
decolonization and not de facto decolonization176. Developing states still delivered natural
resources to developed states, which led to wealth for developed countries, leaving
developing states behind. As a response to the economical and financial dominance of
developed states, the developing states united in the United Nations as the group of 77. The
goal was to establish an international framework for a New International Economic Order, in
order to close the gap between developing and developed states through cooperation and
assistance177. This was reached in The Declaration on Establishment of a New International
173 Supra B. LARSCHAN, B. BRENNAN n.168, p 319. 174 R. WOLFRUM, "The Principle of The Common Heritage of Mankind", HJIL 1983, p312. 175 Pardo’s speech made before the General Assembly in 1967, http://www.un.org/depts/los/convention_agreements/texts/pardo_ga1967.pdf. 176P.N. AGARWALA, The New International Economic Order: An Overview, New York, Pergamon Press, 1983, pVIII. 177 M. WHITE, "The Common Heritage of Mankind: An Assessment", Case W. Res. J. Int’l L. 1982, p524.
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Economic Order of 1974. The Common Heritage of Mankind can be seen as a product of the
thinking with the mindset of the NIEO178.
The Common Heritage of Mankind made its introduction in several areas: the deep seabed,
the Moon and Antarctica. In order to understand the principle and its evolution it is necessary
to look at those areas and their legal framework. The Common Heritage of Mankind is
currently only implemented in the legal framework of the deep seabed and the Moon. It also
is often linked with Antarctica, however, not on the legal level. The next section investigates
those three areas, their exploitation regime and the role of the Common Heritage of Mankind
therein.
3.2. Manifestations and Evolution of the Common Heritage of Mankind
3.2.1. Common Heritage of Mankind and The Deep Seabed
3.2.1.1. Evolution
According to the Geneva Convention of 1958, the High Seas are seen as res communis179. No
explicit mention is made regarding exploitation of the seabed minerals, but it is accepted that
these also are res communis180. The deep seabed and its resources were thus open to all states.
This was criticized by developing states as a major inequality between states was created due
to the constant improving technology of the developed states. This resulted mostly in a
western economic exploitation181. Although the high seas were open to everybody in theory,
in practice they were only accessed by developed states. In other words, the equality principle
of the res communis doctrine182 did not work in practice, which made the doctrine unable to
guarantee economic equality. A new approach and perspective was needed for the deep
seabed.
When the Maltese Ambassador Pardo gave his influential speech in 1967 in front of the
General Assembly183, he called for action. He stated that the deep seabed and its resources
should be considered as the Common Heritage of Mankind, used only for peaceful purposes
and not subjected to national appropriation. The lack of clear international regulations
178 J. NOYES, "The Common Heritage of Mankind: Past, Present, And Future", Denv. J. Int’l L & Pol’y 2012, p459. 179 G. HARASZTI "Outer Space and Sovereignty" in G. HARASZTI (ed.), Questions of International Law: Volume 2, Sijthoff & Noordhoff International Publishers, Budapest, 1981, (49) 58. 180 R. GILLIS, Navigation Servitudes: Sources, Applications, Paradigms, Leiden Boston, Martinus Nijhoff Publishers, 2007, p152. 181 Supra J. NOYES n.178. 182 Fisheries Jurisdiction (U.K. v. Ice.), 1974, I.C.J. 3, 2 February 1973. 183 Supra n.175.
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concerning exploitation rights would create disturbances in the use of the deep seabed. Hence,
the international community had to step in184.
As a response to the speech of Ambassador Pardo, an ad-hoc special committee ‘on the
Peaceful Uses of the Seabed and Ocean Floor Beyond the Limits of National Jurisdiction’
was established185. Its goal was to study several possibilities concerning the pacific uses of the
High Seas and its ocean bed186. No agreement was reached due to different opinions held by
the developed and the developing countries regarding the possible role of the principle in
exploiting of the deep seabed. In order to keep the discussions going the committee was made
permanent in 1968 by the General Assembly.
In 1969, the Deep Seabed Mining Moratorium Resolution was adopted. The goal of this
resolution was to establish a moratorium on the exploiting of the deep seabed, until a general
consensus was reached regarding exploitation of the deep seabed. It was heavily contested by
most developed countries and in general considered to be non-binding, in contrast to the view
of the developing countries.187
On December 17, 1970, the Declaration of Principles was adopted by the General Assembly.
It stated that the deep seabed and its resources were the Common Heritage of Mankind.
Although the principle is explicitly mentioned, at the time of adoption, it was not yet
considered a legal concept as much as it was a moral and political guideline188. However, it
had important consequences. A base was formed for the further creation of legal norms. Also,
the first elements of the Common Heritage of Mankind principle were unveiled: no
appropriation was possible, an international regime had to be established in light of
exploitation, there had to be an equitable sharing mechanism of the benefits derived from
exploitation and activities conducted in the area would be carried out solely for peaceful
purposes and for the benefit of mankind189. But a unilateral interpretation was not present.
Questions arose regarding the exact composition of the international regime, the practical
sharing of benefits and the existence of a moratorium. Despite the fact that different
184 S. ODA. Fifty Years of The Law of The Sea, The Hague New York, Kluwer Law International, 2003, p479. 185 R. FRIEDHEIM, Negotiating The New Ocean Regime, Columbia SC, University of South Carolina Press, 1993, p27 186E. LASLO, J. KURTZMAN, Political and Institutional Issues of the New International Economic Order, New York, Pergamon, 1981, p34 187 J. WANG, Handbook on Ocean Politics & Law, New York, Greenwood Press, 1992, p244; F. TRONCHETTI, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies, Leiden, Martinus Nijhoff Publishers, 2009, p93. 188 E.D. BROWN, Sea-bed Energy and Minerals: Sea-bed Mining, The Hague New York, Martinus Nijhoff Publishers, 2001, p57. 189 S. GOROVE, "The Concept of ‘’Common Heritage of Mankind’’: A Political, Moral, or Legal Innovation? ", San Diego L. Rev. 1972, p392; The Declaration of Principles of 1970.
51
interpretations were held by developing and developed states regarding some of the vague
topics190, the declaration was accepted almost unanimously191.
The first steps towards a treaty regarding exploitation started in 1973. Negotiations were held
during the Third United Nations Conference on the Law of the Sea. Central were the
questions of an international regime for the seabed and the ocean floor beyond the limits of
national jurisdiction. The Kampala Declaration and the Declaration on the Establishment of A
New International Economic Order played an influential role in these discussions192. The
former declaration addressed the needs of landlocked and geographically disadvantaged
States. The latter declaration is the manifestation of the needs and demands of the developing
states towards closing the gap with the developed states. Next to those declarations, another
international event influenced the discussions of the deep seabed regime. The Arab oil
embargo of 1973 showed that developing countries could have a great influence when
united193. It also showed that developed states were much more depending on developing
countries than they believed. Therefor, their interest in the deep seabed, which was an
immense source of raw materials, only grew194.
The start of UNCLOS III was immediately accompanied by exhausting discussions. In its
Second Session, questions arose surrounding the system and conditions of exploitation and
exploration. Developing countries obviously favored a strong interpretation of the Common
Heritage of Mankind principle, whereas developed states were more cautious towards the
principle195. One of the big obstacles was the determination of the power of the so-called
Authority i.e. the international entity for managing the exploitation of the area. Developed
countries, especially the United States of America, were in favor of granting the Authority
merely formal powers as opposed to real decision power. The Group of 77, however, heavily
contested this idea.
During the Third Session of UNCLOS III, both sides showed more cooperation towards one
another. At the end of the third session, the Chairman of the three main committees
introduced an Informal Single Negotiating Text (ISNT)196. This text formed the basis of the
Fourth Session of UNCLOS III. It introduced the principles of sharing benefits derived from 190 F. TRONCHETTI, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies, Leiden, Martinus Nijhoff Publishers, 2009, p97. 191P. PAYOYO, Cries of the Sea: World Inequality, Sustainable Development and the Common Heritage of Humanity, The Hague Boston, Martinus Nijhoff Publishers, 1997, p298. 192 Supra F. TRONCHETTI n.190. p98. 193 Y. LI, Transfer of Technology for Deep Sea-bed Mining: The 1982 Law of The Sea Convention and Beyond, Dordrecht Boston, Martinus Nijhoff Publishers, 1994, p65. 194 Supra Y. LI n.193. 195 Supra F. TRONCHETTI n.190. p99. 196 Supra Y. LI n.193, p69.
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mining the deep seabed and sharing of technology and scientific knowledge regarding mining
activities of the deep seabed197. This was considered to be a step forward in the ongoing
discussions. However, industrialized states still considered the power provided to the
Authority too infringing. The ISNT was reformed at the end of the Fourth Session into a
Revised Single Negotiating Text (RSNT), which introduced a parallel system. Exploitation
would happen under supervision of the former called Authority, now called the International
Seabed Authority (ISA), and also under states and private companies in association with the
authority198. Although the developed countries found the system acceptable, the developing
countries rejected the RSNT text. The introduction of an economic sub organization called the
Enterprise was not sufficient for the Group of 77199. This was due to the fact that the content
was too vague and that no truly operational Enterprise was guaranteed. Clearly, the RSNT did
not deliver a clear understanding of the specifics of the system and the management of the
new entities. Due to opposing interests and different capabilities of developing and developed
countries, it was difficult to determine the content of those issues.
During the course of the Fifth Session, opposite views remained an issue. The dual system
was attacked in light of the Common Heritage of Mankind principle and a single system
where the power fully rested with the ISA was proposed. Assured access of the Area was one
of the central points on the agenda, but no real progress was made.
The Sixth Session used an Informal Composite Negotiating Text (ICNT) as a basis for the
discussions. Access of the Area by states and private companies was allowed under the
condition of transfer of technology to the ISA. However, a detailed regulation concerning the
sharing management was not addressed. The Seventh Session attempted to address more
details on the latter, yet no compromise was reached. With having a majority as developing
countries, the vague principles of the Declaration of Principles provided an opportunity for
the Group of 77 to assure a favorable interpretation to secure their goals in the final draft200.
The revision of the ICNT in the Eight Session did not bring comfort to the developed states.
The decision-making system of the ISA, the revenue sharing issue and the specifics of a
parallel system were still undecided on201.
197 Article 9 and article 11 SNT. 198 Supra Y. LI n.193, p70. 199 Supra E.D. BROWN n.188, p110. 200 Supra F. TRONCHETTI n.190, p103. 201 Supra Y. LI n.193, p34.
53
In 1980, during the Ninth Session of UNCLOS III, a Draft Convention on the Law of the Sea
was proposed202. The vagueness surrounding the issues of the Authority and the sharing of the
benefits and technology knowledge vanished. However, developed states were dissatisfied
with the text because of its indulging character towards the demands of the Group of 77.
This informal draft convention was proposed as the final draft during the Tenth Session of the
UNCLOS III. In Part XI of the convention, the Common Heritage of Mankind principle was
introduced along with its practical consequences. Sharing the benefits of exploitation would
happen through the International Seabed Authority and the Enterprise would mine resources
in the seabed under supervision of the ISA. Whereas developing countries already believed
they gave up a lot of their initial principles203, the industrialized states, specifically the United
States, still considered the content of Part XI as a huge infringement towards their economic
interests.
In an attempt to reconcile both sides and to get the developed states to accept Part XI, two
resolutions were added to the final convention. These focused on protecting the interests of
states who already invested in the mining of the seabed204. One of those regulations inserted
privileged treatment for pioneer investors205. However, for some developed states this was
still not sufficient.
When UNCLOS III opened for signature on December 10, 1982 the lack of support became
clear. The United States and the United Kingdom were not satisfied with the updated
convention and refused to sign it. The different interpretations that were already present at the
beginning of the discussions of UNCLOS III contributed to this. The Common Heritage of
Mankind was considered by the industrialized states as a principle providing free access for
all to the area and its resources. Developing states, however, saw a positive obligation of
equitable sharing of the profits made by exploitation206.
Looking back at the time between Pardo’s speech and the final draft of UNCLOS III, it is
clear that there was a constant political tension between both sides. Due to different political
ideas and interpretations, the Common Heritage of Mankind is considered such a complex
principle. It is no clear legal principle, which makes it easy to manipulate. Developing states
wanted a more extreme implementation of the principle. In contrast, industrialized states
202 A. KOERS, "The Third United Nations Conference on the Law of the Sea" in W. HEERE and M. BOS (eds.), International Law and its Sources, The Hague, T.M.C. Asser Institute, 1989, (23) 36. 203 Supra A. KOERS n.202. 204 Supra A. KOERS n.202. 205 Supra F. TRONCHETTI n.190, p107. 206 B. BOCZEK, International Law: A Dictionary, Lanham, Scarecrow Press Inc., 2005, p257.
54
feared this interpretation and constantly contested it. The result was a slow and laborious
process of treaty drafting. At the end of UNCLOS III, one could state that it was the Group of
77 that won the battle over Part XI. However, the lack of industrialized states as participating
parties to the convention was considered as a failure. Of the necessary sixty ratifications for
the convention, only forty-five were made by 1992.
Only twelve years later, Part XI became acceptable in the eyes of the developed states.
During those years, industrialized states established a regime for the mining of the deep
seabed in their national laws. This is known as the Reciprocating States Regime207. Due to the
millions already invested in mining resources, developed states wanted to protect their
investments before UNCLOS III and the consequences of Part XI and the Common Heritage
of Mankind would come into force208. For this Reciprocating Regime to function, each
national law needed to be compatible with one another. The regime differed on several points
in comparison with Part XI of UNCLOS III. The contested requirement of transfer of
technology was not inserted in any national law. Although industrialized states assured that
their regime was only temporary and that it would be aligned to UNCLOS III, the fear existed
that the regime would yet become permanent. The latter would not be beneficial the to
developing states, leaving them in a worse position than before209.
