The Lawfulness of Space Mining Activities

The lawfulness of space mining activities
by Louis de Gouyon Matignon
under the supervision of Prof. Jean-Pierre Desideri

Acknowledgments
I would like first to express my gratitude to my supervisor, Prof. Jean-Pierre Desideri, for the
useful comments, remarks and engagement, through the writing process of this master’s
thesis.
My gratitude also goes to Philippe Clerc, Head of Compliance and Ethics at CNES, the French
space agency. With his help, I have been able to truly understand what space law is about; I
have gained a better grasp on the legal issues regarding space mining activities from a
commercial standpoint.
I would also like to thank Dr. Frédéric-Jérôme Pansier for the advices he gave me, both morally
and technically, throughout the writing of this master’s thesis. His suggestions on how
research should be organised allowed me to figure out the main subjects to focus on.
Lastly, I would like to thank my family and friends for their support and encouragement during
the writing of this thesis, and throughout my years of as a law student. This accomplishment
would not have been possible without their constant love and support.
Louis de Gouyon Matignon
2
Abstract
This master’s thesis aims at shedding light into the arising issue of regulating the commercial
utilisation of space resources, as this new activity is about to become a reality. The difficulty
of regulating space mining activities comes first from the uncertainty of whether said activities
comply with the current provisions of international space law.
Some states have already taken the absence of express prohibition as a sign that the utilisation
of space resources is permissible, and both the United States of America and Luxembourg
recently adopted national legislations expressly allowing it. This triggered a response by the
international community, mostly underlining that such unilateral initiatives did not represent
a fully acceptable solution, and that a collective approach should be preferred as it was for
the high seas and the deep seabed.
However, an in-depth study of both regimes shows that they are not easily transferable in the
situation of outer space. Nonetheless, the future legal framework for space mining will need
to imperatively balance the economic development foreseen, with the preservation of outer
space’s environment.
3
TABLE OF CONTENT
List of abbreviations 6
Introduction 9
1. The definition of natural resources 11
2. The growing need for natural resources 13
3. Outer space as a solution 15
a. A synthetic history of the outer space conquest 17
b. What is space law? 21
c. The origins of space law 22
d. The United Nations 25
4. The main principles of space law 28
a. Province of all mankind, benefits and interests of all countries 28
b. Freedom of exploration and use, and peaceful use of outer space 29
c. Non-appropriation and non-sovereignty 29
d. State responsibility for space activities by non-governmental entities 30
e. State liability for damage caused by space objects 30
f. Jurisdiction and control, ownership of space objects and registration 31
g. Avoidance of harmful interference and harmful contamination 32
5. The emerging space mining practice 33
a. 1969 to 1972, U.S.A. Apollo missions bring back Moon rocks 34
b. 2005, Hayabusa recovers dust samples from Itokawa asteroid 34
c. 2015, U.S.A. space mining law 35
d. 2016, Luxembourg’s SpaceResources initiative 35
e. 2019, Russia wants to join 36
I. The non-appropriation principle in international space law 38
A. Articles I and II of the 1967 Outer Space Treaty 39
1. Article I of the 1967 Outer Space Treaty: freedom for exploration
and use by all States 45
2. Article II of the 1967 Outer Space Treaty: the national non-
appropriation principle 57
B. Article 11 of the 1979 Moon Agreement 70
1. The common heritage of mankind principle: Article 11, paragraph 1,
of the 1979 Moon Agreement 73
4
2. The exploitation of the natural resources of the Moon and other
celestial bodies 79
II. The need to establish an international legal framework for
space mining activities 89
A. The recent appearance of national laws 92
1. The Space Resource Exploration and Utilization Act of 2015 93
2. The Luxembourg law on space resources 100
B. Legal models in Public International Law 105
1. The lawfulness of Antarctic mining activities 107
2. The International Seabed Authority 126
Conclusion 138
Towards Mars! 142
Bibliography 146
5
LIST OF ABBREVIATIONS
1967 Outer Space Treaty: Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies of 1967.
1968 Rescue Agreement: Agreement on the Rescue of Astronauts, the Return of

Astronauts and the Return of Objects Launched into
Outer Space of 1968.
1972 Liability Convention: Convention on International Liability for Damage Caused

by Space Objects of 1972.
1976 Registration Convention: Convention on Registration of Objects Launched into

1979 Moon Agreement: Agreement Governing the Activities of States on the

Moon and Other Celestial Bodies of 1979.
COPUOS: Committee on the Peaceful Uses of Outer Space.
COSPAR: Committee on Space Research.
CSLCA: U.S. Commercial Space Launch Competitiveness Act of

2015.
ESA: European Space Agency.
FAA: Federal Aviation Administration.
IISL: International Institute of Space Law.
ISA: International Seabed Authority.
ISRU: In-Situ Resource Utilization.
ISS: International Space Station.
Kyoto Protocol: Kyoto Protocol to the United Nations Framework

Convention on Climate Change.
NASA: National Aeronautics and Space Administration.
6
Remote Sensing Principles: Principles Relating to Remote Sensing of the Earth from
Space Benefit Declaration: 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 of 1996.
Title IV: Space Resource Exploration and Utilization Act of 2015.
U.N.: United Nations.
UNCLOS: United Nations Convention on the Law of the Sea.
UNGA: United Nations General Assembly.
UNOOSA: United Nations Office for Outer Space Affairs.
VCLT: Vienna Convention on the Law of Treaties of 1969.
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“Unless people can see broad vistas of unused resources in front of them, the belief in limited
resources tends to follow as a matter of course. And if the idea is accepted that the world’s
resources are fixed, then each person is ultimately the enemy of every other person, and each
race or nation is the enemy of every other race or nation. The extreme result is tyranny, war
and even genocide. Only in a universe of unlimited resources can all men be brothers.”
Robert Zubrin, in The Case for Mars, 1996.
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INTRODUCTION
1. At a time when resources are scarce, where human needs are growing more and more
(and so is demography), and politics is disappearing in favour of greater economic integration,
it appears that the exploratory space perspective, and in particular the capacity of the living
beings to settle elsewhere than on Earth, becomes feasible. The urge to explore has propelled
evolution since the first water creatures reconnoitred the land. Like all living systems, cultures
cannot remain static; they evolve or decline.
2. Private companies, which historically surpass states before making them disappear,
accompany this movement of history. Recently, corroborated by cultural productions such as
Mars (National Geographic) or Avatar (James Cameron), some have looked at the potential to
seek energy outside of planet Earth1. This illustrates that humanity is about to live a new
moment: the transition from a land-based agro-industrial society, to a service society freed
from any energy constraint.
3. Economy is building the law. And it is therefore quite natural that as history is realised
(because of economy), new legal questions arise. Among these, within a relatively young
industry (space activity has for now gone through two movements: first of all, that of
“exploration”, by the states and for political reasons, in the 1960s, then, that of the “use”, by
companies still largely supported by the states)2, that of the legality of a potential
commercialisation of the resources of outer space, corresponding to a third movement in the
space activity, that of the “exploitation” by private companies of the potentialities offered by
infinite energy.
4. The ever-expanding world of technology is constantly turning science fiction into reality.
Space mining is an exciting example of this. For decades, scientists have understood that
celestial bodies – namely asteroids – contain sometimes high levels of precious metals and
other resources. A handful of companies now hope to bring these resources out of orbit and
back to Earth3. Would these operations be lawful? At a time where environmentally protecting
the Earth is (almost) everybody’s concern, and where the depletion of resources is a cause for
1
https://mashable.com/feature/asteroid-mining-space-economy/?europe=true
2
DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014.
3
https://www.technologyreview.com/s/612311/asteroid-mining-might-actually-be-better-for-the-
environment/
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concern, it is not surprising that some are turning their investments to the wealth available in
the Solar System and potentially beyond.
5. The press has already widely echoed projects led by pioneering start-ups such as
Planetary Resources, Inc., or Deep Space Industries4. These companies, which raised tens of
millions of American dollars, can rely on solid scientific data: the theoretical value of some
asteroids, composed in part of gold, nickel, and other precious metals, reaches thousands of
billions of American dollars5. Closer to Earth is the Moon, which has useful, and therefore
precious, resources such as water (which can be used as a propellant), or helium-3 (a future
energy source)6.
6. Although the large-scale exploitation of outer space resources remains at this stage a
long-term project, it illustrates the challenges that space law will have to meet to support an
increased human presence beyond Earth. These projects face not only considerable technical
difficulties, but also serious legal obstacles. It is to these questions which are nowadays a hot
topic in the small space law community that we will try to answer. What are space resources?
Does public international law, which space law is a part of, permit the exploitation of celestial
resources? What are the legal conditions in which this exploitation could take place? Outer
space is in the way of becoming commercialised. The legal framework must catch up.
7. In the first part of our analysis, we will focus on what public international law provides
for the exploitation of celestial resources (I), concentrating especially on the 1967 Outer Space
Treaty (A), and the 1979 Moon Agreement (B). In a second part, we will look at some of the
solutions envisaged to exploit resources of outer space (II), by focusing on how the concept of
exploiting celestial bodies has been imagined by national laws (A), and the ideal international
legal instrument that would be needed to ensure a long-term peaceful exploitation of the
cosmos (B). But before doing so, let’s define the main principles on which we will be working
on.
4
https://theweek.com/articles/748563/how-asteroid-mining-could-save-planet
5
https://www.visualcapitalist.com/theres-big-money-made-asteroid-mining/
6
http://www.slate.fr/story/97447/helium-3-lune-energie-terre
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1. The definition of natural resources
8. Natural resources are components that exist in the world without the input of humans7.
These natural resources are diverse, ranging from renewable resources to non-renewable
resources, living to non-living resources, tangible to intangible resources. Natural resources
are essential to the survival of humans and all other living organisms. All the products in the
world use natural resources as their basic component, which may be water, air, natural
chemicals or energy. The high demand for natural resources around the world has led to their
rapid depletion.
9. Natural resources could be classified into different categories, such as renewable and
non-renewable resources, biotic and abiotic resources, and stock resources8. Renewable
resources refer to resources that can naturally regenerate after use. They include resources
such as wind, water, natural vegetation, solar energy, and animals. These resources exist in
nature in abundance. There is little concern about depleting renewable resources because
their rate of production exceeds the rate of human consumption. Conservationists throughout
the world advocate for the use of renewable resources, because they are readily available and
less costly to the environment.
10. Non-renewable resources are components that take too long to replenish after use or
exist in limited quantities. Non-renewable resources include products such as crude oil,
precious metals, minerals, and rocks. Some endangered animals are also classified as non-
renewable resources because their mortality rate is much higher than their reproduction rate.
These non-renewable resources need to be protected and to be used responsibly to stop their
depletion.
11. Biotic natural resources refer to living resources that exist naturally in the
environment9. Such resources include forests, wildlife, and fossil fuels, which are all listed as
biotic natural resources. Non-biotic natural resources are natural products in the environment
that are non-living. These resources include water, rocks, metals, and minerals among many
others. The world has numerous resources some of which are yet to be exploited. Humans
7
https://www.worldatlas.com/articles/what-are-natural-resources.html
8
https://www.toppr.com/guides/evs/what-if-it-finishes/materials-resources-and-its-classification/
9
https://www.renewableresourcescoalition.org/top-natural-resources/
11
lack the skills and technology to extract and use some of the naturally occurring resources,
like rare gases and some radioactive materials. As a result, these resources are classified as
stock resources to be utilised in the future.
12. Most natural resources exist in limited quantities. Unfortunately, various factors have
led to the exploitation of these resources. Some of the components are at the risk of depletion.
Environmental pollution, high population, uncontrolled development, climate change, and
modern lifestyles are some of the threats to natural resources.
12
2. The growing need for natural resources
13. Since the 1970s, global population has doubled and global Gross Domestic Product has
grown fourfold10. These trends have required large amounts of natural resources, defined as
“materials or substances occurring in nature which can be exploited for economic gain”, to fuel
economic development and the attendant improvements in human well-being this has
brought across the globe11. However, these gains have come at a tremendous cost to our
natural environment, ultimately impacting human well-being and exacerbating inequalities
within and between states. A Historical Trends scenario shows that the current trajectory of
natural resource use and management is unsustainable12.
14. Economic and thus human development have always been closely linked to the control
and production of materials. Due to continued growth of the global economy, the demand for
natural resources, such as fossil fuels, metals and minerals, and biomass from agriculture
(crops), forestry, fishery… provided by the Earth is rapidly increasing, and they are being
exploited without metres and bounds. This results in serious environmental damages, through
the extraction process itself, but also due to the ever longer transport distances between
extraction, processing and final consumption.
15. The global use of natural resources has, since the mid-1970s, increased across the
board, pushing the boundaries of sustainability13. The extraction and processing of natural
resources now accounts for more than ninety percent of global biodiversity loss and water
stress impacts, and approximately half of global greenhouse gas emissions.
16. In 1982, the United Nations saw the need for environmental protection and
preservation of natural resources. The World Charter for Nature14 lists the measures to be
taken to prevent depletion of natural resources. It also states the importance of
environmental protection and the need to create laws on the same subject. Other
10
https://www.pwc.com.au/government/pwc-the-world-in-2050-full-report-feb-2017.pdf
11
https://www.longdom.org/scholarly/natural-resource-management-journals-articles-ppts-list-644.html
12
https://www.resourcepanel.org/reports/global-resources-outlook
13
https://www.resourcepanel.org/sites/default/files/documents/document/media/thinkpiece_-
_resource_efficiency_-_key_messages_for_the_g20_270818.pdf
14
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1268&context=elq
13
organisations like the International Union for Conservation of Nature (IUCN), and the World
Wide Fund for Nature (WWF), have also led in the push for protection of natural resources.
17. The organisations have funded scientific studies where scientists research ways to
conserve the natural resources found in the environment. At the local level, states have
established protected areas to conserve natural resources from exploitation. Conservationists
also encourage the use of renewable natural resources such as wind and solar energy, instead
of non-renewable resources which are at risk of extinction. Additionally, most states have
government departments that oversee the extraction and use of natural resources. These
departments create rules on management of natural resources like precious metals, rare
metals, and energy sources. They also provide licenses to companies involved in the
production and sale of such resources.
14
3. Outer space as a solution
18. Recently, more and more people have come up with the idea of going to outer space
to find resources we would need in a near-future. Some have even talked about “The Race to
Mine Outer Space”15. Metals, minerals, and energy sources have been found to exist in near-
infinite quantities within our Solar System, and political and commercial interest in outer
space mining has grown as the idea has increasingly become realistic and achievable16. Since
then, the concept of traversing the great unknown in order to find the energy we would need
has evolved. Companies, like Deep Outer space Industries, Golden Spike Company, Shackleton
Energy Company, or Moon Express, have been developing.
19. In 2017, in “Feasibility Study for the Quantitative Assessment of Mineral Resources in
Asteroids”17, Laszlo Keszthelyi, Justin Hagerty, Amanda Bowers, Karl Ellefsen, Ian Ridley, Trude
King, David Trilling, Nicholas Moskovitz, and Will Grundy, geologists at the U.S. Geological
Survey’s Astrogeology Science Center, have found that the projected water and metal
resources of near-Earth asteroids is “immense when compared to current needs” and that
outer space resources “could sustain a million-fold increase in human activity in outer space
for a million years. Even if the numbers are too large by a factor of a thousand, or even a
million, there appears to be a significant amount of useful resources in NEOs”.
20. In addition to ensuring human needs on Earth, some have proposed the idea of using
outer space resources to allow deep space exploration, and possible settlement of the human
species outside Earth. This concept has been referred to as “In-Situ Resource Utilization”18,
and has been mainly developed by the American National Aeronautics and Outer space
Administration (NASA). The idea is that the farther humans go into deep space, the more
important it will be to generate their own products with local materials.
21. As one can read on NASA’s website19, “As human outer space exploration evolves
toward longer journeys farther from our home planet, ISRU will become increasingly
important. Resupply missions are expensive, and as astronaut crews become more
15
https://www.forbes.com/sites/cognitiveworld/2019/05/13/the-race-to-mine-space/
16
https://www.wired.co.uk/article/international-laws-are-not-ready-for-space-mining
17
https://pubs.usgs.gov/of/2017/1041/ofr20171041.pdf
18
https://en.wikipedia.org/wiki/In_situ_resource_utilization
19
https://www.nasa.gov/isru
15
independent of Earth, sustained exploration becomes more viable. For travel in outer space, as
on Earth, we need practical and affordable ways to use resources along the way, rather than
carrying everything we think will be needed. Future astronauts will require the ability to collect
outer space-based resources and transform them into breathable air; water for drinking,
hygiene, and plant growth; rocket propellants; building materials; and more. Mission
capabilities and net value will multiply when useful products can be created from
extraterrestrial resources”.
22. Celestial bodies – including the Moon or near-Earth objects (NEOs) such as asteroids –
are naturally forming objects found beyond Earth’s atmosphere. Many planets, moons and
asteroids contain a rich diversity of inert physical substances such as metals, along with gases
and water that could be used as energy sources and means to sustain human life as we venture
deeper into space. Many of the metals found within the Moon and other celestial bodies are
already scarce on Earth. One day, we may use them not only to construct equipment in space
but transport them back to support terrestrial activities, employing on Earth the technologies
developed to explore and mine resources in outer space.
23. In space exploration (the discovery and exploration of celestial structures in outer
space by means of evolving and growing space technology), in situ (which means “in its original
position or place” in Latin) resource utilization (ISRU) is the practice of collection, processing,
storing and use of materials found or manufactured on other astronomical objects (the Moon,
Mars, asteroids, etc.) that replace materials that would otherwise be brought from Earth.
24. ISRU could provide materials for life support (a group of devices that allow a human
being to survive in space), propellants (a chemical substance used in the production of energy
or pressurised gas that is subsequently used to create movement of a fluid or to generate
propulsion of a vehicle, projectile, or other object), construction materials, and energy to a
spacecraft payloads, or space exploration crews20. It is now very common for spacecraft and
robotic planetary surface mission to harness the solar radiation found in situ in the form of
solar panels.
25. The use of ISRU for material production has not yet been implemented in a space
mission, though several field tests in the late-2000s demonstrated various lunar ISRU
20
https://www.nasa.gov/isru
16
techniques (using regolith) in a relevant environment21. ISRU has long been considered as a
possible avenue for reducing the mass and cost of space exploration architectures, in that it
may be a way to drastically reduce the amount of payload that must be launched from Earth
in order to explore a given planetary body (any secondary body in the Solar System that has a
planet-like geology).
26. These projects of outer space mining activities have, even though we yet lack the
technique needed, raised a lot of legal questions. Can one exploit the resources of an asteroid?
Can we drill water on the surface of the Moon? Can private companies engage in those
activities without being supervised by states? What is the status of a celestial body: is it a res
communis or a res nullius? How to organise the potential business of outer space mining
activities? Before answering questions that arise from these perspectives, let’s have a look at
how was outer space invested by living beings.
a. A synthetic history of the outer space conquest
27. Cultures around the world have contributed both to the visions and to the
technological developments necessary to make spaceflight a reality22. In the 20th century CE,
geopolitical agendas – with both “hot” and “cold” wars – sparked a rapid development in
rocket technology, which could be seen as a technological mutation. This explosive
technological development made spaceflight a reality, perhaps before the world was properly
ready to fully exploit it.
28. The first practical application of the reaction principle for propulsion was the
development of firework rockets in China around the 10th or 11th century CE23. Knowledge of
rocketry spread quickly throughout Asia and into Europe, and war rockets were widely used
during the medieval period. Developments in rocketry were slow and gradual until the
introduction of the Congreve rocket in 1804, which sparked a new period of experimentation.
The Congreve rocket was a British military weapon designed and developed by Sir William
Congreve in 1804, based directly on Mysorean rockets (an Indian military weapon which were
the first iron-cased rockets successfully deployed for military use).
21
https://www.sciencedirect.com/topics/earth-and-planetary-sciences/in-situ-resource-utilization
22
https://www.spacelegalissues.com/the-origins-of-the-space-age/
23
17
29. The Kingdom of Mysore24 in India used Mysorean rockets as a weapon against the
British in the wars that they fought against the British East India Company. Lieutenant General
Thomas Desaguliers, Colonel Commandant of the Royal Artillery in Woolwich, was influenced
by the reports about their effectiveness, and he undertook several unsuccessful
experiments25. Several Mysore rockets were sent to Woolwich for studying and reverse-
engineering following the Second, Third, and Fourth Mysore wars.
30. As early as 1638, the famous British author, Francis Godwin, published a book called
“The Man in the Moone”26. This novel can be considered one of the first telling a story of travel
in outer space. In France, Savinien de Cyrano de Bergerac, will also have written a book that
will be published after his death, in 1655. This book entitled “Comic History of the States and
Empires of the Moon”, will also cover a journey in outer space. These two books were marked
by innovative and sometimes unknown details, such as gravity. We can also quote Jules Verne,
who will publish in 1865 a novel entitled “From the Earth to the Moon”. This book will be one
of the most famous novels of this author, it will be adapted to the cinema. Then with
technological advances, humanity has been able to claim the conquest of space instead of just
observing it.
31. The scientific-industrial revolution (17th to 19th century CE) established understanding
of the physical principles necessary for spaceflight and introduced the idea of progress27. The
future was, for the first time, seen as different from (and potentially better than) the past.
This led to stories about the future, now called science fiction which inspired all the early outer
space pioneers.
32. The scientific-industrial revolution eventually led to developments in flying machines

and rockets that made it technically possible to fly and go into outer space. The two major
pioneers of spaceflight were Konstantin Tsiolkovsky (1857 – 1935), and Robert H. Goddard
(1882 – 1945). Tsiolkovsky was a Russian theoretician who established many of the basic
mathematical laws of outer space flight. In 1903, he published The Exploration of Outer Space
with Reactive Devices, the first major work on astronautics28. Goddard, an American physicist,
24
https://www.newworldencyclopedia.org/entry/Kingdom_of_Mysore
25
https://en.wikipedia.org/wiki/Kingdom_of_Mysore
26
27
28
https://en.wikipedia.org/wiki/History_of_spaceflight
18
published A Method of reaching Extreme Altitudes, in 1919, in which he described the first
sounding rocket and predicted the possibility of sending a rocket to the Moon29. He designed
and flew the world’s first successful liquid fuel rocket in March, 1926 (Massachusetts)30.
33. Goddard began experimenting with liquid oxidiser, liquid fuel rockets in September
1921, and successfully tested the first liquid propellant engine in November 192331. It had a
cylindrical combustion chamber, using impinging jets to mix and atomise liquid oxygen and
gasoline. Goddard had problems developing a high-pressure piston pump to send fuel to the
combustion chamber. He wanted to scale up the experiments, but his funding would not allow
such growth. He decided to forego the pumps and use a pressurised fuel feed system applying
pressure to the fuel tank from a tank of inert gas, a technique used today. The liquid oxygen,
some of which evaporated, provided its own pressure.
34. Inspired by the work of Tsiolkovsky and Goddard, an international movement began
to form in the 1920s and 1930s. Outer space travel and rocket societies in many countries
undertook theoretical and practical research in rocketry and spaceflight. Hermann Oberth
(1894 – 1989) was a leading figure in this movement. In 1923, he published The Rocket into
Planetary Space, an extremely influential book in Europe32.
35. The two most important rocketry groups were formed in Germany and Russia. The
Verein für Raumschiffahrt, was founded in Germany in 1927, by Hermann Oberth. This group
included Wernher von Braun and many other young engineers who would become leaders in
the development of rocket technology during and after World War II33.
36. In 1931, the Moscow-based Group for the Study of Reactive Motion (GIRD) was formed
in Russia. It worked with government support and, in 1933, designed and launched the
U.S.S.R.’s first liquid-fuel rocket, the GIRD-X. The GIRD group laid the foundations for the
development of Soviet rocket technology after World War II. Among its members was Sergei
Korolev, the Chief Designer of the Soviet outer space program34.
29
https://www.space.com/4422-timeline-50-years-spaceflight.html
30
31
https://www.nasa.gov/centers/kennedy/about/history/spacehistory_toc.html
32
https://www.iislweb.org/website/docs/2010keynote.pdf
33
34
19
37. Arthur C. Clark described outer spaceflight as a “technological mutation that should
not have occurred until the 21st century CE”. World War II and the Cold War accelerated the
pace of rocket development at an unprecedented rate, spurring the outer space race of the
1960s and 1970s35.
38. In the 1930s, Germany sought to circumvent arms control treaties by developing
rockets for use as weapons. During World War II, this resulted in the Aggregat 4 rocket, known
as the Vergeltungswaffen 2 (V-2)36, a tremendous leap forward in rocket technology. Its basic
design concepts for rocket motor, fuel system, guidance, and steering remain at the heart of
even today’s most advanced launchers. Following the war, the V-2 became the prototype for
the first long-range missiles and the outer space launch vehicles into which they evolved.
39. With the onset of the Cold War between the U.S.A. and U.S.S.R. following World War
II, there was a rush to develop long-range missiles capable of delivering nuclear warheads over
intercontinental distances. Achievement in missile technology came to be seen as a status
symbol, proclaiming the power and influence of the nations that possessed it. Military missiles
were developed into the first outer space launch vehicles. Thus, spaceflight was a
revolutionary leap driven by political and military requirements, which provided the massive
amounts of money and resources needed to make spaceflight a reality.
40. The launch of Sputnik 1, in October 1957, ushered in the Space Age37. Initial Soviet
outer space achievements, coupled with early American failures, increased the Cold War
rivalry between the U.S.A. and the Soviet Union. Propaganda quickly associated outer space
achievements with ideological superiority, so both sides vied with each other to achieve
status-conferring outer space “firsts”. This competition resulted in the Space Race, with the
U.S.S.R. winning most of the first contests. This rivalry further forced the pace of technological
development and led to the Apollo Moon landings, less than twelve years later, by the
Americans.
41. The outer space race spurred the development of outer space programs in Europe,
China, India, Japan and eventually elsewhere. The race to the Moon, however, did not
generate the infrastructure necessary to support a permanent human presence in outer space
35
https://www.astrobio.net/retrospections/arthur-c-clarke-a-visionary-astrobiologist/
36
http://www.bbc.com/future/story/20140905-the-nazis-space-age-rocket
37
https://www.spacelegalissues.com/space-law-sputnik-and-the-birth-of-space-law/
20
(outer space stations and cheap access to outer space); thus, after Apollo, the pace of outer
space technology development slowed markedly.
b. What is space law?
42. The launch of the first artificial man-made satellite by the Soviets in 1957 took the
attention of the world. In his non-fiction book Danse Macabre (1981), the horror writer
Stephen King tells how the screening of a film in a small-town New England cinema was
interrupted38. The cinema manager told the audience what had happened, and the screening
was abandoned. People went out in a fruitless attempt to try to see the satellite.
43. Since then, outer space has transformed modern life. Just four decades after Sputnik
1, the Preamble of the “Space Millennium: Vienna Declaration on Space and Human
Development” of 1999 accurately included recognition “that significant changes have
occurred in the structure and content of world outer space activity, as reflected in the
increasing number of participants in outer space activities at all levels and the growing
contribution of the private sector to the promotion and implementation of outer space
activities”39.
44. Satellites route email, data and other communications to fixed and mobile
instruments, and provide multi-channel TV direct to homes and hotels. Global positioning
systems allow us to know exactly where aircraft, ships and motor vehicles are, and help
navigation. With pocket devices receiving satellite signals, we roam the countryside in relative
safety. Remote sensing provides many benefits. Weather is monitored and increasingly
accurate predictions made. Typhoons, cyclones, tornadoes and hurricanes are known
sometimes days in advance. Ocean health and climatic events, such as El Niño and its cognate
La Niña, are observed and better understood.
45. We monitor fisheries, land use, farming, deforestation, vegetation coverage and
aridity. Animal and bird migration patterns are being discovered. Potential disasters, volcanic
and otherwise, are becoming predictable. Satellite technology both informs and aids our
reaction to dire events. Outer space has also allowed major developments in our
38
Space Law: A Treatise, Francis Lyall and Paul B. Larsen, 2007.
39
21
understanding of the cosmos. The major planets have all been scrutinised (some as yet only
briefly).
46. We have been to the Moon. Robotic rovers explore Mars. Space telescopes have
shown something of the beauty and complexity of our cosmos and given astronomers much
to work on. Theories have been developed, tested, modified and sometimes abandoned.
Space tourism is imminent. There may be residential space stations and settlement on, first,
the Moon, and thereafter? All this has involved law, and appropriate law has had to be
developed.
c. The origins of space law
47. As the nineteenth century made way for the twentieth, the regulation of aviation
appeared on the stage of the world’s interest40. International aviation, at first by un-powered
balloon and then by dirigible (notably the Zeppelin), drew the attention of lawyers, academic
and otherwise, as well as of government and the military. Among various suggestions designed
to facilitate air traffic, was that there should be a series of zones above the territory of a state
on the analogy of the law of the sea, a territorial zone with freedom of flight above that, but
these musings in reality were considering only matters of air-space and not space as we now
know it.
48. The eventual result, was the affirmation in the Paris Convention of 1919 of the
complete and exclusive sovereignty of a state over its superjacent air-space41. This principle,
which quickly attained the status of dogma, was reaffirmed at Chicago in 1944 42. Some,
however, began to contemplate higher things. What rules might apply or should be adopted
to deal with activities in space?
49. Discussion of outer space as a region requiring particular rules of law took on an
immediacy after the Second World War, but the first harbingers were much earlier. In 1910,
Emile Laude noted a need for law beyond that for locomotion in the layer of breathable air43.
Beyond breathable air were layers of unbreathable gas and ether. Emile Laude also noted the
potential problems of the ownership and use of the Hertzian (radio) waves and conflated the
40
https://www.infoplease.com/math-science/aviation/early-20th-century-developments-in-human-flight
41
https://www.spacelegalissues.com/space-law-the-paris-convention-of-1919/
42
https://www.spacelegalissues.com/space-law-the-chicago-convention-of-1944/
43
https://www.spacelegalissues.com/space-law-history-101/
22
need for new law for the gaseous layers, and those for the Hertzian waves, under the name
of the law of space.
50. It was not until 1926 that space law was mentioned as a separate legal category44. In
the course of a paper mainly on questions of aviation, V.A. Zarzar of the Soviet Air Ministry
gave it as his view, that there was an upper limit to state sovereignty over air-space, and that
a separate legal regime would be required to deal with the arena beyond this upper zone in
which international travel by high-altitude flight and interplanetary communication would be
free from control by subjacent states.
51. In 1929, Walther Schoenborn of Kiel University stated the upward limit of the
sovereignty of a state as being the boundary of the atmosphere45. In 1928, Herman Potočnik
of Slovenia, writing under the alias Hermann Noordung, published The Problem of Space
Travel: The Rocket Motor. In it, he discussed the establishment of a space station in
geostationary orbit for use for Earth observation for civil and military purposes, but he was
concerned with technicalities, not legalities.
52. In 1932, Vladimír Mandl of Pilsen, Czechoslovakia, attempted specifically to treat of

legal matters to do with space, albeit in short compass46. Impressed by the activities of various
rocket experimenters of the 1920s, he had earlier written about them. Vladimír Mandl
conceived of space law as distinct and different from the law of the sea and the law of the air,
although he was willing to use some of their concepts as analogues through which solutions
to the problems of space might be found. In a section entitled The Future, Mandl suggested
that state sovereignty should be restricted in its vertical dimension, and that there should be
freedom in the area above and beyond state sovereignty.
53. Presciently, he also suggested that air law was not suitable for dealing with spacecraft,
that, subject only to mitigation by contributory negligence, astronauts should be liable for
damage they caused, that spacecraft launched under the sovereignty of a state should when
in outer space remain subject to the sovereignty of that state, that the commander of a
spacecraft should have authority over its crew, and that the link between an individual and
44
45
46
23
the territorial state of his nationality might change as new communities beyond the Earth
developed.
54. Evgeny Alexandrovich Korovin, a Soviet jurist specialising in international law,