The Reciprocating Regime was a reaction from the developed states towards the intrusive
interpretation of the Common Heritage of Mankind principle. It was clear that in order to get
those states aboard UNCLOS III and Part XI, a change was required. The only way to make
the principle acceptable for developed states consisted of evolving the Common Heritage of
Mankind principle towards common ground between developing and developed states. The
question can be raised whether this was not already the case during the whole discussions of
UNCLOS III. However, in the political climate it was clear that the principle was not adjusted
to the economic needs of the industrialized states. In the Reciprocating Regime, the Common
Heritage of Mankind principle was present, but only in its form of the Declaration of 1970. It
merely served as moral and political guidelines and did not hold any obligations towards the
states. Finding common ground between the two sides was thus a necessity. Yet, it was not
clear whether a middle ground between the differing interpretations existed.
Two regimes for exploitation of the seabed were now at hand: one in practice, the
Reciprocating Regime held by the developed states, and one in theory, Part XI of UNCLOS
207 Supra F. TRONCHETTI n.190, p113. 208 R.R. CHURCHILL and A.V. LOWE, The Law of The Sea, Manchester, Manchester University Press, 1988, p197. 209 Supra R.R. CHURCHILL and A.V. LOWE n.208.
55
III by the developing states. The latter was an attempt to create an effective regulation on an
international level where all states were on one side. However, the attempt was not sufficient
and change was needed. The change came by amending Part XI of UNCLOS III with the
Implementation Agreement of 1994. A free market approach was introduced for the
management of the Area and its resources210, which instantly made the principle more flexible
and less rigid. The most important reasons for this were: economic interests and domestic
technology were better protected, the decision-making process was modified, commercial
principles led the development of the resources and the parallel system was reformed211.
Consequently, developed states ratified UNCLOS III. With its 167 ratifications and with 147
ratifications for Part XI of UNCLOS III, the Implementation Agreement of 1994 can be seen
as a success.
Part XI clearly was the main obstacle during the birth of UNCLOS III. Without the
Implementation Agreement of 1994, the Common Heritage of Mankind principle withheld
developed states of ratifying due to an aggressive interpretation towards them. In the course
of ten years, however, it became clear that the principle needed to change if a successful
international regime wanted to be established. With the Implementation Agreement of 1994,
the new mining regulation became acceptable for the majority of the industrialized states212.
The Common Heritage of Mankind principle was thus finally included in an accepted
international deep seabed-mining regime.
3.2.1.2. Exploitation of the Deep Seabed
In order to show the effects of the Common Heritage of Mankind principle on the deep
seabed regime, it is necessary to follow its evolution. Therefor, a short look will be given at
the regime (1) before the implementation agreement of 1994. This will be followed by a
short overview of the (2) current exploitation regime. In this way, it is possible to grasp how
the developed states eventually accepted the principle.
(1) Deep Seabed Regime before Implementation of Part XI
Part XI declares that The Area and its resources are the Common Heritage of Mankind.213 As
a consequence, no appropriation is possible of the area or its resources. Acquiring resources
can only happen by following the regulation laid down by UNCLOS III. The International
210 F. TRONCHETTI, "Legal aspects of space resource utilization" in F. VON DER DUNK, F. TRONCHETTI (eds.), Handbook of Space Law, Cheltenham, Edward Elgar Publishing ,2015, (769) 795. 211 M. LODGE, "The Deep Seabed" in D. ROTHWELL, A. OUDE ELFERINK, K. SCOTT. T. STEPHENS (eds.), The Oxford Handbook of the Law of the Sea, Oxford, Oxford University Press, 2015, (226) 245. 212 Initially the United States of America as well, but the country did not support it in the end. 213 Article 136 of Part XI of UNCLOS.
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Seabed Authority has the power to license mining operations. Through the entity of the
Enterprise, it can also mine the deep seabed on its own behalf. In case a state or a private
company applies for a mining operation, two areas need to be identified. Both areas need to
be of equal value through estimation. On one of the areas, the applicant can operate. The
other area is reserved for either the Enterprise itself or for a developing country in association
with The Enterprise. This is known as the parallel system.
The council is the decision-making body of the ISA. Only thirty-six member states are
represented in this body. The composition of the Council is determined in article 161
UNCLOS III. A one-state one-vote system is used as mechanism. As a result, developing
countries would always have a majority on the council214.
The Enterprise, which forms the business arm of the ISA, would be active on the market for
mining the deep seabed. The profits derived from exploitation would serve two goals. On the
one hand, the benefits would go into the budget of the ISA and on the other hand, another part
would go to the international community, with the focus on developing countries.
Article 144 holds the obligation of transfer of technology. This obviously focuses on the
relation between developed states and developing states. The obligation is not only present
when effectively exploiting the deep seabed. In that case, there is a compulsory transfer of
technology. But even when there is no intention of mining, an obligation can be present for
transferring technology and knowledge215.
For a certain period of time, a strict limitation on production of minerals exists. This period is
called the interim-period216. The production levels of some metals may not exceed the
allowed level for nickel217. Above that, private companies wanting to perform exploitation
activities in the area are obligated to pay four charges i.e. an application processing fee, an
annual fee, an annual production charge and a share of the proceeds from the exploitation
itself218.
These are the most important practical manifestations of the Common Heritage of Mankind
principle imbedded in the Deep Seabed Regulation. Of course, lots of objections was made by
the developed states. However, with the Implementation Agreement of 1994, UNCLOS III
was turned into a success on an international participation level.
214 Supra R. LEE n.166, p247. 215 Supra R. LEE n.166, p250. 216 Supra Y. LI n.193, p83. 217 Article 151 Part XI UNCLOS before the Implementation Agreement of 1994. 218 Supra R. LEE n.166, p251.
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(2) Current Exploitation Regime
After the Implementation Agreement of 1994, the legal status of the deep seabed has not
changed. The Area and its resources are still Common Heritage of Mankind, thus
appropriation of the latter is only possible through the regulation laid down in UNCLOS III.
The scope of the Common Heritage of Mankind principle is limited in article 137. Living
resources are excluded and it only applies on resources in place. Next to this, the Area is open
for all countries performing peaceful activities. Furthermore, the ISA is obligated to develop a
mechanism to share the benefits of exploitation in an equitable and non-discriminatory
fashion. 219
The one-state one-vote mechanism in the decision-process is abandoned. Decisions are made
with consensus or with a two-third majority. The purpose of the latter consists of an
alternative way in case decision-making with consensus fails220. Following this mechanism
the industrialized states have secured a veto whereas the council, when voting, is divided into
four chambers. Each chamber represents several interests group. However, two of those four
chambers are controlled by industrialized states and thus securing a veto221.
The parallel system where The Enterprise played an important role in favor of the developing
countries has been reformed with the Implementation Agreement. Now, The Enterprise is
considered an autonomous entity on the same level as commercial ventures. Also, the same
rules and regulations apply to it. It is controlled by fifteen state members, which are elected
by the General Assembly. Before becoming fully independent, the Enterprise has to operate
in joint ventures when exploiting the deep seabed and the question of mining has to be laid
down before the Council.
The obligation of transfer of technology is heavily reduced. Developing states can access
technology on the open market or through the use of joint ventures. If they are unable to
obtain the technology, cooperation is needed from the developed states. Encouraging this
international cooperation is also one of the tasks of the ISA and the Enterprise. The interim-
period is abandoned and several financial obligations are reduced: developed countries are no
longer obligated to fund the Enterprise, the application fee is reduced and the annual
production charges are abandoned.
219 Supra M. LODGE n.211, p230. 220 E. EGEDE, Africa and The Deep Seabed Regime: Politics and International Law of The Common Heritage of Mankind, Berlin Heidelberg New York, Springer, 2011, p149. 221 Supra R. LEE n.166, p254.
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3.2.1.3. Conclusion
It is clear that at the origin of UNCLOS III, specifically concerning Part XI, an extensive
ideological discussion lies. It was clear for all involved states that there was a need for a
different approach than the res communis doctrine. However, developed states protecting
their own economic interests, have constantly rejected any obligation towards developing
states. After a period of politically determining the precise content of the Common Heritage
of Mankind, progress was finally made. UNCLOS III has been ratified by a major part of
industrialized states, the United States being the remarkable absent one. Today UNCLOS III
has 167 ratifications and Part XI of UNCLOS III has 147 ratifications. Both can be seen as a
true success.
The question arises as to whether the goals of the New International Economic Order have
been reached with the current manifestation of the Common Heritage of Mankind principle in
UNCLOS III. Developed states have been manipulating the principle in order to protect their
own interests. The issue whether developing states really had a choice with respect to the
demands of the developed states remains unsolved. Whatever the righteous interpretation of
the principle, two questions have to be asked. Firstly: is it possible to secure equitable sharing
of benefits from global commons on an international level? Secondly: is a political instrument
like the Common Heritage of Mankind the only way to secure this? If both questions are
answered in a positive fashion, the outcome of the deep seabed regime may not be the
righteous one, but the only possible one in the political climate for international regulation
and cooperation.
3.2.2. The Common Heritage of Mankind and Antarctica
3.2.2.1. Evolution
At first glance, The Common Heritage of Mankind and Antarctica may not be a logical
element to discuss due to several facts. It is generally believed that the principle does not
apply on the area and no mention is made of the principle in the Antarctic Treaty. However,
in literature, several authors claim that the principle should be applicable222. It is also clear
that part of the spirit of the principle is present in the Antarctic Treaty. The treaty declares
that '‘it is in the interest of all mankind that Antarctica shall continue forever to be used
exclusively for peaceful purposes and shall not become the scene or object of international
discord.’223 In this sentence, which belongs to the preamble of the treaty, part of the Common
222A. OUDE EFLERINK, D. ROTHWELL, The Law of the Sea an Polar Maritime Delimitation and Jurisdiction,The Hague New York, Martinus Nijhoff Publishers, 2001, p92. 223 The Antarctic Treaty Preambule
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Heritage of Mankind is present224. This is also clear in the recommendation XI-1 of 1981. It
declares: ‘The Consultative Parties, in dealing with the question of mineral resources in
Antarctica, should not prejudice the interests of all mankind in Antarctica’ and ‘…in
promoting freedom of scientific research in Antarctica, to the benefit of all mankind225.
The difficulty lies in the determination of the legal status of Antarctica. No real consensus
exists in literature as to whether Antarctica is res nullius, res communis or Common Heritage
of Mankind. Territorial claims made on the area of Antarctica make the issue even more
difficult. These claims are contested by some nations, but the Antarctic Treaty protects and
thus acknowledges those claims. Where res nullius allows territorial claims and res communis
does not, one could argue that Antarctica falls under the res nullius doctrine. However, it
seems that the international community generally agrees to attribute several characteristics of
a res communis to Antarctica. Thus, looking at the Treaty, the most applicable doctrine seems
to be the res communis. This, however, is not fully correct whereas the treaty protects
territorial claims and there is no universal access to the area226.
Clearly, Antarctica can legally not be linked to one of the res doctrines. The treaty is a
political instrument, which is set out to avoid individual ownership and use227. The main
purpose is to allow activities, which are of no danger to the environment of the area. The
claims made by several nations, are frozen. This means that they still apply, but are put on
hold. To state that the Common Heritage of Mankind applies, would be incorrect in the
present climate. However, it cannot be denied that the environment and characteristic of
Antarctica is similar to the deep seabed and the Moon. There is an abundance of minerals
with great economic potential, but they are extremely hard to reach because of hostile weather
conditions. The biggest difference between the areas exists on a political level. The Moon and
the deep seabed have always been considered as global commons in the international
community. This is not the case regarding Antarctica as a consequence of the territorial
claims made by several nations between 1908 and 1943228229.
The Antarctic Treaty came into force in 1959. A clear legal status was desirable because of
the much-contested territorial claims. Legal disputes arose with regard to these claims: both in
224 A. KISS, "Conserving the Common Heritage of Mankind", Rev. Jur. U.P.R. 1990, p774. 225 Preambule, Recommendation ATCM XI-1, http://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=133. 226 S. CHOPRA, "Antarctica as a Commons Regime: A Conceptual Framework for Cooperation and Coexistence" in C. JOYNER, S. CHOPRA (eds.), The Antarctic Legal Regime, Dordrecht Boston, Martinus Nijhoff Publishers, 1988, (163) 164. 227 Supra S. CHOPRA n.226, p169. 228 Supra M. WHITE n.177, p511. 229 Supra F. TRONCHETTI n.190, p133.
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1947 and 1959, The United Kingdom wanted to settle an overlapping claim with Chile and
Argentina in front of the International Court, yet both countries refused. In 1956 the topic was
put on the agenda of the General Assembly with the purpose of getting an international
agreement regarding the problem. However, this attempt failed. The need for an international
regulation became apparent during the International Geophysical Year in 1957. Scientific
research programs organized by different States showed great potential for research on
Antarctica. In order to help these programs succeed, an agreement was made to seize the
political activities on the area for one and a half year. After the success of this temporary
solution, an initiative was taken in May 1985 to draft a treaty for a more permanent solution.
Twelve states joined the conversation and an agreement was reached in 1959.
The treaty had influence on the drafting of the Outer Space Treaty because of its cleverness.
Central to the treaty are peaceful cooperation and peaceful activities. There is also a strong
cooperation in the freedom of investigation between the states. Sharing information and
results of scientific research is described in article III. Article VII regulates the issue of
inspection and information between the contracting parties in light of scientific research. The
most important issue in the treaty, however, is the freeze on territorial claims. Article IV
consists of an extension of the temporary solution applied during the International
Geophysical Year. There is no renunciation of the legal claims made, but they are put on
hold. Also, no new claims can be made. Ceasing the political activity on Antarctica has meant
a huge opportunity for scientific research on Antarctica on an international level230.
Activities on Antarctica are discussed and governed during the Antarctic Treaty Consultative
Meeting (ATCM), which takes place every year. A party to the treaty can have one of two
possible statuses231. There is the status of Consultative parties and that of Non-Consultative
parties. The latter does not have any kind of voting power during the ATCM. When a State
joins the treaty through accession, it can participate in the ATCM on the condition that it
shows ‘its interest in Antarctica by conducting substantial scientific research activity there,
such as the establishment of a scientific station or the dispatch of a scientific expedition232’.
Only then can a contracting party gain the status of a Consultative Party and receives voting
power during the ATCM. Today there are twenty-nine Consultative parties and twenty-three
Non-Consultative Parties, making the total parties to the Antarctic Treaty fifty-two states233.
230 Supra F. TRONCHETTI n.190, p138. 231 Article IX.2 of the Antarctic Treaty. 232 Supra n.232. 233 Secretariat of the Antarctic Treaty, http://www.ats.aq/devAS/ats_parties.aspx?lang=e.
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The ATCM plays an important role in the development of the Antarctic Treaty. Where the
treaty initially did not focus much on environmental protection, the ATCM has placed the
issue on the agenda several times234. It also played a role in developing conventions in
addition to the treaty. Currently, there are four conventions handling environment,
commercial sealing, protection of resources and exploitation.
3.2.2.2. Exploitation Rights and Antarctica
The Antarctic Treaty does not have any provisions that deal with the exploitation of the area
and its resources. One possible reason for the absence of such provisions is most likely to the
fact that there was simply no need for them yet. Exploration was only realized and
exploitation technology was still far away. The hostile environment made research, let alone
exploitation on a commercial base very difficult. Due to increased interest in the possible
resources of Antarctica, technology was getting developed and exploitation seemed feasible
in the future.
The issue was addressed in 1988 with the Convention for the Regulation of Antarctic Mineral
Recourse Activities (CRAMRA). Discussion concerning exploitation rights already
commenced in the Seventh Consultative Party meeting in 1972235. Interest for the resources
increased with the possibilities offered by new technologies. Concrete commercial
exploitation of Antarctica became a reality and the Consultative parties determined that
exploitation had to be regulated in order to provide safe protection of the environment. An
international regulation seemed the best solution and the Consultative parties took the
responsibility for the creation of a regulation. During the following meetings, the parties
discussed possible alternatives for creating an exploitation regime. In order to ensure a safe
and effective system, a moratorium was placed for the commercial use of Antarctica and its
resources236.
Formal negotiations began in the Special Meetings, which were organized starting in 1982.
The main principles were written down in Recommendation XI-1. The focus would still be on
the protection of Antarctica’s environment. The original treaty would thus be respected;
234 C. BASTMEIJER, The Antarctic Environmental Protocol and its Domestic Legal Implementation, The Hague London, Kluwer Law International, 2003, p9. 235 Supra F. TRONCHETTI n.190, p141. 236D. GROTTA, S. GROTTA, "Antarctica: Whose Continent is it Anyway? ", Popular Science January 1992, p91
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especially article IV concerning the territorial claims and the interests of all mankind, which
would not be prejudiced237.
During the first meeting a proposal by the chairman was made: The Beeby proposal238. It
became the basis for further negotiations. The proposal stated that every party of the Treaty
could exploit the area and its resources. Several stages of exploitation were defined. The first
stage started with the prospecting and identification of the areas and the minerals. Further
stages entailed a pre-application stage and a post-application stage. This would all happen
under the supervision of an established Antarctic Mineral Resources Commission. Protection
of the environment would be the guideline in the decision-making process.
Up until now, the states involved in the treaty and in the discussions were developed states. In
1982, however, developing states started to show their interest in Antarctica and its resources.
They requested to consider a sharing mechanism of the benefits originated from mineral
activities analogous to the deep seabed. The developed states did not react to this request239.
Obviously, this caused tensions between industrialized states and developing states. As a
consequence, the question was brought before the United Nations. A request was made when
addressing the General Assembly to join the conversation of Antarctica. Starting then,
Antarctica became a hot topic in the United Nations. Its status was heavily discussed, the
present treaty was reviewed, changes were proposed and the Common Heritage of Mankind
was mentioned as a possible instrument. Eventually, all of these efforts were however
rejected by the Consultative parties.
In 1985, progression was made towards a final regulation during a Special Meeting in Rio de
Janeiro. After three years of intense debating concerning several issues, a final draft was
made. In 1988, the CRAMRA was eventually adopted and would enter into force after
ratification by all the Consultative parties. This, however, never happened. Australia and
France blocked the convention by refusing to ratify it. In their opinion, exploitation of the
area and its resources would be harmful to the unique environment.
3.2.2.3. Conclusion
Today exploitation of Antarctica and its resources are a no-go. Although a close call,
regulation was never realized. Yet, the CRAMRA is a useful instrument. It shows a different
approach towards exploitation rights than Part XI of UNCLOS III. The biggest difference is
237 A. DAVIS, "Protecting Antarctica: Will A Minerals Agreement Guard The Door Or Open The Door To Commercial Exploitation? ", Geo. Wash. J. Int’l L. & Econ. 1999, p744. 238 Supra F. TRONCHETTI n.190, p144. 239 Supra F. TRONCHETTI n.190, p146.
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the absence of the Common Heritage of Mankind principle. This can raise questions towards
the degree of fairness of the CRAMRA. Antarctica is mostly seen as a global common and
thus not destined for the exclusive use of developed states. If the CRAMRA had entered into
force, developing states would have little role in it due to their lack of technology. In practice,
this would make Antarctica a resource only available for developed states.
Approaching it from another angle, the CRAMRA could be of inspiration for a regulation on
the Moon. Its focus on the protection of the environment clearly is of great use for celestial
bodies as well. It finds a desired balance between the exploitation of a unique environment
that has a lot to offer on the one hand and the protection of it on the other. At last, the
regulations surrounding Antarctica also illustrate the possibility that property rights can
coexist with a global common and international cooperation. Perhaps the exclusion of
property rights is an outdated idea when it concerns a principle such as the Common Heritage
of Mankind.
3.2.3. The Common Heritage of Mankind and The Moon
3.2.3.1. Evolution
The first use of the term Common Heritage of Mankind can be addressed to Ambassador
Pardo in the context of the high seas and the deep seabed. One could, however, argue that the
concept was already used in the context of Outer Space earlier in 1967240. During the
deliberations of COPUOS that year, Ambassador Cocca mentioned the creation of a Ius
Humanitatis (Common Law of Humanity) by the international community. The subject of this
ius would be mankind and in combination with the global commons, a res humanitatus is
created. The idea of the Common Heritage of Mankind is clearly embodied in this idea.
Eventually however, the principle never made it into the final draft of the Outer Space Treaty.
Only the term province of mankind was implemented, but this is by no means the same as the
Common Heritage of Mankind principle.
The need for a regime on the Moon was already clear in 1969. Several proposals were made
to the Legal Sub-Committee concerning human activities on the Moon and celestial bodies.
States anticipated that humans would land on the Moon within a short time, as this was prior
to the Moon landing. France, Argentina and Poland were the countries that actively asked for
a regime241. In 1970 it was Argentina that started the conversation by proposing a ‘Draft
Agreement on the Principles Governing Activities in the Use of the Natural Resources of the
Moon and other Celestial Bodies.’ In this document, the Common Heritage of Mankind
240 Supra R. WOLFRUM n.174, p312. 241 C. CHRISTOL, "The 1979 Moon Agreement: Where is it Today?", J. Space L., 1999, p6.
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principle made its introduction concerning the Moon. Next to the Argentinian proposal, the
Soviet Union also proposed a draft concerning activities on the Moon. Herein, however, no
mentioning was made of the Common Heritage of Mankind principle.
During the following years, the two drafts were discussed in COPUOS. Most of the members
of COPUOS were proponents of implementing the Common Heritage of Mankind principle in
a future Moon Treaty242. However, not every one supported this. The vagueness and specific
content of such a principle seemed a burden for some countries. Yet, it did not stop the
support for the principle. Unlike the majority of states, the Soviet Union favored the term
province of mankind instead of Common Heritage of Mankind. As long as exploitation was
not feasible, the principle did not have any legal meaning.
The following years, the draft of a final regulation was halted. Some states wished to wait for
the establishment of a regulation until exploitation of extraterrestrial resources would be
feasible243. The absence of a common understanding of the Common Heritage of Mankind
also slowed down the process.
In 1978, the silence surrounding exploitation ended through a drafting initiative of Austria in
COPUOS244. The willingness to set up a legal framework returned245. The Common Heritage
of Mankind was introduced, but any specific consequences and concrete mechanisms were
left out. This probably explained the success of Austria’s initiative. Here, the vagueness of the
concept seemed a blessing. The proposed draft was made and became the basis for the final
draft of the Moon Agreement in 1979. In the treaty, the Moon and its resources were
considered Common Heritage of Mankind; however, any concrete regulation would be only
made when exploitation became a real possibility. Finally, the Moon Treaty was opened for
signature on December 14, 1979.
3.2.3.2. Failure of the Moon Agreement Exploitation rights under the Moon Agreement have already been addressed in Chapter Two
of this thesis. In this part, a closer look to the failure of the Moon Treaty follows.
Article 11 of the Moon Treaty:
‘1. The Moon and its natural resources are the common heritage of mankind, which finds its
expression in the provisions of this Agreement, in particular in paragraph 5 of this article. 242 Supra C. CHRISTOL n.241, p10. 243 Supra F. TRONCHETTI n.190, p101. 244 Supra C. CHRISTOL n.241, p14. 245 Supra F. TRONCHETTI n.190, p103.
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2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of
use or occupation, or by any other means.
3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural
resources in place, shall become property of any State, international intergovernmental or
non-governmental organization, national organization or non- governmental entity or of any
natural person. The placement of personnel, space vehicles, equipment, facilities, stations and
installations on or below the surface of the Moon, including structures connected with its
surface or subsurface, shall not create a right of ownership over the surface or the subsurface
of the Moon or any areas thereof. The foregoing provisions are without prejudice to the
international regime referred to in paragraph 5 of this article.
4. States Parties have the right to exploration and use of the Moon without discrimination of
any kind, on the basis of equality and in accordance with international law and the terms of
this Agreement.
5. States Parties to this Agreement hereby undertake to establish an international regime,
including appropriate procedures, to govern the exploitation of the natural resources of the
Moon as such exploitation is about to become feasible. This provision shall be implemented
in accordance with article 18 of this Agreement.
6. In order to facilitate the establishment of the international regime referred to in paragraph
5 of this article, States Parties shall inform the Secretary-General of the United Nations as
well as the public and the international scientific community, to the greatest extent feasible
and practicable, of any natural resources they may discover on the Moon.
7. The main purposes of the international regime to be established shall include:
1. (a) The orderly and safe development of the natural resources of the Moon;
2. (b) The rational management of those resources;
3. (c) The expansion of opportunities in the use of those resources;
4. (d) An equitable sharing by all States Parties in the benefits derived from
those resources, whereby the interests and needs of the developing countries, as well as the
efforts of those countries which have contributed either directly or indirectly to the
exploration of the Moon, shall be given special consideration.
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8. All the activities with respect to the natural resources of the Moon shall be carried out in a
manner compatible with the purposes specified in paragraph 7 of this article and the
provisions of article 6, paragraph 2, of this Agreement. ‘246
Article 11 opens with the declaration that the Moon and its resources are the Common
Heritage of Mankind. Important to note is that the principle finds its expression only in the
provisions of the Moon Agreement itself. As a consequence, the manifestation of the
Common Heritage of Mankind in the exploitation regime of the deep seabed is thus not
necessarily the same. Paragraph 5 inserts the obligation of the State Parties to establish an
international regime for the governing of extraterrestrial exploitation. This obligation,
however, is put off until exploitation would become feasible. Paragraph 5 also refers to article
18, which describes the revision of the Moon Agreement after it has been in force for ten
years. Then, also a look at the realization of the Common Heritage of Mankind would be
considered. This revision, however, never happened247.
Paragraph 2 and 3 discuss the appropriation on a national and private level. Paragraph 2
clearly is in spirit a copy of article II of the Outer Space Treaty. Paragraph 3 mentions private
appropriation, which is left out in the Outer Space Treaty. More importantly, resources that
are not in place are subjected to possible appropriation. This however needs to happen in
accordance with paragraph 5 of article 11, which refers to the international regime. Paragraph
4 mentions the freedoms of use and exploration on a non-discriminatory base.
Paragraph 7 elaborates in more detail on the precise content and goals of the international
regime. The most important one is mentioned in point 4 (d): The equitable sharing of the
benefits derived from exploitation with the focus on the developing countries.
As mentioned before, the Moon Agreement is generally seen as a failure. The lack of a
sufficient number of ratifications makes the treaty a non-credible international instrument.
Already during negotiations, the principle caused a lot of discussion. Content, realization and
practical meaning were never clear. Paradoxically, the vagueness eventually was responsible
for the realization of the agreement. Upon the opening of the signatures, most states backed
out.
However, the problem with an instrument like the Common Heritage of Mankind is that it is
an extremely political one. Although in 1972 the United States applauded the initiative to
declare the Moon and its resources as the Common Heritage of Mankind, six years later, the
246 Article 11 of the Moon Agreement 247 M. DAVIS, R. LEE, "Twenty Years After The Moon Agreement and its Legal Controversies", AILJ 1999, p23.