presented a paper on The Conquest of the Stratosphere and International Law at an air law
conference held in Leningrad in 193347. He rehearsed the pre-First World War arguments in
favour of state sovereignty over air-space and acknowledged that some had argued for a free
zone above and beyond state sovereignty. However, on grounds of safety and military
security, Evgeny Alexandrovich Korovin came down in favour of unlimited state sovereignty.
55. Science was making advances. Modern rocketry began with the experiments of
Konstantin Eduardovich Tsiolkovsky, Robert Hutchings Goddard, Hermann Julius Oberth and
others in the early years of the twentieth century. Societies were established to discuss and
foster space matters. The British Interplanetary Society came into being in 1933 and started
to publish its Journal in 193448. At first, the military aspects of rocket science had precedence,
ballistic and inter-continental missiles being developed. However, the technology was also
capable of peaceful use. The International Geophysical Year of 1957 was to introduce satellites
for the scientific exploration of the Earth49.
56. After the Second World War, a variety of international associations and bodies, ranging
from academe to government, became important fora for the expression of views and
suggestions as to what law should govern in matters of outer space. Articles began to be
written, and in due course there were books.
57. The founding of the International Astronautical Federation (IAF) in 1950 was an
important development50. Although not many papers at its early congresses were directed to
questions of law, the IAF provided and still provides today a major forum for the discussion of
questions relating to the exploration and use of space, and for the dissemination of
information by and between its participants both at meetings and through the series Acta
Astronautica and the Proceedings of the International Institute of Space Law.
47
https://en.wikipedia.org/wiki/Evgeny_A._Korovin
48
https://en.wikipedia.org/wiki/British_Interplanetary_Society
49
https://www.spacelegalissues.com/space-law-international-geophysical-year/
50
https://www.spacelegalissues.com/space-law-international-astronautical-federation/
24
58. The eighth IAF International Congress on Astronautics was held in October 1957, four
days after the launch of Sputnik 1. It elected as IAF President Andrew Gallagher Haley, a U.S.
lawyer who had for some years been active within the IAF and in the promotion of space law.
It was therefore not surprising that the Congress also decided to establish a special IAF
committee under the chairmanship of John Cobb Cooper Jr. to define the respective areas of
jurisdiction for air and space law.
d. The United Nations
59. Space law was for the first time conceptualised, written and consecrated by the United
Nations. It is the United Nations that is at the root of space law51. This has started in the end-
1950s and has accelerated in the 1960s. The most obvious forum for developing space law
within the operational structures of the United Nations itself is the Committee on the Peaceful
Uses of Outer Space, or COPUOS52.
60. The Committee on the Peaceful Uses of Outer Space (COPUOS) was first established
as an Ad Hoc Committee of the General Assembly by UNGA Res. 1348 (XIII) on December 13,
195853. One year later, it was made permanent and its membership increased by the similarly
titled UNGA Res. 1472 (XIV) of December 12, 195954. That the Assembly saw fit to entrust such
matters to a specially denominated committee, recognised the peculiar problems involved,
and also that here was a new area of activity calling for new thinking and new procedures.
61. COPUOS works through the main Committee and two sub-committees, the Scientific
and Technical Sub-Committee and the Legal Sub-Committee, the latter normally being
responsible for the initial drafts in legal matters55. Each sub-committee reports to the main
Committee, which reports annually to the U.N. General Assembly and every year the Assembly
adopts a corresponding resolution. Particular resolutions as to “principles” which states
may/should/ought to obey are therefore determined by, and have weight related to, the care
with which they have been formulated.
51
https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-
space-law/
52
https://en.wikipedia.org/wiki/United_Nations_Committee_on_the_Peaceful_Uses_of_Outer_Space
53
54
http://www.unoosa.org/pdf/gares/ARES_14_1472E.pdf
55
25
62. At its broadest, space law comprises all the law that may govern or apply to outer
space and activities in and relating to outer space. There is a central body of space law, but
the term should be considered as a label attaching to a bucket that contains many different
types of rules and regulations rather than as denoting a conceptually coherent single form of
law56.
63. Space law is akin to family law or environmental law, where many different laws are
denoted by what they deal with rather than derived from the rational development of a single
legal concept57. Space law is the law of outer space (which’s frontier has not yet been
internationally defined). Space law is also unusual in that despite all the arguments as to
where space is, the location of its operation out there is indeterminate.
64. As Professor of Public Law Francis Lyall (from the University of Aberdeen) wrote it 58,
“There are two ways to organise a legal topic. One is intellectual and systematic. For example,
the law of contract is the elaboration of the complexities of a few basic concepts. The other is
to see the topic as a label covering many matters. In this form, one includes all the law that is
relevant to a particular set of facts. Thus, Family Law is all the law that relates to family
relationships, and includes marriage, divorce, civil partnerships, adoption, inheritance,
parental and children’s rights, social security, taxation etc. Space Law is of the second variety
and deals with all the law that can be involved in matters of space, including public
international, law both institutional and substantive, as well as relevant elements of private
law such as contract and delict/tort. Policy considerations arise when alternative legal
principles collide, or alternative solutions to particular problems are feasible”.
65. Terrestrially it can range from an insurance contract for a particular space launch to
the broad principles that govern how states, and the entities they authorise, act in outer
space59. Space law is therefore sometimes simply the application of the principles of existing
domestic law such as contract to a new field of activity. Sometimes it is a formal international
treaty. Space law is particulate law, developed to deal with the practical problems of the use
and exploration of outer space. Space law is recent law. Regulation has had to be invented,
56
https://legalcareerpath.com/space-law/
57
https://iislweb.org/docs/NewPerspectivesonSpaceLaw.pdf
58
59
26
adopted and implemented, and appropriate procedures developed. Because technical
advances have blurred state boundaries and in practice eroded many sovereign competences,
international agreement has often become essential.
66. Several legally binding international instruments (treaties) governing the use of outer
space for peaceful purposes have been adopted within the framework of the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS), with the 1967 Outer Space Treaty
(OST) at its core.
27
4. The main principles of space law
67. The Outer Space Treaty contains the basic rules that define the behaviour of states in
conducting activities in outer space, and has resulted in more than sixty years of peaceful
cooperation in space that benefits humankind as a whole60. Four subsequent treaties
elaborate on the basic principles of the OST (the Rescue and Return Agreement of 1968, the
Liability Convention of 1972, the Registration Convention of 1976, and the Moon Agreement
of 1979)61. The framework is complemented by a number of U.N. resolutions containing sets
of principles that address, for example, remote sensing, the use of nuclear power sources, or
the particular needs of developing countries.
68. The increased use of outer space by public and private entities and the growing
dependence of States on critical space infrastructure has made outer space contested,
congested, and competitive62. Exciting new opportunities loom on the horizon, but challenges
also become apparent. The continued sustainable and peaceful use of outer space is at stake,
and the international legal community needs to address these issues. As a consequence, the
legal framework is constantly evolving (through the adoption of multilateral cooperation
agreements, international guidelines in the form of soft law and national legislation).
a. Province of all mankind, benefits and interests of all countries
69. Article I of the OST states that 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 and shall be the province of all mankind. The scope and meaning of the words “for
the benefit and in the interests of all countries” are not defined. They do not apply to outer
space itself, but to its “use and exploration”63.
70. These concepts are also not defined, but can be seen in contrast to the word
exploitation that is used in the 1979 Moon Agreement, along with the concept of the
“common heritage of mankind”, as opposed to the “province of all mankind” concept used in
the OST. There are many vague concepts here, but the essence is that the use and exploration
60
http://www.unoosa.org/pdf/publications/STSPACE11E.pdf
61
HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW (11 ed. 1952).
62
https://www.un.org/press/en/2013/gadis3487.doc.htm
63
28
of outer space must in some way be beneficial for all, and not just for a handful of spacefaring
nations64.
b. Freedom of exploration and use, and peaceful use of outer space
71. Article I of the OST also states that outer space, including the Moon and other celestial
bodies, shall be “free for exploration and use” by all States. This is a cardinal principle of space
law, but the freedom is not absolute; it is limited by certain qualifications65. Use and
exploration must take place on the basis of equality and irrespective of the degree of
economic or scientific development of states; there must not be any discrimination; there
shall be free access to all areas of celestial bodies; and activities must be in accordance with
international law.
72. The latter principle is also embodied in Article III of the OST, which makes both
international law and the Charter of the U.N. applicable to space activities66. This
demonstrates that space law is not isolated, but is a special branch of international law. Article
IV of the OST provides that nuclear weapons and weapons of mass destruction are strictly
prohibited, and that the celestial bodies may only be used for “exclusively peaceful
purposes”67.
c. Non-appropriation and non-sovereignty
73. Article II of the OST states that 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 means68. This non-appropriation principle is another cardinal
principle of space law, and it means that no State can exercise sovereignty over any part of
outer space or any celestial body. Sometimes private actors argue they are not bound by this
principle, but this is not correct. Citizens derive rights from their State, and when a State
agrees not to do certain things, its citizens cannot frustrate that by their individual actions.
64
COLOGNE COMMENTARY ON SPACE LAW, 1 (STEPHAN HOBE, BERNHARD SCHMIDT-TEDD, & KAI-UWE
SCHROGL eds., 2009).
65
66
PAUL D. SPUDIS, THE VALUE OF THE MOON: HOW TO EXPLORE, LIVE, AND PROSPER IN SPACE USING THE
MOON’S RESOURCES (2016).
67
68
QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 -
1970).
29
Another question is whether space resources that may be present in or on celestial bodies can
be owned, even if the celestial body itself cannot be.
74. This is important for the emerging space mining industry, and for the space legal issues
arising from these practices. It is generally thought that under the OST, extracting, harvesting,
processing, and selling space resources do not fall under the non-appropriation principle. The
case is different for the 1979 Moon Agreement, which requires setting up an international
regime to manage resource activities and says that space resources are the “common heritage
of mankind”, but very few parties have signed that treaty. In the face of this legal uncertainty,
some states have enacted national laws to provide clarity for their industry. At the
international level, COPUOS and some other entities are also discussing this matter.
d. State responsibility for space activities by non-governmental entities
75. Article VI of the OST states that national 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”69. National activities are
usually interpreted as activities by a State’s nationals, such as individuals and companies.
States are free to decide whether they wish to authorise and supervise only activities by their
nationals within their territory, or also activities by foreigners within their territory, or even
activities by their nationals in other countries and international areas. States are also free to
decide how they wish to exercise this obligation. With the ongoing trend of privatisation and
commercialisation, more and more States do so by adopting national space legislation.
COPUOS has issued guidelines for States wishing to create national legislation.
e. State liability for damage caused by space objects
76. Article VII of the OST provides that launching States are internationally liable for
damage caused by their space object to another State or its persons or property. This is further
elaborated in the 1972 Liability Convention. A launching State is defined in the Liability
Convention as a State that: (1) launches a space object; (2) procures the launching of a space
object or (3) launches a space object from its (a) territory or (b) facility70. The definition of a
launching state was made broad intentionally, and implies that several States can qualify as
69
70
30
launching State of a particular object. This way, a State that suffers damage can easily identify
where to present its claim for compensation: it is a “victim-oriented approach”71.
77. For damage on Earth or in the air, liability is absolute, meaning that no proof of fault
is required. For damage in outer space, on the contrary, liability is based on fault. The
difference between international responsibility and international liability can be confusing (in
some languages there is only one word for both concepts, such as the French responsabilité
or the Spanish responsabilidad). Responsibility can be seen as “due diligence”: States must
take care that their entities conduct space activities while respecting the rules that the State
itself follows72. Liability comes into play when damage has occurred as a result of a space
activity. Damage must be caused by a space object, which raises the question of how to define
a space object.
78. The 1972 Liability Convention provides that “the term space object includes component
parts of a space object as well as its launch vehicle and parts thereof” which is not a very
precise definition73. Generally, space object is understood to mean man-made objects
launched into outer space. Questions may arise as to whether space debris is still a space
object, or whether a satellite signal is a space object. Private entities cannot be held directly
liable, and they can also not present a claim on their own; a claim must be addressed by one
State to another State. So far, there is no case law concerning liability for damage caused by
space objects. The liability under the Convention is unlimited, but States often introduce a cap
on the liability, combined with mandatory liability insurance for their private entities in
national law.
f. Jurisdiction and control, ownership of space objects and registration
79. Article VIII of the OST provides that a State Party to the Treaty on whose registry an
object launched into outer space is carried shall retain jurisdiction and control over such
object, and over any personnel thereof, while in outer space or on a celestial body, and
ownership of objects is not affected by their presence in outer space 74. This is further
71
QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN
(1991).
72
The Environment, Risk and Liability in International Law, Julio Barboza, 2010.
73
74
(1991).
31
elaborated in the 1976 Registration Convention. Objects must be registered nationally and
also with the UN. Only a launching State may register a space object. This means that the State
of registry is always a launching State, but not necessarily the only one; this is important
because launching States can be held liable for damage. A station or installation constructed
in space or on a celestial body is owned by the State of registry, which has jurisdiction over it.
g. Avoidance of harmful interference and harmful contamination
80. Article XI of the OST provides that States must have due regard for each other’s
activities, must avoid both the harmful contamination of outer space and adverse changes to
the environment of the Earth, and that their activities must not cause harmful interference
with the activities of other States75. This article is often seen as the link to the issue of space
debris mitigation and remediation, but it does not contain a clear legal obligation to not
pollute space (mitigation) or to clean up debris (remediation).
75
32
5. The emerging space mining practice
81. Space mining could be defined as “the exploitation of raw materials from asteroids and
other minor planets in space”76. Asteroid mining refers to the extraction of minerals and other
raw materials from minor planets and asteroids in outer space. Some of the raw materials
found during asteroid mining include: silver, gold, platinum, rhodium, nickel, aluminium,
manganese, iron, and cobalt (among others).
82. Minerals and other materials mined in space could either be used in space as rocket
propellant or as construction materials77. Additionally, these materials may also be sent back
to Earth for use and sale. Currently, however, the cost of asteroid mining and material
transportation are prohibiting this practice. Techniques are still being developed and potential
mining sites are still being researched. The demand for asteroid mining continues to grow as
the natural resources on Earth become more and more scarce.
83. One of the most important factors that scientists must determine is how to select the
correct asteroid or minor planet for mining78. Travel time and change in speed are two factors
that play a large role in this decision. Those asteroids located closest to Earth have been
selected for the first experimental mining efforts. Materials extracted from these first
asteroids will be used in space-stationed bases to reduce the cost of transporting items into
Earth’s orbit.
84. The three principal types of asteroids identified as potential mining sites include C-
type, S-type, and M-type79:
1. C-type asteroids hold a high quantity of water, which could help reduce the cost of a
mining mission. These asteroids also have high levels of phosphorous and organic
carbon, which are needed in order to produce crop fertilisers;
2. S-type asteroids do not hold very much water, however, they are more likely to have
a wide variety of minerals for extraction. For example, a small asteroid can provide one
and a half million pounds of metal, like nickel or cobalt, with fifty kilograms of this
76
https://en.wikipedia.org/wiki/Asteroid_mining
77
https://www.worldatlas.com/articles/what-is-asteroid-mining.html
78
https://www.technologyreview.com/s/613758/asteroid-mining-bubble-burst-history/
79
http://www.astro.gsu.edu/~thenry/PLANETS/paper.anderson.pdf
33
being a precious metal, like gold or platinum. This variety would help offset the
increased cost of mining the asteroid;
3. M-type asteroids are much harder to find, however, they hold ten times the amount
of metal found in an S-type asteroid.
Let’s now have a quick look at the most important historical steps of space mining.
a. 1969 to 1972, U.S.A. Apollo missions bring back Moon rocks
85. In the three years after the Apollo 11 mission saw Neil Armstrong and Buzz Aldrin take
the first steps onto the Moon, subsequent NASA missions brought back three hundred and
eighty two kilograms of rock, sand, and dust from the surface of the Moon. Over the course
of six missions, NASA astronauts recovered more than two thousand samples from six
different sites80, and while none of these minerals were used for mining operations, they have
been extensively studied to improve human understanding of the minerology of the Moon.
86. This period also saw the first successful unmanned missions collect samples from the
Moon. Three Soviet missions brought back three hundred grams of Moon samples, including
soil recovered by the Luna 16 mission similar in nature to that collected by American
astronauts during the Apollo 12 mission. The successful use of automated drilling techniques,
after five failed attempts, was a key accomplishment ahead of space mining operations, many
of which are expected to be similarly unmanned and automated missions.
b. 2005, Hayabusa recovers dust samples from Itokawa asteroid
87. Human interest in outer space shifted from the Moon to asteroids, following 1972’s
Apollo 17 mission, the last which saw people walk on the surface of the Moon. This interest
was initially scientific, and in 2005, the Japan Aerospace Exploration Agency (JAXA) landed the
unmanned Hayabusa craft on the near-Earth asteroid Itokawa.
88. The project was the first successful attempt to land a craft on an asteroid, and the
Hayabusa collected over one thousand dust grains from Itokawa81. The craft returned to Earth
in 2010, and scientists spent the next eight years analysing the samples, from which they were
able to learn more about the asteroid’s age and history.
80
https://www.mining-technology.com/digital-disruption/history-of-space-mining/
81
https://www.extremetech.com/extreme/289024-hayabusa-2-probe-successfully-bombs-asteroid-ryugu
34
89. As with the Luna 16 mission of the 1970s, the Hayabusa mission made a number of
breakthroughs that would demonstrate the potential of asteroid mining. In addition to be the
first craft to collect samples from an asteroid, the craft was the first vessel to land on an
asteroid, take off again, and safely return to Earth. The mission’s ultimate success, despite
setbacks including a solar flare striking the craft as it left Earth, proved that a number of
logistical challenges involved in asteroid mining, such as the recovery of asteroid material, can
be overcome.
c. 2015, U.S.A. space mining law
90. With the technological plausibility demonstrated by the unmanned missions of

previous decades, attention moved to establishing a legal framework for the mining of
resources in outer space. The Commercial Space Launch Competitiveness Act 82, launched in
2015, encouraged private companies to undertake mining work beyond Earth.
91. The act extends the period within which private companies can explore asteroids and
other bodies before reporting to national governments, and gives them the right to claim
resources they may one day be able to extract from those bodies. The act is an intentionally
forward-looking document, and aims to establish laws that can be applied to widespread
outer space mining, once private companies are in a position to begin large-scale mining
projects.
92. While there are potential legal grey areas in the Outer Space Treaty, such as giving
companies the right to claim mineral resources in space but not own property, it is an
important first step in establishing a legal basis for space mining.
d. 2016, Luxembourg’s SpaceResources initiative
93. Luxembourg’s SpaceResources program83 builds on the legal precedent set by the
U.S.A. the previous year, and brings together a number of public and private organisations to
aid in space exploration. These include the Luxembourg Government and the state’s ministry
of the economy, alongside private companies such as the American Planetary Resources, Inc.,
and the Japanese ispace Inc..
82
https://en.wikipedia.org/wiki/Commercial_Space_Launch_Competitiveness_Act_of_2015
83
https://space-agency.public.lu/en/space-resources.html
35
94. The initiative is similar to the U.S.A. Commercial Space Launch Competitiveness Act,
enshrining the right of private companies to claim mineral deposits without violating the terms
of the 1967 Outer Space Treaty, but is more proactive in establishing an international standard
for space mining. By involving a number of companies from across the world, the initiative has
a broader range than the U.S.A. law. The Luxembourg Government also offers financial
incentives for private companies pursuing mining projects as part of the initiative, as
Luxembourg looks to position itself at the centre of European space mining.
e. 2019, Russia wants to join
95. More recently, in July 2019, Russia has expressed its will to join the space mining race,
Deputy Prime Minister of Russia Tatyana Golikova said: “In January we offered Luxembourg a
framework agreement on cooperation in the use of (mining) exploration in space. We expect
an answer from Luxembourg”84.
96. Luxembourg has said it is “eager to work with other countries” on a multilateral
agreement on asteroid rights85, but the prospect of several countries passing their own
legislation raises the spectre of space mining becoming a new wild west land grab. Tatyana
Golikova added that it is too early to talk about direct cooperation in this sphere, which still
lacks a legal framework.
97. What does international space law have to say concerning the exploitation of outer
space resources? Does the 1967 Outer Space Treaty allow such a practice (A)? What about the
1979 Moon Agreement (B)? Let’s now have a look.
98. This analysis dresses new developments, and open issues, concerning space resource
rights. It explains the advent of space mining as a new industry, and puts it in the context of
current international law. It analyses to what extent current international law provides
answers to the legal questions that arise from this activity. It also addresses developments in
national legislation, and reactions from the international community to those. Finally, it tries
to give some indications of the relations between national and international law in this
context, and addresses the question whether one could stand in the way of the other. It argues
84
https://af.reuters.com/article/worldNews/idAFKCN1QN1OW
85
https://www.wiredfocus.com/luxembourg-commences-asteroid-gold-rush-bids-to-be-silicon-valley-of-space-
mining-science-news/
36
that the adoption of national laws is not per se intended to interpret international law, or to
promote or prevent its further development, but undoubtedly can have the effect of
producing “state practice” and “opinio juris” on existing or perceived gaps in international law.
Other actions can shed further light over states’ intentions relating to the subject, such as
public statements in the United Nations Committee on the Peaceful Uses of Outer Space
(UNCOPUOS), or dedicated working groups.
37
I. THE NON-APPROPRIATION PRINCIPLE IN INTERNATIONAL SPACE
LAW
99. Outer space is understood as a global commons owned by all of humankind, like the
high seas, polar regions, and the atmosphere86. The doctrine of the “global commons” refers
to resource domains that lay outside of any individual state’s political control; these areas are
thus often governed by public international law.
100. Because outer space fits in that category, public international law and treaties are
typically understood to govern outer space activities87. This, of course, requires a state to act
accordingly, by signing and ratifying the international conventions, or by observing its
principles following the opinio juris sive necessitatis principle88. Currently, the most broadly
ratified international convention concerning outer space is the 1967 Outer Space Treaty89.
101. Three main principles of international space law prohibit the appropriation of outer
space. The first two, which we will see first, come from the 1967 Outer Space Treaty (A), an
international convention widely ratified worldwide, notably by the major space powers.
102. Beside these two principles, is the one according to which the resources of the Moon
and other celestial bodies form the common heritage of mankind; this principle constitutes a
specific obstacle to the exploitation of resources as it appears in Article 11 paragraph 1 of the
Moon Agreement (B), an international treaty which eighteen states only, of which none is a
space power, are parties to.
103. These principles of international space law are opposed, prima facie, to the
exploitation of celestial resources outside the framework of the international regime
established by the 1979 Moon Agreement.
86
https://en.wikipedia.org/wiki/Global_commons
87
(1991).
88
https://www.spacelegalissues.com/opinio-juris-sive-necessitatis/
89
https://www.britannica.com/event/Outer-Space-Treaty
38
A. Articles I and II of the 1967 Outer Space Treaty
104. The UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE are “text of
treaties and principles governing the activities of States in the exploration and use of outer
space, adopted by the United Nations General Assembly”90. The United Nations has the
responsibility, in the legal field, to develop and codify international law. Because outer space
was an environment of a new nature, “extraordinary in many respects” and “unique from the
legal point of view”, and because its human conquest started in the tense climate of the 1950s,
the international community had to rapidly legislate about it91.
105. Recently, human activities and international interaction in outer space have become
realities. Through the efforts of the United Nations Committee on the Peaceful Uses of Outer
Space and its Legal Subcommittee, a number of significant contributions to the law of outer
space have been made in the 1950s, 1960s and 1970s; formulation of international rules to
facilitate international relations in outer space. The United Nations has therefore become “the
place” or “a focal point” for international cooperation in outer space, and for the formulation
of necessary international rules. The extension of international law to outer space has been
gradual and evolutionary; commencing with the study of questions relating to legal aspects,
proceeding to the formulation of principles of a legal nature and, then, incorporating such
principles in general multilateral treaties.
106. A significant first step was the adoption by the General Assembly in 1963 of the
“Declaration of Legal Principles Governing the Activities of States in the Exploration and Use
of Outer Space”92. This text is the genesis of what has become known as space law. The years
that followed saw the development within the United Nations of five general multilateral
treaties, which incorporated and developed concepts included in the Declaration of Legal
Principles:
90
RICKY LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2014).
91
L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS,
2018.
92
https://www.spacelegalissues.com/space-law-declaration-of-legal-principles-governing-the-activities-of-
states-in-the-exploration-and-use-of-outer-space/
39
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies (General Assembly
resolution 2222 – XXI) entered into force on October 10, 1967;
2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space (General Assembly resolution 2345 – XXII) entered
into force on December 3, 1968;
3. Convention on International Liability for Damage Caused by Space Objects (General
Assembly resolution 2777 – XXVI) entered into force on September 1, 1972;
4. Convention on Registration of Objects Launched into Outer Space (General Assembly
resolution 3235 – XXIX) entered into force on September 15, 1976;
5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
(General Assembly resolution 34/68) entered into force on July 11, 1984.
107. The United Nations oversaw the drafting, formulation and adoption of five General
Assembly resolutions, including the Declaration of Legal Principles93. These are:
1. Declaration of Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, adopted on December 13, 1963 (General Assembly resolution
1962 – XVIII);
2. Principles Governing the Use by States of Artificial Earth Satellites for International
Direct Television Broadcasting, adopted on December 10, 1982 (General Assembly
resolution 37/92);
3. Principles Relating to Remote Sensing of the Earth from Outer Space, adopted on
December 3, 1986 (General Assembly resolution 41/65);
4. Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted on
December 14, 1992 (General Assembly resolution 47/68);
5. 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, adopted on December 13, 1996 (General Assembly
resolution 51/122).
93
40
108. The United Nations states94, in the collection of Space Law texts (available freely on
the U.N.’s website), that “The 1967 Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, could
be viewed as furnishing a general legal basis for the peaceful uses of outer space and providing
a framework for the developing law of outer space. The four other treaties may be said to deal
specifically with certain concepts included in the 1967 Treaty. The space treaties have been
ratified by many Governments and many others abide by their principles. In view of the
importance of international cooperation in developing the norms of space law and their
important role in promoting international cooperation in the use of outer space for peaceful
purposes, the General Assembly and the Secretary-General of the United Nations have called
upon all Member States of the United Nations not yet parties to the international treaties
governing the uses of outer space to ratify or accede to those treaties as soon as feasible”.
109. On December 19, 1966, the United Nations unanimously adopted a treaty, opened
for signature on January 27, 1967, declaring that the exploration and use of outer space must
be carried out in the interest and for the good of humanity, any discrimination between States
being excluded95. Outer space, including the Moon and other celestial bodies, will be free and
accessible to all States and cannot be the subject of national ownership. Adopting these basic
principles, it establishes that any action by States in outer space must be in accordance with
international law (including the Charter of the United Nations of 1945, the foundational treaty
of the United Nations) not only in the interest of maintaining international peace and security,
but also to foster international cooperation and understanding.
110. Among the broad general principles that should govern the space activities of States,
the use of outer space for peaceful purposes, mentioned in the Preamble to the Outer Space
Treaty and in several of its provisions, has been in fact, several times since 1957, stated in
previous General Assembly resolutions of the United Nations (in 1957, 1958, 1959, and more
particularly in 1961)96. Already, the signing of the Moscow Treaty in 1963, prohibiting nuclear
experiments in the air, water and space, represented an important relaxation with regard to
the political relations between the U.S.S.R. and the United States of America. The desire for
94
95
96
M. COUSTON, L’émergence des activités spatiales à vocation économique et l’évolution du droit de l’espace,
Thèse.
41
co-operation has also been reflected in other events such as the agreement of 1962, reiterated
in 1963 between the U.S.S.R. and the United States of America for the peaceful co-operation
in the fields of meteorological satellites, telecommunications and the establishment of
magnetic field maps. As a result, two important resolutions were adopted by the U.N. General
Assembly in 1962 and 1963.
111. The result of this spirit of cooperation was also reflected in the same year by the
adoption by the General Assembly of the United Nations of an important resolution on the
question of disarmament general and complete (1963)97. In this resolution, the General
Assembly refers to a previous resolution of 1961 and emphasises its decision to take measures
to prevent the arms race from spreading to outer space. It is the famous resolution “no bombs
in orbit”.
112. In 1965, the United States of America delegation to the United Nations declared that
“before the human beings Moon landed, the U.N. should set forth international rules governing
the exploration of celestial bodies”98. Before the opening of negotiations on the Outer Space
Treaty, the United States of America was already thinking more about a treaty on celestial
bodies, than a specific convention on outer space. It is in this sense that on May 7, 1966,
President Johnson emphasised the need for immediate action “to ensure that the exploration
of the Moon and other celestial bodies serves only peaceful purposes” and “to be sure that our
astronauts and those of other countries will be able freely to proceed to the scientific study of
the Moon”. The President of the United States of America suggested that the United Nations
adopt a treaty governing the exploration of the Moon and other celestial bodies and, among
the principles retained for inclusion in this treaty, it was intended that “no country should be
allowed to place weapons of mass destruction on a celestial body” and that “weapons tests
and military manoeuvres should be prohibited”.
113. Animated by the same concern, to “take practical steps towards the conquest of the
Moon and other celestial bodies and, first and foremost, adopt provisions to prohibit the use
of the Moon and other celestial bodies for military activities”99, the U.S.S.R. also tabled a draft
97
https://www.un.org/disarmament/topics/scienceandtechnology/
98
space-law/
99
1970).
42
treaty on “the legal principles to govern the activity of states in the field of exploration and
conquest of the moon and other celestial bodies”, which, with respect to military uses,
contained the following provisions: “All states must use the Moon and other celestial bodies
exclusively for peaceful purposes. The Moon and other celestial bodies shall not be constructed
with military bases or installations, including facilities containing nuclear weapons or other
types of weapons of mass destruction”100. Thus, from 1965 to 1966, the two great space
powers agreed on a number of principles to govern the activities of states, mainly on the Moon
and other celestial bodies.
114. The Outer Space Treaty (1967), concluded within an extremely short period of time
(six months), was in fact a bilateral agreement between the two great space forces and then
imposed on the other states that were not materially prepared and at the time, did not master
the technical data101. This is an important historical fact that should be kept in mind.
115. In its Preamble, the Outer Space Treaty of 1967 reaffirms102 “the great prospects
opening up before mankind as a result of man’s entry into outer space”, “recognizing the
common interest of all mankind in the progress of the exploration and use of outer space for
peaceful purposes”, “believing that the exploration and use of outer space should be carried
on for the benefit of all peoples irrespective of the degree of their economic or scientific
development”, “desiring to contribute to broad international cooperation in the scientific as
well as the legal aspects of the exploration and use of outer space for peaceful purposes”, and
“believing that such cooperation will contribute to the development of mutual understanding
and to the strengthening of friendly relations between States and peoples”.
116. Then, some precedent legal dispositions are going to be recalled: recalling resolution
1962 (XVIII)103, entitled “Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space”, which was adopted unanimously by the United
Nations General Assembly on December 13, 1963 / recalling resolution 1884 (XVIII) 104, calling
100
1970).
101
space-law/
102
103
(1991).
104
https://undocs.org/A/RES/1884(XVIII)
43
upon States to refrain from placing in orbit around the Earth any objects carrying nuclear
weapons or any other kinds of weapons of mass destruction or from installing such weapons
on celestial bodies, which was adopted unanimously by the United Nations General Assembly
on October 17, 1963 / taking account of United Nations General Assembly resolution 110 (II)
of November 3, 1947, which condemned propaganda designed or likely to provoke or
encourage any threat to the peace, breach of the peace or act of aggression, and considering
that the aforementioned resolution is applicable to outer space.
117. Finally, the Preamble adds105 that the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies should “further the purposes and principles of the Charter of the United Nations”.
Follow the different articles of the Outer Space Treaty (1967).
105
44
1. Article I of the 1967 Outer Space Treaty: freedom for exploration
and use by all States
118. Article I of the 1967 Outer Space Treaty states106 that “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”.
119. It then adds that “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”.
120. It finally concludes by declaring that “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”.
121. The U.N. 1967 Outer Space Treaty, which has been in force since 1967, and is ratified
by the major spacefaring nations, establishes that outer space is the province of all
humankind, and promotes the “exploration and use of outer space” for peaceful purposes107.
Concerning especially Article I of the 1967 Outer Space Treaty, the doctrine has overlapped
between different complementary principles: the principle of non-appropriation, the principle
that the exploration and use of space must benefit the whole of humanity, and the principle
of the freedom of space activities108. The study of one or other of these principles highlights
their interdependence.
122. There are, at the beginning of this international convention, many interesting
dispositions, which of course, underline the need to maintain peace at a time where tensions
are high. It should be first noted that the convention refers to the exploration and use, which
therefore implies that it is not the environment which is regulated, but the activities
106
107
space-law/
108
(1991).
45
happening in the environment109. We could therefore argue that, regarding this first principle
enacted, space law should be referred to as “space-related activities law”, the problem being
that some activities concerning outer space activities, like the observation of the Universe,
satellite data processing, or satellite telecommunications, happen on Earth. Let’s note that
exploration can be easily understood, whereas use can have a broader meaning.
123. Paragraph 1 talks about the benefit and the interest of all countries, which implies
that an activity should not disadvantage a country, nor should activities be conducted against
the interest of any country. This international stipulation reinforces the need to maintain
peace at a time where tensions are high. Politically speaking, much has been at that time done
to maintain peaceful relationships between the United States of America and the Soviet
Union110. This piece of law wants to make sure that the space race engaged since the launch
of the first artificial satellite in 1957, will not end up in a race that would disbenefit some
countries.
124. The first paragraph of the 1967 Outer Space Treaty therefore concerns the
exploration and use of outer space for the interest of all countries. This is corroborated by
paragraph 3 which conclude111 this first article by stipulating that “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”. Some
following articles are going to reinforce and precise that principle.
125. Article X of the 1967 Outer Space Treaty enounces112 that “In order to promote
international cooperation in the exploration and use of outer space, including the Moon and
other celestial bodies, in conformity with the purposes of this Treaty, the States Parties to the
Treaty shall consider on a basis of equality any requests by other States Parties to the Treaty
to be afforded an opportunity to observe the flight of space objects launched by those States.
109
KERREST ARMEL, ACTUALITÉS DU DROIT DE L’ESPACE : LA RESPONSABILITÉ DES ÉTATS DU FAIT DE LA
DESTRUCTION DE SATELLITES DANS L’ESPACE – ANNUAIRE FRANÇAIS DE DROIT INTERNATIONAL / ANNÉES
2009 / 55 / PP 615-626.
110
space-law/
111
112
46
The nature of such an opportunity for observation and the conditions under which it could be
afforded shall be determined by agreement between the States concerned”.
126. Article XI of the 1967 Outer Space Treaty declares that “In order to promote
international cooperation in the peaceful exploration and use of outer space, States Parties to
the Treaty conducting activities in outer space, including the Moon and other celestial bodies,
agree to 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 the
nature, conduct, locations and results of such activities. On receiving the said information, the
Secretary-General of the United Nations should be prepared to disseminate it immediately and
effectively”.
127. Article XII of the 1967 Outer Space Treaty affirms that “All stations, installations,
equipment and space vehicles on the Moon and other celestial bodies shall be open to
representatives of other States Parties to the Treaty on a basis of reciprocity. Such
representatives shall give reasonable advance notice of a projected visit, in order that
appropriate consultations may be held and that maximum precautions may be taken to assure
safety and to avoid interference with normal operations in the facility to be visited”.
128. Article XIII of the 1967 Outer Space Treaty adds113 that “The provisions of this Treaty
shall apply to the activities of States Parties to the Treaty in the exploration and use of outer
space, including the Moon and other celestial bodies, whether such activities are carried on by
a single State Party to the Treaty or jointly with other States, including cases where they are
carried on within the framework of international intergovernmental organizations. Any
practical questions arising in connection with activities carried on by international
intergovernmental organizations in the exploration and use of outer space, including the Moon
and other celestial bodies, shall be resolved by the States Parties to the Treaty either with the
appropriate international organization or with one or more States members of that
international organization, which are Parties to this Treaty”. Articles X, XI, XII, and XIII of the
1967 Outer Space Treaty come to develop the concept enacted by Article I paragraph 1 and 3
of exploration and use of outer space for the interest of all countries114.
113
114
VINCENT GRELLIÈRE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE.
47
129. Then, Article I paragraph 2 of the 1967 Outer Space Treaty asserts that “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”. This is usually referred to
as “the freedom of exploration and use of outer space” principle115. The most important words
being “free for exploration and use”.
130. Concerning the principle of freedom of exploration and use, the exploration and use
of celestial bodies being one space-related activity among others, they must in principle be
subject to the same legal regime, as the environment in which they are immersed in. Since
this principle has to respect what has been laid down by the following international principles
governing the activities in outer space116, what will be the positive result of the application of
the principle of freedom concerning the Moon and other celestial bodies? The question raised
by this provision is: to what extent the activities of States, further defined as free, should
benefit all?
131. Article I paragraph 1 of the 1967 Outer Space Treaty is sometimes analysed as
determining the general orientation of space activities and making it possible to interpret the
international convention. Soviet doctrine has stressed the importance of this provision for a
correct interpretation of principles and for development of space law117. These conclusions
have been shared by Western authors.
132. After 1958, a number of non-space powers suggested a very broad

internationalisation of space through the creation of an appropriate international body acting
for the benefit of humanity118. As some authors have pointed out, this suggestion seemed to
be the logical counterpart to the claim that space “belonged” to all states. As for the benefits
humanity could have hoped for at the beginning of the space conquest, they appeared widely
undetermined. Some have asked that the interest of underdeveloped countries should be
recognised from the outset as a fundamental principle of space regulation.
115
2018.
116
117
space-law/
118
https://iislweb.org/docs/NewPerspectivesonSpaceLaw.pdf
48
133. Already in the Preamble of Resolution 1721 (XVI) in 1961119, the interest of “the whole
of humanity” is formally consecrated as a “principle” in its own right by Resolution 1962 (XVIII)
in 1963. The 1967 Outer Space Treaty specifies in its operative part, Article I paragraph 1, that
all countries, irrespective of their stage of development, must benefit from space activities.
Moreover, the interest of humanity now seems to have precedence over any other
consideration to the extent that it is the subject of the first provision of the 1967 Outer Space
Treaty.
134. The obligatory character of the latter reinforces this first impression (states are no
longer free to choose among a set of principles submitted to their attention). The general
interest and that of the developing countries have been especially affirmed by Brazil and the
Soviet Union. These States opposed any transfer of clauses of common interest in the
Preamble of the 1967 Outer Space Treaty, thus seeming to insist on the existence of a real
obligation.
135. The consecration of the principle of the freedom of space activities implies the
prohibition of appropriating outer space and celestial bodies. Indeed, the acquisition (and
exercise) by a state of any particular right, including sovereignty, violates the equal right of
other states to explore and use outer space. However, the principle of equality of states in the
exploration and use of outer space does not mean that states should in fact equally enjoy
space activities.
136. Both the 1967 Outer Space Treaty and Resolutions 1721 (XVI) and 1962 (XVIII)
combine the right of all states to conduct space activities on an equal footing120, and the
prohibition of national appropriation. The doctrine also insists on “the intimate connection of
freedom, equality and the prohibition of appropriation”. Nevertheless, space activities are not
all protected by space law; the lawfulness of some of them is disputed because they de facto
question the sovereignty of the underlying state.
137. In the light of the principles of freedom of space activities and the equality of states,
it appears that any attempt or action to prevent equal access and free use of space is
prohibited under these principles, and the complementary ban on national ownership set
119
http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/resolutions/res_16_1721.html
120
(1991).
49
forth in Article II of the 1967 Outer Space Treaty. Any claim by a state to govern the activities
of other states (or their nationals), or any interference in those activities, would constitute
prohibited appropriation. Prohibited activities are therefore not limited to claiming or
acquiring sovereignty, or other exclusive rights. However, the appropriation thus perceived
must be distinguished from mere interference between activities in different States.
138. The question of a general limitation on the freedom of outer space-related activities
arises in the absence of a clear definition of the freedom to explore and use space 121. This
definition is far from having the clarity of the formula used in Article 2 of the 1958 Convention
on the High Seas122. This article enumerates the main uses of the high seas while stating that
the list thus established is not exhaustive: no activity is a priori likely to be excluded from the
regime of the high seas.
139. Concerning space activities, the inequality of technical and financial capacities
between states seems to be greater than in the maritime domain. Moreover, these activities,
essentially orbital and circumterrestrial, put in question de facto the sovereignty of the state
whose territory is observed, analysed, and even threatened from outer space. The sovereignty
of the state over its airspace and, hence, the three-dimensional character of this sovereignty,
has been recognised for reasons including security. This situation reinforces the divergence of
interests between space powers and non-space powers. The latter, who have not obtained a
right to profits from space, risk seeing their sovereignty more or less questioned because of
the space activities of the former.
140. Most states have generally given up in U.N. debates to examine the question of
possible restrictions on the freedom to explore and use outer space. Such restrictions were
eventually defended by the U.S.S.R., which was particularly concerned with obtaining the
condemnation of propaganda and espionage. The U.S.S.R. then justified the restriction of the
freedom of space activities by invoking the security and interests of other states in general,
and the good of humanity. On the other side of the world, France had distinguished itself by
proposing to differentiate the terrestrial consequences of space activities, from the effects of
these activities in outer space: “the freedom of scientific research, likewise that freedom of
exploitation of space, shall not have permanent or semi-permanent effects on the territory of
121
http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html
122
https://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf
50
states other than that of the state which would engage in it, without the authorization of the
other states”.
141. The 1967 Outer Space Treaty, however, does not clearly address in its Article I the
question of the scope of the freedom to explore and use space, and the protection of at least
the terrestrial interests of non-space powers123. This ambiguity is explained by the embryonic
development of space activities, which makes it difficult to evaluate the interests at stake and,
finally, the adoption of relatively vague provisions that lend themselves to various
interpretations124. Among these provisions is Article I, paragraph 1, which emphasises the
interests of humanity and of all states, whatever their degree of development.
142. The doctrine, although it is not unanimous, would rather consider the freedom to
explore and use outer space as an open principle, in the image of the principle of freedom of
the high seas125. The practice gave meaning to the activities of “exploration” and “use” of outer
space that had not been clearly identified during the negotiations that led to the 1967 Outer
Space Treaty. Rather than to invoke justifications of principle, it is sometimes on the basis of
a recent practice that some authors consider that this or that space-related activity is
consecrated by customary law.
143. According to the interpretation of Article I paragraph 1 of the 1967 Outer Space
Treaty, clauses of common interest may or may not directly affect the definition of prohibited
activities under the prohibition of appropriation set forth by Article II of the 1967 Outer Space
Treaty. The doctrine is divided on this interpretation, and practically non-existent. The debates
in the U.N., during the negotiation of the 1967 Outer Space Treaty, however, shed light on the
scope of these clauses. Among authors, some defend the primacy of broadly defined common
interests. Thus, some assert that the legality of space activities and the freedom of states are
subject to a resolute condition: they must effectively benefit all states.
144. The prohibition of national appropriation that is enounced by Article II of the 1967
Outer Space Treaty would be any appropriation “in the interest of a single state” and, in
123
space-law/
124
1970).
125
2018.
51
particular, any exploitation of space resources for the benefit of a single country. According to
Article I, the exploitation could remain free, but it would have to benefit humanity, and all
states would be entitled to participate equitably in its financial results, although the modalities
of this participation have not yet been determined with precision.
145. In a similar vein, some authors have argued that a distribution of the benefits derived
from space activities must take place126; as for its concrete implementation, it requires an
agreement between the States concerned. These analyses could be applied to all space
activities, but they have mainly been developed for the exploitation of space resources. They
are also sometimes accompanied by the assertion that humanity has become a new subject
of law in the exploration and use of space.
146. Another group of authors protested against previous interpretations. For some, the
reference to humanity in the 1967 Outer Space Treaty cannot be taken literally127. A
grammatical and textual interpretation of Article I paragraph 1 would be erroneous. Still,
others dispute that space activities can be effectively affected by this provision: if space is
available for the use of all, it would not be the same for the means by which it can be used
and, especially, satellites launched by states. In addition, many uses of space would only
satisfy particular interests.
147. The 1967 Outer Space Treaty, in its Article I, rather than minimising the importance
of the latter, seeks to reconcile them to reduce potential conflicts between states128. Its Article
IX provides that the activities of states shall be conducted with due regard to the
corresponding interests of other states: it confirms that all activities of states are not
subordinated to a purpose of general interest129. With regard to a possible sharing of benefits
from space activities, Article I paragraph 1 is too vague to ensure such sharing. In the absence
of appropriate regulations defining what is “for the benefit and in the interests of all countries”,
each state remains free to interpret this formula. At the same time, “the province of all
126
https://space.nss.org/settlement/nasa/spaceresvol4/spacelaw.html
127
128
space-law/
129
PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-
APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).
52
mankind” concept enounced in Article I paragraph 1 simply refers to a zone, region or sphere
of activity open to all states.
148. Many commentators to the 1967 Outer Space Treaty do not hesitate to conclude that
its Article I, paragraph 1, constitutes only a declaration of intent, or a postulate of principle
devoid of legal value130. On the contrary, an equally important part of the doctrine considers
that this provision entails real obligations: indeed, the article in question is formally integrated
into the actual device of the treaty and not into its preamble. For some, alongside national
interests, there would be broader interests that States should take into account in exercising
their freedom131. Some authors specify that uses of space that endanger the terrestrial
interests or space interests (current or potential) of other states are prohibited: “a duty for
each state to refrain from using space in a manner incompatible with the interests of other
states and that would endanger their safety or violate their sovereignty”. According to these
interpretations, inactive states are not entitled to share the benefits of using space, or to
participate effectively in that use.
149. A number of developing countries have nevertheless defined the direction in which,
in their opinion, the recognition of the general interest, and their interests in particular, should
be realised. As early as 1962, the United Arab Republic proposed special co-operation
programs to which developing states could participate. Then, the following year, it suggested
the study of the question of the granting of technical assistance to these states, with a view,
in particular, to the training of their nationals. This proposal was rather well received. Finally,
in 1966, the United Arab Republic called for space powers to provide facilities and
opportunities for other states to participate and benefit from outer space with the aim of
achieving concrete results, and measures adapted to their situation.
150. In the end, Article I of the 1967 Outer Space Treaty avoided imposing concrete
obligations on the space powers. No benefit sharing has been allocated, and the
internationalisation of space has been limited. States have not even managed to differentiate
the rights and obligations of states according to their degree of economic and scientific
130
131
(1991).
53
development: the 1967 Outer Space Treaty remains at the level of a formal equality between
states in the enjoyment of the province of all mankind.
151. During the ratification debates of the 1967 Outer Space Treaty, however, the United
States of America was concerned about possible claims based on Article I, paragraph 1, but
did not consider it necessary to formulate a reservation132. The U.S.S.R. has considered that
Article I, paragraph 1, would simply require that space activities serve the cause of peace and
progress, that is to say, more specifically, that they would be conducted for peaceful purposes
only.
152. The Soviet Union, during the negotiations of the Outer Space Treaty, has explained
that the “for the benefit and in the interests of all countries” implies that no state could invoke
its successes in outer space to claim celestial bodies or carry out activities directed against
other states.
153. For the United States of America, Article I, paragraph 1, refers to Articles II, VII, IX and
XI of the 1967 Outer Space Treaty: prohibition of national appropriation, protection against
damage caused by space objects, protection against contamination by extraterrestrial
substances, and full participation in scientific progress133. This interpretation thus emphasises
the consideration of the interest of all states, and in particular non-space powers, namely their
potential space interests as future users and their immediate terrestrial interests.
154. Article I, paragraph 1, of the 1967 Outer Space Treaty has therefore no direct bearing
on the content of the principle of non-appropriation. Neither the clauses of common interest,
nor this principle, are intended to guarantee that the use of outer space is subordinated to
the benefit and in the interests of all countries. Achieving a favourable balance for developing
countries does not appear in the 1967 Outer Space Treaty.
155. The latter includes only a formal grant from the space powers which is insufficient to
remedy the persistent inequalities in the use and enjoyment of benefits drawn from outer
space. Nevertheless, with regard to the protection of terrestrial interests of non-space
powers, it is possible to conclude that there are limits to the freedom of space activities.
132
space-law/
133
https://space.nss.org/settlement/nasa/spaceresvol4/spacelaw.html
54
156. A number of conclusions can be drawn from this study of the principle of the freedom
to explore and use outer space in the light of Article I of the 1967 Outer Space Treaty. The
prohibition of appropriation could therefore be a guarantee of the equal right of states to
explore and use outer space. However, while this prohibition protects the right of all states to
conduct space activities, it does not legitimise any use of outer space. Indeed, the recognition
of the principle of freedom to explore and use outer space does not clearly include the right
to freely conduct land-based activities. The scope of the protection of the interests of states,
whose sovereignty would be affected, is also not defined. The principle of freedom to explore
and use space has probably not yet completed its evolution. Despite its unfinished nature, this
principle justifies and illuminates the prohibition of national appropriation and its content.
157. The assignment of space activities to all mankind, a norm of international law, is
found in Article I of the 1967 Outer Space Treaty. States must abide by the general interest in
the sphere of the space activities they conduct, and thus avoid any abuse of their freedom of
exploration and use. This principle covers two aspects.
158. On the one hand, space activities must conform to “the benefit and in the interests of
all countries”, which means that activities in outer space must respect the legitimate interests
of states. This principle does not prevent privileged interests, but these activities must
conform to the general interest. However, the legal value of this norm is very much discussed
in doctrine. Indeed, the United States of America for example, considers that this provision is
only a declaration of intent. To this must be answered, in the light of the 1969 Vienna
Convention, that all the articles of an international treaty are binding. Why would Article I of
the 1967 Outer Space Treaty escape this principle?
159. On the other hand, the notion of the assignment of space activities to humanity also
means that the beneficiary of space activities is the whole of humanity. Moreover, by virtue
of the principle that space is “the province of all mankind”, space activities must be devolved
to humanity without discrimination between space and non-space powers. So this is a
principle of international law that would give the quality of subject of right to this set that
humans form on this planet. However, in space law, there is no body of international law
representing humanity. Moreover, the quality of the subject of law is to possess rights and
obligations, which the Outer Space Treaty does not confer on humanity. This principle has
55
been established in order to avoid any discrimination between space and non-space powers,
it is clearly more political than legal.
56
2. Article II of the 1967 Outer Space Treaty: the national non-
appropriation principle
160. Article II of the 1967 Outer Space Treaty declares that “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”134.
161. This article is, regarding the lawfulness of space mining activities, one of the most
important in public international space law135. It is at the core of the debate and all
ramifications possible depend on the interpretation one has of “national appropriation by
claim of sovereignty, by means of use or occupation, or by any other means”.
162. The principle of non-appropriation is a custom of international law formed following

the launch of the Sputnik 1 satellite by the Soviets in 1957136. Awareness of the need to
determine the legal principles applicable to such activities has been further strengthened by
their rapid development. This custom was formed quite quickly following this event. In fact,
for a custom to exist in law, it is sufficient for the most representative states to adhere to it.
In this case, after the end of the 1958 International Geophysical Year, no state overflown by
U.S.A. and U.S.S.R. satellites protested. The protest could have been brought up, in particular
by arguing that the exclusive jurisdiction of states over their airspace is extended vertically to
infinity, but it did not take place and, therefore, this custom of non-appropriation of outer
space could take root.
163. Subsequently, this custom was codified in Article II of the 1967 Outer Space Treaty,
which provides that “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”. Therefore, freedom of use and exploration, also laid down by the 1967 Outer
Space Treaty in its first article, is the corollary to the prohibition of any right of national
sovereignty137. This principle is also reflected in the 1979 Moon Agreement, and even more
134
135
(1991).
136
space-law/
137
57
specifically. Already in 1969, the implantation of the American flag on the Moon does not
constitute a national appropriation of the lunar soil, but a primarily symbolic act; the United
States of America has never claimed a portion of sovereignty over Earth’s natural satellite.
164. As the United States of America and the U.S.S.R. wished before 1969, the formulation
of the principle of national non-appropriation is very extensive, in order to avoid any
proclamation of sovereignty by any state138. At the time, a race for the Moon, whose object
was its appropriation, and whose outcome was unknown by the two major space powers, was
to be banned for obvious strategic reasons. Moreover, the principle of national non-
appropriation raises other questions arising from the practice. The 1967 Outer Space Treaty
excludes any right of national sovereignty, which means that neither states, nor their
nationals, can appropriate outer space.
165. Let’s note that several private-law companies, most of them Americans, offered the
sale of lunar lands to individuals139; these commercial activities are completely illegal for
several reasons140. First, the Outer Space Treaty was signed at a time when only states had
the technological and financial capacity to independently conduct space activities. The
reference to private persons then seemed superfluous. Then, in the light of Article 31 of the
1969 Convention on the Law of Treaties, the prohibition of States’ appropriation of space
extends, by means of a logical interpretation a fortiori, to private persons. Finally, title deeds
were established under the U.S.A. law, which has, of course, no jurisdiction over the Moon.
As a result, the Moon and other celestial bodies cannot be sold because to sell a property, it
must be owned beforehand, which neither the states nor the private persons can claim.
166. The very general character of this principle raises another fundamental question.
Does it apply to celestial bodies, which are of a territorial nature, as well as resources extracted
from these elements? The 1967 Outer Space Treaty itself doesn’t make any distinction
between the extra-atmospheric outer space in the strict sense of “space vacuum”, and the
celestial bodies themselves, especially since they are only a tiny part of outer space in the
138
139
https://www.spacelegalissues.com/the-lawfulness-of-extraterrestrial-real-estate/
140
1970).
58
broad sense141. From then on, the 1967 Outer Space Treaty has vocation to apply uniformly in
outer space lato sensu, including to the celestial bodies of which the Moon and a fortiori its
resources belong to. However, we will later see that the question of non-appropriation of
extracted resources is disputed by some of the doctrine.
167. It emerges that the very general formulation of the prohibition of appropriation of
outer space makes this international zone a res communis142. A res communis could be defined
as a “common thing”143. It is a Latin phrase used in ius publicum (Latin for public law): by the
past, public law regulated the relationships of the government to its citizens, including
taxation, while ius privatum (Latin for private law), based upon property and contract,
concerned relations between individuals144. The “public/private law dichotomy” is a structural
core of Roman law and all modern western legal systems.
168. Ius publicum was used also to describe obligatory legal regulations, such as ius
cogens, which is now a term used in public international law meaning basic rules which cannot
(or should not) be broken, or contracted out of. Regulations that can be changed are called
today ius dispositivum, and they are used when party shares something and are not in
opposition145.
169. Res communis preceded today’s concepts of the “commons” and “common heritage
of mankind”146. It has relevance in public international law and common law (also known as
judge-made law and case law, is that body of law derived from judicial decisions of courts and
similar tribunals)147.
170. In the sixth century C.E., the Institutes of Justinian restated the Roman rule as follows:
“By the law of nature these things are common to mankind – the air, running water, the sea,
141
space-law/
142
https://www.spacelegalissues.com/space-law-the-res-communis-concept-in-space-law/
143
2018.
144
145
https://en.wikipedia.org/wiki/Res_communis
146
space-law/
147
2018.
59
and consequently the shores of the sea”148. The public acquired certain usufructuary rights (a
limited real right, or in rem right, found in civil law and mixed jurisdictions that unites the two
property interests of usus, the right to use or enjoy a thing possessed, directly and without
altering it, and fructus, the right to derive profit from a thing possessed: for instance, by selling
crops) in these resources by virtue of its common property interest in them. For example, all
rivers and ports were public such that everyone had a right to fish in them.
171. Everyone also had the right to approach the seashore provided that habitations,
monuments, and buildings were respected; to build a cottage on the seashore; to haul nets to
the shore from the sea; and to dry them there. Finally, everyone had a right to navigate rivers,
to bring vessels to their banks and to tie them to trees growing there, and to deposit the
vessels’ cargo on the banks, even though the banks and trees were the property of the riparian
landowners. The state apparently protected the uses to which the res communis concept
applied, although there is no evidence that the Roman public could enforce its right against
the state to these uses.
172. Biological examples of res communis include fish and mammals in high seas. Rules for
use of the continent Antarctica were based on res communis as was development of space
law149. The term can be contrasted with res nullius, the concept of ownerless property,
associated for example with terra nullius, the concept of unowned territory.
173. The concept of the common heritage of mankind150 is one of the most extraordinary
developments in recent intellectual history, and one of the most revolutionary and radical
legal concepts to have emerged in recent decades151. The year 2017 marked the fiftieth
anniversary of the advent of the concept in the domain of public international law (Outer
Space Treaty, 1967). Ever since its emergence, it has become evident that no other concept,
notion, principle or doctrine has brought as much intensive debate, controversy,
confrontation and speculation as the common heritage phenomenon did. This is because it is
a philosophical idea that questions the regimes of globally important resources regardless of
148
https://www.spacelegalissues.com/the-legal-status-of-solar-energy/
149
space-law/
150
https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil
151
60
their situation, and requires major changes in the world to apply its provisions. In other words,
the enforcement of the common heritage of mankind requires a critical re-examination of
many well-established principles and doctrines of classical international law152, such as
acquisition of territory, consent-based sources of international law, sovereignty, equality,
resource allocation and international personality.
174. Outer space, extraordinary in many respects, is, in addition, unique from the legal
point of view153. It is only recently that human activities and international interaction in outer
space have become realities and that beginnings have been made in the formulation of
international rules to facilitate international relations in outer space154. As is appropriate to
an environment whose nature is so extraordinary, the extension of international law to outer
space has been gradual and evolutionary – commencing with the study of questions relating
to legal aspects, proceeding to the formulation of principles of a legal nature and, then,
incorporating such principles in general multilateral treaties.
175. The Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October
10, 1967) could be viewed as furnishing a general legal basis for the peaceful uses of outer
space and providing a framework for the developing law of outer space155. Its preamble states
that it recognises “the common interest of all mankind in the progress of the exploration and
use of outer space for peaceful purposes” and believes “that the exploration and use of outer
space should be carried on for the benefit of all peoples irrespective of the degree of their
economic or scientific development”.
176. As we have seen156, Article I enounces that “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,
152
153
space-law/
154
1970).
155
156
61
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”. The words “for the benefit and in the interests
of all countries”, “free for exploration and use”, “free access to all areas of celestial bodies”
are important. They underline the res communis aspect of outer space and its resources.
177. Article II affirms157 that “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 mean”. This statement is as important as the words used in Article I. It
reinforces the res communis aspect of outer space and its resources and excludes the concept
of terra nullius. It is important to recall that activities in outer space began in the late 1950s
and truly developed in the 1960s, a time influenced by the decolonisation of Africa (in the mid-
to-late 1950s and 1960s), where discussions had been held on the status of Antarctica (the
Antarctic Treaty was signed on December 1, 1959)158. This Article II is at the foundation of the
res communis aspect of outer space.
178. Let’s also recall that Article 2 of the Convention on the High Seas (Geneva, April 29,
1958) states that “The high seas being open to all nations, no State may validly purport to
subject any part of them to its sovereignty. Freedom of the high seas is exercised under the
conditions laid down by these articles and by the other rules of international law. It comprises,
inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of
fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high
seas. These freedoms, and others which are recognized by the general principles of
international law, shall be exercised by all States with reasonable regard to the interests of
other States in their exercise of the freedom of the high seas”159.
179. Some believe today that the underlying premise of res communis effectively limits
expansion and innovation in the realm of outer space160. Two areas in particular: national
157
158
space-law/
159
https://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf
160
62
security, and property rights and commercialisation. Consequently, outer space, and more
particularly the planetary resources, cannot in principle, in the light of the 1967 Outer Space
Treaty, be appropriated and therefore, exploited161.
180. Article II of the 1967 Outer Space Treaty, as the most fundamental legal provision, is
widely perceived to exclude the applicability of territorial sovereignty to outer space, or any
particular part thereof162. In other words: outer space does not form part of any state’s
territory, as legally defined for purposes of the scope of its sovereign authority. Neither can it
ever become part of such a national territory: outer space is not res nullius or terra nullius,
and is not susceptible to legal occupation, conquest or cession. This as such obviously also
applies to the Moon and other celestial bodies, being part of outer space. Under present
international legal doctrine, this would still leave open two options as to the status of outer
space, including the Moon and other celestial bodies.
181. As to the first such option, already in the times of the Dutch jurist Hugo Grotius, it
had been recognised that certain geographical areas were in a very principled sense outside
the reach of any state’s territorial sovereignty, as terra communis163. Following from the
foregoing brief analysis of Article II of the 1967 Outer Space Treaty, outer space indeed would
qualify as such a terra communis or res extra commercium, a geographically defined area
where freedom rules in principle, just like on the high seas164. Only the states of the world
acting collectively can provide for legal conditions to any activity in this area: no individual
state could call the tune to which other states or their entities would have to dance, not even
for a part of that area such as the Moon. Vice versa, each state (or its entities) could equally
profit from that fundamental freedom, without hindrance from any particular rival state.
182. The application of this notion to outer space is further supported by such provisions
in the 1967 Outer Space Treaty as the ones regarding freedom of exploration and use of, and
of scientific investigation in outer space. It also arises out of the general character of the 1967
Outer Space Treaty as providing the legal framework for all activities in outer space. It thereby
161
LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES,
UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.
162
2018.
163
https://www.researchgate.net/publication/269792693_From_Terra_Nullius_to_Terra_Communis_in_advance
164
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makes clear that, indeed, only the community of states can establish the legal regime for outer
space in principalem165, while at the same time, to the extent such a regime is not in place,
the freedom of space activities remains. Individual states furthermore – and in consequence
– are directly held accountable for their activities (or those of their entities) towards other
states by means of the principles of international responsibility and international liability.
183. Analysis could have stopped here, were it not that the space treaties themselves
introduced further important concepts, somewhat complicating or even redefining the
application of the terra communis concept to outer space. The 1967 Outer Space Treaty most
prominently came up with the hitherto unknown phrase “province of all mankind” as
“defining” the “status” of exploration and use166. In addition, a further more general and
substantive theoretical option for defining the status of an area like outer space, of specific
importance in the context of the Moon and other celestial bodies, had meanwhile entered the
international legal discussion: that of the “common heritage of mankind”167. Its application to
specific (categories of) geographical areas, and its exact contents and consequences remain
the topic of intensive debate. The principle as such however may be said to have achieved a
measure of acceptance by now.
184. It was most intensively discussed with respect to the status of the seabed in the
framework of the United Nations Conference on the law of the sea, taking place from 1974 till
1982168. The core issue in the eyes of the proponents of applicability of the common heritage
of mankind-principle to the seabed amounted to one crucial step beyond the recognition of
the terra communis status (which the opponents clung to)169.
185. The “classical” terra communis went with the presumption of complete freedom of
activities unless the contrary could be proven170. Those pronouncing the seabed the common
heritage of mankind on the contrary presumed that any substantial – especially commercial –
exploitative activities essentially required the consent of the community of states.
165
space-law/
166
space-law/
167
1970).
168
https://www.spacelegalissues.com/the-convention-on-the-high-seas/
169
170
64
Consequently, they proposed to establish an international body to preserve such rights of the
world community and act as a caretaker. Individual states (or their private entities) should
only be allowed to undertake commercial activities as long as this caretaker would see to it
that all states, especially the developing countries, would actually and materially benefit from
those activities.
186. The prohibition of national appropriation has been recognised in stages, along with
the freedom of use and exploration of outer space, and celestial bodies171. Although the
development of the basic principles of space law has been dominated by the two great space
powers at the time, the United States of America and the Soviet Union, the principle of non-
appropriation (in particular) has been accepted by all states172. With regard to celestial bodies,
the Legal Subcommittee recognised quickly the need to avoid claims of exclusive rights. If the
idea of a code of space activities was not retained, the need to develop certain general
principles was widely recognised. Basically, the principle of non-appropriation emerged
progressively from 1958. However, the codification of this principle has suffered repeated
questioning. Its reiteration in the elaboration of different texts, far from giving it greater
authority, is the result of a “non-linear” process during which its obligatory value has been
questioned on every occasion.
187. The issue of the use of outer space has been introduced to the U.N. by the major
powers in connection with disarmament issues. In this connection, the General Assembly
adopted a Resolution – Resolution 1148 (XII) of November 14, 1957 – which deals with the
peaceful use of outer space. In 1958, states became concerned about the dangers of
militarisation and appropriation of outer space. Many countries have, in one form or another,
expressed their opposition to any “monopolisation” of outer space. This opposition to the
“nationalisation” of space (its submission to the sovereignty of one or more states) has
however been affirmed with nuances.
188. The general recognition of the principle of non-appropriation is all the more
remarkable in that this principle results above all from an agreement between the United
171
172
(1991).
65
States of America and the Soviet Union173. This domination is particularly marked at the
beginning of the space age. It finds expression in the pace of progress and the orientation of
space law in general. However, recognition of the principle of non-appropriation took place
within the U.N. framework.
189. The states, in posing the problem of appropriation, sought to limit the freedom of
action of the great powers. They challenged the right of the first-comers to appropriate outer
space, and thereby, supported their rights as future users. The affirmation of the equal rights
of states, big and small, in space activities, goes in the same direction. In addition, some states
have suggested placing outer space and space activities under international jurisdiction,
normally that of the United Nations174. The dominant role of space powers in the formation
of space law has not compromised the universality of its principles, and in particular, the
principle of non-appropriation. These principles bind all states irrespective of the degree of
their effective participation in space activities. The compulsory nature of these latter results
from their customary value, which is now well established.
190. Ultimately, no state can claim exclusive rights over any part of outer space. The
results of the codification of the prohibition of appropriation, although dominated by the
great space powers, have highlighted the customary nature of this prohibition, as is the
principle of the freedom of space activities. The originality of the process of codifying this
prohibition, and the basic principles of space law in general, is the constant search for
consensus among all states.
191. The prohibition of national ownership remains ambiguous, although it is enshrined in