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American Government saw the principle as detrimental to its interests248. Developing states in
contrast were pushing for a ‘common property’ approach regarding the Moon and its
resources through article 11. Most developed states, however, considered this as contradicting
towards their free market based economies.
The presence of the terms ‘equitable’ and ‘benefits’ made the different interpretations even
more divergent. The question arose as to whether involvement of states was needed in order
to get benefits, compared to a view where every state is equal and thus no involvement in
exploration and exploitation is necessary. Moreover, the nature of the benefits is open for
discussion i.e. are these profits derived from extraterrestrial exploitation or are the used
technology and knowledge also benefits that need to be shared. These questions are important
to consider when analyzing the refusal of the treaty by most developed states.
Another problem of article 11 is the uncertainty of a moratorium on the Moon. As discussed
above, general legal literature convincingly deflects any possible moratorium on the Moon.
However, the belief of a moratorium is mostly based on paragraph 5 of article 11. The
Common Heritage of Mankind implicitly puts a moratorium on the Moon until an
international regime is established249. During negotiations of the Moon Agreement, a possible
moratorium was literally deflected250. This, however, did not stop states from believe there
could be a possible moratorium as argued in the previous chapter251.
Moreover, if developed states would join the Moon Agreement, they would have the
obligation of setting up an international regime for exploitation. This would be difficult to
reconcile with private companies, which are driven by the free market principles.
Reallocating benefits made by few companies would make investors reluctant to establish
businesses in outer space252.
Looking at the lack of ratifications of the Moon Agreement, there is not only an absence of
developed countries. Developing countries also stayed away from ratifying the Moon
Agreement, in contrast of UNCLOS III. If a majority of developing states would ratify the
Moon Agreement, it could weigh more on the international community and would possibly
achieve its aimed goal i.e. an international legal instrument for the regulation of the
exploitation of celestial bodies and their resources. 248 F. TRONCHETTI, "The Moon Agreement in the 21st Century: Addressing its potential role in the era of commercial exploitation of the natural resources of the moon and other celestial bodies’", J. Space L. 2010, p509. 249 D. MARKO, "A Kinder, Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and a Proposed Alternative", J. Nat. Resources & Envtl. L. 1992-93, p313. 250 Supra D. MARKO n.249, p313. 251 N. GRIFFIN, "Americans and The Moon Treaty", J. Air L. & Com. 1981, p755. 252 Supra D. MARKO n.249, p316.
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Developing countries and the New International Economic Order are trying to achieve equity
in the international community. One attempt was the creation of the Common Heritage of
Mankind principle. This would help to create a system of fairness253. The goal is to achieve
‘an international and political structure in which all countries are both de jure and de facto
equally sovereign powers sharing mankind’s resources on an equitable, as-needed
basis.’254The principle is already applicable in two areas with great resources: The deep
seabed and the Moon. The practical manifestation of the latter however shows little promise
to achieve such equity. The fact that a moratorium has been explicitly deflected in the
negations of the Agreement is a disadvantage for developing states. Moreover, developed
states have been absent on the ratification of the instrument, which shows little intention of
executing the Common Heritage of Mankind principle. Also, uncertainty concerning the
creation of an international regime exists. One reinforcing element being the absence of the
aimed revision ten years after the Moon Agreement went into force.
All of this confirms the idea for developing states that eventually, a first-come, first-served
system will apply. Furthermore, several inconsistencies in the Moon Agreement itself do not
provide hope for the equitable views of the developing countries. Article 6(2) allows for the
extraction of mineral resources for scientific investigation. The term scientific investigation,
however, is not defined. The fact that resources not in place are open for private appropriation
does not stroke with developing countries’ view on how resources of mankind should be
shared. Moreover, national appropriation seems to be allowed de facto due to the allowed
activities of establishment of commercial infrastructures and placing personnel, machinery
and bases on the Moon. In theory this can perfectly be separated from property rights,
however, in practice this is not that straightforward.
Another argument for the rejection by developing states consists of the issue of neo-
colonialism. Due to the several possible interpretations of the Moon Agreement, states believe
that neo-colonialism on the Moon will happen. The Moon Agreement does not offer sufficient
certainties to prevent it. The establishment of a possible international regime can illustrate
this. Developed states would not agree with a decision-making body where each state has one
vote, giving a majority to developing countries. Instead, similar as with the deep seabed,
developed states would secure a majority and developing states would have to comply255. This
seemed to be the inherent vice of the entire Common Heritage of Mankind principle.
Eventually developed states manipulate the entire content of the principle and developing
states are forced to join.
253 Supra D. MARKO n.249, p320. 254 Supra D. MARKO n.249, p320. 255 Supra D. MARKO n.249, p325.
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3.2.3.3. Conclusion Starting from its negotiations until its finalization, the Moon Agreement was controlled by the
Common Heritage of Mankind principle. Its vagueness was as much a blessing as a burden.
The finalization of a draft was only possible due to the undefined content of article 11.
However, the years prior and after finalization of the Moon Agreement showed that the
Common Heritage of Mankind and its different interpretations were more problematic than
first thought.
Although common ground was found in the context of the deep seabed, no rush seemed
present to seek common ground on the issue of extraterrestrial exploitation. As the argument
of ‘science-fiction’ would have been valid ten years ago, in this day and age it is not. While
still years away, scientific triumphs like ESA’s Rosetta mission demonstrate that it has
become ‘science non-fiction’.
The constant ideological battle between developed and developing states is clearly an obstacle
not easily to overcome. Private companies shiver at the idea of sharing their benefits out of
fear of creating a free rider effect for developing countries. Therefor, they try to reassure their
national companies and protect them by standing with them and thus deflecting the Common
Heritage of Mankind. Developing states, however, urge for equity and fairness in an
international regime. For them, the Moon clearly is a common good, belonging to all of
mankind. All of this tension resulted in a legal instrument, which in the end is quite empty.
Vague and inconsistent terms were used in an attempt to soothe both sides. Eventually it
failed its goal. This resulted in a big gap in the international community for the extraterrestrial
exploitation. The Moon Agreement, in practice, is shallow and offers no reassurances for a
clear and international exploitation regime.
Most parties would answer in a negative fashion when confronted with the questions whether
there is a future for the Moon Agreement. However, some argue that the Moon Agreement
has not yet had its last breath256. Generally, the Moon Agreement is seen as a broken, drifting
spaceship, only to be saved by a miraculous interference of a Deus Ex Machina. The question
arises as to whether the rescue will be a total new agreement or whether it will have a similar
fate as Part XI of INCLOS III i.e.: rescue by an implementation agreement amending the
treaty. The future of the Moon Agreement in its present form and other alternatives are
analyzed in Chapter Four, where a look is given at the possible future of regulation of
extraterrestrial exploitation.
256 M. LISTNER, "The Moon Treaty: failed international law or waiting in the shadows?", The Space Review October 24, 2011, http://www.thespacereview.com/article/1954/1.
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3.3. Characteristics and Definition of The Common Heritage of Mankind
3.3.1. Introduction
After looking at the different roles and expressions of the principle in different legal treaties
and areas, the need for a definition rises. However, the question arises whether this is even
possible. Currently, the principle applies to two different regimes: the Moon and the deep
seabed. As mentioned above, the expression of the principle in the Moon Agreement is meant
to be found in its own provisions. This means that the meaning of the principle is not exactly
the same in the context of the Moon as in the context of the deep seabed.
Moreover, the principle of the Common Heritage of Mankind can mainly be interpreted in
two different ways. Developing states tend to see the principle in the meaning of common
property257. Independent of the level of participation, common management and common
sharing of the resources are needed. Developed states have a less ‘extreme’ view. Free access
of the property and redistribution of benefits is a voluntary decision made by the exploiting
states themselves.
Defining the consequences is clearly the problem with the Common Heritage of Mankind
principle. However, recurring characteristics of the principle occur when being described.
Taking a look at these and defining them can help creating a clear perimeter where the
principle can be applied and studied.
3.3.2. Characteristics
When looking at the characteristics of the Common Heritage of Mankind principle five
returning elements can be distinguished258.
I. There is no possibility of national appropriation of the area
II. The area is managed internationally by all states
III. Sharing of the benefits gained through exploiting the territory
IV. It can only be used for peaceful purposes
V. The area must be preserved for future generations
In the first element already the question arises as to how the appropriation of the resources of
the area works. Both in the Moon Agreement and in UNCLOS III, the resources are
considered the Common Heritage of Mankind. However, UNCLOS III restricts the
257 Supra F. TRONCHETTI n.248, p505. 258 K. COOK, "The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon Treaty", Geo. Int’l Envtl. L. Rev 1999, p657.
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appropriation of extracted resources. The appropriation has to occur following the provisions
of Part XI. In the Moon Agreement, it seems to be allowed to appropriate extracted resources
without any restrictions once a regime is established.
An interpretation problem is also present in the third element i.e. how do benefits need to be
defined. In UNCLOS III, domestic technology also is part of the benefits to be shared. This is
unclear in the Moon Agreement, where transfer of technology in reliance with the Common
Heritage of Mankind principle is not addressed.
Looking at the consequences of the principle, the peaceful and equitable sharing of a common
area is the main point. This equitable sharing aspect may be considered quite extensive. It can
include the sharing of an area, its resources, the benefits of those resources and the
technology to get those resources. Practically, this is not easy to achieve on an international
level. The management of the mechanism, including dispute mechanism and a decision-
making mechanism, makes collaboration more sophisticated due to different political and
economical interests. Although an opportunity for developing states, it is considered intrusive
for the developed states.
3.3.3. Definition When defining the Common Heritage of Mankind principle, the three words ‘Common’,
‘Heritage’ and ‘Mankind’ are distinguished. Providing a definition of these elements can help
to create a definition or at least create a clear frame around the Common Heritage of Mankind
principle.
(1) ‘Common’
Merriam Webster Dictionaries describes ‘Common’ as: ‘belonging to or shared by two or
more individuals or things or by all members of a group’259. A common area is public and
general and involves every human being. It also belongs to every human being and thus,
strictly, every human beings’ consensus is needed to act on the area260.
Thus, it is understandable that developing states interpret the word as ‘common property’.
Seeing it as product of the res communis doctrine backs that argument. However, the
Common Heritage of Mankind is not a direct descendent from that doctrine. Where it shares
259 "common", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/common. 260 S. GOROVE, "The Concept of ‘’Common Heritage of Mankind’’: A Political, Moral, or Legal Innovation? ", San Diego L. Rev. 1972, p398.
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some elements, it is not an updated res communis version. The word ‘Common’ not only
refers to the international spaces but it also refers to the inherently scarce resources derived
from those spaces by a state261. This results in the scope of the word extended to national
resources within national boundaries as K. Baslar declares262.
(2) ‘Heritage’
‘Heritage’ is defined as ‘property that descends to an heir’ or as ‘something transmitted by or
acquired from a predecessor: a legacy or inheritance’263.
The common area is thus considered an inheritance passed down from a previous generation.
The word may be associated with property rights; however, this is not the case here. As
Pardo declared in his speech before the General Assembly, an international space should be
free of common ownership but under the shared management of an international
organization264.
To see the word ‘heritage’ as a reflection of the Public Trust Doctrine265 seems to be the
clearest way to frame the obligations that lie within the Common Heritage of Mankind
principle. In this structure, a steward has the obligation of carefully managing the area,
without owning it. Eventually, the steward has to pass the area down to another steward,
giving a good account of the resources and the activities that take place266. In this case of the
Common Heritage of Mankind, the steward is Mankind.
(3) ‘Mankind’
The definition given by Merriam-Webster is the following: ‘all people thought of as one
group’267. As mentioned before, legally, there is no consensus around the meaning of
‘mankind’.
The word mankind raises the question whether there is a new subject in international law. By
using mankind instead of referring to all states, a difference is created between both. The
question arises whether the interest of mankind is different than that of all states. Following
261 Supra K. BASLAR n.164, p59. 262 Supra K. BASLAR n.164, p59. 263 "Heritage", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/heritage. 264 Supra K. BASLAR n.164, p63. 265 As done by K. Baslar in his book supra n.164. 266 Supra K. BASLAR n.164, p65. 267 "Mankind", Merriam-Webster.com, 2015, http://www.merriam-webster.com/dictionary/mankind.
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Gorove, mankind is considered by for all people268. Other interpretations could consider
mankind a synonym for all states.
The Legal instruments that use the word offer no definition or clear explanation. The
Convention on the Law of the Sea, however, illustrates that the word Mankind is broader than
merely covering all states. Following the convention the possible beneficiaries include people
who have not attained full independence or other self-governing states269.
(4) Common Heritage of Mankind
Creating a definition with the words that constitute the principle is likely, to be a never-
ending challenge. Since a definition needs to provide clarity and must be ready to be
employed in the practical world, this is not possible with a fluctuating concept such as the
Common Heritage of Mankind. The separate words, however, help to enlighten the goal of
the principle: An international regime for certain geographical areas with protection of the
environment and equality between states and people.