several international instruments. None of these instruments specify the meaning of the
notion of “national ownership”175. The notion of appropriation is not defined by any
instrument of space law176. Although it falls within the terminology of domestic law, it refers
to activities that are in the field of international law. The content of this prohibition and its
173
174
175
176
66
implications for the permissibility of specific activities, establishment of bases and exploitation
of space resources, should be considered.
192. The notion of appropriation generally refers to the fact (in the domestic legal orders)
of taking possession of a thing without being able to do so. The use of this concept in
international law may not be seen as a voluntary reference to its use in domestic law; it is
simply a convenient formula, broad and abstract enough to designate various phenomena177.
Article II of the 1967 Outer Space Treaty specifies certain forms of appropriation. It prohibits
explicitly both the proclamation and the acquisition of sovereignty by way of occupation178.
This article is not limited to proscribing the exercise of effective territorial authority. Indeed,
even isolated acts of sovereignty, even mere claims, could create an unfavourable climate for
the development of space activities.
193. In addition, the notion of appropriation is not limited to the formal claim of territorial
sovereignty or the acquisition of territorial sovereignty. Many authors, it is true, however, aim
particularly at the animus occupandi that accompanies the exercise of territorial jurisdiction,
even the mere fact of issuing claims179. In addition to the acquisition of sovereignty and
occupation, the acquisition of any exclusive or preferential (functional) right that would call
into question the equal rights of states to use space is also prohibited. The choice of the term
“appropriation” in space law – and not a term whose meaning is well established and defined
as sovereignty or the notion of acquisition of territory or exclusive rights – seems to have been
intentional.
194. Article II of the 1967 Treaty prohibits appropriation “by use”. This formula seeks in
particular to reject the doctrine of acquisitive prescription in outer space. It raises in any case
the problem of the distinction between the use which constitutes the normal exercise of the
freedom to explore and use outer space, which is affirmed by Article I of the 1967 Outer Space
Treaty, and the use which would constitute an appropriation. Some authors believe that the
criterion for distinguishing between the two types of use in question is the element of
177
2018.
178
KERREST ARMEL, ACTUALITÉS DU DROIT DE L’ESPACE : LA RESPONSABILITÉ DES ÉTATS DU FAIT DE LA
DESTRUCTION DE SATELLITES DANS L’ESPACE – ANNUAIRE FRANÇAIS DE DROIT INTERNATIONAL / ANNÉES
2009 / 55 / PP 615-626.
179
67
permanence that would imply ownership (as opposed to occasional or temporary use).
However, this criterion is too rigid to identify the appropriation activities. Ultimately, the
content of the concept of appropriation seems imprecise because it is not limited to modes of
acquisition or to specific activities. Its content is not limited to the already established
exclusion of territorial sovereignty, and any exclusive right. Any act or activity of a state that
results in a substantial impediment to the use of space by another State (or its nationals),
constitutes an appropriation.
195. As a conclusion, one part of the doctrine considers that, despite its apparent silence,
the 1967 Outer Space Treaty intends to prohibit the exploitation of space resources. It
assumes that use from a certain stage would constitute appropriation. For some, the criterion
of the latter is to be found in the consumption of resources, sometimes referred to as
“permanent use”. A distinction is also made between exhaustible and inexhaustible resources,
only the use of the former being constitutive of appropriation. On the other hand, profit-
making and the consumption of resources for research or space missions are also frequently
opposed: in the latter case, the use of space resources would remain free. Finally, other
authors still seem to consider that the prohibition of appropriation does not apply to
resources, but consider it desirable to apply it to exhaustible resources.
196. The opinion that Article II of the 1967 Outer Space Treaty does not prohibit the
exploitation of space resources is widespread. This activity is quite often analysed as covered
by the freedom to explore and use space, as seen in Article I of the aforementioned
international convention. In a similar vein, some authors assert that these resources, by
analogy with those of the high seas, are susceptible of appropriation by the first comer.
197. The question of resource exploitation was hardly discussed during the 1960s
negotiations. The very few interventions lead to the idea that the freedom to use space
effectively covers exploitation. At the time, the detailed examination of problems that were
barely perceptible was postponed. Practice has confirmed that the freedom of space activities
covers the exploitation of outer space, and subsequent negotiations of the natural resources
regime of celestial bodies reinforce this finding.
198. Some have feared that states will claim exclusive rights over resources, while others
are willing to grant states such rights over portions of celestial bodies in order to protect the
68
investments made. In general, the only situations where a state can obtain specific protection
for its interests, within a given area, are those where it is actually exploiting the resources
coveted by others in this area. In such cases, and particularly where there is a base or facilities
for on-site extraction (the operation of which indicates the effectiveness of the operation), it
is quite possible that conflicts may arise between states.
199. It appears that the notion of appropriation and its limits are ambiguous. The study of
this notion in terms of its purpose, to favour the freedom to explore and use outer space, has
partly helped to overcome the vagueness of its content. The freedom to explore and use space
includes the right to establish bases and the right to exploit space resources. The principle of
non-appropriation is not intended to prevent states from carrying out these activities.
200. Let’s now have a look at the 1979 Moon Agreement, which treats the question of
potential exploitation of natural resources of the Moon and celestial bodies.
69
B. Article 11 of the 1979 Moon Agreement
201. The 1979 Moon Agreement, or Agreement Governing the Activities of States on the
Moon and Other Celestial Bodies, was considered and elaborated by the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS) and its Legal Subcommittee from
1972 to 1979180. The Agreement was adopted by the General Assembly in 1979 in Resolution
34/68. It was not until June 1984, however, that the fifth country, Austria, ratified the
Agreement, allowing it to enter into force in July 1984181.
202. The Moon Agreement, which applies to the Moon and all other celestial bodies within
the Solar System other than the Earth, including orbits or other trajectories to or around them,
reaffirms and elaborates on many of the provisions of the 1967 Outer Space Treaty as applied
to the Moon and other celestial bodies, providing that those bodies should be used exclusively
for peaceful purposes, that their environments should not be disrupted, that the United
Nations should be informed of the location and purpose of any station established on those
bodies182.
203. In addition, the 1979 Moon Agreement provides that the Moon and its natural
resources are “the common heritage of mankind” and that “an international regime should be
established to govern the exploitation of such resources when such exploitation is about to
become feasible”183. These are some of the most interesting features of the international
treaty.
204. However, after entering into force in 1984, having secured a sufficient number of
ratifications, it is still unratified by any major space-faring power such as the United States of
America, and unsigned by the majority of states/nations184. Therefore, at this point it is of no
direct relevance to current space activities. Nonetheless, it highlights the disagreement
between the international community that desires to curb property rights, and spacefaring
nations who are not yet willing to relinquish them.
180
181
http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html
182
https://www.spacelegalissues.com/the-1979-moon-agreement/
183
184
(1991).
70
205. What of the future? Improved perspectives might perhaps appear on the horizon
when exploratory missions to the Moon and Mars will become more realistic. Such missions
have, incidentally, been receiving more and more attention among international space law
experts in recent years. Conferences have been organised; a new race to the Moon and its
resources has begun.
206. The Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies, was adopted on December 5, 1979, opened for signature on December 18, 1979, and
entered into force on July 11, 1984185. As a follow-on to the 1967 Outer Space Treaty, the 1979
Moon Agreement intended to establish a regime for the use of the Moon and other celestial
bodies similar to the one established for the seabed in the United Nations Convention on the
law of the sea.
207. The treaty was finalised in 1979 and, after satisfying the condition requiring five
ratifying states, it entered into force for the ratifying parties in 1984186. As of September 2019,
eighteen states only are parties to the 1979 Moon Agreement187. The objection to the 1979
Moon Agreement that is often raised is that the 1979 Moon Agreement requires that
extracted resources (and the technology used to that end) must be shared with developing
countries that have not invested funds or assumed risks to enable use of lunar resources.
208. In its Preamble, we read the following188: “Recognizing that the Moon, as a natural
satellite of the Earth, has an important role to play in the exploration of outer space”, then
“Desiring to prevent the Moon from becoming an area of international conflict”, and finally,
“Bearing in mind the benefits which may be derived from the exploitation of the natural
resources of the Moon and other celestial bodies”. Those three sentences appear the most
important in the 1979 Moon Agreement’s Preamble. The Moon has an important role to play
in the exploration of outer space, it cannot become an area of international conflict, and the
exploitation of the natural resources of the Moon (and other celestial bodies) might become
a commercially profitable activity.
185
186
(1991).
187
http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html
188
71
209. Article 1 of the 1979 Moon Agreement is important as it defines what the agreement
is about, to what object it should apply189. “1. The provisions of this Agreement relating to the
Moon shall also apply to other celestial bodies within the solar system, other than the Earth,
except insofar as specific legal norms enter into force with respect to any of these celestial
bodies. 2. For the purposes of this Agreement reference to the Moon shall include orbits around
or other trajectories to or around it. 3. This Agreement does not apply to extraterrestrial
materials which reach the surface of the Earth by natural means”. The 1979 Moon Agreement
applies to all celestial bodies within the Solar System, and specific laws might appear (for Mars
for example). The 1979 Moon Agreement also applies to orbits around the Moon and other
trajectories to or around the Moon. Finally, meteorites do not fall under the 1979 Moon
Agreement.
189
72
1. The common heritage of mankind principle: Article 11, paragraph 1,
of the 1979 Moon Agreement
210. Article 11 of the 1979 Moon Agreement, the longest of the agreement, is important
since it concerns in-situ resource utilization and potential space mining activities190. It states
that:
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.
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
190
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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:
a) The orderly and safe development of the natural resources of the Moon;
b) The rational management of those resources;
c) The expansion of opportunities in the use of those resources;
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”.
211. Article 11 is of fundamental importance in the whole discussion on lunar exploitation

and commercial activities191, as the Moon and its natural resources are proclaimed “common
heritage of mankind”, which means inter alia that establishment of an international regime in
accordance with Article 18, for the exploitation of such natural resources, taking into account
especially the interests and needs of the developing countries, will be required 192.
212. Major issues for debate presented by these provisions are whether this implies a
moratorium on exploitation until such a regime is in place; where exactly the borderline of
application between Articles 8 and 11 lies; and what the relevance of these provisions is in the
light of the relatively meagre measure of ratification of the Moon Agreement.
213. Article 11 of the Moon Agreement provides193 that “The Moon and its natural
resources are the common heritage of mankind”, though it has not indicated what the practical
consequences thereof were or should be.
214. The common heritage of mankind concept exists in both the law of the sea, and the
law of space194. The concept of common heritage of mankind received an unprecedented echo
191
192
193
194
74
in 1967, at the Third Conference on the Law of the Sea. It was the Maltese diplomat Arvid
Pardo who first proposed a regime for exploiting the resources of the sea, taking into account
“the interest of humanity”195. The United Nations General Assembly approved this doctrine in
the 1970 General Assembly Resolution 2749 (XXV)196 on Declaration of Principles Governing
the Sea-bed and the Ocean Floor, and the Subsoil thereof, beyond the Limits of National
Jurisdiction, declaring that: “The sea-bed and ocean floor, and the subsoil thereof, beyond the
limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of
the area, are the common heritage of mankind”.
215. The development of this idea comes mainly from two factors. On the one hand, the
depletion of mineral and biological resources that were already a cause for concern; on the
other hand, the inequalities between rich and poor countries that did not guarantee them
access to the resources.
216. In space law, it is in the Moon Agreement of 1979 that the very first reference to the
common heritage of mankind principle is contained in an international convention 197. The
concept was well received by the Western powers and the developing countries. On the other
hand, the Eastern bloc, under the leadership of the U.S.S.R., argued that the notion of
“heritage” is a concept of private law that cannot find application in interstate relations.
Despite the dissension within COPUOS, and the lack of consensus on the adoption of the Moon
Agreement from 1970 to 1979, states found common ground, and drafted the 1979 Moon
Agreement. It notably provides in its Article 11 that “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”.
217. There is no formal definition of the common heritage of mankind principle. Its
content must be interpreted from practice, which provides the framework for a broad
doctrinal debate198. According to a terminological approach to the terms of the concept,
admittedly very insufficient, the concept of common heritage of mankind is first and foremost
a trans-temporal and trans-spatial one, since it also targets future generations. Article 4 of the
195
196
https://cil.nus.edu.sg/databasecil/1970-general-assembly-resolution-2749-xxv-on-declaration-of-principles-
governing-the-sea-bed-and-the-ocean-floor-and-the-subsoil-thereof-beyond-the-limits-of-national-jurisdiction/
197
198
75
1979 Moon Agreement also states that “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”.
218. Article 11 of the 1979 Moon Agreement also supports a pragmatic approach to the
concept. It provides that the common heritage of mankind principle is reflected in the
provisions of the aforementioned international convention199. With regard to the substance
of the concept, it must first be noted that the prohibition of the appropriation of outer space
and its resources is one of the 1967 Outer Space Treaty’s major elements. The status of
common heritage of mankind could not be given to outer space, or to its resources, since it
cannot be appropriated. The principle of non-appropriation appears in this way in the concept
of common heritage of mankind, but also in that of res communis. The latter aims at an
insusceptible space of appropriation whose use is open to all states equally, involving free
access to outer space and its resources.
219. However, the notion of common heritage of mankind does not mean free access to
resources, but above all, equitable sharing of resources or benefits derived from their
exploitation200; what distinguishes these neighbouring notions bathed in the principle of non-
appropriation is the “sharing idea” of distribution, inherent to the concept of common
heritage of mankind.
220. According to practice in the law of the sea, and in the provisions of the 1979 Moon
Agreement, the concept of common heritage of mankind is characterised by three elements:
A. The concept only applies to spaces and resources that are insusceptible of
appropriation;
B. The concept implies a regime of rational management of resources, as provided for in
Article 11 of the 1979 Moon Agreement;
199
200
(1991).
76
C. The common heritage of mankind concept, and this is the essential feature, assumes
a sharing of benefits among all states, taking into account the needs of developing
countries and the efforts of space powers.
221. It is therefore clear that the implementation of the common heritage of mankind
concept needs to be specified by specific standards. The common heritage of mankind concept
therefore makes the Moon an appropriate environment for humanity, so it is a collective
endorsement in the image of a res communis. On the other hand, it cannot be said that the
resources of the Moon are res communis to the extent that these goods are consumable201,
their consumption by one preventing their consumption by others.
222. The problem is whether the concept of common heritage of mankind in space law
actually exists in positive international law202. Indeed, at present only a few states have ratified
the international convention. The 1979 Moon Agreement is in force and binding on its
signatory states (which include no space power)203. However, until the major space powers
have ratified the 1979 Moon Agreement, the concept of common heritage of mankind will
remain a dead letter. The major states did not want this text for one simple reason: the
concept of common heritage of mankind scares off private investors, who fear having to share
profits with developing countries204. In addition to the problems associated with the funding
of missions, the space powers wish above all to maintain the freedom of exploration and use
of outer space, and do not want to see this freedom limited by the concept of common
223. Concerning the law of the sea, the implementation of the concept by the
international mechanism provided by the 1982 Montego Bay Convention205, establishing the
International Seabed Authority206, reveals a number of difficulties related to international
relations. During the development of the project of creating this international organisation, in
the political context of the Cold War, it had been planned the establishment of a supranational
201
202
(1991).
203
204
205
https://www.un.org/depts/los/convention_agreements/convention_20years/Montego%20Bay.htm
206
https://www.isa.org.jm/
77
authority. Following the collapse of the Eastern bloc, the July 1994 agreements downgraded
the powers of the International Seabed Authority, which came into being when the Montego
Bay Convention came into force on November 16, 1994.
224. It is clear that the concept of common heritage of mankind, since the institution of
the International Seabed Authority, has lost its influence207. Indeed, the current context of
globalisation reveals two opposing doctrines208. On the one hand, the states favouring a
centralising or supranational approach giving considerable powers to the International Seabed
Authority, allowing a fair redistribution of resources. On the other hand, the industrial powers
refusing to give up part of their sovereignty in carrying out exploitation operations likely to
confer on them financial and economic advantages. The future of this international
organisation, and the concept of common heritage of mankind, is intimately dependent on
international relations in the context of North/South inequalities.
225. Whereas for Antarctica or outer space in general, the evocation of humanity meant
essentially a limitation of the possible action of technically advanced states, notably in the
form of a general and global human purpose, as far as the seabed or celestial bodies are
concerned, it corresponds to the more concrete claim of the whole of the international
community to benefit from these new world natural riches, the fruits of the progress of
science and technology209. To be even more precise, the concept of common heritage of
mankind can be given two complementary meanings: the first is that of the assignment to the
general interest, which is particularly relevant to research, and the second is an economic
sense, which is part of the new line of evolution of general international law that has
happened in recent years, and which aims to protect the most numerous, the weakest and
the least developed scientifically and economically210. It is undeniable that activities in
Antarctica or in outer space which are carried out by a very small number of States, enjoying
a de facto monopoly, serve in fact the general interest: to the extent that these peaceful
activities increase human knowledge and scientific progress, and benefit the whole of
humanity.
207
https://www.un.org/depts/los/convention_agreements/convention_20years/Montego%20Bay.htm
208
https://www.isa.org.jm/article-154-periodic-review-international-seabed-authority
209
210
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2. The exploitation of the natural resources of the Moon and other
celestial bodies
226. As the whole world was preparing, on July 21, 1979, to celebrate the tenth
anniversary of humankind’s first step on the Moon, the U.N. Committee for the Peaceful Uses
of Outer Space or COPUOS, on July 3, 1979, after eight years of negotiations, came up with an
international convention concerning the Moon and other celestial bodies211. Approved by the
United Nations General Assembly at its 34th session (Resolution 34/68 of December 5, 1979),
this agreement is now subject to signature and ratification by states212.
227. The 1967 Outer Space Treaty had essentially been concluded for the exploration of
the Moon, and to prevent its use for military purposes213. Indeed, after the first soft landing
on the Moon of the Soviet spacecraft Luna 9, the first to achieve a soft landing on the Moon,
on February 3, 1966214, the prospects seemed close to sending, either by the United States of
America or the U.S.S.R., inhabited craft on the Moon. It was therefore essential to reach an
international agreement on the conditions of exploration and use of the Moon and other
celestial bodies.
228. The General Assembly of the United Nations nevertheless agreed in principle, by
Resolution 2779 (XXVI) of November 29, 1971215, that the 1967 Outer Space Treaty should be
supplemented by a new text concerning the Moon, without however giving the reasons for it.
In 1967, in the context of the Cold War, the United States of America and the U.S.S.R. had the
essential objective of avoiding a militarisation of the Moon and celestial bodies, or a possible
atomic conflict in outer space, but they had nothing to do with the establishment of a special
legal regime concerning lunar resources, whose exploitation at that time was not even
envisaged. The 1967 Outer Space Treaty and the various United Nations resolutions that
preceded its development do not contain specific rules on the exploitation of extraterrestrial
materials216.
211
212
213
space-law/
214
https://en.wikipedia.org/wiki/Luna_3
215
https://www.un.org/french/documents/view_doc.asp?symbol=A/RES/2779(XXVI)&Lang=F
216
79
229. However, the landing of Americans on the Moon in 1969, or the sending of Soviet
automatic probes, raised the question of the legal regime applicable to materials from the
Moon and other celestial bodies. It was in an attempt to answer this question that, as early as
1970, Argentina, in the Legal Subcommittee of COPUOS, presented for the first time a proposal
entitled “Draft convention on the principles to govern activities concerning the use of the
natural resources of the moon and other celestial bodies”217. This was closely followed by the
Soviet draft of 1971, in which the emphasis was more on the general legal regime applicable
to the Moon, to the exclusion of specific provisions on lunar resources218.
230. These projects were submitted to the United Nations at a time when the success of
the Apollo missions could lead to believe that they would be followed in the short term by
many other missions, paving the way for a true “colonisation” of the Moon. It is therefore first
of all the prospect of potential benefits from the Moon and other celestial bodies,
economically, scientifically, politically and militarily, which explains the insistence with which
some members of the COPUOS called for the rapid development of a draft treaty defining
their legal regime. Moreover, since most of the Moon treaty negotiations focused on the
status of the Moon’s natural resources, and their exploitation regime, the problem was
situated within the framework of divergent views that already separated the technologically
advanced industrialised states, from the non-affluent developing states in other areas.
231. One of the first questions studied, and which was the subject of long debate in the
United Nations, was that of the scope of the new treaty: should it apply to the Moon only?219
Would the treaty concern circumlunar orbits? Would it apply to extraterrestrial matter
reaching the Earth? The answers to these questions are given in Article 1 of the 1979 Moon
Agreement220. Very quickly, the lunar resources were taken into consideration. As for the
extension of the scope of the 1979 Moon Agreement to other celestial bodies, which seemed
obvious to the extent that the exploration of other planets of the Solar System was also
underway, it was the subject of long discussions, because of the U.S.S.R. which had for a long
time refused to apply the principle of the common heritage of mankind to other celestial
217
218
1970).
219
220
80
bodies. The scope of the 1979 Moon Agreement being thus delimited, the essential of its
provisions is constituted, on the one hand, by a status of total demilitarisation of the Moon
and other celestial bodies, and on the other hand, by the establishment of an international
legal regime for the exploration and exploitation of celestial resources.
232. Since 1973, the question of the status of the natural resources of celestial bodies has
been the cornerstone of the work of COPUOS221. Regarding the natural resources of the Moon
itself, many proposals were made for or against the inclusion of specific provisions relating to
their legal status222. Those who wished to exclude them from the scope of the 1979 Moon
Agreement, emphasised that the problems relating to the Moon’s natural resources, were not
urgent, and that they would not be urgent for a few decades, and therefore that provisions
on natural resources were premature223. Others were in favour of including provisions
concerning them, arguing inter alia that a principle should be developed to prevent the
possibility of a situation likely to create conflicts. Lastly, some members of COPUOS supported
this point of view, but were in favour of concluding a separate international treaty on natural
resources.
233. In 1973 was adopted a provision that declared that as soon as the exploitation of
these resources would appear possible, a conference of the Member States would establish
an international operating regime, which would take into account the needs of the developing
countries224. One would have thought that after this concession, an agreement on resources
was in sight. This was not so, because India, supported by Mexico, Brazil and Argentina,
immediately posed the problem of the legal status of lunar resources during the interim period
preceding the exploitation stage225. Some were of the opinion that226, pending the
establishment of an international regime for the exploitation of natural resources, activities
on the Moon and other celestial bodies should be permitted only if they had scientific
221
(1991).
222
223
224
225
(1991).
226
81
purposes. Others considered227 that the use of lunar resources should be allowed not only for
scientific purposes, but also for various experimental purposes.
234. Among the natural resource issues were whether or not a moratorium should be
established on their exploitation until an international regime could be established, as well as
recognition of the principle that the natural resources of the Moon and other celestial bodies
should be considered as the common heritage of mankind228. Two regimes can be
distinguished: an interim regime of immediate application, which is essentially that of the
exploration of celestial bodies and scientific research for the benefit of all mankind, and a
future regime, which will be that of the exploitation of lunar natural resources (and other
celestial bodies) when this becomes possible229. It consists of establishing an international
regime for the exploitation and distribution of these resources, considered as the common
235. Article 11 of the 1979 Moon Agreement, after recalling that the Moon cannot be the
subject of any national appropriation, and that it constitutes (as well as its resources) the
common heritage of mankind, clearly indicates that the surface and the subsurface of the
Moon cannot be the property of states or of natural persons, and that the installation of
stations does not create a right of ownership230. This general scheme is subject to two
exceptions relating to the needs of the scientific research referred to in Article 6 of the 1979
Moon Agreement, and the international operating regime to be established, referred to in
paragraph 5 of Article 11, of the 1979 Moon Agreement231.
236. Article 6 of the 1979 Moon Agreement notably states232 that “2. In carrying out
scientific investigations and in furtherance of the provisions of this Agreement, the States
Parties shall have the right to collect on and remove from the Moon samples of its mineral and
other substances. Such samples shall remain at the disposal of those States Parties which
caused them to be collected and may be used by them for scientific purposes. States Parties
227
228
229
230
231
232
82
shall have regard to the desirability of making a portion of such samples available to other
interested States Parties and the international scientific community for scientific investigation.
States Parties may in the course of scientific investigations also use mineral and other
substances of the Moon in quantities appropriate for the support of their missions”.
237. The regime for scientific research on the Moon and other celestial bodies consists
essentially of the principle of the freedom of scientific research, which is expressly stated in
Article 6 of the 1979 Moon Agreement233: “There shall be freedom of scientific investigation
on the Moon by all States Parties without discrimination of any kind, on the basis of equality
and in accordance with international law”. In so far, as these scientific research activities
increase knowledge and scientific progress, they are presumed to be in the general interest,
unless the information collected is not disseminated to the scientific community. Freedom of
research includes the ability to collect samples of minerals and other substances from the
Moon. The collection is free and the “samples shall remain at the disposal of those States
Parties which caused them to be collected and may be used by them for scientific purposes”.
238. Article 6 of the 1979 Moon Agreement lays down the principle of freedom of scientific
research on the Moon234. In paragraph 2235, the 1979 Moon Agreement allows states to collect
samples of minerals and other substances from the Moon for study, and for the support of
their mission. This freedom is tempered by the fact that it is desirable to make part of the said
samples available to other interested states parties, and to the international scientific
community, for scientific research purposes. States therefore have the right to collect samples
that they use for peaceful purposes and for which they have custody. In addition, Article 5 of
the 1979 Moon Agreement provides for a mechanism for the communication of scientific
results to the U.N. Secretary-General, thus enabling greater transparency in activities carried
out in a spirit of international collaboration.
239. The freedom to carry out scientific research therefore makes possible the use of the
Moon’s resources, without having to “share” them, or without having to go through an
international mechanism for the exploitation of resources as provided for in Article 11 of the
233
234
(1991).
235
83
1979 Moon Agreement. On the other hand, if tourist bases are installed on the Moon, their
consumption of lunar resources in-situ no longer falls under Article 6, since they do not
perform scientific research236. The freedom to use lunar resources for the support of scientific
missions badly needs to be framed by an on-the-spot control and verification mechanism.
240. It is desirable that, on the one hand, these states make part of the samples available
to other interested states for scientific purposes and, on the other hand, exchange “scientific
and other personnel on expeditions to or installations on the Moon to the greatest extent
feasible and practicable”. In the course of their scientific research, states may also use
minerals and other substances from the Moon “in reasonable quantities” to support their
missions. Following an exchange of rocks and dust between the U.S.S.R. and the United States
of America, on June 10, 1971, the idea was expressed that this exchange constituted a
violation of Article II of the 1967 Outer Space Treaty on the non-appropriation of celestial
bodies237. On this issue, Article 6 of the 1979 Moon Agreement gave a clear answer.
241. It should also be noted that Article 11 explicitly states that the right to collect samples
of natural resources is not affected238, and that there is no limit to the right of states to use
these natural resources of celestial bodies during their scientific research, in reasonable
quantities. It will therefore be possible as a result of experimental programs or pilot
operations, to know whether these mineral resources can be exploited in practice from
celestial bodies, in accordance with Article 11 of the 1979 Moon Agreement.
242. This ability to collect samples does not come without compensation from states that
undertake activities on the Moon: it implies the obligation on the part of these States 239 to
“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”. Also, as stated in Article 5 of the 1979 Moon Agreement240,
“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
236
237
238
239
240
84
their activities concerned with the exploration and use of the Moon. Information on the time,
purposes, locations, orbital parameters and duration shall be given in respect of each mission
to the Moon as soon as possible after launching, while information on the results of each
mission, including scientific results, shall be furnished upon completion of the mission”. Thus,
this freedom of scientific research can only be exercised if the results of the missions are
accessible to the scientific community.
243. Article 11, the keystone of this international convention on the Moon, and the future
regime for the exploitation of its resources241, explicitly indicates that the states “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”. The provisions of Article 11 paragraph 5 are in fact the result of a compromise
between the states which wanted the draft treaty to contain provisions on natural resources,
and the states which opposed such inclusion242. The provisions of the aforementioned article
are also trying to satisfy states that were in favour of concluding a separate international
agreement. Some then foresaw that “the only conceivable internationalisation was the
creation of an international public service concerning the exploration and use of celestial
bodies”, with the establishment “of a legal regime for the management of the service that
could be entrusted to the United Nations, a specialised agency, or any other body to be
determined”.
244. According to Article 11 paragraph 7 of the 1979 Moon Agreement, the international
regime to be established to govern the exploitation of the natural resources of the Moon, and
by extension those of the other celestial bodies, will have the primary objective of:
A. The orderly and safe development of the natural resources of the Moon;
B. The rational management of those resources;
C. The expansion of opportunities in the use of those resources;
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
241
242
85
those countries which have contributed either directly or indirectly to the exploration
of the Moon, shall be given special consideration.
245. Alongside the right of developing countries to participate in, and benefit from, these
new global resources, it was necessary to take into account the considerable technological
and financial efforts made by the developing countries243. It is therefore in this spirit that a
compromise was found: it appears in Article 11 paragraph 7 that “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”. This
provision seems to be a reflection of a good compromise.
246. Thus, no moratorium was imposed on the exploitation of these natural resources,
provided, however, that until the establishment of the international regime, states undertake
their activities on the Moon in a manner consistent with the objectives of such a regime, and
in accordance with the principle that the Moon and its natural resources constitute the
common heritage of mankind244. It also appears that the notion of “natural resource” is not
defined. The law of space does not distinguish between planetary resources, and outer space
resources, like radiation, gas, dust, or sunlight245. Article 11 paragraph 8 of the 1979 Moon
Agreement states that “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”.
247. The prohibition of appropriation, in terms of its content, covers not only the claim or
exercise of territorial sovereignty, but also any exclusive right of public or private nature246.
The content of this prohibition must be broadened in the light of its aim of ensuring the equal
rights of states in the exploration and use of outer space. Nevertheless, the limits of this
prohibition remain ambiguous because it does not fully identify, neither by its content nor as
to the persons targeted, with the acquisition of sovereignty (or exclusive rights). Moreover, it
243
244
(1991).
245
246
86
does not oppose the development of space bases and installations, or the exploitation of
space resources. It guarantees the interests of space users and the equality of their rights.
248. When Neil Alden Armstrong first touched the lunar ground on July 21, 1969, he
uttered, in front of hundreds of millions of viewers, a little phrase, which became famous:
“That’s one small step for man, one giant leap for mankind”. It seemed obvious that the great
beneficiary of this space adventure, both in terms of scientific knowledge, and the future
exploitation of celestial bodies, was the whole of humanity. But how was it possible to give
legal content to this obligation, the real substance of which was rather of a moral or
philosophical nature? It must be said that this principle of common heritage of mankind
seemed at first glance to be an innovative principle reflecting in fact a pre-existing tendency,
which had already manifested itself in other fields247. Indicated in an indirect way in the 1959
Washington Treaty on Antarctica, this expression was notably taken up and developed in the
various resolutions of the United Nations General Assembly dealing with the problem of the
exploitation of the seabed and the high seas248.
249. One of the fundamental principles of the Space Treaty is the freedom of space
activities. However, following the very provisions of Declaration of Legal Principles Governing
the Activities of States in the Exploration and Use of Outer Space, RES 1962 (XVIII), General
Assembly 18th session, December 13, 1963, the Treaty provides for limitations on this
freedom, notably by imposing a certain finality on the exploration and use of the Moon and
other celestial bodies249. Article 4 of the 1979 Moon Agreement declares that “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”.
250. In conclusion, it can be said that this 1979 Moon Agreement, the culmination of a
long process that began in 1971, embodies an essential principle which is the de facto
247
248
249
87
recognition that the natural resources of the Moon and other celestial bodies are the heritage
of mankind, and that an international regime should be established to govern their
exploitation.
251. Neither has Article 11, thereby, itself clarified the boundaries between, on the one
hand, exploration and use of the Moon and, on the other hand, the Moon itself as well as its
natural resources. If natural resources should be understood, as common heritage of mankind,
not to be subject to individual state’s decisions, would there be any meaning left in the fact
that the use thereof would be considered the province of all mankind – or the other way
around? Is “exploitation” a category distinct from “use” then, which (at least with respect to
the 1967 Outer Space Treaty) most experts would not hold to be the case, since under such
an approach the latter treaty would not regulate exploitation at all? Also, the freedom of
exploration and use of the Moon is reconfirmed by Article 11 itself, while the freedom of
scientific investigation is equally reconfirmed.
252. With regard to celestial bodies, while it was generally accepted that an international
regime should be established to govern the exploitation of natural resources, the central
question that remained controversial for a long time was the content to be given to the
concept of “common heritage of mankind”. Some were of the opinion that this notion
excluded any exploitation of resources going beyond scientific exploration, while others were
ready to admit any use of celestial bodies, for peaceful purposes. In reality, this attempt to
define the real substance of this expression has led to nothing more than general and often
contradictory interpretations.
253. As a result, in the context of New Space and the always stronger implication of the
private sector in space activities, some have decided to nationally allow the commercial
exploitation of celestial resources.
88
II. THE NEED TO ESTABLISH AN INTERNATIONAL LEGAL
FRAMEWORK FOR SPACE MINING ACTIVITIES
254. The technological development and the study of the celestial bodies, allowed many
actors to understand the profit to be extracted from the exploitation of the various resources
present in the extra-atmospheric environment.
255. The race to set up a system to extract wealth from celestial bodies was triggered by
the success of November 12, 2014250. This date marked the completion of the ESA Rosetta
mission, which succeeded in landing of the Philae module on a comet251. Alvaro Giménez,
ESA’s Director of Science and Robotic Exploration, said that after “A journey that will have
lasted more than ten years, we will be able to carry out the most advanced scientific analyses
ever done on one of the oldest vestiges of our Solar System”. Thanks to this exploit, the
scientific world understood that humankind had the necessary competence to access a set of
celestial bodies, in order to obtain a scientific gain, but also pecuniary. In addition, the
development of the exploitation of space resources is accompanied by a transformation of
the actors involved in its development. The failures of the so-called “Old Space” model made
it possible to become aware of the need to change the structure of the market252.
256. The main international treaty governing the outer space exploration dates back to
1967, and did not really illuminate the minds of aspiring space entrepreneurs. The text simply
enounces that states cannot claim ownership of a parcel of land. On the other hand, it does
not say anything – apart from Article VI, which stipulates that sates are generally
internationally responsible – about the commercial activity of private companies; what does
it imply? Who owns rights to mine asteroids? What would happen if you went up there, took
some of it?
257. Recently, some states have tried to answer those questions, and have enacted
national laws allowing private companies to exploit and own celestial resources 253. According
to new laws promulgated both in the United States of America and in Luxembourg (Europe),
250
https://www.esa.int/Our_Activities/Space_Science/Rosetta
251
252
https://www.airbus.com/public-affairs/brussels/our-topics/space/new-space.html
253
89
you can own any resource from an asteroid that you would have managed to obtain.
Corollaries of strong national space ambitions, these initiatives aspire to give more visibility to
private actors, and thus, encourage the development of a new national industry. However,
the laws passed did not close the debate.
258. On November 25, 2015, U.S. President Barack Obama signed the U.S. Commercial
Space Launch Competitiveness Act254, a text giving American citizens the right to own all
celestial resources and, more broadly, all abiotic extra-atmospheric natural resources that one
might one day be able to obtain. A few months later, Luxembourg reported its desire to have
a similar legal framework.
259. In the United States of America, the U.S. Commercial Space Launch Competitiveness
Act, which came into effect on November 25, 2015, contains a TITLE IV on “SPACE RESOURCE
EXPLORATION AND UTILIZATION”255. It declares that “A United States citizen engaged in
commercial recovery of an asteroid resource or a space resource under this chapter shall be
entitled to any asteroid resource or space resource obtained, including to possess, own,
transport, use, and sell the asteroid resource or space resource obtained in accordance with
applicable law, including the international obligations of the United States”.
260. Despite the clarity of this principle, can a national law form a solid foundation in
public international law? In this sense, the adoption by Luxembourg of the law of July 20, 2017,
on the exploration and use of space resources256, as adopted by the Luxembourg Parliament
on July 13, 2017, and effective from August 1, 2017, is seen as reflecting the emergence of an
international consensus in favour of the American interpretation. This European law creates
a licensing and supervisory regime in Luxembourg, addressing the ownership of resources
acquired in outer space.
261. Similar to the U.S. Space Resource Exploration and Utilization Act of 2015, the
Luxembourg law provides that commercial companies operating within its regulatory
framework may legally appropriate resources acquired in outer space from celestial bodies
known as Near Earth Objects (NEOs)257. Notably, the law does not apply to satellite
254
https://www.congress.gov/bill/114th-congress/house-bill/2262
255
256
https://www.loc.gov/law/foreign-news/article/luxembourg-law-on-use-of-resources-in-space-adopted/
257
https://www.loc.gov/law/foreign-news/article/luxembourg-law-on-use-of-resources-in-space-adopted/
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communications, orbital positions, or the use of frequency bands. This law is moreover, in
several respects, more precise than its equivalent in the United States of America, notably on
the liability regime associated with this activity, on the principle of prior authorisation subject
to conditions, or on the penalties incurred. Let’s also note that the Luxembourg government
has signed memoranda of understanding with other countries, notably the United Arab
Emirates.
262. Much debate has been going on, and some believe that an international legal
framework for space mining activities should be established. After having looked at the recent
national legislations in favour of space mining commercial activities (A), the case of an
international regime (B), inspired by already existing similar activities, will be brought up.
91
A. The recent appearance of national laws
263. The United States of America is once again ahead of other countries in this initiative
to make it both a pioneer and a leader in the future international market for the exploitation
of space resources, and in doing so, maintain and assert with confidence the dominant
position of the United States of America in terms of space missions.
92
1. The Space Resource Exploration and Utilization Act of 2015
264. Mining asteroids is an attractive business prospect for many companies: space rocks
are home to valuable raw materials, such as iron, nickel, platinum, which, brought back to
Earth, could garner significant profits258. Especially since terrestrial resources are destined to
run out. Other resources on asteroids could be used-for example, water, which is used in fuel.
But unlike the Earth, outer space, as we have seen, has never been divided into different
territories. In fact, the idea that someone could get rights to what it contains is at best,
ambiguous, at worst, absurd. However, when commercial interests come into play, these
principles become much vaguer. The space law regime as it exists today was not designed to
regulate commercial activities, and does not provide for the case where a country has the
intention to exploit asteroids259. Space law exists to prevent outer space from becoming an
environment of conflict and war.
265. On May 21, 2015, the U.S. House of Representatives passed a revised version of the
ASTEROIDS Act260, now labelled the Space Resource Exploration ad Utilization Act. Endorsed
by the U.S. Senate, the Act was formally enacted into law by the President of the United States.
In the light of this important development, it seems appropriate to analyse the content, and
the legal and political implications, of the Space Resource Exploration and Utilization Act.
266. The first state to adopt national legislation was the United States of America. The
Commercial Space Launch Competitiveness Act (CSLCA) was passed on November 25, 2015. It
consists of four TITLES, and TITLE IV is named “Space Resource Exploration and Utilization”, to
be referred to as the “Space Resource Exploration and Utilization Act of 2015”. Section 402
provides that “A United States citizen engaged in commercial recovery of an asteroid resource
or a space resource under this chapter shall be entitled to any asteroid resource or space
resource obtained, including to possess, own, transport, use, and sell the asteroid resource or
space resource obtained in accordance with applicable law, including the international
obligations of the United States”.
258
https://mashable.com/feature/asteroid-mining-space-economy/?europe=true
259
260
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267. Section 402 also provides that the President shall submit a report to Congress that
specifies the authorities necessary to meet the international obligations of the United States,
including authorisation and continuing supervision by the Federal Government, and
recommendations for the allocation of responsibilities among Federal agencies for those
activities261. Furthermore, Section 403 confirms that by enactment of this Act the United
States does not assert sovereignty or sovereign or exclusive rights or jurisdiction over, or
ownership of, any celestial body, thus giving reassurance that no violation of Article II OST is
intended262.
268. The position paper issued by the International Institute of Space Law (IISL)
interpreted the Act as follows: “In view of the absence of a clear prohibition of the taking of
resources in the Outer Space Treaty one can conclude that the use of space resources is
permitted. Viewed from this perspective, the new United States Act is a possible interpretation
of the Outer Space Treaty. Whether and to what extent this interpretation is shared by other
States remains to be seen”263.
269. Industry seems to welcome this law264: “The birth and passage of the first national
space resource utilization legal regime is the first step toward further international
cooperation in space and it will ultimately benefit all mankind. With similar legislation being
drafted in other nations, bilateral and multilateral agreements will develop between like-
minded nations that see the economic, environmental, and social importance that space
resource utilization will bring to their respective countries”. Industry was in fact deeply
involved in the legislative process.
270. The bill passed by the Senate singles out the situation for American companies. They
will have a right of ownership, under U.S. law, on all resources obtained during the exploitation
of asteroids and outer space. They will be the only ones able to sell in the United States of
America water, for example, or certain metals such as platinum, coming from an asteroid265.
261
262
263
IISL Directorate of Studies, Background Paper on the topic: Does International Space Law Either Permit or
Prohibit the Taking of Resources in Outer Space and on Celestial Bodies, And How Is This Relevant for National
Actors? What Is The Context, And What Are The Contours And Limits Of This Permission Or Prohibition? (2016),
http://iislweb.org/iisl-dos-study-on-space-resource-mining/.
264
http://www.qil-qdi.org/regulation-space-resource-rights-meeting-needs-states-private-parties/
265
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The text approved by U.S. senators is, in addition, an improved version of a draft that had
raised strong criticism. Initially, the law included a clause banning external “interference” in
U.S. space workplaces. This provision, which would have prevented other states from doing
even research in the vicinity of U.S. companies, amounted to de facto granting sovereignty
over the U.S.-operated land parcel, in violation of the 1967 Outer Space Treaty.
271. It is because international space laws are vague or not controlling, that there has
been recent activity within the U.S. Congress to provide a better framework for understanding
property rights concerning resources mined from celestial bodies266. This activity has
culminated in November 2015, when President Barack Obama signed into law the Space
Resource Exploration and Utilization Act (“Space Act”). The Space Act is broad and designed
to “promote the development of a United States commercial space resource exploration and
utilization industry and to increase the exploration and utilization of resources in outer
space”267. The House report makes it clear that the Space Act is not aimed at circumventing
the national appropriation prohibitions from the Outer Space Treaty, but rather seeks to
provide certainty as to the rights of private entities to “remove, take possession of, and use in-
situ asteroid resources”.
272. President Barack Obama signed the U.S. Commercial Space Launch Competitiveness
Act on November 25, 2015. Among other things, the law now allows prospecting for mining
for companies registered in the United States of America268. The United States of America has
just opened the first legal door to the commercial exploitation of space. The U.S. Senate
unanimously approved in November 2015, a law that recognised the private sector property
rights over resources obtained in outer space. The Space Resource Exploration and Utilization
Act of 2015 directs the President, acting through appropriate federal agencies, to:
A. Facilitate the commercial exploration and utilisation of space resources to meet