3.4. Legal Status of The Common Heritage of Mankind
3.4.1. Common Heritage as Customary International Law Customary International Law is created when two conditions are fulfilled. There has to be (1)
a general and consistent practice of states followed by them from (2) a sense of obligation,
known as opinio juris.270 The conditions were further explained in the North Sea Continental
Shelf Cases. Here, another condition was added: the rule to be considered Customary
International Law must have a fundamentally norm-creating character such as could be
regarded as forming the basis of a general rule of law271. Customary International Law binds
every state, even if states do not agree with the rules it declares. Proven by the fact that it is
issued by the International Court of Justice, it is an important source of international law.272
It is not easy to determine whether the Common Heritage of Mankind has reached the status
of Customary International Law. It is a relatively new legal concept; the treaties that include
the principle only entered into force in 1984 (The Moon Agreement) and 1996 (The
Implementation Agreement of 1994). Moreover, the Common Heritage of Mankind is not
268 S. GOROVE, "The Concept of ‘’Common Heritage of Mankind’’: A Political, Moral, or Legal Innovation? ", San Diego L. Rev. 1972, p393. 269 Supra R. WOLFRUM n.174, p318. 270 Supra K. BASLAR n.164, p350. 271 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands). 1969, I.C.J. 3, 20 February 1969. 272 Article 38 of the Statute of the International Court of Justice.
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exactly the same in both treaties. Thus, in order to determine whether the principle has
reached the status of customary law, a look is needed at the principle in the two separate
contexts.
3.4.1.1. Common Heritage of Mankind in UNCLOS III
Looking at the expression of the principle in UNCLOS III, the Common Heritage of Mankind
appears to have a norm-creating character. The normative nature originates from the imposed
duties and given rights included in the principle273. An entire regulation is set out in order to
give meaning to the Common Heritage of Mankind.
The Common Heritage of Mankind is embodied in Part XI of UNCLOS III. For nearly twenty
years, it has regulated how mining activities have to be performed in the deep seabed. With
147 ratifications of the treaty, it can be considered a true success. Important is to note that the
deep seabed was already declared as the Common Heritage of Mankind in 1970 with the
Declaration of Principles. Whereas this declaration was not considered to be binding,
combined with the success of Part XI of UNCLOS III, it can be seen as a general opinio juris
toward the status of the deep seabed and its resources. Furthermore, when looking at the
Reciprocating Regime of the developed states prior to the acceptance of the Implementation
Agreement of 1994, some elements of the Common Heritage of Mankind can be found in it.
The area was not considered res nullius and therefore it can be argued that the non-
appropriation element was present. The element of an international regime is not explicitly
present, however, the technique of making several national laws compatible with one another
can be seen as some kind of international regime274. Even the most controversial element i.e.,
the sharing of benefits, was present in the regime275. These arguments clearly show that the
condition of the opinio juris is fulfilled.
However, the question arises as to whether true state practice exists. Since deep seabed
mining still faces many challenges and still is a relatively new technology, not a lot of mining
activities have been conducted. Bearing this in mind, it may be argued that the Common
Heritage of Mankind does not have the status of Customary International Law due to the lack
of state practice. However, opinions are divided. As stated in the North Sea Continental Shelf
Cases276, the required passage of time to have a custom may be short. Meaning that once
273 Supra E. EGEDE n.220, p68. 274 C. GARRISON, "Beneath the Surface: The Common Heritage of Mankind", KEStudies 2007, 47-48, http://www.kestudies.org/sites/default/files/data/chrisg_21-144-3-PB.pdf. 275 Supra C. GARRISON n.274. 276 Supra n.271.
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mining activities are ‘mainstream’, the status of Customary International Law would quickly
be secured.
3.4.1.2. Common Heritage of Mankind in The Moon Agreement
In contrast to UNCLOS III, with the Moon Agreement, it is not as easy to argue that the
Common Heritage of Mankind is Customary International Law. First of all, the provisions of
the Moon Agreement are not very elaborate concerning the content of the Common Heritage
of Mankind: no clear rights and duties are mentioned and no regulation is set out. Merely the
basic characteristics of the principle are mentioned. Its practical implementation is an
obligation that lies with the state parties. It is not straightforward to recognize a clear norm-
creating nature in this treaty. However, it can be stated that the principle fundamentally has a
norm-creating character i.e. its intention is to create a regulation with rights and duties of the
involved states.
The opinio juris condition clearly is not fulfilled. The Moon Agreement and in particularly
article 11.1 do not enjoy a widespread participation. With its sixteen ratifications, it has
everything but a general consent in the international community. Next to this, most states do
not feel to be bound by it. Regarding the matter of state practice, the absence of it is also
clear. Thus, in the context of space law and extraterrestrial resources, the Common Heritage
of Mankind has not yet reached the status of Customary International Law. Moreover it is far
from reaching that status.
Whereas the principle in general can be discarded as being part of Customary International
Law, not all of its elements have the same fate. Two elements of the Common Heritage of
Mankind have the status of a custom on an international level i.e. exclusive use of the Moon
for peaceful purposes and the non-appropriation principle. Both elements are covered in the
Outer Space Treaty and the general consent holds that those two elements are Customary
International Law277. Both clearly have a norm-creating effect imposing duties and rights
upon states. With 103 ratifications of the Outer Space Treaty, a widespread acknowledgment
is present of the principles embodied in them. The state practice i.e. the lack of non-peaceful
activities and non-appropriation activities clearly confirm the custom status of those
principles.
277 F. VON DER DUNK, "International space law" in F. VON DER DUNK and F. TRONCHETTI (eds.), Handbook of Space Law, Cheltenham, Edward Elgar Publishing, 2015, (29) 60.
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3.4.2. Common Heritage as Jus Cogens Article 53 of the Vienna Convention on the Law of Treaties defines jus cogens as a
peremptory norm of general international law278. It finds its origin in natural law, which is
applicable to all legal systems, all persons, and the system of international law279. Concretely,
it is a form of ‘higher law’280, which can override international treaties and their provisions.
The issue consists of determining when a principle is to be considered as jus cogens. When a
rule or principle is described as jus cogens, this means that the rule is so fundamental that it
belongs to the basis of the international community’s legal system281. Examples of jus cogens
principles are the sovereignty of states and several human rights such as the prohibition
against torture282. It is important to emphasize the difference between a rule of jus cogens and
a rule of Customary International Law. For creation of the latter, conditions need to be
fulfilled, in the case of jus cogens principles this is not required. This makes it a difficult issue
whether to determine when a rule is seen as jus cogens.
In 1970, the Common Heritage of Mankind was argued to be jus cogens by developing states.
It was even proposed to declare it as such, but this was not accepted by every state283.
Developed states were more inclined to reject the jus cogens idea. In order to determine
whether the Common Heritage of Mankind principle is a rule of jus cogens, one should not
look at the treaties separately but at the idea of the principle itself. Because of its different
manifestations and its politically manipulated result, the legal form of the principle cannot be
a rule jus cogens. However, it could be argued that the main idea behind the principle is a jus
cogens rule. The fact that the Moon is a global common, which every human being has the
right to access and enjoy its benefits on an equal basis, could perfectly be situated in natural
law. However, it would not be straightforward to provide a clear expression to the principle
and its interpretation. Generally, legal opinions are divided, i.e. some give the principle the
status of jus cogens, and others consider it to vague.284
278 Article 53 of the Vienna Convention on the Law of Treaties. 279 Supra K. BASLAR n.164, p364. 280 G. DANILENKO, "International Jus Cogens: Issues of Law-Making", Eur. J. Int’l L. 1991, p42. 281 M. JANIS, "The Nature of Jus Cogens", Conn. J. Int’l L. 1988, p363. 282 Prosecutor v. Anto Furundzija, IT-95-17/1-T, 10 December 1998. 283 Supra G. DANILENKO n.280, p59. 284 Supra F. TRONCHETTI n.190, p129.
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3.5. Conclusion In order to get a clear view of the Common Heritage of Mankind principle, it is important to
see its evolution applied in specific areas as done above. By looking at this, we see different
interpretations and even different roles when applied to a certain area. This results in an
unclear definition and determination of its legal status. However, the basic intention is clear,
which includes, making an area peacefully and internationally regulated for all mankind to
enjoy in an equal manner.
It is important to make a distinction between the legal form of the Common Heritage of
Mankind, and its ideological form. Both intentions and results are different. The legal form of
the principle merely is a politically manipulated concept to create an international unified
regime. The ideological principle, however, a product of the New International Economical
Order, represents an idea, which overrides national sovereignty. Its goal is to pursue equality
between states and helping developing states.
The difference in interpretation clearly is the reason why it is such a controversial and hard to
define concept. Yet, its role in the deep seabed cannot be denied, even if the practical output
differs from its intentional goals. Its success lies in creating an international regime where
benefits are shared towards developing states. Although it could have had the same role in
space law, it appears that the Common Heritage of Mankind ends at the deep seabed.
However, the principle’s idea should not be discarded in space law i.e. the goal to create an
international regime with several rights and duties.
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Chapter 4: Future Exploitation Regime
4.1. Introduction
After looking at the current status of exploitation rights and the problems surrounding it, it is
clear that we cannot yet refer to a clear legal framework. Today, there exists a parallel system:
exploitation rights are covered in the Outer Space Treaty and in the Moon Agreement at the
same time. Although commercial exploitation of celestial bodies may be a future issue, this
does not hold governments and private companies back from their ambitions of the
exploitation of extraterrestrial resources.
Looking at the treaty-making process of the Moon Agreement, UNCLOS III and even the
Antarctic Treaty, it is clear that such process can span a decade. Opposing ideologies, finding
common ground, coping with new technology; all contribute to elaborate and long
discussions. When the Moon Agreement was finally formed in 1979, it did not bring an
answer to the problem of the exploitation of extraterrestrial resources. The answer is still not
present. The Moon Agreement declares that the establishment of an international regime for
exploitation is to be put off until production becomes feasible. This now seems to be the case.
The landing of Philae, the plans of NASA to send humans to asteroids and Mars, the
harvesting of asteroids by several companies illustrate that exploitation lies around the corner.
In order to avoid harming of the natural environment and neo-colonization of space by space-
faring nations, a clear international framework is needed that focuses on these aspects.
Current legal instruments such as the Outer Space Treaty offer too many uncertainties both
related to the legal and the political field. Therefor, the establishment of a framework should
have already started. Undoubtedly, the set-up of such a framework will be long and elaborate.
However, the need for it is apparent.
In this chapter, an analysis of several alternatives and possibilities for future exploitation
regimes is discussed. Different sources of inspiration are investigated and their advantages,
disadvantages and realization are discussed. The purpose is not to deliver an encompassing
proposition for extraterrestrial exploitation. Instead, several ways of future space exploitation
are discussed in order to get a high-level view of the problem and its challenges. Clear is that
the most important issues that need to be dealt with when establishing a framework on an
international level, are environmental protection, sharing of the benefits and appropriation of
the resources.
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4.2. The Resurrection of the Moon Agreement
4.2.1. The Moon Agreement in its current form
Whilst the general opinion is that the Moon Agreement is a failure and has little to no value in
the international community285, some share the opinion that the Moon Agreement has not
completely lost its relevance. In 1984, Austria ratified the Moon Agreement, being the fifth
state to do so and making the Agreement enter into force. Today, the treaty has been ratified
by sixteen states. For the largest part, it is a confirmation of the provisions laid out in the
Outer Space Treaty of 1967. The Moon and other celestial bodies should be exclusively used
for peaceful purposes, their environments need to be protected, no ownership over them is
possible and there are several information obligations when performing activities on them.
The cause of the failure can be attributed to the declaration that the Moon and its resources
are the Common Heritage of Mankind. Concrete provisions giving the principle a practical
expression have been left out for nearly thirty years. Whereas the intention to wait can be
justified by the fact that in 1979 exploitation was not feasible, this argument does not hold up
today.
Theoretically, the Moon Agreement still holds potential286. While the lack of parties and
signatories makes it difficult to argue that its provisions have reached the status of Customary
International Law, there has been no official denouncing of the Moon Agreement by non-
parties. If one space-faring nation would ratify the Moon Agreement, its force and credibility
would increase and would pave the way to a possible customary status. This, however, is not
likely to happen. The Common Heritage of Mankind principle appears to be too big an
obstacle for most nations to overcome. And while there has been no denouncing of the treaty,
nations have demonstrated no willingness to join. By planning exploring missions towards the
Moon it seems clear that all space-faring nations are likely to dismiss the Moon Agreement.
4.2.2. Amending the Moon Agreement
When looking at the other legal instruments, which includes the Common Heritage of
Mankind, a similar problem appeared. Developed states initially stayed away from Part XI of
UNCLOS III. Their interests were restricted too much by the expression of the principle in it.
It appeared that the international regulation of the exploitation of the deep seabed had a
285 R. LEE, Law and Regulation of Commercial Mining of Minerals in Outer Space, Dordrecht New York, Springer, 2012, p270 and F. TRONCHETTI, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies, Leiden, Martinus Nijhoff Publishers, 2009, p118. 286 M. LISTNER, "The Moon Treaty: failed international law or waiting in the shadows? ", The Space Review 24 October 2011, http://www.thespacereview.com/article/1954/1.
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hollow fate. A solution to the problem, however, came with the Implementation Agreement of
1994. With the renewed interpretation of the Common Heritage of Mankind, developed states
appeared satisfied. The question arises whether a similar solution would work for the Moon
Agreement.
When amending the Moon Agreement, the Common Heritage of Mankind would still play a
central role, but it would have a similar expression as with the deep seabed. It would not be a
renewed interpretation, due to the lack of manifestation of the principle in any provisions of
the Moon Agreement.
However, this does not seem a possible solution. First of all, due to the lack of any expression
of the Common Heritage of Mankind principle, it appears that most developed states disagree
with the principle and not with a possible interpretation of it. Even in case the interpretation
would resemble the one of the Implementation Agreement of 1994, possible ratifications
would probably still not happen. The United States of America for example would not ratify it
since they are not a party to Part XI of UNCLOS III. Secondly, a direct extension of the
Moon Agreement would result in many opposing arguments by non-state parties287.