national needs;
266
267
268
95
B. Discourage government barriers to the development of economically viable, safe, and
stable industries for the exploration and utilisation of space resources in manners
consistent with the existing international obligations of the United States of America;
C. Promote the right of U.S. commercial entities to explore outer space and utilise space
resources, in accordance with such obligations, free from harmful interference, and to
transfer or sell such resources.
273. The Space Resource Exploration and Utilization Act of 2015 also defines “space
resource” as a natural resource of any kind found in place in outer space269. The text directs
the President to make recommendations to Congress for:
A. The allocation of responsibilities relating to the exploration and utilisation of space

resources among federal agencies;
B. Any authorities necessary to meet U.S. international obligations with respect to such
exploration and resource utilisation.
274. It also declares that any asteroid resources obtained in outer space are the property
of the entity that obtained them, which shall be entitled to all property rights to them,
consistent with applicable federal law and existing international obligations270. The Space
Resource Exploration and Utilization Act of 2015 states that a U.S. commercial space resource
utilisation entity:
A. Shall avoid causing harmful interference in outer space;

B. May bring a civil action in a U.S. district court for any action by another entity subject
to U.S. jurisdiction causing harmful interference to its operations with respect to an
asteroid resource utilisation activity in outer space.
275. An amendment was also submitted in extremis to clarify that the resources should be
“abiotic”, that is to say without biological component271. In the absence of this mention, the
269
270
IISL Directorate of Studies, Background Paper on the topic: Does International Space Law Either Permit or
Prohibit the Taking of Resources in Outer Space and on Celestial Bodies, And How Is This Relevant for National
Actors? What Is The Context, And What Are The Contours And Limits Of This Permission Or Prohibition? (2016),
http://iislweb.org/iisl-dos-study-on-space-resource-mining/.
271
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right of ownership could have concerned living beings. In other words, the first E.T. could have
belonged to the society that discovered it.
276. However, the final text is not without flaws. First, it grants an enforceable right of
ownership only to the United States of America. But nothing prevents another country from
doing the same for its nationals. What will happen when two companies of different
nationalities can legitimately claim to own a property right on the same resource coming from
the same asteroid? The first-come, first-served rule may apply. The bill also refers to the fact
of “obtaining space” without defining precisely the two terms. Will this text, for example,
apply to the scientific data that a company can recover by simply making prospective
observations of an asteroid? If a private company stumbles upon a major scientific discovery
during its exploration, can it try to resell it? These are questions that the House of
Representatives may decide.
277. The international community, however, shows only moderate enthusiasm for the
U.S.-imposed finders-keepers policy272; some experts even claim that the new law is in
contradiction with space law and the international treaties: “I think an American company that
would get resources from an asteroid would be in violation of international law, as well as the
government that authorized its initiative” said Professor Sa’id Mosteshar273. “Treaties that
regulate space activities do not give any particular rights to the United States, and certainly
not to allow its citizens to engage in activities prohibited by international law”. It should be
noted that the United States of America insisted that they did not claim the ownership of
celestial bodies - on the contrary, they cautiously denied this claim in the text of the new Act.
However, how to sell a property one cannot own?
278. By allowing commercial organisations to extract and conserve resources in outer

space, the U.S. law invites investment in outer space exploration; similarly, the ability to use
some of these resources for other space missions could lead to new innovations in spaceflight.
At the moment, the experts cannot agree on whether the U.S. law is acceptable or not 274. It
may well be that other countries are also starting to follow their own legislation, even though,
272
273
https://spacenews.com/lunar-exploration-providing-new-impetus-for-space-resources-legal-debate/
274
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there are no companies that can start mining asteroids at this time. Whatever happens now,
legislation must be underpinned by international cooperation. Things could go wrong if states
do not recognise the rights guaranteed by U.S. law: if companies go into space for the purpose
of mining, why should other countries recognise the terms and definitions imposed by the
country where they are registered? All of this could have a devastating effect on apparently
banal topics, such as property rights. The United States of America would then have a hard
time exporting resources taken from outer space. It will take time to appreciate the response
of the international community, and solve the legal problems accordingly.
279. The United States of America may try to argue that the principle of non-appropriation
only concerns states, not corporations: but it is false. Some lawyers in the United States have
argued that it is not because what is on the Moon is being exploited, that the Moon is being
appropriated275. They have argued that it is the same principle as in the high seas, where fish
can be caught, without the territory to be owned276. With their unilateral action, the United
States of America intends especially “to push the debate on the question”. By legislating,
Washington has reproduced what has already happened on Earth with territories that
belonged to no one. That’s what happened with the law of the sea; states have adopted
national laws that have finally been accepted internationally. It could become the same for
space.
280. For Jacques Arnould, in charge of ethical issues at the French National Center for
Space Studies (CNES), the U.S. initiative “corresponds to the current American policy rather
conquering, not to say aggressive”277. Space is defined as “the common heritage of mankind”,
a status that is not compatible with exploitation for the benefit of private companies. This
status is now “really threatened” and “it is not certain that we are aware of it, or that we react
to the level of danger”278. The gesture of Washington puts the other nations at the foot of the
wall. “We can never directly attack private companies, which tomorrow, could drill an asteroid
275
276
https://curiosity.com/topics/two-countries-have-made-space-mining-legal-but-is-that-well-legal-curiosity/
277
https://www.ouest-
france.fr/leditiondusoir/data/619/reader/reader.html?t=1448385589646#!preferred/1/package/619/pub/620/
page/4
278
https://www.ouest-
france.fr/leditiondusoir/data/619/reader/reader.html?t=1448385589646#!preferred/1/package/619/pub/620/
page/4
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and commercialise resources, but the United States of America, they will be accountable to the
international community”.
281. The U.S. Space Resource Exploration and Utilization Act 2015 aroused heated
discussions. The international community has not yet reached consensus on the application
of the concept of “common heritage of mankind” in the 1979 Moon Agreement. In accordance
with the non-appropriation principle in the 1967 Outer Space Treaty, outer space is not subject
to national appropriation. However, there is a need to balance the common interests of the
international society, and the interests of the states and private entities, which invest heavily
in the space resource exploration. The unilateral approach of the U.S. by adopting a national
law is not an ideal way to deal with space resource exploration. A few months later,
Luxembourg followed, and enacted a same type of law.
99
2. The Luxembourg law on space resources
282. Thirty years after the founding in 1985 of the European Satellite Company (SES),
which is now the world’s leading satellite operator, Luxembourg is once again looking at the
stars, or rather asteroids and resources that they host. Indeed, since the announcement of
the creation of a legal framework for the exploitation of resources in outer space, the number
of companies and actors in the sector having started their activities in Luxembourg is
constantly increasing279, so that one could even speak of a true Luxembourg ecosystem of
space technologies. Why such an interest in space resources?
283. Recent developments in space technologies foreshadow a substantial reduction in

the costs for a space mission, and therefore, an increase in space missions280. However, each
launch needs valuable planetary resources to eventually launch a relatively small freighter,
which is a huge waste. Imagine, then, that future missions can get fuel, water and the
materials and resources needed directly from space, from resources mined on asteroids.
Imagine that other resources, rare on Earth, can be repatriated from space!
284. On July 13, 2017, Luxembourg voted in a program entitled “SpaceResources.lu”, a law
authorising the exploration and use of outer space resources281. Entered into force on August
2017, this law will allow private actors, after obtaining approval from the Ministry of the
Economy, to exploit the resources present in the celestial bodies (including asteroids and
planets), such as for example the hydrocarbons, ores, or metals282. Luxembourg is thus the
first European country to follow the same logic as that adopted by the United States of
America in 2015 by the vote of the “Obama Space Act”. Several space companies are already
established in Luxembourg, and this new legislation should have an attractive effect for many
other companies.
285. The law of July 20, 2017 on the exploration and use of space resources (the “Space
Law”) or “Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace”, as
adopted by the Luxembourg Parliament on July 13, 2017, and effective from August 1, 2017,
279
https://www.reuters.com/article/us-luxembourg-russia-space/russia-wants-to-join-luxembourg-in-space-
mining-idUSKCN1QN1OQ
280
https://www.wired.com/story/luxembourg-asteroid-mining/
281
282
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creates a licensing and supervisory regime in Luxembourg addressing the ownership of
resources acquired in outer space283. Similar to the U.S. Commercial Space Launch and
Competitiveness Act, the Space Law provides that commercial companies operating within its
regulatory framework may legally appropriate resources acquired in space from celestial
bodies known as Near Earth Objects (NEOs)284. Notably, the Space Law does not apply to
satellite communications, orbital positions or the use of frequency bands.
286. Luxembourg is the first European country to adopt legislation regulating the
ownership of resources acquired in outer space by commercial companies, providing legal
certainty for commercial projects in the space sector285. The Outer Space Treaty (OST) dating
back to 1967, signed by more than one country including Luxembourg, established principles
for the peaceful and free exploration of outer space by states. However, the 1967 Outer Space
Treaty does not really address the ownership by private organisations of the resources
harvested from NEOs by, for example, asteroid mining, including metals, minerals, and gases.
287. The Luxembourg law of July 20, 2017 on the exploration and use of space resources
sets out a number of requirements286 for a commercial company seeking to rely on
Luxembourg’s regulatory framework in order to appropriate space resources (the Operator).
The main ones are listed below:
A. The Operator must either be a public company limited by shares (société anonyme
(SA)), a corporate partnership limited by shares (société en commandite par actions
(SCA)), a private limited liability company (société à responsabilité limitée (SARL)), or
a European Company (société européenne (SE));
B. The Operator must seek a written authorisation from the appropriate minister(s) in
Luxembourg;
C. The Operator’s place of central administration and registered office must be located
in Luxembourg, and satisfactory evidence shall be given with respect to, notably (i) the
administrative and accounting structures of the Operator to be authorised, (ii) the
283
284
285
https://www.reuters.com/article/us-luxembourg-russia-space/russia-wants-to-join-luxembourg-in-space-
mining-idUSKCN1QN1OQ
286
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required financial, technical and statutory procedures and arrangements through
which the exploration and utilisation mission (including the commercialisation of space
resources) are planned and implemented and (iii) the internal governance scheme of
the operator;
D. The Operator shall demonstrate a sound and prudent operation;
E. The application for the authorisation must be accompanied by a risk assessment of the
mission, and is conditional upon the existence of financial resources appropriate to the
risks associated with the mission;
F. The annual accounts of the Operator shall be audited by one or more independent
auditors (réviseurs d’entreprises agréés).
288. The Luxembourg law of July 20, 2017 on the exploration and use of space resources
is not a solitary act, but part of a larger strategy by the Luxembourg government to establish
the Grand Duchy as Europe’s space exploration and research hub287. A member of the
European Space Agency (ESA) since 2005, Luxembourg recognises the lucrative potential of
the untapped resources of outer space, and has launched the national SpaceResources.lu
initiative aimed at creating the ideal legal, regulatory and business landscape for a flourishing
space exploration economy in Luxembourg288.
289. In a push to diversify Luxembourg’s investment funds and banking dominated

economy, and establish Luxembourg as the European centre of the asteroid mining business,
the government has committed two hundred million euros to SpaceResources.lu to help fund
companies set up space exploration related companies289. The funding, as well as
Luxembourg’s offer to help companies obtain private financing, are designed to entice start-
ups, and established space mining companies to open their European headquarters in
Luxembourg290. A number of such companies have already either set up in Luxembourg, or
partnered with the Luxembourg government to finance their endeavours.
287
288
289
290
https://www.express.co.uk/news/science/1169430/asteroids-news-latest-threat-space-mining-space-
tourism-nasa-esa-Luxembourg-elon-musk
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290. The Luxembourg government states that it is committed to engaging the
governments of other countries to establish a global legal framework within the context of
the U.N. for the exploration and commercial utilisation of resources from NEOs291. Co-
operation with European institutions is already taking place, with the Luxembourg Ministry of
the Economy, and the European Investment Bank, signing an Advisory Service Agreement to
secure advice and guidance of the European Investment Advisory Hub on enhancing access to
financing for projects in the context of SpaceResources.lu292. In November 2019, Luxembourg
will host the first European edition of an international conference dedicated to outer space,
NewSpace Europe293.
291. This law, like the American one, raises a question of conformity with international
law. Indeed, experts denounce the fact that it would be contrary to the principle set forth in
Article II of the 1967 Outer Space Treaty, which governs the activities of states in the
exploration and use of outer space294. Nevertheless, the United States of America and now
Luxembourg argue that the principle of non-national appropriation of outer space would be
binding only on states, and not on private actors, and that it would apply to outer space as a
territory, and not to the resources it contains295. Their legislation would not therefore
contravene the provisions of the 1967 Outer Space Treaty.
292. Luxembourg thus has become the only European country to allow private actors to
exploit the resources of outer space296. They will have to obtain approval from the Ministry of
the Economy, and can then bring the resources back to Earth, or use them to build bases 297.
By setting up such a legislative framework on space resources, the Grand Duchy, whose
economy is mainly driven by the financial sector, is primarily looking for a growth driver. The
country aims to develop a New Space industry.
293. Four companies of the space sector are installed in Luxembourg: the American Deep
Space Industries and Planetary Resources, Inc. (which want to develop the exploitation of the
291
292
https://www.express.co.uk/news/science/1169430/asteroids-news-latest-threat-space-mining-space-
tourism-nasa-esa-Luxembourg-elon-musk
293
https://newspace-europe.lu/
294
295
296
https://fcilsis.wordpress.com/2018/12/12/the-luxembourg-space-resources-act-and-international-law/
297
https://www.theregister.co.uk/2017/07/14/luxembourg_passes_space_mining_law/
103
resources present in the space environment, in particular on the asteroids), the Japanese
ispace Inc. (specialised in robotics), and the German-Luxembourgish company Blue Horizon
Corporation (which wants to make life possible in space)298. Luxembourg owns seventeen
percent of the world’s second largest satellite operator, the European Satellite Company (SES).
294. The signing of a “Memorandum of Understanding” between Luxembourg and the

United States of America on Friday, May 10, 2019 marks the realisation of a new step towards
the exploitation of space resources by private companies299. This agreement demonstrates
the willingness of these states to encourage business investment in the space sector. It is no
longer a utopia but concrete projects to be realised soon.
298
299
https://lu.usembassy.gov/the-united-states-and-luxembourg-sign-memorandum-on-space-co-operation-on-
may-10-2019/
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B. Legal models in Public International Law
295. The question today is still debated: is the exploitation of natural space resources a
lawful use of outer space?300 How to grant a right of appropriation to a company that does
not own the soil it exploits? The arguments put forward by the parties who have put in place
such legal regimes are valid, and a comparison with the law of the sea regime will show us
that the appropriation of resources by a non-land-owning entity is not necessarily impossible
from a legal point of view.
296. However, it is not clear in international law whether the use of natural space
resources is permitted301. The United States of America and Luxembourg have adopted
national laws without waiting for this legal uncertainty to be settled at the international level.
This position has the merit of prompting states to consider the matter quickly.
297. What is most problematic today is not really whether or not the exploitation of
natural resources is allowed. Indeed, it is more the fact that no framework is currently planned
at the international level to frame this exploitation, which is problematic302.
298. The exploitation of space has shown its benefits, and it also offers potential for
economic development. However, this exploitation must necessarily be supervised at the
international level to avoid any drift that may result from this exploitation, such as
environmental risks for example or the unequal access of states to outer space303.
299. The financing of space activities being extremely expensive, states no longer have the
means to invest massively in this research. The arrival of new private companies in the space
sector makes it possible to finance this research by the private sector, and guarantees a
dynamic development of the sector. However, this new state of affairs must be well framed
from a legal point of view, on the one hand to avoid the abuses, but also to guarantee to these
companies who wish to invest, a legal security guaranteeing them that they will be able to
benefit from a return on investment at the height of their expectations.
300
301
2018.
302
303
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300. The international community must therefore make a swift decision on the issue of
the exploitation of the space resources, currently pending, in order to secure space
interventions and encourage investment in these new forms of exploitation.
106
1. The lawfulness of Antarctic mining activities
301. As many private companies are aiming at exploiting outer space’s resources, and as
even more students, professors, lawyers or specialists of space law – or corpus juris spatialis
– are debating about the lawfulness of the exploitation of outer space, including the Moon
and other celestial bodies304, let’s focus on Antarctica and the legal aspects of mining in
Antarctica.
302. Technology has changed significantly for over twenty-five years. The technical
constraints that mining operators would have to overcome may be less prohibitive than in
previous years, but they remain very heavy because of the environment that would welcome
them305. The increase in the price of oil and minerals means that some activities, previously
considered expensive, become economically viable today. In addition, in times of economic
recession, economic concerns may outweigh purely environmental concerns. The issue of the
scarcity of fossil energy sources could increase the ambition of those who would like to exploit
mineral resources306.
303. Earth’s southernmost continent has in many aspects a legal regime analogous to that
of the Moon307. Let’s recall that the Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies
(entered into force on October 10, 1967) was largely inspired by the redaction of the Antarctic
Treaty and related agreements, collectively known as the Antarctic Treaty System (ATS),
signed in Washington on December 1959 by the twelve countries whose scientists had been
active in and around Antarctica during the International Geophysical Year (IGY) in the late
1950s308.
304. The International Geophysical Year (AGI) was a globally coordinated research project
conducted between July 1957 and December 1958309. The third edition of the International
Polar Year was characterised by the massive use of technologies inherited from the Second
304
305
https://www2.deloitte.com/content/dam/Deloitte/za/Documents/energy-
resources/ZA_Deloitte_Tracking_The_Trends_2016.pdf
306
https://www.spacelegalissues.com/space-law-the-lawfulness-of-mining-activities-in-antarctica/
307
308
https://www.scar.org/policy/antarctic-treaty-system/
309
https://en.wikipedia.org/wiki/International_Geophysical_Year
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World War and reinvested in the scientific field, starting with the radar. Many expeditions to
Antarctica were placed under the voluntary coordination of seventy countries in the midst of
the Cold War. This IGY impelled the Antarctic Treaty in 1959 (Article II of which provides for
freedom of scientific research and cooperation in Antarctica, as practiced during the
International Geophysical Year) as well as the Protocol on Environmental Protection to the
Antarctic Treaty (also known as the Madrid Protocol) in 1991310; as a result emerged different
principles such as the principle of freezing territorial claims, the principle of non-militarisation
and non-nuclearisation, or the principle of freedom of scientific research311.
305. With the recent development of certain technologies and the ever more growing
need for more and rarest resources, some environment (seabed mining of polymetallic
nodules, silver, copper or gold in Antarctica, Helium-3 mining on the lunar surface…) might
become key elements of a multi-billion dollar economic activity. Hence the need for strong
and stable legal frameworks, and specialised jurists.
306. Antarctica is Earth’s southernmost continent. It contains the geographic South Pole
and is situated in the Antarctic region of the Southern Hemisphere, almost entirely south of
the Antarctic Circle, and is surrounded by the Southern Ocean312. At fourteen millions square
kilometres, it is the fifth-largest continent. About ninety-eight percent of Antarctica is covered
by ice that averages two kilometres in thickness, which extends to all but the northernmost
reaches of the Antarctic Peninsula313. Antarctica, on average, is the coldest, driest, and
windiest continent, and has the highest average elevation of all the continents. Most of
Antarctica is a polar desert and its temperature has reached minus ninety degrees Celsius.
Anywhere from one thousand to five thousand people reside throughout the year at research
stations scattered across the continent. Organisms native to Antarctica include many types of
algae, bacteria, fungi, plants, and certain animals, such as mites, nematodes, penguins, seals
and tardigrades314. Vegetation, where it occurs, is tundra.
307. Although myths and speculation about a Terra Australis (Latin for “South Land”, it
was a hypothetical continent first posited in antiquity and which appeared on maps between
310
311
http://www.antarctica.gov.au/about-antarctica/people-in-antarctica/who-owns-antarctica
312
https://en.wikipedia.org/wiki/Antarctic_Treaty_System
313
https://www.britannica.com/place/Antarctica
314
https://global.hurtigruten.com/destinations/antarctica/inspiration/15-interesting-facts-about-antarctica/
108
the 15th and 18th centuries) date back to antiquity, Antarctica is noted as the last region on
Earth in recorded history to be discovered315, unseen until 1820 when the Russian expedition
of Fabian Gottlieb von Bellingshausen and Mikhail Lazarev on Vostok (a sloop-of-war or
“warship with a single gun deck that carried up to eighteen guns” of the Imperial Russian Navy,
the lead ship of the First Russian Antarctic Expedition) and Mirny (the second ship of the First
Russian Antarctic Expedition) sighted the Fimbul ice shelf (an ice shelf about two hundred
kilometres long and one hundred kilometres wide, nourished by Jutulstraumen Glacier,
bordering the coast of Queen Maud Land). The continent, however, remained largely
neglected for the rest of the 19th century because of its hostile environment, lack of easily
accessible resources, and isolation316. In 1895, the first confirmed landing was conducted by a
team of Norwegians317. An expedition led by Norwegian polar explorer Roald Amundsen from
the ship Fram became the first to reach the geographic South Pole on December 14, 1911,
using a route from the Bay of Whales and up the Axel Heiberg Glacier318. One month later, the
doomed Scott Expedition, the British Antarctic Expedition led by Robert Falcon Scott, reached
the pole.
308. There are known reserves of oil and coal as well as mineral deposits in Antarctica,
although detailed knowledge of these mineral deposits is sketchy319. In the last fifty years of
scientific research, no large deposits of mineralised rocks have been found. Experts believe
that mineral and metal resources are likely to be available in Antarctica as known
metalliferous fold belts that are found in Australia, Africa, and South America seem to have
continuations in this continent according to general principles of plate tectonics320. The
possible resources include silver, copper, gold, nickel, platinum, iron ore, chromium, cobalt,
molybdenum, zinc, manganese lead, titanium, nickel, and uranium321. Coal and hydrocarbons
have been located in minimal non-commercial quantities. Mining experts state that the
315
316
https://global.hurtigruten.com/destinations/antarctica/inspiration/15-interesting-facts-about-antarctica/
317
https://www.lonelyplanet.com/antarctica-1007062
318
https://www.livescience.com/21677-antarctica-facts.html
319
320
321
https://www.spacelegalissues.com/space-law-the-legal-status-of-antarctica/
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Antarctic Peninsula has some copper-bearing plutons that have precise similarities to the
Andean porphyry copper bodies322.
309. According to geologic structure and geophysical evidence, observations have been
made to indicate the possible presence of petroleum reserves off the coast of Antarctica
especially in the thick sedimentary basins of the Filchner Ice Shelf, Ronne Ice Shelf, Amery Ice
Shelf, Ross Sea and Ice Shelf, and the Weddell Sea323. Similarly, there is widespread belief
among the mining community that hydrocarbons are also present in Antarctica based on the
fact that hydrocarbons have been found along the Atlantic coasts of South America and Africa,
the south coast of Australia, and the east coast of India, indicating the possibility of similar
such deposits along the coasts of Antarctica324. Finally, coal has been found in the
Transantarctic Mountains and Prince Charles Mountains325. However, the quality of coal
discovered in the Transantarctic Mountains was low.
310. Mining in Antarctica would be very difficult, dangerous and expensive as the climate
is so harsh, the ice is very thick and Antarctica is very remote from major centres of population.
This would make the transportation of minerals and equipment in and out of Antarctica
hazardous. Drilling would also be difficult because of the vast quantities of moving ice and
glaciers as well as the huge depth (five kilometres at its thickest) that would be required to
drill to reach the minerals.
311. Antarctica is a condominium326. In international law, a condominium (plural either