A direct implementation of the Moon Agreement itself has more advantages. The treaty has
been drafted, its parties are already subjected to its obligations and rights, it strengthens and
elaborates on issues of the Outer Space Treaty and gaps in the treaty itself could be addressed
in an amendment. The problem lies in article 11, and it appears to be an issue that cannot find
a solution. Both proponents and opponents have strong opinions regarding the principle,
which withholds them from joining the conversation concerning the Moon Agreement. Even
the explicit mentioning in article 11.5 that the principle only finds it expression in the Moon
Agreement does not encourage states of ratifying and discussing a new alternative.
4.2.3. Conclusion Different scenarios and possibilities describing the survival of the Moon Agreement exist.
However, the Moon Agreement will probably suffer a silent death. This can be attributed
mainly to its article 11, which introduces the Common Heritage of Mankind principle. The
principle cannot find an expression satisfying both developing and developed states. Next to
this, there are many questions surrounding other provisions i.e. possible moratorium on the
Moon, the possible loophole of article 6.2. Their role in the failure of treaty can, however, be
considered smaller.
287 F. TRONCHETTI, "Legal aspects of space resource utilization" in F. VON DER DUNK, F. TRONCHETTI (eds.), Handbook of Space Law, Cheltenham, Edward Elgar Publishing ,2015, (769) 797.
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The Moon Agreement could only be an effective treaty with the support of space-faring
nations. Unfortunately, the Moon Agreement did not achieve this. Governments do not deny
the existence of the treaty, but they simply ignore it when planning space activities. The need
for another legal instrument regarding the regulation of extraterrestrial resources is thus clear.
4.3. The Reinvention of the Common Heritage of Mankind
4.3.1. The Common Heritage of Mankind in Future Space Law
When discussing exploitation rights on areas such as Antarctica, outer space and the deep
seabed, the implementation of the Common Heritage of Mankind principle has always played
a role since the 1960s. Sometimes the implementation happened successfully i.e. UNCLOS
III and the Moon Agreement, while sometimes it did not i.e. the Antarctic Treaty and the
Moon Agreement288. The unique nature of those areas clearly asks for special regulations. At
first sight, not submitting those areas to sovereignty rights appears logical. Every person, or at
least every state should enjoy the freedom of access and possible exploitation of them. Next
to this, if exploitation is only feasible for few states, a sharing mechanism does seem a viable
option. In case of no sharing, exploitation only occurs for states with sufficient resources, thus
practically subjecting the areas exclusively to those states. The Common Heritage of Mankind
principle was introduced to avoid just that.
With the Moon Agreement, the Common Heritage of Mankind principle made its introduction
in space law. Although the principle had its success in the context of the deep seabed and its
resources, not many states believed in the principle for extraterrestrial exploitation. Moreover,
the expression of the principle is only to be found in the Moon Agreement itself289 .
Consequently, states can thus join the discussion about the specific content of the Common
Heritage of Mankind principle. Although with this granted freedom, states still have chosen to
ignore the Moon Agreement. The problem originates from the issue of naming the Moon and
its resources Common Heritage of Mankind. It would be safe to assume that no future lies in
the Common Heritage of Mankind principle in space law.
288 The implementation was a success in the deep seabed context. On a theoretically level, it was also a success with the Moon Agreement. It failed however to have any practical value. In the Antarctic treaty, the principle failed to play a role. 289 Article 11.1 of the Moon Agreement.
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It is clear that both the five basic elements290 and the ideological battle over the principle
contribute to making the principle a huge obstacle. A renewed interpretation similar to the
Implementation Agreement of 1994 seems to have to same fate as the Moon Agreement itself.
Firstly, no specifics are given of the principle besides the five basic elements. Re-interpreting
them would go against the very spirit of the Common Heritage of Mankind. Secondly, as
mentioned, the Moon Agreement provides the freedom, and even the obligation of
determining the content of the principle for the exploitation of extraterrestrial resources.
4.3.2. The Need for a New Approach
In order to create a fair and international exploitation regime, a new approach is needed. But
can the Common Heritage of Mankind evolve into a new principle, at the same time
satisfying developed and developing states? Looking at the five basic elements of the
principle, discarding every one of them would be too extreme. Moreover, some of these
principles are already covered in the Outer Space Treaty i.e. exclusive use of peaceful
purposes and the non-appropriation principle.
In his book ‘’The Concept of the Common Heritage of Mankind in International Law’’,
Kemal Baslar proposes a renewed view on the principle291. It is useful to look at the surface of
his proposition for inspiration towards a new principle. Analyzing the principle into detail
would exceed the goal of this chapter, which is only to explore what possibilities are present
for the future of exploitation rights in space.
Classic view on the Common Heritage of
Mankind
Proposed view on the Common Heritage of
Mankind292
Non-Appropriation Non-Exclusive Use
International Management Planetary Administration
Sharing of Benefits Benefit and Burden-Sharing
International Management Sustainable Management
Exclusive Peaceful Purposes Sustainable Management
+ Common Concern of Mankind
290 K. COOK, "The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon Treaty", Geo. Int’l Envtl. L. Rev 1999, p657. 291 Or better: how the principle should be perceived correctly. 292 Described in Chapter Three of K. BASLAR, The Concept of the Common Heritage of Mankind in International Law, The Hague, Kluwer Law International, 1998.
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Two of the proposed elements by K. Baslar create a huge contrast with the classical view of
the Common Heritage of Mankind principle. Firstly, non-exclusive use of the area implies the
possibility for property rights. This a controversial aspect due to the aspect already rooted in
the res communis doctrine i.e. to keep appropriation prohibited on areas like the Moon and
the deep seabed.
Non-exclusive use implies a direct limitation on classic property rights. It puts several
obligations on the state owning the property rights over a certain area. This could be used in a
fairly effective way i.e. the state in question could be held internationally accountable for the
protection of the environment for example. Moreover, the area ought to be open for other
states as well, making the owner state responsible for fair access and use of the area. But with
those obligations, several rights would also be in place. These could vary from some
privileges around exploiting the area to the inning of taxes.
It would be a delicate balance to find the boundaries of obligations and rights. Regarding
equal access and use of those areas, classical property rights would not suffice. However,
once property rights are involved in some way, developed states would be more inclined to
work on an international level towards a fair system. Needless to say, that a fair and equitable
international system governing the use and exploitation should be at the center of such a
system.
Is the Tragedy of The Common Heritage of Mankind reached with the lack of property
rights293? The Common Heritage of Mankind did have support at its introduction. Developing
and developed states both supported it. At that time technology was growing with endless
possibilities and uncertainty regarding its evolution. Moreover, in the tense environment of
the Cold War, (developed) states preferred international transparency and cooperation. After
the Cold War, tensions disappeared, technology became more predictable and its possibilities
controlled. The distance to the Moon virtually decreased and its benefits became clearer. With
such conditions, international sharing, transparency and cooperation are less attractive.
Therefor, states became less fond of the Common Heritage of Mankind principle.
293 S. SCHACKELFORD, "The Tragedy of the Common Heritage of Mankind", Stan. Envtl. L. J. 2009, p109-169.
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The introductions of concrete ideas such as introducing property rights on an international
level in the context of global commons are not far-fetched. The regulation around
Spitsbergen294 can be seen as an example of a fairly unique environment, combined with
property and exploitation rights. To some degree, Antarctica also is an illustration. Even
though the property claims on Antarctica are disputed and no exploitation is possible there,
the treaty keeps the possibility of property rights alive. Evidently, property rights do not
solely exist on a state-level; private companies could also be able to use property rights.
Possible options may include a free-market system where property rights are the products295.
However, there is one issue of great importance regarding property rights i.e. the Outer Space
Treaty rejects their existence. So in order to be compatible with the treaty, no property rights
may be declared, at least not in its common meaning. The term ‘non-exclusive use’ already
seems more feasible and applicable. But even within those rights, the matter of ownership and
thus property exist, which makes it difficult to be in accordance with the Outer Space Treaty.
The second proposed element of K. Baslar’s Common Heritage of Mankind that will be
discussed is the one of a Planetary Administration. In short, this would be a supranational
organization that governs the areas, which falls under the Common Heritage of Mankind
principle. Thus, instead of separate independent institutions, a single institution would be in
place.
Although this seems the best-case scenario to reach an equitable regime for the global
commons, it is not likely to happen. Most states shiver at the thought of supranational
systems, especially combined with economical interests. Also here it should be the goal to
reach it, but with the right expectations. Again a delicate, balance is needed to provide
sufficient independency towards states while having an accountability system in place.
There is also a problem of representation of mankind. The issue arises concerning the
interests of mankind contrary to the interests of states. The best way to reach a representation
of mankind is to set up clear and tight regulation towards issues such as environmental
protection, exploration, access, exploitation and sharing of benefits. This should happen on an
international level in order to avoid any loopholes. Proven by the Antarctic Treaty an
international agreement can be possible.
294 The Svalbard Treaty governs the area of Spitsbergen, which is of the property of Norway. Parties to that treaty are allowed to exploit the area. 295 Supra S. SCHACKELFORD n.293, p152.
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4.3.3. Conclusion
International and national law should support and reflect reality as opposed to merely govern
it. The Common Heritage of Mankind principle did reflect and support reality when it was
introduced. At the moment of its introduction, the need for an alternative for the res
communis doctrine clearly was present. The creation of a New International Economic Order
reaffirmed this need. In the silent and hostile environment of the Cold War, the idea of
international managing and sharing benefits was a means to peace. Eventually, the Common
Heritage of Mankind had its victory in Part XI of UNCLOS III. As mentioned, it could even
be said that it is Customary International Law in that context.
Although law should not govern reality, it should be able to influence and optimize it. In the
context of this thesis, this spans several goals; the protection of the unique environments, free
access on global commons and sharing the benefits in some way.
Currently, the Common Heritage of Mankind does not reflect or support reality in space law
any longer. That is why the path of the Common Heritage of Mankind should be left and
another should be taken. A fitting framework should be found to support and reflect current
reality of space exploitation and exploration. Keeping in mind of course that the new path
should influence reality to keep it as fair as possible.
4.4. Looking South for Solutions
The Antarctic Treaty could be a source of inspiration for a regulation of extraterrestrial
resources on celestial bodies. For over fifty years, Antarctica has been a place where scientific
research has been conducted peacefully, with utmost respect towards the environment. The
treaty, however, does not contain any provisions concerning the exploitation of its resources.
An initiative to cover exploitation rights was made with CRAMRA. Eventually this was
blocked with the argument that Antarctica should not be used for exploitation activities. This
became definite with the Protocol on Environmental Protection to the Antarctic Treaty. By
adopting this protocol, the state parties accepted that non-scientific activities concerning
mineral resources would be forbidden.
Although CRAMRA and regulations concerning exploitation have never found their way into
the Antarctic System, it can be a useful instrument to look at. The great advantage of
CRAMRA lies in its combination of formulating a regime for exploiting resources on the one
hand and protecting the environment on the other. The system itself has been mentioned
shortly in Chapter Three. The idea of the decision-making body, where decisions were to be
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made by states or parties, which have interests in exploiting and the capacity of exploiting,
could be of use on the Moon. It does not seem unreasonable to lay decisions concerning
exploitation with the involved parties. As long as decisions are made with respect for the
environment and on a non-discriminatory basis, it would be a viable system. Of course the
aspect of benefit sharing should also be included. However, as shown, this is a very
controversial aspect.
Looking at CRAMRA, some objections may rise towards its compatibility with commercial
exploitation activities. The fact that with merely one negative vote, an entire mining operation
could be hindered, is one of the main flaws in the regulation296. Even if all proceedings were
carried out with respect to the treaty, a refusal would still be possible. Consequently, huge
investments could be made resulting in nothing. Added up with the longevity of the decision
process i.e. the three long phases in the regulation, it would likely scare off potential
investors. These flaws are also useful for a potential exploitation regulation of celestial
bodies. For example: some kind of guarantee for investors should be given once an
introduction phase is passed.
The focus that the Antarctic Treaty puts on environmental protection and the emphasis on it
when governing exploitation activities is admirable. It is a delicate balance, specifically
involved with commercial exploitation; however, CRAMRA demonstrates that it could be
possible for a regime on the Moon. Necessarily, there should also be some kind of dispute
mechanism, where parties could be hold accountable.
CRAMRA provides a lot of inspiration regarding what to do and what not to do when
establishing a regulation for extraterrestrial resources. Evaluating it, it is clear that several
elements are important when forming a regime. There should be economic incentives for
commercial players including several guarantees and a process that only spans a reasonable
period in time297. The decision-making body should run on a non-discriminatory basis with
efficient and environmental friendly principles. International participation should be present
in the decision-making process as well as in phases of introduction and mining. A dispute
mechanism should be established with sufficient transparency and effectiveness. Lastly, a
sharing mechanism should be in place, respecting the interests of both developed and
developing states.
296 Supra F. TRONCHETTI n.287, p808. 297 Supra F. TRONCHETTI n.287, p808.
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4.5. The Geostationary Orbit and its Regime
4.5.1. Introduction
When discussing exploitation rights on celestial bodies, F. Tronchetti also looks at the regime
of the Geostationary Orbit298. Due to the characteristics of this orbit, it is justified to examine
the regime and to find inspiration in it for a possible regime for celestial bodies.
‘The Geostationary Orbit is an orbit around earth, which allows a satellite to remain in orbit
over a single point of the earth’s surface due to the gravitational pull of the earth, the moon
and other planets’299. Because of this characteristic, it can be used for telecommunications,
broadcasting, flight monitoring and weather applications. One satellite in this orbit can cover
one third of the earth’s surface300. All these aspects make the Geostationary Orbit a valuable
resource. Moreover, the possible slots in the orbit are limited and enough distance should be
present between satellites in order to avoid collisions and interference 301 . Thus, the
Geostationary Orbit also is a scarce resource.
In 1976, eight states tried to claim sovereignty over areas of the Geostationary Orbit, which
lay above their nations. This was done in the Bogota Declaration. Due to the characteristics of
the Geostationary Orbit, an object could hang permanently above a state. Therefor, the eight
countries shared the opinion that the orbit did not belong to outer space and to the principle of
province of mankind as stated by the Outer Space Treaty. If this would be the case, only
states, which cover a part of the equatorial, would have rights concerning the Geostationary
Orbit. Obviously, developed states heavily contested this declaration and in the end, it did not
had many supporters. Also, the claims were considered a breach of the Outer Space Treaty,
which denies national appropriation in outer space302.
The Geostationary Orbit is a limited, valuable, and natural resource located in outer space and
thus belonging to no state. This makes a comparison to the Moon not far-fetched. The only
difference between them is that the Geostationary Orbit disposes of an international agreed
regime for the exploitation of it. Thus inspiration can be drawn from such a regime for a
possible alternative for the Moon and its resources.
298 F. TRONCHETTI, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies, Leiden, Martinus Nijhoff Publishers, 2009, p163. 299 M. FINCH, "Limited Space: Allocating the Geostationary Orbit", Nw. J. Int’l L. &Bus. 1986, p788. 300 Supra F. TRONCHETTI n.287, p798. 301 A. MALONE, International Law, New York, Aspen Publishers, 2008, p183. 302 G. ODUNTAN, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation, New York, Routledge, 2011, p301.
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4.5.2. The ITU
The International Telecommunication Union (ITU) is a specialized agency in the United
Nations for information and communication technologies 303 . In the context of the
Geostationary Orbit, they administrate and allocate geostationary slots and frequencies of
satellites. Its goal is to guarantee “the rational, equitable, efficient and economical use of the
radio frequency spectrum by all radio communication services, including those using the
geostationary-satellite or other satellite orbits.’304
It is clear that the allocation of slots in an orbit such as the Geostationary Orbit has to happen
on an equitable basis. Article 44(3) ITU Constitution explicitly mentions the interests of
developing states when allocating orbital slots. However, this is not necessarily the most
efficient way, which is also a goal of the ITU. This obviously creates tension with the goal of
the ITU305. It is also important to notice that in order to function correctly, satellites
communicate through radiofrequencies. These frequencies form the radiofrequency spectrum,
which is part of the electromagnetic spectrum. Frequencies are also limited, and one
frequency cannot be used by multiple communication channels at the same time. When
allocating slots on the Geostationary Orbit, it is also necessary to allocate frequencies to fully
operate a satellite.
Initially, the technique of allocating orbital slots happened through a first-come, first-served
principle. In essence, any country with the capacity and a satellite could pick an orbital slot.
However, there were certain proceedings to follow. The ITU reviewed the plans of the
satellite operator, and when deemed appropriate, the ITU gave a temporarily right to the
operator for the use of an orbital slot. It is important to note that the use was temporary and
that the operator had to show a deadline of the deployment of the satellite306.
As a reaction to the requests of developing states, the technique of first-come, first-served,
was abandoned and a new one was appropriated i.e. a dual system for allocation. In this
system, each state member of the ITU was pointed out an orbital slot and a frequency for
communication activities closest to its country307. Equitable sharing of orbital slots stands
central in this approach, whereas the first-come, first-served technique was more focused
towards economical and efficiency purposes. The implementation of the dual system started
303 ITU, http://www.itu.int/en/about/Pages/default.aspx. 304 Article 12 of The ITU Constitution. 305 Supra F. TRONCHETTI n.287, p800. 306 Supra F. TRONCHETTI n.287, p801. 307 C. COLLINS, "The Geostationary Orbit: A Critical Legal Geography of Space’s Most Valuable Real Estate" in L. PARKS and J. SCHWOCH (eds.), Down To Earth: Satellite Technologies, Industries and Culutures, Piscataway, Rutgers Univeristy Press, 2012, (61) 73.
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with the broadcasting satellites in 70s308 and with the Fixed Satellite Services in the 80s309 on
a defined expansion band i.e. the under used portions of the C and Ku bands310.
There are several issues with the regime of ITU. First of all only two satellite services are
managed through the dual system for allocation. Other services remain unplanned and are still
conducted following the first-come, first-served principle. Secondly, with the dual system for
allocation, there is the issue of unused slots. Although it is good that developing states are
secured a slot and frequency, it will take years for them to use it. From an efficiency point of
view it would be better to make those slots available to other states. The dual system
encourages developing states to possibly rent out the slots at high prices and making huge
profits as practice has shown311. At the same time, this could discourage developing states
from joining in on space activities in favor of these profits. Thirdly, a system based on first-
come, first-served also has its problems. Such a system results in a race to get as many slots
as possible. Consequently, this creates lots of bogus applications for satellites in order to
secure as many slots as possible. This issue, however, has been dealt with by the ITU in order
to avoid these ‘paper satellites’.
4.5.3. Conclusion
As shown, the issue of the Geostationary Orbit and the radiofrequencies is comparable with
the issue of celestial bodies and their resources. Both are limited and highly valuable
resources. The goal with both resources is to create an efficient environment for economical
activities while at the same time respecting the needs and interests of developing countries.
While the international community tried to use the Common Heritage of Mankind principle to
actively include developing states in extraterrestrial exploitation of the Moon, the dual regime
of the Geostationary Orbit can be seen as a more passive approach.
The fact the Geostationary Orbit regime is focused on efficiency and economical use on one
hand and on the other hand on equitable access, could be of great use in a regime for
extraterrestrial mining. It is a delicate balance to reach, due to different needs of developing
and developed states. The Geostationary Orbit also is an example of commercial activities
performed within an international framework in space. This shows that it is possible to reach
an international agreement for commercial activities on celestial bodies. Lastly, a major asset
of the regime to the Geostationary Orbit is the temporary aspect. States can never achieve a
308 Supra F. TRONCHETTI n.298, p175. 309 These services are useful for communication between fixed stations on earth. 310 R. BENDER, Launching and Operating Satellites: Legal Issues, The Hauge Boston, Martinus Nijhoff Publishers, 1998, p49. 311 E.g. The situation with TONGASAT.
91
permanent right on a slot or frequency, which is in line with the non-appropriation principle
of the Outer Space Treaty. In a regime of extraterrestrial mining, the concept of temporarily
rights could be of great value312.
The main problem remains the delicate balance between equitable access and rights of
developing states on the one hand and economical interests and efficiency of commercial
activities of developed states on the other. A dual system of allocation holds great premise,
but has two problems. From a developed state’s view, the system results in a loss of
potentially economical space. From a developing state’s view, it is a very passive form of
compensation. Eventually, states with the capacities to perform space exploitation will gain
profits while developing states will be left behind with only an area, which they cannot
exploit due to the lack of resources. On the other hand, a regime based on the first-come,
first-served principle is doomed to disadvantage developing states and to merely be in favor
of the developed states.
4.6. A Final Assessment
4.6.1. Introduction
After analyzing possible alternatives for an extraterrestrial exploitation regime, it is clear that
one alternative will not suffice and that a combination of several elements from different
alternatives will be appropriate. The Moon Agreement in its current form appears to have lost
the battle. Ignored by a majority of the international community, it has no practical value. It is
however applicable for the parties who ratified it, which have obligations to uphold. Those
obligations, however, seem ignored by the parties themselves313. There are also too few states
to create even a case of Customary International Law for the treaty. Even if the Moon
Agreement would be amended similar to how Part XI of UNCLOS III was saved, it is not
likely that it would convince other states. Even when provided the freedom towards
determining the content of the Common Heritage of Mankind, states have shown no interest.
It seems that the presence of the principle and the vagueness surrounding it are too big an
obstacle for the majority of states.
Consequently, it seems that the entire principle of The Common Heritage of Mankind has no
future in space law. With the implicit rejection of the principle by the majority of the
international space law community, the principle has faded away. Only in the context of the
deep seabed, the principle has a true role, which also has a great chance of settling itself as a
rule of Customary International Law. Due to its continued political interpretation battle, and 312 Supra F. TRONCHETTI n.287, p803. 313 Article 18 of the Moon Agreement.
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the failure of legal implementation, it is to be argued whether the principle will have a role in
the future. However, the philosophical idea behind the principle is not to be discarded i.e. free
access and use for every nation of a global common, which is internationally managed in a
sustainable way and taking into account the interests of the developing states in order to
create an equitable sharing of benefits, should be central. The legal Common Heritage of
Mankind has attempted this for extraterrestrial resources, but has failed to do so. Introducing
temporary non-exclusive using rights, which should sufficiently be differentiated from
property rights in order to respect the Outer Space Treaty, is a possibility to convince
developed states to cooperate more actively on an international level.
The Antarctica Treaty System and the Geostationary Orbital System demonstrate several
options for an international regime. The former is admirable for its focus on environmental
protection and for keeping peace when territorial claims are involved. Also, the idea in
CRAMRA of placing decisions regarding exploitation activities with the states that have an
interest and capacities is inspirational. Of course, non-discriminatory principles in the
decision-making body regarding exploitation activities should be applied. Optimally, some
aspects should not be taken over for an extraterrestrial exploitation regime i.e. long
proceedings and no guarantees for success are likely to scare off potential investors, creating
a de facto moratorium over celestial bodies. The Geostationary Orbit shows the possibility of
commercially exploiting a limited area on an international level. It attempts to find a delicate
balance between equitable access for each state and optimal efficient use of space. The latter
forms constant tension present in the determination of a regulation for commercial activities
on an international level.
A final point which has not been explicitly addressed in this thesis but which has been
mentioned a few times, is the issue of a working dispute mechanism. While an international
exploitation mechanism could only work fairly and efficiently in the presence of an effective
dispute mechanism, it is a controversial issue. This is due to the fact that it subjects
companies and states under the authority of a body, which is not under its own sovereignty.
The United States of America, among others, has issues with this, hence their absence in Part
XI UNCLOS III. The ITU in the Geostationary Orbit context primarily uses a diplomatic
approach in settling issues, while in UNCLOS III a definite, judicial approach is used. The
latter has the risk of scaring states, while the former has the risk of being not effective
enough. Again, a balance between both is needed in order to achieve an ideal dispute
mechanism. If some kind of non-exclusive use-rights would be in place, where states would
have more control over an area and thus more interests in it, maybe states would be inclined
to support a more authoritative international dispute mechanism.
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4.6.2. Where we are and Where to go
This last part attempts to show how to achieve an exploitation regime. This will be handled
following three questions. The starting point is the fact that today two regimes for
exploitation rights are in place i.e. one regime under the Outer Space Treaty and one regime
under the Moon Agreement. Both are unspecified, vague and provide more questions than
answers, as argued in Chapter Two.
Is there a need for extraterrestrial exploitation?
This is actually an irrelevant question. It could be argued that celestial bodies should not be
open for exploitation but merely for exploration, as is the case with Antarctica today.
However, as shown in the introduction in this thesis; exploitation is bound to happen, by
states or private companies and most likely a combination of both. There is no apparent
stopping of exploiting outer space. The Outer Space Treaty provides the freedom of use and
the Moon Agreement explicitly allows exploitation. In order to share the same faith as the
Antarctic area with respect to exploitation rights, a full consent of the international
community would be needed. This is not probable due to governments such as Russia, China
and the United States having presented their interests in exploiting the Moon.
Is there a need for an international regulation?
From the developed states’ point of view, one could argue that the current status of
exploitation suffices and that the further regulation should be handled on a national level.
However, this would lead to some issues. The environmental protection would not be strong
enough and consequences for violating the ecology would be nearly absent. Eventually, the
interests for mankind would only be a shallow promise. Only the developed states would truly
enjoy the benefits of outer space. In order to create a fair and safe environment, thus, there is
a need for an international regulation.
Which balance between developing states and developed states should apply?
One of the most difficult issues is finding a balance between the interest of developing and
developed states. The interests of developing states could either be secured in an active way,
like UNCLOS III and the Common Heritage of Mankind or either in a more passive way, like
the Geostationary Orbit. Both have their disadvantages i.e. the active way is not very
attractive for developed states, the passive one may lead to no improvements for developing
states. The interests of developed states need to be viewed in a free market context.
Combining an active approach with the protection of the interests of developed states is a
94
delicate and complicated issue. However, as Part XI of UNCLOS III has shown, a common
ground can be found. This, however, does not necessarily imply a fair common ground.
4.6.3. Conclusion
This thesis concludes with providing optimal elements for an extraterrestrial exploitation
regime. It will be deliberately left vague for several reasons. First of all, it clearly shows the
goals leaving room for interpretation. Secondly, giving a fully worked out proposition would
not be possible due to the lack of experience, knowledge and time. Lastly, if a final
international regime would be set up in the future, it will probably contain these basic
elements.
Basic elements for an extraterrestrial exploitation regime314:
• International regime consisting of proceedings that are ruled by non-discriminatory
and fair principles.
• Environmental regulation for the protection of nature.
• Clear rules concerning private market players and their relations with states.
• Providing economic security such as certain guarantees for investors, proceedings
contained in a fair amount of time and clarity about the status of extracted resources.
• An effective dispute mechanism.
• The use of temporary non-exclusive rights, where responsibilities for sustainable
management and rights over the mined resources are included.
• Respecting the interests of mankind and the developing states. Motivating the latter to
join in on space activities. Finding a way to share benefits without interfering with
the economical interest of developed states.