condominia, as in Latin, or condominiums) is a political territory (state or border area) in or
over which multiple sovereign powers formally agree to share equal dominium (in the sense
of sovereignty) and exercise their rights jointly, without dividing it into national zones 327.
Although a condominium, coined in the eighteenth century from Latin com- together +
dominium right of ownership, has always been recognised as a theoretical possibility,
condominia have been rare in practice328. A major problem, and the reason so few have
322
https://www.spacelegalissues.com/the-convention-on-the-regulation-of-antarctic-mineral-resource-
activities/
323
https://www.spacelegalissues.com/are-there-laws-in-antarctica/
324
325
activities/
326
327
http://www.duhaime.org/LegalDictionary/C/Condominium.aspx
328
https://en.wikipedia.org/wiki/Condominium
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existed, is the difficulty of ensuring co-operation between the sovereign powers; once the
understanding fails, the status is likely to become untenable329. Antarctica is a de facto
condominium, governed by parties to the Antarctic Treaty System that have consulting status.
The International Space Station is a de facto space condominium, via a program of complex
set of legal, political and financial agreements between all parties.
312. There are many links between Antarctica and outer space, such as the prohibition of
military activities or the prohibition of mining the continent330. High seas or Antarctica are
important when reasoning about space activities; not surprisingly, the U.S. space agency
(NASA) has decided to occupy this place to test the equipment that will be used in future
missions to the planet Mars331. The geographical and climatic particularism of Antarctica have
given rise to specific problems in international law: sovereignty, jurisdiction, the
administration of people and resources332. The national responses to these problems gave
birth in 1959, with the signing of the Antarctic Treaty and related agreements333, collectively
known as the Antarctic Treaty System (ATS), to a form of collective administration. With the
emergence of new problems related to the protection of the environment and the
conservation and exploitation of biological and mineral resources, the consultation
mechanisms put in place by the Treaty have given rise to important legal and institutional
developments334. All these mechanisms and developments, animated by their own dynamics,
have been described as the Antarctic System by comparison and opposition to the U.N. system
or other regional systems of law.
a. The Antarctic Treaty System
313. The Antarctic Treaty and related agreements, collectively known as the Antarctic
Treaty System (ATS), regulate international relations with respect to Antarctica, Earth’s only
continent without a native human population335. For the purposes of the treaty system,
Antarctica is defined as all of the land and ice shelves south of sixtieth parallel south, a circle
329
330
331
https://www.nasa.gov/analogs/nsf/
332
333
334
https://theconversation.com/explainer-what-any-country-can-and-cant-do-in-antarctica-in-the-name-of-
science-105858
335
https://theculturetrip.com/antarctica/articles/10-weird-rules-for-traveling-in-antarctica/
111
of latitude that is sixty degrees south of the Earth’s equatorial plane336. The treaty entered
into force in 1961 and currently has more than fifty Parties337. The treaty sets aside Antarctica
as a scientific preserve, establishes freedom of scientific investigation, and bans military
activity on the continent; the treaty also established the first arms control agreement during
the Cold War338. The original signatories were the twelve countries active in Antarctica during
the International Geophysical Year (IGY)339.
314. Antarctica currently has no permanent population and therefore has no citizenship,
nor government. All personnel present on Antarctica at any time are citizens or nationals of
some sovereignty outside Antarctica, as there is no Antarctic sovereignty340. The majority of
Antarctica is claimed by one or more countries, but most countries do not explicitly recognise
those claims341. The area on the mainland between ninety degrees west and one hundred and
fifty degrees west is the only major land on Earth not claimed by any country.
315. Article I of the Antarctic Treaty states342 that “Antarctica shall be used for peaceful
purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as
the establishment of military bases and fortifications, the carrying out of military manoeuvres,
as well as the testing of any type of weapons. The present Treaty shall not prevent the use of
military personnel or equipment for scientific research or for any other peaceful purpose”. Its
Article II enounces that “Freedom of scientific investigation in Antarctica and cooperation
toward that end, as applied during the International Geophysical Year, shall continue, subject
to the provisions of the present Treaty”. Article III is about the free exchange of information
and personnel in co-operation with the United Nations and other international agencies343.
316. Article IV declares344 that “Nothing contained in the present Treaty shall be
interpreted as: a renunciation by any Contracting Party of previously asserted rights of or
claims to territorial sovereignty in Antarctica; a renunciation or diminution by any Contracting
Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether
336
337
https://www.nsf.gov/geo/opp/antarct/anttrty.jsp
338
339
340
https://www.ats.aq/e/ats.htm
341
342
343
344
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as a result of its activities or those of its nationals in Antarctica, or otherwise; prejudicing the
position of any Contracting Party as regards its recognition or non-recognition of any other
State’s right of or claim or basis of claim to territorial sovereignty in Antarctica. No acts or
activities taking place while the present Treaty is in force shall constitute a basis for asserting,
supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of
sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial
sovereignty in Antarctica shall be asserted while the present Treaty is in force”.
317. Article V expresses that345 “Any nuclear explosions in Antarctica and the disposal
there of radioactive waste material shall be prohibited. In the event of the conclusion of
international agreements concerning the use of nuclear energy, including nuclear explosions
and the disposal of radioactive waste material, to which all of the Contracting Parties whose
representatives are entitled to participate in the meetings provided for under Article IX are
parties, the rules established under such agreements shall apply in Antarctica”. Article VII
exposes that Treaty-state observers have free access, including aerial observation, to any area
and may inspect all stations, installations, and equipment; advance notice of all activities and
of the introduction of military personnel must be given346.
318. Article VIII specifies that347 “In order to facilitate the exercise of their functions under
the present Treaty, and without prejudice to the respective positions of the Contracting Parties
relating to jurisdiction over all other persons in Antarctica, observers designated under
paragraph 1 of Article VII and scientific personnel exchanged under subparagraph 1 (b) of
Article III of the Treaty, and members of the staffs accompanying any such persons, shall be
subject only to the jurisdiction of the Contracting Party of which they are nationals in respect
of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their
functions. Without prejudice to the provisions of paragraph 1 of this Article, and pending the
adoption of measures in pursuance of subparagraph 1 (e) of Article IX, the Contracting Parties
concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica shall
immediately consult together with a view to reaching a mutually acceptable solution”.
345
346
science-105858
347
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319. Article XI states348 that “If any dispute arises between two or more of the Contracting
Parties concerning the interpretation or application of the present Treaty, those Contracting
Parties shall consult among themselves with a view to having the dispute resolved by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful
means of their own choice. Any dispute of this character not so resolved shall, with the consent,
in each case, of all parties to the dispute, be referred to the International Court of Justice for
settlement; but failure to reach agreement on reference to the International Court shall not
absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any
of the various peaceful means referred to in paragraph 1 of this Article”.
320. Those articles illustrate Antarctica’s protected status. It is interesting to understand

that those rules elaborated during the Cold War influenced Space Laws, especially the Outer
Space Treaty (1967) and the Moon Agreement (1979).
b. The Protocol on Environmental Protection to the Antarctic Treaty
321. Since 1991, Antarctica has been a nature reserve dedicated to peace and science 349.
Its fragile environment is subject to a single legal regime based on the best scientific
knowledge. The Protocol on Environmental Protection to the Antarctic Treaty, also known as
the Antarctic-Environmental Protocol, or the Madrid Protocol, provides a framework for
activities to limit their negative impacts on the environment and dependent and associated
ecosystems350. The preservation of the intrinsic value of Antarctica is ensured by the prior and
mandatory completion of an impact study. This approach is complemented by the
strengthening of protection measures on Antarctic Spaces and Species351. Also, the continent
and the Southern Ocean benefit from the best protection regime in the world. However, the
twenty-first century poses significant challenges: the steady increase in the number of
activities in Antarctica, the presence of persistent organic pollutants, the pursuit of fishing
activities on a scarce resource, bioprospecting, the introduction of Exogenous species, the
growth of tourism and the imminent risk of a maritime accident are all issues that must be
348
349
350
351
114
addressed by the Parties to the Treaty. Will the anticipatory management approach and
cooperation preserve Antarctica for the benefit of humanity?
322. The Madrid Protocol is part of the Antarctic Treaty System352. It provides for
comprehensive protection of the Antarctic environment and dependent and associated
ecosystems. It was concluded in Madrid and opened for signature on October 4, 1991, and
entered into force on January 14, 1998. The treaty will be open for review in 2048353. Its Article
2 states that354 “The Parties commit themselves to the comprehensive protection of the
Antarctic environment and dependent and associated ecosystems and hereby designate
Antarctica as a natural reserve, devoted to peace and science”. Article 3 edicts
ENVIRONMENTAL PRINCIPLES, among which the fact that “Activities shall be planned and
conducted in the Antarctic Treaty area so as to accord priority to scientific research and to
preserve the value of Antarctica as an area for the conduct of such research, including research
essential to understanding the global environment”.
323. It’s interesting to notice that both the Antarctic Treaty System and the Madrid
Protocol edict space-like laws. Let’s add that the evolution of the law of the sea, which resulted
in the adoption of the Montego Bay Convention (1982), profoundly affected the system of the
Antarctic Treaty of 1959355. By increasing the powers of the coastal State, the Montego Bay
Convention has led to an extension of the powers of the consultative parties on the marine
areas adjacent to the southern continent so as to take into account the positions of the
claiming states356. But at the same time, the emergence of the concept of a common heritage
of humankind, as reflected in the Montego Bay Convention, allowed third states to launch an
offensive within the United Nations to challenge the Treaty and the exclusive management of
the region by Consultative Parties. The magnitude of this offensive has highlighted the
weaknesses of the Antarctic Treaty System with respect to the sovereignty and difficulty of a
collective approach to jurisdiction over the marine areas adjacent to the continent357.
352
353
354
355
activities/
356
https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-
6&chapter=21&Temp=mtdsg3&clang=_fr
357
activities/
115
Paradoxically, however, this questioning of the Treaty System has led to a strengthening of
the latter by the abandonment of the Wellington Convention on Mineral Resources and the
adoption by the Consultative Parties of a protocol establishing very strict mechanisms for the
protection of mineral resources and banishing mining activities358. The law of the sea has thus
been both a factor in the development of the Antarctic Treaty System and a factor in
redefining the objectives of the consultative parties.
324. Apart from occasional conflicts arising from competing territorial claims (Great
Britain and Argentina, for instance, claimed overlapping sectors south of the
Falkland/Malvinas Islands as early as 1908)359, the Antarctic continent attracted mostly the
interest of whalers and explorers rather than jurists. The Antarctic Treaty states in its
Preamble that360 “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”.
325. Article I of the Antarctic Treaty states361 that “Antarctica shall be used for peaceful
purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as
the establishment of military bases and fortifications, the carrying out of military manoeuvres,
as well as the testing of any type of weapons. The present Treaty shall not prevent the use of
military personnel or equipment for scientific research or for any other peaceful purpose”. Its
Article II enounces362 that “Freedom of scientific investigation in Antarctica and cooperation
toward that end, as applied during the International Geophysical Year, shall continue, subject
to the provisions of the present Treaty”. Article III is about the free exchange of information
and personnel in co-operation with the United Nations and other international agencies.
326. Article III reinforces363 the peaceful and scientific aspects of Antarctica by stating that
“1. In order to promote international cooperation in scientific investigation in Antarctica, as
provided for in Article II of the present Treaty, the Contracting Parties agree that, to the
greatest extent feasible and practicable: (a) information regarding plans for scientific
358
activities/
359
https://www.jstor.org/stable/40176036?seq=1#page_scan_tab_contents
360
361
362
363
116
programs in Antarctica shall be exchanged to permit maximum economy and efficiency of
operations; (b) scientific personnel shall be exchanged in Antarctica between expeditions and
stations; (c) scientific observations and results from Antarctica shall be exchanged and made
freely available. 2. In implementing this Article, every encouragement shall be given to the
establishment of cooperative working relations with those Specialized Agencies of the United
Nations and other international organizations having a scientific or technical interest in
Antarctica”.
327. Article IV declares364 that “Nothing contained in the present Treaty shall be
interpreted as: a renunciation by any Contracting Party of previously asserted rights of or
claims to territorial sovereignty in Antarctica; a renunciation or diminution by any Contracting
Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether
as a result of its activities or those of its nationals in Antarctica, or otherwise; prejudicing the
position of any Contracting Party as regards its recognition or non-recognition of any other
State’s right of or claim or basis of claim to territorial sovereignty in Antarctica. No acts or
activities taking place while the present Treaty is in force shall constitute a basis for asserting,
supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of
sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial
sovereignty in Antarctica shall be asserted while the present Treaty is in force”.
328. Article VI specifies365 that “The provisions of the present Treaty shall apply to the area
south of 60 South latitude, including all ice shelves, but nothing in the present Treaty shall
prejudice or in any way affect the rights, or the exercise of the rights, of any State under
international law with regard to the high seas within that area”.
329. Article X states366 that “Each of the Contracting Parties undertakes to exert
appropriate efforts, consistent with the Charter of the United Nations, to the end that no one
engages in any activity in Antarctica contrary to the principles or purposes of the present
Treaty”.
364
365
366
117
330. The Antarctic Treaty does not specifically address the issue of mineral activities367.
Therefore, the question of their admissibility is one of treaty interpretation368. The proposed
mineral activities in Antarctica would violate the Antarctic Treaty because of their alleged
prejudice to pure scientific research and their inescapable contamination of the environment,
with consequent frustration of the fundamental objectives of the Treaty set forth in the
Preamble and in articles II and III. On the other hand, it has been maintained that the “peaceful
purposes” must be understood to include mineral activities within the sphere of permissible
uses of Antarctica, insofar as they are neither hostile nor military in nature.
331. The other major factor that will condition the development of a legal regime for
mineral activities within the Treaty System is the special territorial status of Antarctica369.
Article IV of the Antarctic Treaty temporarily freezes existing claims and relative objections370.
Future activities connected to the exploration and development of mineral resources will
obviously affect this situation.
332. Let’s also mention that the Antarctic Treaty does not contain a specific reference to
the “common heritage” principle, and it could not have done so because, in 1959, the
expression was not yet part of the international vocabulary371. The application of the common
heritage principle to Antarctica, however, has been advocated in legal literature and
diplomatic pronouncements372.
333. As a result, the 1959 Antarctic Treaty did not legislate on the question of the
lawfulness of mining activities in Antarctica. But the Protocol on Environmental Protection to
the Antarctic Treaty, also known as the Antarctic-Environmental Protocol, or the Madrid
Protocol, which entered into force on January 14, 1998, provided a framework for activities to
limit their negative impacts on the environment and dependent and associated ecosystems.
The Madrid Protocol did legislate on the lawfulness of activities relating to mineral resources.
367
368
activities/
369
science-105858
370
371
372
118
334. ARTICLE 3 of the Madrid Protocol373 on ENVIRONMENTAL PRINCIPLES states that “1.
The protection of the Antarctic environment and dependent and associated ecosystems and
the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as
an area for the conduct of scientific research, in particular research essential to understanding
the global environment, shall be fundamental considerations in the planning and conduct of
all activities in the Antarctic Treaty area. 2. To this end: (a) activities in the Antarctic Treaty
area shall be planned and conducted so as to limit adverse impacts on the Antarctic
environment and dependent and associated ecosystems; (b) activities in the Antarctic Treaty
area shall be planned and conducted so as to avoid: (i) adverse effects on climate or weather
patterns; (ii) significant adverse effects on air or water quality; (iii) significant changes in the
atmospheric, terrestrial (including aquatic), glacial or marine environments; (iv) detrimental
changes in the distribution, abundance or productivity of species or populations of species of
fauna and flora; (v) further jeopardy to endangered or threatened species or populations of
such species; or (vi) degradation of, or substantial risk to, areas of biological, scientific, historic,
aesthetic or wilderness significance; (c) activities in the Antarctic Treaty area shall be planned
and conducted on the basis of information sufficient to allow prior assessments of, and
informed judgments about, their possible impacts on the Antarctic environment and
dependent and associated ecosystems and on the value of Antarctica for the conduct of
scientific research; such judgments shall take account of: (i) the scope of the activity, including
its area, duration and intensity; (ii) the cumulative impacts of the activity, both by itself and in
combination with other activities in the Antarctic Treaty area; (iii) whether the activity will
detrimentally affect any other activity in the Antarctic Treaty area; (iv) whether technology
and procedures are available to provide for environmentally safe operations; (v) whether there
exists the capacity to monitor key environmental parameters and ecosystem components so
as to identify and provide early warning of any adverse effects of the activity and to provide
for such modification of operating procedures as may be necessary in the light of the results of
monitoring or increased knowledge of the Antarctic environment and dependent and
associated ecosystems; and (vi) whether there exists the capacity to respond promptly and
effectively to accidents, particularly those with potential environmental effects; (d) regular and
effective monitoring shall take place to allow assessment of the impacts of ongoing activities,
373
https://www.ats.aq/e/ep.htm
119
including the verification of predicted impacts; (e) regular and effective monitoring shall take
place to facilitate early detection of the possible unforeseen effects of activities carried on both
within and outside the Antarctic Treaty area on the Antarctic environment and dependent and
associated ecosystems. 3. Activities shall be planned and conducted in the Antarctic Treaty
area so as to accord priority to scientific research and to preserve the value of Antarctica as an
area for the conduct of such research, including research essential to understanding the global
environment. 4. Activities undertaken in the Antarctic Treaty area pursuant to scientific
research programmes, tourism and all other governmental and non-governmental activities in
the Antarctic Treaty area for which advance notice is required in accordance with Article VII
(5) of the Antarctic Treaty, including associated logistic support activities, shall: (a) take place
in a manner consistent with the principles in this Article; and (b) be modified, suspended or
cancelled if they result in or threaten to result in impacts upon the Antarctic environment or
dependent or associated ecosystems inconsistent with those principles”.
335. Article 3 states that protection of the Antarctic environment as a wilderness with
aesthetic and scientific value shall be a “fundamental consideration” of activities in the area374.
Then, ARTICLE 7 on PROHIBITION OF MINERAL RESOURCE ACTIVITIES declares that “Any
activity relating to mineral resources, other than scientific research, shall be prohibited”.
336. The Madrid Protocol prohibits all activities relating to Antarctic mineral resources,
except for scientific research375. The prohibition of mineral resource activities covers the area
south of sixty south latitude, including all ice shelves. The protocol nevertheless opens this
region to mining activities for scientific purposes and is subject to national implementation376.
The mining ban does not cover scientific activities (we find the spirit of the Antarctic Treaty).
Contrary to what is often advanced, Antarctica is not reserved for scientific research, but more
generally for peaceful activities that respect the environment. The only economic activities
that can be considered are currently tourism and fishing. An exclusive right relating to mining
activities is granted to scientists. Scientific research is not defined, nor is “activity relating to
374
https://www.ats.aq/e/ep.htm
375
activities/
376
activities/
120
mineral resources”. The distinction between scientific research stricto sensu and activities
related to mineral resources remains uncertain.
337. When scientific activities on mineral resources are considered, environmental risks
must be considered. Regulatory measures have been adopted to reduce the negative
environmental effects of any scientific drilling377. Holders of scientific projects have the
obligation to respect the Madrid Protocol and the national measures taken under this
protocol. The protocol lays down the principle of a broad ban on the exploitation of mineral
resources. But limited, because it does not cover scientific activities, this prohibition
nevertheless has the advantage of being indefinite.
338. The protocol prohibits activities related to mineral resources for an indefinite
period378. Like any article of the protocol, Article 7 which contains this prohibition can be the
subject of an amendment. Two options may be considered: at any time, or from fifty years
after the entry into force of the Madrid Protocol, either before or after 2048.
339. Let’s now have a look at the (failed) Convention on the Regulation of Antarctic
Mineral Resource Activities. “NOTING the unique ecological, scientific and wilderness value of
Antarctica and the importance of Antarctica to the global environment”, it is important to
understand how the Convention on the Regulation of Antarctic Mineral Resource Activities
was written, and how would have been regulated Antarctic Mineral Resource Activities.
340. The Convention on the Regulation of Antarctic Mineral Resource Activities was
concluded at Wellington on June 2, 1988379. New Zealand is the depository of the Convention
on the Regulation of Antarctic Mineral Resource Activities. Signed by nineteen states, the
Convention on the Regulation of Antarctic Mineral Resource Activities has never been
ratified380. Therefore, the Convention has not entered into force and has been replaced by the
1998 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).
341. The preamble states381 that “REAFFIRMING that it is in the interest of all mankind that
the Antarctic Treaty area shall continue forever to be used exclusively for peaceful purposes
377
378
http://www.antarctica.gov.au/law-and-treaty/the-madrid-protocol
379
activities/
380
https://en.wikipedia.org/wiki/Convention_on_the_Regulation_of_Antarctic_Mineral_Resource_Activities
381
https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123
121
and shall not become the scene or object of international discord”. It is interesting to read the
notion of “peaceful purposes” reaffirmed by the failed Convention. Let’s recall that it is one of
the founding aspects of Space Law382.
342. It then continues383 with “NOTING the possibility that exploitable mineral resources
may exist in Antarctica” and “BEARING IN MIND also that a regime for Antarctic mineral
resources must be consistent with Article IV of the Antarctic Treaty and in accordance
therewith be without prejudice and acceptable to hose States which assert rights of or claims
to territorial sovereignty in Antarctica, and those States which neither recognise nor assert
such rights or claims, including those States which assert a basis of claim to territorial
sovereignty in Antarctica”.
343. The preamble then adds384 “RECOGNISING that Antarctic mineral resource activities
could adversely affect the Antarctic environment or dependent or associated ecosystems”.
Would it be the same in outer space? Could space mining activates (on the Moon, Mars or on
asteroids) adversely affect outer space? It continues with “BELIEVING that the protection of
the Antarctic environment and dependent and associated ecosystems must be a basic
consideration in decisions taken on possible Antarctic mineral resource activities”.
344. Finally385, “CONCERNED to ensure that Antarctic mineral resource activities, should
they occur, are compatible with scientific investigation in Antarctica and other legitimate uses
of Antarctica”, “CONVINCED that participation in Antarctic mineral resource activities should
be open to all States which have an interest in such activities and subscribe to a regime
governing them and that the special situation of developing country Parties to the regime
should be taken into account”, and “BELIEVING that the effective regulation of Antarctic
mineral resource activities is in the interest of the international community as a whole”.
345. Article 1 on DEFINITIONS386 states that “Antarctic mineral resource activities means
prospecting, exploration or development, but does not include scientific research activities
within the meaning of Article III of the Antarctic Treaty” and “Prospecting means activities,
including logistic support, aimed at identifying areas of mineral resource potential for possible
382
383
384
385
386
https://en.wikipedia.org/wiki/Convention_on_the_Regulation_of_Antarctic_Mineral_Resource_Activities
122
exploration and development, including geological, geochemical and geophysical
investigations and field observations, the use of remote sensing techniques and collection of
surface, sea floor and sub-ice samples. Such activities do not include dredging and excavations,
except for the purpose of obtaining small-scale samples, or drilling, except shallow drilling into
rock and sediment to depths not exceeding 25 metres, or such other depth as the Commission
may determine for particular circumstances”.
346. Article 2 of the Convention on the Regulation of Antarctic Mineral Resource Activities
on OBJECTIVES AND GENERAL PRINCIPLES states387 that “1. This Convention is an integral part
of the Antarctic Treaty system, comprising the Antarctic Treaty, the measures in effect under
that Treaty, and its associated separate legal instruments, the prime purpose of which is to
ensure that Antarctica shall continue forever to be used exclusively for peaceful purposes and
shall not become the scene or object of international discord. The Parties provide through this
Convention, the principles it establishes, the rules it prescribes, the institutions it creates and
the decisions adopted pursuant to it, a means for: assessing the possible impact on the
environment of Antarctic mineral resource activities; determining whether Antarctic mineral
resource activities are acceptable; governing the conduct of such Antarctic mineral resource
activities as may be found acceptable; and ensuring that any Antarctic mineral resource
activities are undertaken in strict conformity with this Convention.
2. In implementing this Convention, the Parties shall ensure that Antarctic mineral resource
activities, should they occur, take place in a manner consistent with all the components of the
Antarctic Treaty system and the obligations flowing therefrom. 3. In relation to Antarctic
mineral resource activities, should they occur, the Parties acknowledge the special
responsibility of the Antarctic Treaty Consultative Parties for the protection of the environment
and the need to: a. protect the Antarctic environment and dependent and associated
ecosystems; b. respect Antarctica’s significance for, and influence on, the global environment;
c. respect other legitimate uses of Antarctica; d. respect Antarctica’s scientific value and
aesthetic and wilderness qualities; e. ensure the safety of operations in Antarctica; f. promote
opportunities for fair and effective participation of all Parties; and g. take into account the
interests of the international community as a whole”.
387
123
347. This Article 2 is the heart of the Convention on the Regulation of Antarctic Mineral
Resource Activities, reaffirming that “the prime purpose of which is to ensure that Antarctica
shall continue forever to be used exclusively for peaceful purposes and shall not become the
scene or object of international discord”.
on COOPERATION AND INTERNATIONAL PARTICIPATION enounces388 that “In the
implementation of this Convention cooperation within its framework shall be promoted and
encouragement given to international participation in Antarctic mineral resource activities by
interested Parties which are Antarctic Treaty Consultative Parties and by other interested
Parties, in particular, developing countries in either category. Such participation may be
realised through the Parties themselves and their Operators”.
349. What is interesting is to understand is, when comparing to potential space mining
activities, how Antarctica could be used as a model. The different laws affecting Antarctica
reinforce the principle according to which mining activities are only lawful when justified by
scientific reasons. Whether it be the Antarctic Treaty System or the failed Convention on the
Regulation of Antarctic Mineral Resource Activities, mining activities have to be for scientific
reasons only.
350. The mechanism that was elaborated by the last articles of the failed aforementioned
convention, especially its Article 8, show how close the legal status of celestial bodies,
especially that of the Moon, and that of Antarctica, are. The interesting fact comes from the
need of an Operator to conform certain types of obligations, as it is presented in Article 8 of
the Regulation of Antarctic Mineral Resource Activities on RESPONSE ACTION AND LIABILITY.
These obligations are also found in the deep seabed exploitation mechanisms.
on RESPONSE ACTION AND LIABILITY declares389 that “1. An Operator undertaking any
Antarctic mineral resource activity shall take necessary and timely response action, including
prevention, containment, clean up and removal measures, if the activity results in or threatens
to result in damage to the Antarctic environment or dependent or associated ecosystems. The
388
389
124
Operator, through its Sponsoring State, shall notify the Executive Secretary, for circulation to
the relevant institutions of this Convention and to all Parties, of action taken pursuant to this
paragraph.
2. An Operator shall be strictly liable for: damage to the Antarctic environment or dependent
or associated ecosystems arising from its Antarctic mineral resource activities, including
payment in the event that there has been no restoration to the status quo ante; loss of or
impairment to an established use, as referred to in Article 15, or loss of or impairment to an
established use of dependent or associated ecosystems, arising directly out of damage
described in subparagraph (a) above; loss of or damage to property of a third party or loss of
life or personal injury of a third party arising directly out of damage described in subparagraph
(a) above; and reimbursement of reasonable costs by whomsoever incurred relating to
necessary response action, including prevention, containment, clean up and removal
measures, and action taken to restore the status quo ante where Antarctic mineral resource
activities undertaken by that Operator result in or threaten to resulting damage to the
Antarctic environment or dependent or associated ecosystems”.
125
2. The International Seabed Authority
352. Humankind has always proved in many ways that it is able to adapt to any situation,
even in environments that are far from natural for it. Through its thirst for freedom, discovery
and conquest, gradually left its favourite habitat, namely the mainland, to venture into
countries far more hostile to its survival, to quench its thirst for domination, and the
appropriation of “new lands” and the riches they contain that turn out to be, as time passes,
real political and commercial assets. In order to avoid an international cacophony, a customary
framework and subsequently, legal, has shown itself, and continues to be, more than
indispensable, especially with the new challenges offered by the 20 th and 21st century390.
353. When Man manages to obtain the necessary technology to go further than the
current means allowing him to do so, this inevitably leads to a scientific, political and
commercial evolution, and an upheaval of the balances that were previously fixed between
different peoples. This is what happened for maritime conquest, and this is what we are facing
in recent years with the acceleration of technological discoveries that have made space
exploration possible. The demarcation of boundaries on land may seem technically easy, but
how can we delimit the seas and oceans? Both physical and political boundaries have never
really existed at sea391. This question has come up repeatedly and has required long years of
work, and unprecedented international cooperation to create a law of the sea applicable to
the majority of states, and thus avoid diplomatic incidents by making the law of the sea a
common right for all392. Nevertheless, international law remains flawed and clumsy, states are
all different, as are their legal systems and claims393.
354. These stormy questions are gradually returning to the table regarding the exploration
of space, and the exploitation of space resources394. In many respects, the legal regime of the
high seas is close to that of outer space, being considered ideologically as the Common
Heritage of Mankind, there can be no prior state ownership of this natural immensity395. The
high seas provide resources that are not owned by anyone yet exploited by private and public
390
391
https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea
392
https://www.jstor.org/stable/40704481?seq=1#page_scan_tab_contents
393
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?
394
395
126
entities, but things get complicated when talking about the exploitation of the seabed. States
have managed, not without difficulty, to agree on an international regime governing the
question of territorial delimitation, and more painfully, on the exploitation of maritime
resources396. It is therefore interesting to consider the similarities between the two models,
and to what extent the regime of international law established to govern the exploitation of
maritime resources, could be applied to the exploitation of space resources.
355. A new legal framework for the exploration and exploitation of natural space
resources is becoming increasingly urgent. Indeed, we are witnessing some form of
privatisation of outer space, in defiance, for some, of previous international conventions that
proclaimed the exploration and peaceful use of these environments by states, for the sake of
and the interest of all countries. This question, which divides the doctrine, is not resolved
today, and it is the reason why an intervention of the international community to solve it is
today necessary. The study of the regime applicable to the exploitation of marine resources is
a good example of an agreement between the states on the question of the appropriation of
resources yet located in an area belonging to no one, or open to everyone as is the case with
outer space.
356. Before delving deeper into the subject, a distinction must be made: maritime law is
not to be confused with the law of the sea397. Indeed, the first corresponds to all the specific
legal rules directly applicable to the activities that the sea determines. It is a special law, old
and transversal, which derogates from the rules of common law because of the risk and the
danger represented by the sea. By its very nature, it is impregnated with internationality,
which is why it was necessary to establish rules that have evolved over time. This special right
includes all categories of law, namely maritime labor law, maritime criminal law, commercial
maritime law, maritime contract law, maritime administrative law, civil liability law, and public
law, which corresponds to the law of the sea.
357. The law of the sea frames the maritime areas, it is the law which determines and
delimits these spaces, and which defines the rights and the duties of the states which sail
there398. Originally, the law of the sea was essentially customary, coasts and coastlines fell
396
https://en.wikipedia.org/wiki/International_Seabed_Authority
397
398
https://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm
127
under the jurisdiction of the states, while a principle was used as a law for maritime
navigation399: the freedom of the sea, which meant that outside territorial waters, each one
was free to navigate where it wanted, the seas not belonging to anybody beyond a certain
distance from the coasts. Territorial sovereignty ended where the force of arms ended.
358. The use of the sea is as old as humanity; moving and transporting on a liquid surface
is much easier than on a solid surface. The oceans and seas contain many riches, which men
began to covet and exploit, causing them rivalries that can sometimes lead to conflict or even
wars. The latest example that can demonstrate the excitement of exploiting marine resources
is the announcement of Brexit and the deadlock in negotiations for the U.K.’s exit from the
European Union400. Indeed, this event triggered a rise in altercations between British and
French fishermen about scallops, it took the ministries of agriculture of the two countries to
meet and find an agreement that can ease tensions.
359. The last century has disrupted the law of the sea to change this customary law into
written law, as during this period, national demands have gradually emerged over offshore
resources, which has spawned a number of issues401. This legal transition is particularly related
to the exploration of the depths, and the discovery of immense underwater riches: the law of
the sea had to adapt to this discovery of the twentieth century. The evolutions mentioned
earlier have, in a sense, forced countries to come together with the aim of finding new
solutions, and establishing a more formal international legal framework that can satisfy, or at
least try to satisfy, all parties402.
360. The Geneva403 and Montego Bay Conventions404 are the perfect example. At a
conference in Geneva in 1958, four international conventions were drafted, one on the
territorial sea and contiguous zone, one on the high seas, one on the continental shelf, and
one on fishing and the conservation of biological resources. Due to the complexity of the
physical environment of the hydrosphere, the United Nations drafted a Convention on the
Law of the Sea on December 10, 1982, which was adopted late on November 16, 1994,
399
400
https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/355/355.pdf
401
https://www.un.org/Depts/los/doalos_publications/publicationstexts/msr_guide%202010_final.pdf
402
403
http://legal.un.org/avl/ha/gclos/gclos.html
404
http://www.armateursdefrance.org/sites/default/files/publications/montego_juin18.pdf
128
replacing those of Geneva. It is a true “Constitution of the sea”405. The word constitution can
be used in this case because the oceans have for a long time separated the peoples, but also
contributed to their rapprochement, and this convention marks the international cooperation
which exists between the states anxious to answer a need of supervision, reassuring their
sovereignty on territories that physically should no longer belong to them. Most major
industrial countries have ratified it, with the notable exception of the United States of
America, which found the convention too restrictive.
361. This convention, which focuses on the legal nature and regime of marine areas,
comprises seventeen parts, three hundred and twenty articles, nine annexes and four
resolutions406. Several essential points stand out, notably on the maritime division. Coastal
states enjoy sovereignty over their territorial sea, which extends up to twelve nautical miles
from the coast. Ships and aircraft from all countries enjoy a “right of passage”. This
compromise is not to everyone’s taste and still generates conflicts, even diplomatic crises as
we have recently seen between a French warship and the Chinese navy off Taiwan407.
362. Coastal states enjoy sovereign rights over natural resources and certain economic
activities in an “Exclusive Economic Zone” of two hundred nautical miles408. Coastal states have
jurisdiction over the resources of their continental shelf (submarine extension of a state’s
territory) to explore and exploit its natural resources409. The plateau limit is two hundred
nautical miles, or more in some cases. As for the status of the high seas, it is based on four
principles: freedom of navigation, freedom of fishing, freedom of overflight, and freedom to
lay submarine cables410. This convention gives coastal states the much-needed legitimacy to
secure their sovereignty over territories that extend beyond their land borders. However, this
decision has the consequence of prejudicing the states that do not have direct access to the
sea, which is why the Convention authorises, and therefore controls, the exploitation of
resources in international waters, in order to restore equality between coastal and non-
coastal states.
405
406
407
https://www.scmp.com/news/china/military/article/3021035/chinese-warship-collides-taiwan-freight-
vessel-then-sails-away
408
https://www.un.org/Depts/los/doalos_publications/publicationstexts/msr_guide%202010_final.pdf
409
410
http://legal.un.org/avl/ha/gclos/gclos.html
129
363. The Montego Bay Convention411 distinguishes the different exploitable resources
that can be divided into two groups: living resources, and those that are not412. These two
categories of resources depend on two very different legal regimes. It is interesting to be able
to compare the extra-atmospheric and the hydro-spherical territory. They have much in
common, especially the fact that they have been the source of many questions and
speculations; these two environments are inherently dangerous and hostile to humans, and
are the subject of a fierce struggle for their conquest. The space race, emblematic during the
Cold War, undoubtedly recalls the fierce and endless competition for the appropriation and
the state claim of the marine territories and their wealth. The sea has gradually become
privately exploited, putting demands for state sovereignty in the background as more
economic and commercial demands.
364. Two issues can be identified, namely the appropriation and privatisation of these
territories, and the exploitation of their resources. The two subjects are thus substantially
related, and it was therefore necessary to put in place an international legal framework
applicable to the seas and oceans, and it is henceforth the turn of outer space to face these
sensitive subjects413.
365. The Law of the Sea Convention entered in force in 1994414. The XIth part has been
modified concerning the international seabed regime, but the International Seabed Authority
has been created, and has produced numerous bills about mineral resources management.
The Authority delivers the exploration or exploitation authorisations, and is in charge of their
control415. The Authority is also in charge of the environmental protection of the zone, and
has to prevent damages to flora or fauna416. This possibility enlarges the competences of the
Authority. As it have the legal personality, can it be possible for it to represent the
international zone in justice?
411
http://www.armateursdefrance.org/sites/default/files/publications/montego_juin18.pdf
412
413
https://www.iflscience.com/space/who-owns-space-us-asteroid-mining-act-dangerous-and-potentially-
illegal/
414
415
https://www.britannica.com/topic/International-Seabed-Authority
416
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366. Since the advice of the International Tribunal of the Law of the Sea in 2011, we know
that States are responsible of the acts of their citizens in the international zone 417. The
Authority is not only in charge of an activity, but also have to assume its responsibility 418.
That’s why states could design it as the trustee for the Common Heritage of Mankind, and by
the way, enter in justice if this Common Heritage of Mankind was in danger. Or a future World
Environmental Organisation would be in charge of the representation of the world’s
environment. In any case, the judge must have the possibility to protect the environment, and
for that, he must have the possibility to receive claims.
367. The international deep-sea zone and its exploitation regime were the subject of
intense negotiations during the Third United Nations Conference on the Law of the Sea419,
because of the economic stakes involved, but mainly because of the ideological charge that it
represented. Admittedly, the declaration of the American president Johnson in 1966, and
especially the Pardo declaration in 1967, had worked to the recognition of a form of
internationalisation of the zone beyond the limits of the national jurisdictions420, which had
been concretised by the adoption of the General Assembly Resolution of December 17, 1970
(2749 (XXV))421. The internationalisation of the area was of interest only if it resulted in a
particular legal regime, but since the 1960s422, the concept of Common Heritage of Mankind
sought its place in the principles of international law, and was defined as a property belonging
to the international community.
368. This equity-based concept involved the participation of all U.N. Member States in
joint management of previously designated resources423. This concept came in a context of
political struggle between developed and developing states, and came in addition to a third-
world ideology based on the political postulate of the economic catch-up of poor countries
through international aid, technology transfer, and compensation (as a means of redressing
the excesses of colonialism, thus a necessary handicap granted to the less developed states in
417
https://www.spacelegalissues.com/the-united-nations-convention-on-the-law-of-the-sea/
418
419
420
421
https://cil.nus.edu.sg/databasecil/1970-general-assembly-resolution-2749-xxv-on-declaration-of-principles-
governing-the-sea-bed-and-the-ocean-floor-and-the-subsoil-thereof-beyond-the-limits-of-national-jurisdiction/
422
423
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all fields of the economy). This disadvantage also had to be reflected in the future legal regime
for the exploitation of the seabed, since obviously without this imbalance, developing
countries would have been out of the game as soon as the “rush on nodules” could only be
reserved for a handful of the most developed states424.
369. The concept did not sink in, because it was the heritage of humanity and not a res
communis, which implied that humanity is an implicit subject of international law, and that
the resources concerned are “internationalised” as a good can be “nationalised” in domestic
law425. Humanity is then to the community of states what the nation is to the state, an abstract
and indivisible entity that does not allow direct representation. Recognised competences
would then be entrusted to the states in charge of representing it. Rich and poor states were
obsessed in the 1970s by polymetallic nodules that ceased to be a scientific curiosity and
became (a bit fast) an El Dorado source of supply of raw materials almost inexhaustible. One
of the political victories of the Group of seventy-seven was to obtain an integral part of the
United Nations Convention on the Law of the Sea of December 10, 1982 on the area and its
regime426, reflecting the ideology of development, and leading to a tension in North-South
relations.
370. The eleventh part of the text of the Convention is known: a legal monster so unviable
that it appeared necessary, even for the first sixty ratifying states, to revise it even before the
entry into force of the Convention427. This was the purpose of the New York Agreement of July
29, 1994, which, adopted by consensus, removed from the contents of the eleventh part
aspects that were too ideological or unrealistic, without touching the general structure of the
text. While no state challenged the common heritage character of the area and some of its
resources, the focus of the conflict between developed and developing states lay in the
powers of the International Authority that had to be created in order to frame the future
exploitation (strong and binding for the seventy-seven, as light as possible for the few states
that are likely to explore and possibly exploit the resources).
424
https://www.eu-midas.net/science/nodules
425
https://www.spacelegalissues.com/space-law-the-res-communis-concept-in-space-law/
426
427
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371. Although the organs of the Authority have been preserved (Assembly, Council,
Secretariat, etc.), the distribution and extent of their powers have been significantly modified.
We will just recall the essential elements: simplification of the system, strengthening of the
role of the Council to the detriment of that of the Assembly, recourse to consensus rather than
voting, maximum reduction of costs, reduction of authority of the Authority in financial
matters, modification of the voting procedures within the Council. This last point is
fundamental, because with the introduction of a vote by chambers, developing countries can
no longer hold the majority. Finally, the transfer of technology to the benefit of the Company
is neither automatic nor free. So the “legal monster” became lamb, the Convention was able
to obtain a large number of ratifications.
372. What is the exact role of the International Seabed Authority (ISA), does it have
specific environmental competencies, and finally, can it be concluded that the Authority is the
guarantor of the integrity of the International Area?
373. The International Seabed Authority was created in Jamaica as a light international
organisation of a few dozen civil servants (instead of what was desired by the seventy-seven
states during the debates) whose rules of operation appear in the collection of basic
documents428. Since 1994, the Authority has adopted a large number of texts relating to the
exploration of the area, in particular the regulation on prospecting and exploration for
polymetallic nodules of July 13, 2004, which constitutes the code framework for international
seabed mining429. If we add to this the recognition of the thirteen pioneering investors, and
the targeting of the most promising areas (Sri Lanka and the Clarion-Clipperton Zone), it can
be concluded that the preparatory phase for exploitation was in place as soon as the early
2000s430.
374. However, as we know, the “rush on nodules” fizzled, as developed states discovered
resources much more quickly interesting: polymetallic sulphides and cobalt-rich crusts of
hydrothermal vents, as well as deep genetic resources ignored at the time of the Third
Conference. The former are already being exploited in some EEZs (Australia, or New Guinea
for example), the recently discovered second ones (bacteria, worms, sponges, corals, etc.) are
428
429
430
133
very promising, and are currently under the regime of the high seas because excluded by the
Convention. Article 136 of the Convention recalls that the area and its resources are the
Common Heritage of Mankind431, and Article 133 is very clear: “Resources means all solid,
liquid or gaseous in situ”, “So there is no place for living resources on and in the sediment that
are, therefore, related to other living resources of the high seas whose regime is that of open
access under the principles and Section 2 of Part VII”.
375. Thus, the essential role of the International Seabed Authority is the organisation of
the exploration and exploitation of the zone, since it dominates the politics of production
(Article 151)432. To do this, it issues production authorisations (Article 151), and has the power
to limit the level of production (Article 151). The Council approves the work plans proposed
by the applicants (Article 162)433. Once approved by the Authority (Annex III, Article 6), the
work plan takes the form of a contract concluded between the Authority and the applicant
(Annex III, Article 3), so it is the Authority which through the Council ensures the issuance of
mining titles.
376. It follows from this that the international body is above all a tool for the management
and administration of the exploration and exploitation of the international zone, whose goal
is, as the rest of the Convention, productivity. The text specifies that the Authority encourages
prospecting in the area (Annex III, Article 2) and, to this end, it issues exclusive rights to explore
and exploit (Annex III, Article 16). In addition, the activities carried out in the zone aim at the
harmonious development of the world economy (Article 150), and the increase of the
available quantities of minerals (Article 150).
377. The second essential function of the International Seabed Authority is to control; it
has the mission to control the activities carried out in the zone. Indeed, it exercises the
necessary control to ensure compliance with the provisions of Part X of the Convention and
related Annex III, as well as compliance with seabed regulations and procedures. It also
controls the implementation of approved work plans. Activities in the zone are carried out and
controlled by the Authority on behalf of all humanity (Article 153), the Authority has the right
431
432
433
134
to “take at any time any measure provided for (…) and exercise the control functions which are
incumbent on it”.
378. It has the right to inspect “all facilities used in the area” (Article 153)434. In particular,
“the Council also exercises control over the activities carried out” (Article 162)435. It is the Legal
and Technical Commission which makes recommendations to the Council concerning the
management of a body of inspectors to monitor activities436. This control takes place during
all phases of exploration and exploitation, so any approved work plan must provide for the
Authority’s control over the authorised activities (Annex III, Article 2 for prospecting, Annex
III, Article 3 for exploration and exploitation)437. This very pervasive and omnipresent control
is intended to ensure good management, in order to facilitate a harmonious development of
economic activities.
379. Exploration and exploitation of mineral resources are carried out by mining
equipment (toad skips, free samplers, vacuum cleaners, etc.) which upset the seabed by
moving on the bottom, extracting the sediment, and especially, by releasing into the marine
environment sediments likely to remain in suspension for a long time before falling back on
the biotope. Although second-class, the protection of the marine environment is undoubtedly
part of the functions of the Authority, indeed, from Article 145, it is specified that the
necessary measures must be taken to effectively protect the marine environment from
harmful effects that could have the authorised activities438. This is why it is the responsibility
of the Authority to adopt rules and procedures to prevent, reduce and control the pollution
of the marine environment, but also to fight against any disturbance of its ecological
balance439. The text therefore clearly gives the Authority jurisdiction to prevent the harmful
effects of future activities.
380. Since the drafting of the regulations for the prospecting of nodules (2000), sulphides
(2010), and crusts (2012), the Legal and Technical Commission has drafted the framework for
434
435
436
437
http://www.csh-
ci.org/doc/Convention%20de%20Montego%20Bay%20sur%20le%20Droit%20de%20la%20mer.pdf
438
439
135
the future environmental management plan for the area of Clarion-Clipperton, currently the
most coveted, showing the International Seabed Authority’s intention to fulfil its obligations
to safeguard the environment. This plan was approved by the Council on July 26, 2012,
including the delimitation of the zones of particular environmental interest. The progress of
the work and the setting of a strict environmental framework then raise the question of the
responsibility of the actors, and that of possible appeal before a judge if contractors failed to
fulfil their obligations. The positive law response is clear: states are primarily responsible for
the actions of their nationals. But this answer is incomplete, because if the Authority has
international legal personality and legal capacity (Article 176), thus suing in court, can it only
enforce its rules, regulations and procedures, or could it represent the international zone as
such?
381. The current situation of international environmental law is far from this last solution.
The degradation of large ecosystems (oceans, forests, hedgerows, mountains, wetlands, etc.)
does not lead to optimism and environmentalists sound the rally to try to defend a principle
of non-regression that struggles to impose. In this context, the judge has more than ever a
role of protector of law and pillar of wisdom.
382. As a conclusion, we can assume that the law of the sea and space law are linked by
many similarities440. Both are special and international rights, with the aim of providing a legal
framework for two distinct environments to calm national demands, and ensure a harmonious
framework for future commercial competition in resource exploitation441. Beyond this purely
international dimension, states are free to set their own rules. With regard to the exploitation
of space resources, Luxembourg and the United States of America (for the law of the sea, the
United States of America had in 1945, first claimed the monopolies of exploitation of their
continental shelf) do not have not asked to draft internal laws, allowing them to obtain more
legitimately what they want, while making sure to respect the various conventions by opting
for a reading of the treaties favourable to their interests.
440
https://www.unclosdebate.org/evidence/1523/unclos-can-easily-be-adapted-meet-needs-outer-space-law
441
136
383. The “Zone” regime, which was recalled in the Montego Bay convention, is a reminder
of the space treaties442, and especially the 1979 Moon Agreement. The primary intention of
the United Nations was to make these two rights the precursors of a principle: to legally frame
the resources by associating them with goods belonging to the Common Heritage of Mankind,
which cannot be the object of a national appropriation. The United States of America, followed
by Luxembourg, has attempted to bring the two rights to a maximum similarity by adopting
laws favourable to the exploitation of space resources inspired by the principles that exist for
the collection of living resources on the high seas.
384. The seas and oceans have experienced the same phenomenon, they have become
privately exploited because the equity so much desired by the United Nations is confronted
with another principle, that of the freedom of exploitation on the high seas, and the regime
governing the same end, since a mechanism for redistributing profits would be the best way
to block exploitation and innovation. This exploitation is mainly carried out by private
companies, and this is what we are witnessing with the exploration and exploitation of outer
space, which is no longer the exclusive business of the states, despite their surveillance in
collaboration with the international community.
385. Is the principle of national non-appropriation of space and these resources

jeopardized? Nothing is certain, space law and the law of the sea will inevitably evolve over
time, especially as the exploitation of the resources are still at the exploration stage.
Nevertheless, a comparative look with the law of the sea is more than necessary and
interesting, because of the proximity between the two subjects.
442
137
CONCLUSION
386. For several decades, space conquest has been at the heart of the most ambitious
projects ever undertaken by humankind. A source of inspiration that is at once scientific, but
also artistic and literary, it is at the centre of works that have marked History. In a few decades,
the stakes around outer space have evolved.
387. If our first steps in its discovery were made by the state powers, we are now studying
its potential for exploitation through public and private actors. In addition, the nature of
activities in outer space has also evolved, from research and military activities, to increasingly
commercial activities. Outer space is rich in resources, this wealth attracts more and more
public and private investors. The Outer Space Treaty that was adopted more than fifty years
ago is perhaps no longer adapted to these developments, which poses a number of legal
problems443. Indeed, space exploitation presents risks, the management and sharing of these
in space projects are a major concern for the space industry, because of the inherent hazards
of space technology. As a result, space insurance is a vital market for this sector and its growth.
It is constantly evolving in response to various projects of innovation.
388. This in-depth study of current space law has demonstrated that the international
legal framework in this area is now outdated. Indeed, the vagueness of the space treaty in
particular, leads to doctrinal debates as to its scope, it does not allow to effectively apprehend
the new uses of space. The arrival of consumers in space, with space tourism, and private
companies wishing to exploit the natural resources found in outer space, more and more
numerous because of national policies encouraging these projects, completely disrupts the
current state of the space exploitation. Today, we are witnessing the transition from a service
industry to a raw materials business, whose regime must necessarily be different444. In
addition, the communist vision of the space treaties is not adapted to the arrival of private
companies in this market, whose activities will necessarily be capital-intensive445. Finally, the
international legal framework currently applicable was adopted while space was still almost
443
https://theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-
modern-age-71381
444
http://www.thespacereview.com/article/3256/1
445
(1991).
138
entirely managed by the states, and is therefore not adapted to these developments.
Mechanisms taking into account these three modifications must be put in place446.
389. The arrival of private companies in the space industry is an opportunity for the
development of research, as states lack the means to invest in this sector447. The investments
provided by private companies thus promise a dynamic development of the space industry,
whose benefits for the economy, as well as for applications in the civil sphere, have already
been demonstrated. However, to encourage the investment of these companies in research,
it is necessary to provide a stable legal framework, guaranteeing that they can benefit from a
fair return on investment.
390. With regard to the exploitation of the natural resources of outer space, the
international community is invited to decide whether or not such use is prohibited in order to
prevent the proliferation of unilateral actions448. In addition, if this exploitation was to be
clearly authorised, the adoption of a regime governing this exploitation should imperatively
be adopted in order to avoid any risk that could arise from the exploitation of outer space.
The exploitation of the resources of outer space is not in itself contrary to the general
principles of international law, and those enunciated by the 1967 Outer Space Treaty449. A
new regime would therefore make this exploitation lawful under international law. On the
one hand, with regard to the principle of non-appropriation imposed by the 1967 Outer Space
Treaty, our study has made it possible to highlight the fact that the exploitation of the
resources of a territory was not necessarily conditioned by ownership of that territory (by the
operators or their states). The seabed mechanism is a proof of this.
391. On the other hand, with regard to the need for space exploitation to benefit
everyone, it should be made clear that commercial exploitation is not incompatible with the
principle of common benefit. The example of remote sensing shows it well. If this space
activity can be used commercially, it is also very useful for states to prevent natural disasters,
or to map territories. Space contains resources that could be very useful to our life on Earth,
446
447
http://www.thespacereview.com/article/3256/1
448
449
139
and their extraction would therefore be beneficial to all, provided it is well framed. Thus, the
fact that exploitation must benefit everyone should not be interpreted as an obligation for
companies to redistribute the results of their exploitation equally among all the parties
concerned. Everyone’s interests must be taken into account, and the investment made by
these companies must allow them to benefit from their exploitation, which ultimately benefits
everyone.
392. This exploitation must be supervised and it is essential that the principles of
sustainable development be at the heart of the concerns of space law reformers in order to
avoid any drift of new activities. To fix the question of the right to exploit the natural resources
of space, to preserve the interests of each one, to define a fair mechanism allowing to share
the profit of the exploitation, to fix the competences of the international community and
those of the national rights: as much questions to which the future legal framework of space
law must respond.
393. The utilisation of space resources has great potential for the future of humankind450.
In order to create an enabling environment for space resource activities, The Hague Space
Resources Governance Working Group451 was created to promote international cooperation,
and multi-stakeholder dialogue. It has designed the building blocks below to lay the
groundwork for international discussions on the potential development of an international
framework, without prejudice to its form and structure452.
394. Guided by the principle of adaptive governance, the Working Group considered it
neither necessary nor feasible to attempt to comprehensively address space resource
activities in the building blocks: space resource activities should be incrementally addressed
at the appropriate time on the basis of contemporary technology and practices 453.
395. On September 13, 2017, the Working Group agreed to circulate the building blocks
as the preliminary result of its work, and to invite comments to inform its further
450
451
https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-
space-resources-governance-working-group
452
https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-
space-resources-governance-working-group
453
http://www.unoosa.org/res/oosadoc/data/documents/2018/aac_105c_22018crp/aac_105c_22018crp_18_0_h
tml/AC105_C2_2018_CRP18E.pdf
140
consideration of the building blocks. It will continue to explore the need, and form, of any
future mechanism(s) for the governance of space resource activities. The Working Group
hopes that its activities will complement efforts at the national, regional and global level.
141
TOWARDS MARS!
396. The attraction of particularly private actors for Mars is linked on the one hand to the
richness of its soil, but also to the fact that the red planet has characteristics that could prove
conducive to the presence of human beings454. We therefore wish to know more precisely the
resources that we can find on this soil, and the projects that made it possible to conceive a
colonisation of this planet.
397. Forty years ago, the VIKING mission was launched by NASA455. It consisted of sending
two probes to make photos and analyses on the surface of Mars. We were already looking for
the presence of water. However, the most successful mission was the “Reconnaissance
Orbiter” mission launched in 2005 by NASA456 during which a space probe was sent to map
the surface of the planet. Still in observation, this one allowed to know better the geological
constitution of Mars.
398. In September 2015, a step was taken as NASA announced that the images taken by
the Mars Reconnaissance Orbiter probe showed the presence of liquid water in the form of
hydrated salts. In these photos, we could see dark traces, intriguing scientists. These traces
always appeared in the same places but disappeared during the hot seasons. Finally, they have
been associated with the presence of hydrated salts called “perchlorates”. These contain
water molecules in their crystals. We then come to wonder where this water comes from.
Different hypotheses are advanced. The main hypothesis that seems to be favoured is that
water has an atmospheric origin. In this case, it is the perchlorate salts that would absorb the
water vapour found in the atmosphere of the red planet.
399. More recently, a group of researchers from the “Marsis” team claimed to have
discovered the presence of an underground lake twenty kilometres wide457. It is the “Mars
Express” probe sent by the European Space Agency, which is at the origin of this discovery. It
has orbited around Mars since December 25, 2003. It has collected a lot of data, and it is
454
https://www.researchgate.net/publication/268444482_A_new_analysis_of_Mars_Special_Regions_findings_of
_the_second_MEPAG_Special_Regions_Science_Analysis_Group_SR-SAG2
455
https://en.wikipedia.org/wiki/Viking_program
456
https://en.wikipedia.org/wiki/Mars_Reconnaissance_Orbiter
457
https://www.pbs.org/newshour/science/mars-south-pole-hides-underground-lake-of-liquid-water-offering-
hope-for-life
142
thanks to it that scientists believe they have detected this famous liquid water lake under the
surface near the South Pole.
400. The probe works like a radar and makes it possible to emit radio waves. These are
then reflected by the different objects that are on the surface of the red planet, as well as in
its subsoil. The team of scientists at the origin of the discovery explains that it repeatedly
spotted “signatures indicating pockets of liquid water in the basement”. However, these were
not detected at each pass. It was then necessary to analyse the raw data of the radar, and not
those which were pre-processed. Thus, these revealed the presence of this lake one kilometre
and a half below the surface of the red planet. “It is only a small area study and it is an
extraordinary prospect to think that there may be other pockets of underground water
elsewhere that remains to be discovered”.
401. So, after this advance, a question arises: would there be life on Mars? The presence
of liquid water does not allow to affirm that a microbial life has developed. The question is
debated by scientists. As a number of researchers explain, water should be composed of
certain specific properties. However, it is not impossible that a form of life developed billions
of years ago. Indeed, Mars was covered with lakes, seas, rivers, before a major climate change
intervened and cooled the red planet. There are still many questions.
402. After having confirmed that water in liquid state flows by period on the red planet,
one is led to wonder about the other resources present on Mars. Indeed, human beings would
like to one day have the capacity to go there in order to explore and discover the resources it
overflows. We already know about the riches that can be found there: hydrogen (in water),
CO2, carbon and oxygen. They are interesting because, for example, carbon dioxide is a
resource used in industrial processes. Nitrogen is also present in the atmosphere of Mars, and
the latter can create nitrogen fertiliser.
403. There is no doubt that Mars is still very mysterious, but the research will prove
fruitful. Indeed because of its characteristics, Mars is the planet that presents the most
favourable conditions for the installation of living beings. Thus many actors wish to bet on this
planet for the installation of true autonomous human communities. Faced with this
fascination for the red planet, private companies have expressed their will to colonise Mars,
their will to install an autonomous human community on this planet. Indeed, the red planet
143
has the advantage of offering the most favourable conditions for our species, as well as having
a relatively distant distance from the Sun.
404. Therefore, the boss and founder of SpaceX, Elon Musk, has made its ambitious and
famous project. The latter claimed to want to send people to Mars by 2024, by launching a
manned mission (six years before NASA, one of the few space agencies able to send people to
Mars in the next decades), after two unmanned missions that would deposit on the red planet
the necessary survival infrastructure for the first comers. The goal is to be able to colonise it
by 2040. The project is based primarily on reusable launchers to transport the passengers,
infrastructure and resources required.
405. However, Elon Musk is not the only one with the ambitious plan to colonise Mars.
Indeed, there has also been for example the project Mars One, a project announced in 2012
by the Dutch founder Bas Lansdorp, and also aiming to colonise the red planet and occupy it
by 2032. This project takes in part the techniques developed by SpaceX, but this project has
peculiarities. Indeed, it provides no return and would be funded through a media exploitation
of the expedition, thanks to the model of reality show. There are several questions. What
about the technical and financial feasibility of these projects? What are the risks and costs?
406. In just a few decades, the development of space conquest has allowed humans to
diversify their activities in the outer world. This adventure has gone beyond simple
exploration, and we are now studying how to develop the exploitation of space resources.
This diversification produces a real change of model of the space conquest. Thus, from an “Old
Space” model concentrated around a limited number of actors, most often public, we have
moved to a “New Space” model that involves a growing number of private sector companies.
If previously we wanted to explore space, today we want to understand how to make the
celestial bodies that compose it profitable.
407. Indeed, as we have seen, these celestial bodies are rich in attractive resources for
humans. Nevertheless, many questions remain about the exploitation of these resources.
Answering these questions will take time, and we are not sure of having yet viable financial
means to achieve the realisation of these projects. We have exposed a multitude of concrete
projects, but which still seem to be at an embryonic stage. In addition, other projects are
emerging. They do not only target asteroids, the Moon or Mars, but outer space itself.
144
408. For example, Airbus Defence and Space has the desire to put into orbit a space factory
by 2021458 that can build satellites or even space dwellings. A demonstrator, called Space
Digital Factory, is developed to assemble elements in outer space. These projects are diverse
and may also involve the creation of space taxis to drive astronauts to the ISS (Boeing), access
to high-speed Internet anywhere on the planet by sending satellites into outer space
(Facebook), spend a few minutes in zero gravity in space aboard a spacecraft (Virgin Galactic),
make spaceflights (Blue Origin), etc. Thus, it is now certain that this is only the beginning of
the outer space conquest, and that the coming years will be decisive for the space domain.
458
https://www.spacelegalissues.com/space-law-the-legal-status-of-objects-printed-in-outer-space/
145
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Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 2 - Elsbeth
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Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 3 - Laura
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Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 4 - Diane Howard
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Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 5 - Michael
Simpson - 26/02/2019.
Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 6 - PJ Blount -
12/03/2019.
Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 7 - Andrea
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Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 8 - Chris Johnson
- 16/04/2019.
Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 9 - Laura Forczyk
- 30/04/2019.
Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 10 - Michelle
Hanlon - 16/07/2019.
Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 11 - Dennis
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BBC World Service - 13 Minutes to the Moon - Ep.02 - Kids in control - 19/05/2019.
BBC World Service - 13 Minutes to the Moon - Ep.03 - Long Island Eagle - 26/05/2019.
BBC World Service - 13 Minutes to the Moon - Ep.04 - Fire to the Phoenix - 02/06/2019.
BBC World Service - 13 Minutes to the Moon - Ep.05 - The fourth astronaut - 09/06/2019.
BBC World Service - 13 Minutes to the Moon - Ep.06 - Saving 1968 - 16/06/2019.
BBC World Service - 13 Minutes to the Moon - Ep.07 - Michael Collins: Third man - 23/06/2019.
BBC World Service - 13 Minutes to the Moon - Ep.08 - We’re go for powered descent -
30/06/2019.
BBC World Service - 13 Minutes to the Moon - Ep.09 - Tranquillity Base - 07/07/2019.
BBC World Service - 13 Minutes to the Moon - Ep.10 - For all mankind - 14/07/2019.
156
BBC World Service - 13 Minutes to the Moon - Ep.11 - The 13 minutes - 14/07/2019.
BBC World Service - 13 Minutes to the Moon - Ep.12 - Live from Houston - 20/07/2019.
BBC World Service - Space - Caravans in Space - 14/01/2017.
BBC World Service - Space - Enceladus: Is There Life on Saturn’s Moon? - 17/12/2015.
BBC World Service - Space - How Do We Rule The Universe? - 11/01/2018.
BBC World Service - Space - How to Survive in Space: Deep Space - 31/12/2015.
BBC World Service - Space - How to Survive in Space: Into Orbit - 30/12/2015.
BBC World Service - Space - I nearly drowned in space - 14/12/2015.
BBC World Service - Space - Launching the Hubble Space Telescope - 20/12/2015.
BBC World Service - Space - Monkeys in Space - 16/12/2015.
BBC World Service - Space - Skylab Falls to Earth - 01/01/2016.
BBC World Service - Space - Sounds of Space 1: The Solar System - 18/12/2015.
BBC World Service - Space - Sounds of Space 2: Deep Space - 23/12/2015.
BBC World Service - Space - Space 1977 - 20/08/2017.
BBC World Service - Space - Space Medicine - 18/12/2015.
BBC World Service - Space - The Apollo 13 Space Emergency - 27/12/2015.
BBC World Service - Space - The Beagle 2 Mission to Mars.
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BBC World Service - Space - The First Woman on the Moon - 20/11/2017.
BBC World Service - Space - We Shall Fly - Part One - 12/01/2017.
BBC World Service - Space - Why Does The Moon Fascinate Us So Much? - 26/12/2015.
BBC World Service - Space - Women with the Right Stuff - 17/07/2016.
Constellations Podcast - Kratos Communications - 1 - Big Data, HTS and Drone Races.
Constellations Podcast - Kratos Communications - 10 - Assured Communications, Resiliency
and Paradigm Shifts.
Constellations Podcast - Kratos Communications - 11 - Space Debris, Congestion and the Wall-
E Effect.
Constellations Podcast - Kratos Communications - 12 - X-Band, Clean Frequencies and Satellite
Separation in Space.
Constellations Podcast - Kratos Communications - 13 - Space Situational Awareness, Space
Policy and Bernoulli.
Constellations Podcast - Kratos Communications - 14 - New Space, Old Space and Government
Space.
Constellations Podcast - Kratos Communications - 15 - Vessels, Vehicles and Aircraft: You can
run but you can’t hide.
157
Constellations Podcast - Kratos Communications - 16 - Satellites, Lasers and Data at the Speed
of Light.
Constellations Podcast - Kratos Communications - 17 - Constellations, Earth Observation and
Open Access to Space.
Constellations Podcast - Kratos Communications - 18 - Satellite Refueling, Deep Space
Assembly Lines and Five Ball Constellations.
Constellations Podcast - Kratos Communications - 19 - Dish, Phased Array and Now-Isotropic
Antennas.
Constellations Podcast - Kratos Communications - 2 - Satellites, Cyber Threats and Sun Tzu.
Constellations Podcast - Kratos Communications - 20 - Smallsats, Interference and EPFD Limits.
Constellations Podcast - Kratos Communications - 21 - LEOs, IoT and M2M Communications.
Constellations Podcast - Kratos Communications - 22 - Cloud Technology, Machine Intelligence
& Bots.
Constellations Podcast - Kratos Communications - 23 - Free to air, Lasers and Predictions about
LEO.
Constellations Podcast - Kratos Communications - 24 - Balance, Certainty and Sharing the
Spectrum.
Constellations Podcast - Kratos Communications - 25 - The Growth of HTS, Death of WiMAX
and the Future of Smart Antennas.
Constellations Podcast - Kratos Communications - 26 - Latency, Link Optimization and the
Need for Speed.
Constellations Podcast - Kratos Communications - 27 - Big Data, Heavy Data and Location Data
is the New Database.
Constellations Podcast - Kratos Communications - 28 - Cyber Threats, Zero Trust and the Bane
of Security.
Constellations Podcast - Kratos Communications - 29 - Viable Spectrum Ecosystem, Secure
Cloud Computing and Managed Network Services.
Constellations Podcast - Kratos Communications - 3 - Data Centers in Space, LEO Satellites and
Cybersecurity.
Constellations Podcast - Kratos Communications - 30 - Satellite refueling, life extension and
the future of Small Sats.
Constellations Podcast - Kratos Communications - 31 - Open Systems Architecture, Henry Ford,
and Standards Enabling Growth in New Space.
Constellations Podcast - Kratos Communications - 32 - Satellite Cloud Services, Hop on Board
or Get Left Behind?
Constellations Podcast - Kratos Communications - 33 - SAR, Any Hour… Any Where Availability
and Grabbing a Beer on the Moon.
Constellations Podcast - Kratos Communications - 34 - Concierge Satellite Services, Resilient
Launches and the Cosmic Girl.
158
Constellations Podcast - Kratos Communications - 35 - China’s Long March Rocket Family, its
Belt and Road Space Initiative and the “Elon Musk” Factor.
Constellations Podcast - Kratos Communications - 36 - Sputnik, Constellations and the
Evolution of the Small Sat Industry.
Constellations Podcast - Kratos Communications - 37 - New Space Collaboration, Creating
Standards and Sharing Assets.
Constellations Podcast - Kratos Communications - 38 - Open Source, Smallsat Software and
Eating Space.
Constellations Podcast - Kratos Communications - 39 - Spectral Fingerprints, Laser
Communications and the emerging Space Economy.
Constellations Podcast - Kratos Communications - 4 - RF Analytics, SmallSats and Dark Ships.
Constellations Podcast - Kratos Communications - 40 - Software Defined Capabilities,
MILSATCOM Capacity and Commercial Opportunity.
Constellations Podcast - Kratos Communications - 41 - Always-On Connectivity, Flat Panel
Antennas and End-to-End Mobile Communications.
Constellations Podcast - Kratos Communications - 42 - The Ground Segment Revolution, the
Paradigm shift from Satellites to Networks and the Convergence of Satellite and Terrestrial
Networking.
Constellations Podcast - Kratos Communications - 43 - User Experience Design, Space System
Standards and Enterprise Ground Services.
Constellations Podcast - Kratos Communications - 44 - Space Telcos, the Spectrum Crunch and
Flying Dragons.
Constellations Podcast - Kratos Communications - 45 - Plasma Satellite Propulsion, Extended
Satellite Life, and the Fourth State of Matter.
Constellations Podcast - Kratos Communications - SPECIAL EPISODE - Apollo 11 Revisited, 50
Years Later.
Constellations Podcast - Kratos Communications - 53 - Space Debris, Mega Constellations and
the Orbital Highway.
Constellations Podcast - Kratos Communications - 55 - Smallsats, Laser Links and Optical
Comsats.
Constellations Podcast - Kratos Communications - 54 - Flat Panel technology, Electronically
Steerable Antennas (ESAs) and Transforming Mobile Connectivity.
Constellations Podcast - Kratos Communications - 46 - Innovation, Speeding up Acquisition
and Space Enterprise Architecture.
Constellations Podcast - Kratos Communications - 47 - Automation, Service Orchestration and
the Future of the Teleport.
Constellations Podcast - Kratos Communications - 48 - Explosion in VC Funding, The Year of
Commercial Space Travel and Earth Observation for Everyone.
Constellations Podcast - Kratos Communications - 49 - People, Geography & Business Apps:
The Satellite Industry is Changing.
159
Constellations Podcast - Kratos Communications - 5 - 3-D Printing in Space, Additive
Manufacturing and Space Mining.
Constellations Podcast - Kratos Communications - 50 - Digitized Payloads, Shapeable Beams
and Flexible Gateways.
Constellations Podcast - Kratos Communications - 51 - New Space, Changing Face of the
Teleport and Space Hubs.
Constellations Podcast - Kratos Communications - 52 - Integrated Satcom Architecture,
Innovative Acquisition Strategies and War in Space.
Constellations Podcast - Kratos Communications - 53 - Interplanetary Internet, "Cloudlets" and
the "Inner Cloud".
Constellations Podcast - Kratos Communications - 6 - UAVs, Disaster Recovery and Future of
HTS.
Constellations Podcast - Kratos Communications - 7 - New Space, Advanced Composites and
the Boom of Innovation.
Constellations Podcast - Kratos Communications - 8 - Hypersonics, Torpor and the Valley of
Death.
Constellations Podcast - Kratos Communications - 9 - SmallSat Launches, Ride-sharing and Re-
usability.
Constellations Podcast - Kratos Communications - SPECIAL EPISODE 1/3 - Future Applications,
New Business Models and the Holy Grail of Standardization.
Constellations Podcast - Kratos Communications - SPECIAL EPISODE 2/3 - The New HTS
Business Model, Importance of Automation and Leveraging Digital Payloads.
Constellations Podcast - Kratos Communications - SPECIAL EPISODE 3/3 - Big Data for
Satellites, Deep Learning and Growing Security Threats.
France Culture - « Make America great again » … sur la Lune ! - Lise Verbeke, 24/12/2017.
France Culture - ACTUALITÉS - L’espace : un milieu toujours plus conflictuel et encombré -
28/02/2019 (MIS À JOUR À 06:54) - Par Maxime Tellier.
France Culture - AFFAIRES ÉTRANGÈRES par Christine Ockrent - L’exploitation de l’espace -
30/12/2017.
France Culture - AFFAIRES ÉTRANGÈRES par Christine Ockrent - La militarisation de l’espace -
03/01/2015.
France Culture - AFFAIRES ÉTRANGÈRES par Christine Ockrent - La nouvelle guerre des étoiles
- 29/09/2018.
France Culture - Aldous Huxley : « Je suis terrifié de voir mes prophéties réalisées »,
25/09/2015 - Par Pierre Ropert et Florent Latrive.
France Culture - Arthur Eryeh-Fort - Tardigrade, un animal extraordinaire sur la Lune -
13/08/2019.
France Culture - COLLÈGE DE FRANCE : 40 LEÇONS INAUGURALES par Merryl Moneghetti -
Alain Supiot : Grandeur et misère de l’État social - 05/07/2016.
160
France Culture - CONCORDANCE DES TEMPS par Jean-Noël Jeanneney - Sous-marins :
l’imaginaire des profondeurs - 30/09/2017.
France Culture - Conquête spatiale: le temps des exploits de la Russie (1957-1965) -
21/10/2010 - Par Michel Alberganti.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Conceptions de l’objet
Terre, des mythes à la vérité scientifique - 24/10/2011.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Enjeux d’une éthique de
l’environnement - 07/01/2013.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Exoplanètes - 04/04/2016.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Glossaire céleste -
03/09/2012.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Intraterrestres et autres
vivants des milieux extrêmes - 02/11/2015.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Invitation au Monde des
Abysses - 02/01/2012.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Joseph-Louis Lagrange, et
le calcul des maxima et des minima - 02/04/2012.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - L’astronomie et
l’astrophysique européenne en Antarctique - 31/05/2010.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - L’Univers dans sa grande
enfance - 03/06/2013.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - La France dans les régions
polaires - 29/04/2013.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Le satellite Planck et les
débuts de l’Univers - 07/04/2014.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Les profondeurs de la Terre