It is by no means easy to establish such a regime. Creating law on an international level
results in a difficult challenge due to the intertwining of politics and ideologies. Yet, history
has shown that it is possible. An international regime appears to be detrimental for the safe
prosperity of activities in outer space. We are at the verge of a new space age, which will
possibly happen in the following decades. However, as establishing an international regime
could take years, it is clear that preparations are in order.
In the movie ’The Right Stuff’, the following is said by the actor that portrays Lyndon
Johnson: ‘Whoever controls the high ground of space controls the world.’ This should be the
privilege of a well-established international community.
314 Based on the elements given by F. TRONCHETTI in supra n.287, p.812.
95
Chapter 5: Bibliography
Legal Instruments
Treaties
Agreement governing the Activities of States on the Moon and Other Celestial Bodies, UNTS Vol. 1363, entered into force on 11 July 1984 (The Moon Agreement).
Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, UNTS Vol. 1836, entered into force on 1 April 1998 (Implementation Agreement of 1994).
The Antarctic Treaty, UNTS Vol. 402, entered into force on 23 June 1961.
The Convention on International Liability for Damage Caused by Space Objects, UNTS Vol. 961, entered into force in September 1972.
Convention on the High Seas, UNTS Vol. 450, entered into force on 30 September 1962. Convention on the Regulation of Antarctic Mineral Resource Activities, (CRAMRA), http://www.state.gov/documents/organization/15282.pdf. Constitution of the International Telecommunication Union, Vol. UNTS 2134, entered into force on 1 July 1994 (ITU Constitution). The Protocol on Environmental Protection to the Antarctic Treaty, entered into force in 1998, http://www.ats.aq/documents/recatt/Att006_e.pdf. Statute of the International Court of Justice, Vol. UNTS 2187, entered into force on 1 July 2002 (ICJ Staute). Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies, UNTS Vol. 610, entered into force on 10 October 1967 (The Outer Space Treaty).
United Nations Convention on the Law of the Sea, UNTS Vol. 1833; 1834; 1835, entered into force on 16 November 1994 (UNCLOS III).
Vienna Convention on the Law of the Treaties, UNTS Vol. 1155, entered into force on 27 January 1980.
96
Other International Instruments
Declarations and Resolutions Bogota Declaration, ITU Doc. WARC-BS (1977) 81-E, January 17, 1977. Kampala Declaration, A/CONF.62/23, http://legal.un.org/diplomaticconferences/lawofthesea-1982/docs/vol_III/a_conf-62_23.pdf. UN Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space, Resolution nr. A/RES/1962 (XVIII), 13 December 1963, 18th session. UN Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, Resolution nr. A/RES/2749 (XXV), 17 December 1970, 25th session. UN Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, Resolution nr. A/RES/51/122, 13 December 1996, 51st session. UN Declaration on the Establishment of a New International Economic Order, Resolution nr. A/RES/3201 (S-VI), 1 May 1974, S-6th session. UN GA Resolution 1348 (XIII) on the Establishment of the ad hoc Committee on the Peaceful Uses of Outer Space. UN GA Resolution 1472 (XIV) on the Permanent Establishment of the ad hoc Committee on the Peaceful Uses of Outer Space.
UN GA Resolution 2340 (XXII) on the Establishment of the ad hoc Committee o Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction.
UN GA Resolution 2467 A (XXIII) on the Establishment of Committee o Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction.
UN GA Resolution on The Responsibility of States for Internationally Wrongful Acts, A/RES/65/19.
UN Resolution on the Deep Seabed Mining Moratorium, UN Doc. A/7630.
Other Documents
Arvid Pardo’s Speech of 1967, contained in the official records of the 22nd Sessions of the UN General Assembly, http://www.un.org/depts/los/convention_agreements/texts/pardo_ga1967.pdf.
Informal Single Negotiating Text, A/CONF.62/WP.9, http://legal.un.org/diplomaticconferences/lawofthesea-1982/docs/vol_V/a_conf-62_wp-9.pdf.
Part III of the Informal Composite Negotiating Text, A/CONF.62/WP.8/PartIII, http://legal.un.org/diplomaticconferences/lawofthesea-1982/docs/vol_IV/a_conf-62_wp-8_part-3.pdf.
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Revised Single Negotiating Text, A/CONF.62/WP.9/Rev.2/Corr.1, http://legal.un.org/diplomaticconferences/lawofthesea-1982/docs/vol_VI/a_conf-62_wp-9_rev-2_infro.pdf.
Recommendation ATCM XI-1 for CRAMRA, 1981, http://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=133.
National Instruments National Space Policy of the United States of America, https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf.
Case Law Fisheries Jurisdiction (U.K. v. Ice.), 1974, I.C.J. 3, 2 February 1973. Antarctica (United Kingdom v. Chile), 1955, I.C.J. (May 4). Antarctica (United Kingdom v. Argentina), 1955, I.C.J. (May 4). North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands). 1969, I.C.J. 3, 20 February 1969. Prosecutor v. Anto Furundzija, IT-95-17/1-T, 10 December 1998.
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KISS, A., "Conserving the Common Heritage of Mankind", Rev. Jur. U.P.R. 1990, p773-777 LARSCHAN, B. and BRENNAN, B., "The Common Heritage of Mankind Principle in International Law", Colum. J. Transnat’l L. 1983, p305-337 LEE, R., "Article II of the Outer Space Treaty: Prohibition of State Sovereignty, Private Property Rights, or Both?", Aust. I.L.J. 2004, p128-142 LODGE, M., "The Common Heritage of Mankind", Int’l J. Marine & Coastal L. 2012, p733-742 MARKO, D., "A Kinder, Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and a Proposed Alternative", J. Nat. Resources & Envtl. L. 1992-93, p293-345. MAU, S., "Equity, The Third World and The Moon Treaty", Suffolk Transnat’l L.J. 1984, p221-258 MINOLA, P., "The Moon Treaty and the Law of the Sea", San Diego L. Rev. 1981, p455-472 NELSON, T., "The Moon Agreement and Private Enterprise: Lessons from Investment Law", ILSA J. Int'l & Comp. L 2011, p393-416 NOYES, J., "The Common Heritage of Mankind: Past, Present, And Future", Denv. J. Int’l L & Pol’y 2012, p447-471 PAUST, J., "The Reality of Jus Cogens", Conn. J. Int’l. L. 1991, p81-85 QIZHI, H., "The Outer Space Treaty In Perspective", J. Space L. 1997, p93-100 RANA, H., "The ‘Common Heritage of Mankind’ & The Final Frontier: Revaluation of Values Constituting the International Legal Regime for Outer Space Actvities.", Rutgers L.J. 1994, p225-250. REED., W., "The Outer Space Treaty: Freedoms-Prohibitions-Duties", U.S.A.F. JAG L. Rev. 1967, p26-37 REINSTEIN, E., "Owning Outer Space", Nw. J. Int’l L, & Bus. 1999, p59-98 ROSENFIELD, S., "The Moon Treaty: The United States Should not Become a Party", Am. Soc’y Int’l L. Proc. 1980, p162-166 SCHACKELFORD, S., "The Tragedy of the Common Heritage of Mankind", Stan. Envtl. L. J. 2009, p109-169 TAN, D., "Towards a New Regime for the Protection of Outer Space as the Province of All Mankind", Yale J. Int'l L., 2000, p145-194 TASIOULAS, J., "Opinio Juris and the Genesis of Custom: A Solution to the Paradox", Aust. YBIL 2007, p199-205 TATSUZAWA, K., "The Regulation of Commercial Space Activities By The Non-Governmental Entities in Space Law", IISL 1989, 341-348, http://www.spacefuture.com/archive/the_regulation_of_commercial_space_activities_by_the_non_governmental_entities_in_space_law.shtml.
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TRONCHETTI, F., "The Moon Agreement in the 21st Century: Addressing its potential role in the era of commercial exploitation of the natural resources of the moon and other celestial bodies’", J. Space L. 2010, p 489-524 WHITE, M., "The Common Heritage of Mankind: An Assessment", Case W. Res. J. Int’l L. 1982, p509-542 WOLFRUM, R., "The Principle of The Common Heritage of Mankind", HJIL 1983, p312-337 WOLTER, D., "The Peaceful Purpose Standard of the Common Heritage of Mankind Principle in Outer Space Law", ASILS Int’l L.J. 1985, p117-146 ZHAO, Y., "An International Space Authority: A Governance Model for a Space Commercialization Regime", J. Space L. 2004, p277-296
Miscellaneous
Scientific Books CUTRIGHT, B., "The Near-Earth Asteroids on the Pathway to Earth’s Future in Space" in W. AMBROSE, J. REILLY and D. PETERS (eds.), Energy Resources for Human Settlement in the Solar System and Earth’s Future in Space, Tusla, American Association of Geologists, 2013, 75-99. ELVIS, M., "Prospecting Asteroids Resources" in V. BADESCU (ed.), Asteroids: Prospective Energy and Material Resources, Berlin New York, Springer, 2013, 81-131. FAURE, G. and MENSING, T., Introduction to Planetary Science: The Geological Perspective, Dordrecht Londen, Springer, 2007, xx+526 p.
GREENSTEIN, G., Understanding the Universe: An Inquiry Approach to Astronomy and the Nature of Scientific Research, Cambridge New York, Cambridge University Press, 2013, xv+650p.
MASSEY, P. and HANSON, M.,"Astronomical Spectroscopy" in OSWALT, T. and BOND, H. (eds.), Planets, Stars and Stellar Systems: Volume 2: Astronomical Techniques, Software, and Data, Dordrecht, Springer, 2013, 35-98. PETRESCU, F., Cold Nuclear Fusion: Germany 2012, Norderstedt, Books On Demand, 2012, 100 p.
Scientific Papers and Tables MCELLROY, M., "AAAS Workshop Explores How to Meet Demand for Helium-3 in Medicine, Industry and Security", American Association for the Advancement of Science, 23 April 2013, http://www.aaas.org/news/aaas-workshop-explores-how-meet-demand-helium-3-medicine-industry-and-security.
PERMANENT, http://www.permanent.com/lunar-geology-minerals.html.
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Magazine and news articles BRANDOM, R., "The Big Future: Can we colonize Mars?", The Verge October 16, 2014, http://www.theverge.com/2014/10/16/6984563/the-big-future-can-we-colonize-mars. BRYAN, V. and SHEAHAN, M., "Europe makes space history as Philae probe lands on comet", Reuters November 12th,, 2014, http://www.reuters.com/article/2014/11/12/space-comet-idUSL6N0T232S20141112. CAMINITI, S. "The Billionaire’s race to harness the moon’s resources", CNBC 3 April 2014, http://www.cnbc.com/id/101531789. GROTTA, D. and GROTTA, S., "Antarctica: Whose Continent is it Anyway?", Popular Science January 1992, p91. HARTNETT, K., "The comet landing as a prelude to asteroid mining", The Bosten Globe November 14, 2014, http://www.bostonglobe.com/ideas/2014/11/14/the-comet-landing-prelude-asteroid-mining/WDUHGKNhsP3wLLPn6XT7qN/story.html. HEWITT, J., "China is going to mine the moon for Helium-3 fusion fuel", Extreme Tech January 26, 2015, http://www.extremetech.com/extreme/197784-china-is-going-to-mine-the-moon-for-helium-3-fusion-fuel. HOLLINGHAM, R., "Five steps to colonizing Mars", BBC October 30, 2014, http://www.bbc.com/future/story/20141030-five-steps-to-colonising-mars. KING, L., "With tight budget, NASA may see more private partnerships", USA Today 12 November 2013, http://www.usatoday.com/story/news/nation/2013/11/12/nasa-budget-private-sector/3510345/. LISTNER, M., "The Moon Treaty: failed international law or waiting in the shadows? ", The Space Review 24 October 2011, http://www.thespacereview.com/article/1954/1. P.E., "Hydrogen-powered cars: The future, finally", The Economist February 15th, 2013, http://www.economist.com/blogs/schumpeter/2013/02/hydrogen-powered-cars?zid=293&ah=e50f636873b42369614615ba3c16df4a. SAMPLE, I. "Mars One mission: a one-way trip to the red planet in 2024", The Guardian February 9th, 2015, http://www.theguardian.com/science/2015/feb/09/mars-one-mission-a-one-way-trip-to-the-red-planet-in-2024. SANTINI, J., "NASA bets on private companies to exploit moon’s resources", Phys.org 9 February 2014, http://phys.org/news/2014-‐02-‐nasa-‐private-‐companies-‐exploit-‐moon.html. SMITH, J., "Russia makes plans to mine the moon", KSL December 2, 2014, http://www.ksl.com/?nid=1012&sid=32515405.
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THOMAS, S."Gold Rush in space? Asteroid miners prepare, but eye water first", Reuters 21 November 2013, http://www.reuters.com/article/2013/11/21/us-space-mining-asteroids-idUSBRE9AK0JF20131121. WILLIAMS, M., "Mining the Moon: Lab experiments suggest that future fusion reactors could use helium-3 gathered from the moon", MIT Technology Review 23 August 2007, http://www.technologyreview.com/news/408558/mining-the-moon/.
X., "Martian Space Flight: Red Dreams", The Economist June 1st 2013, http://www.economist.com/news/science-and-technology/21578637-mars-has-always-been-shangri-la-space-buffs-two-new-private-missions-show.
Institutes European Space Agency http://www.esa.int/ESA. International Institute of Space Law http://www.iislweb.org/about.html. National Aeronautics Space Agency http://www.nasa.gov. The Space Settlement Institute http://www.space-settlement-institute.org. United Nations http://www.un.org. United Nations Office for Outer Space http://www.unoosa.org. United States Department of State http://www.state.gov. Secretariat of the Antarctic Treaty http://www.ats.aq/e/ats.htm.
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