- 26/03/2012.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Les figures de l’Univers -
09/01/2012.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Les yeux de l’Espace -
23/06/2014.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Le système solaire n’est
plus universel ! - 06/01/2014.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Les deux plus grandes
énigmes de notre Cosmos - 22/06/2015.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Météorites, pierres
voyageuses - 24/09/2012.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Notre Univers est-il unique
? - 03/10/2011.
161
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Pluton, monde de glace -
29/02/2016.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Planète Mars, rouge,
rouille, bleue ? - 31/01/2011.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Pourquoi les composants
de l’Univers ont-ils une masse ? - 16/03/2015.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Quelques aspects de
l’exploration spatiale - 25/11/2013.
France Culture - CONTINENT SCIENCES par Stéphane Deligeorges - Rosetta : la science au-delà
du spectacle ? - 16/02/2015.
France Culture - CONTRE-EXPERTISE par Julie Gacon - La fin de l’odyssée de l’espace ? -
29/07/2011.
France Culture - CONVERSATIONS SECRÈTES, LE MONDE DES ESPIONS - par Philippe Vasset et
Pierre Gastineau - Les espions dans l’ombre des réseaux : Israël - 10/08/2019.
France Culture - CONVERSATIONS SECRÈTES, LE MONDE DES ESPIONS par Philippe Vasset et
Pierre Gastineau - Les espions qui aimaient trop le business : la Chine - 03/08/2019.
France Culture - Cosmonaute, spationaute, taïkonaute ou astronaute : quel est le bon mot ? -
27/09/2018.
France Culture - CULTURES MONDE par Florian Delorme - Un peu plus près des étoiles… (3/4)
- Qui fait la loi dans l’univers ? - 10/04/2019.
- Chine vs États-Unis : Viser la lune pour dominer la Terre ? - 08/04/2019.
- Que nous apprend l’exploration spatiale ? - 11/04/2019.
- New Space : le business à l’assaut de la conquête spatiale - 09/04/2019.
France Culture - CULTURESMONDE par Florian Delorme - CulturesMonde en orbite (4/4) - De
Pékin à Delhi : la nouvelle course aux étoiles - 11/07/2013.
France Culture - CULTURESMONDE par Florian Delorme - CulturesMonde en orbite (3/4) -
Ovnis et aliens : les mythologies de l’espace - 10/07/2013.
France Culture - CULTURESMONDE par Florian Delorme - CulturesMonde en orbite (2/4) - Vers
Mars et au-delà ! - 09/07/2013.
France Culture - CULTURESMONDE par Florian Delorme - CulturesMonde en orbite (1/4) - Et
si le ciel nous tombait sur la tête - 08/07/2013.
France Culture - CULTURESMONDE par Florian Delorme - De la Corée du Nord à l’Antarctique
: les territoires impénétrables (4/4) - Voyage aux extrêmes de la Terre - 13/11/2014.
France Culture - CULTURESMONDE par Florian Delorme - Des migrations à l’exode (3/4) -
Nations-Unies: les impasses de la pacification - 02/09/2015.
France Culture - CULTURESMONDE par Florian Delorme - Les nouveaux aventuriers de l’espace
(4/4) - Les métamorphoses du cosmonaute - 19/03/2015.
162
(3/4) - De l’Inde au Japon : la constellation des nouvelles puissances - 18/03/2015.
(1/4) - Le privé dans la course aux étoiles - 16/03/2015.
(2/4) - Satellites: bataille en orbite - 17/03/2015.
France Culture - CULTURESMONDE par Florian Delorme - Mondes polaires (3/4) - Un drapeau
sur le pôle sud : des expéditions et des hommes - 20/02/2013.
France Culture - CULTURESMONDE par Florian Delorme - Table ronde d’actualité
internationale (6/38) - De la Syrie à la guerre des étoiles : l’incontournable Russie -
18/11/2016.
France Culture - CULTURESMONDE par Florian Delorme - Table ronde d’actualité
internationale : Alep enterrera-t-elle les Nations Unies ? - 30/09/2016.
France Culture - CULTURESMONDE par Florian Delorme - TERRITOIRES EN MARGE ET ÎLOTS
JURIDIQUES - 1/4 - À qui appartiennent les banquises de l’Antarctique ? - 09/01/2012.
France Culture - CULTURESMONDE par Florian Delorme - TERRITOIRES EN MARGE ET ÎLOTS
JURIDIQUES - 4/4 - Géopolitique de l’espace - 12/01/2012.
France Culture - DANS 18 ANS par Jacques Attali et Zoé Sfez - Où en sera notre connaissance
de l’univers en 2037 ? - 14/07/2019.
France Culture - DE CAUSE À EFFETS, LE MAGAZINE DE L’ENVIRONNEMENT par Aurélie Luneau
- L’Antarctique, un Eldorado à explorer - 18/03/2018.
- La voix est libre avec… Guillaume Nery - 13/01/2019.
- Entre ciel et terre, la voix est libre avec Hubert Reeves - 03/06/2018.
France Culture - DU GRAIN À MOUDRE D’ÉTÉ par Antoine Genton - L’espace, à quoi bon ? -
19/07/2019.
France Culture - DU GRAIN À MOUDRE D’ÉTÉ par Olivia Gesbert - Que va-t-on encore chercher
dans les étoiles ? - 02/08/2012.
France Culture - DU GRAIN À MOUDRE par Emilie Chaudet - Y aura-t-il bientôt des frontières
dans l’espace ? - 25/12/2017.
France Culture - DU GRAIN À MOUDRE par Hervé Gardette - Faut-il dynamiter le Code minier
? - 10/07/2012.
France Culture - DU GRAIN À MOUDRE par Hervé Gardette - L’Europe a-t-elle encore les
moyens de ses ambitions spatiales ? - 25/12/2012.
France Culture - DU GRAIN À MOUDRE par Hervé Gardette - Le droit est-il en train d’étouffer
la démocratie ? - 13/02/2019.
France Culture - ENTENDEZ-VOUS L’ÉCO ? par Maylis Besserie - Économie de l’espace (1/4) -
Aux origines de la conquête spatiale - 23/04/2018.
163
Vers l’industrie et au-delà - 24/04/2018.
L’esprit de conquête - 26/04/2018.
Euro stars - 25/04/2018.
France Culture - ENTENDEZ-VOUS L’ÉCO ? par Tiphaine de Rocquigny - L’économie de
l’aviation (2/4) - Boeing - Airbus : batailles au sommet - 09/04/2019.
l’aviation (1/4) - La conquête du ciel - 08/04/2019.
l’aviation (3/4) - Low cost, le ciel à prix réduits - 10/04/2019.
l’aviation (4/4) - Aéroports français : la grande braderie ? - 11/04/2019.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Comment ajuster le droit à la
condition animale ? - 12/03/2015.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Écologie : les juges indiens doivent-
ils servir de modèles aux juges occidentaux ? - 21/05/2015.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - États Unis, Chine, Europe : qui
contrôle la mondialisation du droit ? - 05/03/2015.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Étudier le nazisme pour comprendre
le droit ? - 30/10/2014.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Faut-il conférer des droits aux
robots ? - 23/10/2014.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - L’encadrement juridique de la
géolocalisation - 20/11/2014.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - La Cour européenne des droits de
l’homme (CEDH) étouffe-t-elle la souveraineté des états ? - 23/04/2015.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Les grands défis du droit en France
- 25/06/2015.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Les militaires sont-ils des justiciables
comme les autres ? - 04/06/2015.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Où en est l’enseignement du Droit
? - 25/09/2014.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Que changent la féminisation et le
rajeunissement de la magistrature ? - 04/12/2014.
France Culture - ESPRIT DE JUSTICE par Antoine Garapon - Réglerons-nous bientôt tous nos
conflits en ligne ? -27/11/2014.
France Culture - FRONTIÈRES par Alexis Ipatovtsev - L’Île de Man dans l’Espace - 12/04/2012.
164
France Culture - FRONTIÈRES par Alexis Ipatovtsev - Les obsèques spatiales - 12/07/2012.
France Culture - GRAND REPORTAGE par Aurélie Kieffer, Dominique André et Shenyan Hou -
Chine : l’offensive high-tech - 14/06/2019.
France Culture - ITINÉRAIRE BIS | ÉTÉ14 par Emilie Chaudet, Clément Baudet, Mélissa Chemam
et Ludovic Pauchant - Jean-François Clervoy : La tête dans les étoiles - 29/07/2014.
France Culture - JOURNAL DE 12H30 par Anne Fauquembergue, Antoine Mercier et Rédaction
- Le Conseil de Sécurité de l’ONU se réunit en urgence après le tir d’une fusée longue-portée
Nord-Coréenne - 07/02/2016.
France Culture - JOURNAL DE 12H30 par Rédaction - Kofi Annan, l’ancien Secrétaire général
des Nations unies, est mort - 18/08/2018.
France Culture - JOURNAL DE 7H par Catherine Duthu et Rédaction - Pari réussi pour la Falcon
Heavy de SpaceX, lanceur ultra-puissant qui ouvre la voie à de nouvelles perspectives
commerciales voire, selon son propriétaire milliardaire Elon Musk, à des voyages vers Mars -
07/02/2018.
France Culture - JOURNAL DE 8 H par Rédaction, Clara Lecocq Réale et Sophie Delpont - Une
sonde de la Nasa survole l’objet céleste le plus distant jamais étudié - 01/01/2019.
France Culture - JUKE-BOX par Amaury Chardeau - Histoires décalées de la conquête spatiale
- 22/12/2018.
France Culture - JUSQU’À LA LUNE ET RETOUR | 12-13 par Aline Pailler - Hubert Reeves &
Albert Jacquard - 25/02/2012.
France Culture - L’ACTUALITÉ MUSICALE par Matthieu Conquet - Cosmos et musique par Jean-
Philippe UZAN - 10/02/2016.
France Culture - L’ACTUALITÉ MUSICALE par Matthieu Conquet - Jupiter et Okwess : fusée
kinoise - 05/10/2016.
France Culture - L’ART EST LA MATIÈRE par Jean de Loisy - L’astre du mystère - 07/04/2019.
France Culture - L’Homme a-t-il vraiment marché sur la Lune ? - 26/09/2018.
France Culture - L’INVITÉ DES MATINS par Guillaume Erner - Conquête spatiale : Mars, ça
repart ? (2 parties) - 09/02/2018.
France Culture - L’INVITÉ DES MATINS par Guillaume Erner - La France a-t-elle besoin d’espace
? - 18/11/2016.
France Culture - L’INVITÉ(E) CULTURE par Benoît Bouscarel - La Lune : 50 ans d’un rêve sans
fin - 19/07/2019.
France Culture - L’INVITÉ(E) DES MATINS D’ÉTÉ par Benoît Bouscarel - États-Unis / Chine : la
guerre du yuan aura-t-elle lieu ? - 12/08/2019.
France Culture - LA CONCLUSION par Aurélien Bellanger - L’Espace - 20/11/2017.
France Culture - LA CONCLUSION par Aurélien Bellanger - Mourir sur Mars - 09/10/2017.
France Culture - LA CONVERSATION SCIENTIFIQUE par Etienne Klein - Pour quoi la Lune ? -
29/06/2019.
165
France Culture - LA CONVERSATION SCIENTIFIQUE par Etienne Klein - Que pouvons-nous dire
sur les trous noirs ? - 22/09/2018.
France Culture - LA CONVERSATION SCIENTIFIQUE par Etienne Klein - Que se passe-t-il quand
passe une onde gravitationnelle ? - 13/10/2018.
France Culture - LA CONVERSATION SCIENTIFIQUE par Etienne Klein - 1933 : 1945 : des
physiciens en exil - 09/03/2019.
France Culture - LA CONVERSATION SCIENTIFIQUE par Etienne Klein - Aller dans l’espace et en
revenir - 23/04/2016.
France Culture - LA CONVERSATION SCIENTIFIQUE par Etienne Klein - La Terre a-t-elle toujours
été aussi bleue qu’une orange ? - 05/12/2015.
France Culture - LA FABRIQUE DE L’HISTOIRE par Emmanuel Laurentin - Révolutions des sixties
(1/5) - Un ballon dans la lande : l’aventure spatiale de Pleumeur-Bodou - 01/07/2019.
France Culture - LA FABRIQUE DE L’HISTOIRE par Emmanuel Laurentin - Les voyages (4/5) : À
qui appartient la Lune ? - 04/02/2016.
France Culture - LA GRANDE TABLE (2ÈME PARTIE) par Olivia Gesbert - Nations-Unies : quels
remèdes à la paralysie ? - 30/11/2016.
France Culture - LA GRANDE TABLE (2ÈME PARTIE) par Raphaël Bourgois et Copélia Mainardi
- Mer et espace, les nouvelles frontières du monde - 25/12/2017.
France Culture - LA GRANDE TABLE D’ÉTÉ - par Maylis Besserie - Spationaute Star -
12/08/2019.
France Culture - LA GRANDE TABLE IDÉES par Olivia Gesbert - « Affaire du siècle » : la justice
sauvera-t-elle la planète ? - 12/03/2019.
France Culture - LA GRANDE TABLE IDÉES par Olivia Gesbert - Silicon Valley : la technologie au
service d’une idéologie? - 29/05/2019.
France Culture - LA GRANDE TABLE IDÉES par Olivia Gesbert - Veut-on encore décrocher la
Lune ? - 21/06/2019.
France Culture - LA MARCHE DES SCIENCES par Aurélie Luneau - 50 ans du CNES - 03/11/2011.
France Culture - LA MARCHE DES SCIENCES par Aurélie Luneau - Grand Portrait de Jean-Loup
Chrétien - 28/01/2016.
France Culture - LA MARCHE DES SCIENCES par Aurélie Luneau - Histoire de la conquête
spatiale - 23/06/2011.
France Culture - LA MARCHE DES SCIENCES par Aurélie Luneau - Les ballons au service de la
recherche - 01/09/2011.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - 2001, l’Odyssée de l’espace
: 50 ans après - 20/04/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - 5G, pour quelques gigas de
plus - 10/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - 60 Ans de la Nasa : il était
une fois l’espace - 04/10/2018.
166
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - 80 ans du CNRS au Collège
de France : quel avenir pour la recherche française ? - 04/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - À quand les hommes sur
Mars ? - 05/10/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Antimatière, cet obscur objet
de la physique - 01/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Antarctique, ça glace ou ça
casse - 05/02/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Archéologie sous-marine :
toujours plus profond ? - 12/01/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Armée : l’autre moteur de la
recherche - 07/06/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Astéroïde : impact imminent
- 27/01/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Atmosphère : une enveloppe
fragile ? - 21/11/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Au commencement étaient
les météorites - 31/10/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Automatisation : y aura-t-il
un pilote dans l’avion ? - 20/03/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Aviation, de Clément Ader à
l’avion du futur - 22/06/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Big Bang : avancer aux
sources - 07/05/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Biodiversité : vers la sixième
extinction de masse ? - 20/09/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Cartographie : comment
mettre le monde à plat ? - 12/04/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Carl Sagan, bonjour Cosmos
- 18/01/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Cérès : voyage dans la
ceinture - 17/04/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Ces troublants trous blancs
- 27/08/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Comètes, astéroïdes : les
nouveaux horizons de l’exploration spatiale - 27/09/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Cyberespionnage : bons
baisers de Russie - 03/10/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Émission spéciale « Grand
Final » de Cassini - 15/09/2017.
167
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Épidémiologie, une histoire
de cohortes - 07/02/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Espace : une combinaison
gagnante - 13/02/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Exoplanètes : observez-les
toutes - 01/05/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Exploration spatiale : ça roule
- 06/03/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Expéditions scientifiques :
que reste-il à découvrir de la Terre ? - 17/11/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Extrêmophiles : la vie à toute
épreuve - 13/05/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Extraterrestre, il est Fermi
d’en douter - 20/10/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Extraterrestres : premier
contact - 23/09/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Faut-il retourner sur la Lune
? - 15/11/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Fusion nucléaire : l’énergie
à profusion - 12/06/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Galileo : pourquoi faut-il un
GPS européen ? - 17/01/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Galaxie d’Andromède, notre
si jeune voisine - 06/03/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Hayabusa, un petit tour et
puis s’en va - 12/03/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Hélène Courtois, géographe
du cosmos - 22/07/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Hyperloop, le tube du futur
? - 15/05/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Impression 3D : La science
en pièces détachées - 08/11/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Internet made in China -
19/06/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Jean-Yves Le Gall : quels
programmes spatiaux pour l’Europe ? - 30/05/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Jupiter : la géante lève le
voile - 03/01/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Kepler : les planètes
changent de lunettes - 20/11/2018.
168
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - L’espace : une décharge à
ciel ouvert ? - 10/01/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - L’espace made in Asia -
23/10/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - La revanche de Pluton -
11/06/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - La ruée vers le sable -
07/11/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - La recherche française peut-
elle faire sans l’Europe ? - 19/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Le mystère de la planète 9 -
28/03/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Le jour où on a marché sur
la Lune - 11/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Lunes glacées, sous la glace
la vie ? - 09/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Mars : l’eau, l’air, la vie ? -
04/09/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Megha-Tropiques, satellite
franco-indien - 23/10/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Mercure : la petite planète
qui grimpe - 09/10/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Mission Dragonfly,
photonique topologique et le village sur la Lune - 30/08/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Mitochondrie, de l’énergie
plein la cellule - 24/06/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Multivers : la dernière
tentation d’Hawking - 05/06/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Multivers : un problème à
plusieurs dimensions - 17/11/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Muscles synthétiques : fort
comme un robot - 16/05/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Nanosatellites : petits mais
costauds - 09/05/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Nuages : le temps se gâte -
19/03/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Objets connectés : doit-on
avoir peur de son électroménager ? - 23/11/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Océans profonds : que sait-
on de la vie dans les conditions extrêmes ? - 08/11/2016.
169
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Origines du système solaire,
une histoire nébuleuse - 16/01/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Parker Solar Probe : un peu
plus près du Soleil - 18/09/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Peut-on encore faire de la
science en français ? - 28/05/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Planètes errantes cherchent
système - 30/10/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Premières nouvelles du
Cosmos - 13/06/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Prochain arrêt : Mars ? -
02/01/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Quelle diplomatie
scientifique pour le XXIe siècle ? - 22/12/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Quelle place pour la France
dans la course à l’espace ? - 11/10/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Réchauffement climatique :
les pôles en danger - 18/10/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Rétrofictions, cinq siècles de
science-fiction francophone vous contemplent - 23/11/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Sagittarius A*, un peu plus
près du trou noir - 27/11/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Scott Kelly, 520 jours dans
l’espace - 30/01/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - SF : objectif Mars -
17/05/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Soyouz, une panne et ça
repart - 06/11/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Space Force, le côté obscur
de l’espace - 13/03/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - SpaceX : la nouvelle course
à l’espace ? 23/01/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Space Horror : dans l’espace,
on n’a pas fini de crier - 12/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Station spatiale
internationale : un labo là-haut - 06/06/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Surpêche : on touche le fond
- 19/02/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Tchernobyl, au cœur du
réacteur - 29/08/2019.
170
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Terraformation : le grand
déménagement - 25/12/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Théia-Terre, le choc frontal
- 27/03/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Toutes les sciences sont dans
Nature - 28/02/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Trinh Xuan Thuan : l’univers
est-il vide ? - 13/09/2016.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Trous noirs : de nouvelles
images à l’horizon ? - 30/04/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Trous de ver, la porte des
étoiles - 08/05/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Ultima Thulé, Farout : Kuiper
gagne ! - 22/01/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Une brève histoire de
Stephen Hawking - 14/03/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Vénus : la fausse jumelle de
la Terre ? - 15/01/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Voyage spatial, vers l’infini
et au-delà - 11/04/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Voyager : 40 ans d’odyssée
- 05/09/2017.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Y a-t-il un cerveau dans la
machine ? - 29/03/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin - Y a-t-il un futur dans l’avion
? - 18/04/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin et Eléonore Pérès - Projet
Manhattan : et l’humanité toucha sa fin - 21/02/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin et Eléonore Pérès -
Mendeleïev, le tableau s’alourdit - 26/02/2019.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin et Olivier Lascar - René
Barjavel : une œuvre à l’abri des ravages du temps - 21/12/2018.
France Culture - LA MÉTHODE SCIENTIFIQUE par Nicolas Martin et Olivier Lascar - Quand
décrochera-t-on les exolunes ? - 18/12/2018.
France Culture - LA QUESTION DU JOUR par Guillaume Erner - La privatisation d’Aéroports de
Paris est-elle une mauvaise opération pour l’État ?- 14/03/2019.
France Culture - LA QUESTION DU JOUR par Guillaume Erner - Mission Insight : qu’est-ce qui
a rendu la planète Mars inhabitable ? - 28/11/2018.
France Culture - LA QUESTION DU JOUR par Guillaume Erner - Pourquoi la lune redevient-elle
un enjeu pour les Nations ? - 01/04/2019.
171
France Culture - LA RECHERCHE MONTRE EN MAIN - Décision collective optimisée en milieu
opérationnel extrême, application aux situations inconnues en vol spatial habilité -
20/12/2017.
France Culture - LA REVUE DE PRESSE par Dani Legras - Thomas Pesquet : « Spoutnik, c’est
l’année zéro du monde spatial » - 04/10/2017.
France Culture - La Russie tente de retrouver sa place dans l’espace - Lise Verbeke,
30/11/2017.
France Culture - LE BILLET CULTUREL par Mathilde Serrell - Les réfugiés trouveront-ils asile
dans l’espace ? - 09/02/2018.
France Culture - LE CHOIX DE LA RÉDACTION | 13-14 par Rédaction - Comment fonctionne le
Conseil de sécurité des Nations Unies ? - 11/11/2011.
France Culture - LE CHOIX DE LA RÉDACTION | 14-15 par Rédaction - Galileo : les raisons de
l’échec de la mise en orbite - 07/10/2014.
France Culture - LE JOURNAL DE 8H par Rédaction - La Corée du Nord en orbite - 12/12/2012.
France Culture - LE JOURNAL DES SCIENCES par Natacha Triou - Espionnage de satellite et
militarisation spatiale - 14/09/2018.
France Culture - LE JOURNAL DES SCIENCES par Natacha Triou - Les tremblements de Mars -
26/04/2019.
France Culture - LE JOURNAL DES SCIENCES par Natacha Triou - Un peu plus près du trou noir
- 02/11/2018.
France Culture - LE JOURNAL DES SCIENCES par Xavier Martinet - La Chine annonce une station
spatiale pour 2022 et lance sa construction - 05/05/2017.
France Culture - LE JOURNAL DES SCIENCES par Xavier Martinet - La Chine annonce une station
spatiale pour 2022 et lance sa construction - 05/05/2017.
France Culture - LE JOURNAL DES SCIENCES par Xavier Martinet - Saturne : Cassini franchit une
nouvelle étape dans l’exploration spatiale - 28/04/2017.
France Culture - LE JOURNAL DES SCIENCES par Xavier Martinet - X-37B : peu de chances que
la navette de l’USAF soit une arme spatiale - 12/05/2017.
France Culture - LE MAGAZINE DE LA RÉDACTION par Rédaction - Le renouveau minier : illusion
ou bon filon ? - 02/05/2014.
France Culture - LE MAGAZINE DE LA RÉDACTION par Tara Schlegel et Rédaction - Dans le
coeur d’Ariane 5 - 21/08/2016.
France Culture - LE MAGAZINE DU WEEK-END par Raphaël Bourgois - De la NASA à Tesla : vers
une privatisation de l’espace ? / Cryptomonnaies : qui a peur de Facebook ? - 21/07/2019.
France Culture - Le programme spatial indien : une ambition à bas coût, par Maxime Tellier -
30/03/2019.
France Culture - LE REPORTAGE DE LA RÉDACTION par Marie Viennot - Les sages du Conseil
constitutionnel jugent-ils en toute impartialité ? - 12/03/2019.
France Culture - LE RÉVEIL CULTUREL par Tewfik Hakem - Marion Montaigne : « Thomas
Pesquet m’a appelée depuis l’espace et la communication était parfaite ! » - 12/01/2018.
172
France Culture - LE TOUR DU MONDE DES IDÉES par Brice Couturier - Taïwan, en tête des lieux
de confrontation possible entre Pékin et Washington - 19/02/2019.
France Culture - LE TOUR DU MONDE DES IDÉES par Brice Couturier - La Chine tourne le dos à
une libéralisation - 18/05/2018.
France Culture - LE TOUR DU MONDE DES IDÉES par Brice Couturier -La Chine va-t-elle sauter
une étape ? - 28/08/2018.
France Culture - LES CHEMINS DE LA PHILOSOPHIE par Adèle Van Reeth - Philosopher avec
Star Wars (3/4) « La guerre des étoiles » - 23/12/2015.
France Culture - LES COURS DU COLLÈGE DE FRANCE - Figures juridiques de la démocratie (4/9)
- Les bases juridiques médiévales de la démocratie - 10/01/2019.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin - Corée du Nord. La politique
balistique de Pyongyang - 09/02/2016.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin - Kazakhstan. Au lendemain
de l’élection présidentielle, le rôle et la place du pays en Asie centrale - 28/04/2015.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin - Les frontières maritimes
et les frontières en mer - 01/07/2016.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin et Éric Laurent - ONU. Les
Nations unies représentent-elles vraiment la communauté internationale ? - 15/09/2011.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin et Éric Laurent - Droit de la
mer - L’importance considérable du plateau continental ultramarin pour la France -
04/12/2013.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin et Eric Laurent - Droit
international - 20/05/2011.
France Culture - LES ENJEUX INTERNATIONAUX par Thierry Garcin et Éric Laurent - Corée du
Nord. Le tir (raté) d’une fusée traduit-il une évolution de la nouvelle direction ? - 16/04/2012.
France Culture - LES ENJEUX INTERNATIONAUX par Xavier Martinet - Chine - États-Unis : le
G20, spectateur de l’affrontement ? - 28/06/2019.
France Culture - LES ENJEUX INTERNATIONAUX par Xavier Martinet - Nations Unies. Après la
proposition américaine, que serait une ONU plus « juste » ? - 19/09/2017.
France Culture - LES ENJEUX INTERNATIONAUX par Xavier Martinet - États-Unis : Nasa -
SpaceX, plus près des étoiles, plus loin de Moscou ? - 06/03/2019.
France Culture - LES ENJEUX INTERNATIONAUX par Xavier Martinet - De l’Angola à l’Algérie, la
nouvelle guerre des étoiles sera-t-elle africaine ? - 22/12/2017.
France Culture - LES ENJEUX INTERNATIONAUX par Xavier Martinet - Chine - U.S.A. : Chang’e
4, un nouveau continent lunaire chinois ? - 04/01/2019.
France Culture - LES ENJEUX INTERNATIONAUX par Xavier Martinet - "Armée de l’espace"
américaine : qu’est-ce qu’une stratégie spatiale ? - 27/06/2018.
France Culture - LES IDÉES CLAIRES par Brice Couturier - La Chine peut-elle devenir le pilote de
la mondialisation ? - 13/01/2016.
173
France Culture - LES NOUVELLES DE L’ÉCO par Arjuna Andrade - Hubble et la pouponnière
d’étoiles - 25/04/2018.
France Culture - LES NOUVELLES DE L’ÉCO par Arjuna Andrade - L’espace, une décharge à ciel
ouvert - 01/10/2018.
France Culture - LES NOUVELLES DE L’ÉCO par Arjuna Andrade - La justice annule la
privatisation de l’aéroport Toulouse-Blagnac - 22/04/2019.
France Culture - LES NOUVELLES DE L’ÉCO par Arjuna Andrade - La Lune et la porte de l’espace
profond - 26/04/2018.
France Culture - LES NOUVELLES DE L’ÉCO par Arjuna Andrade - Les milliardaires à la conquête
de la Lune - 07/11/2018.
France Culture - LES NOUVELLES DE L’ÉCO par Arjuna Andrade - Retour au point Nemo -
23/04/2018.
France Culture - LES NUITS DE FRANCE CULTURE par Philippe Garbit - Alexandre Ananoff,
l’homme qui inspira Hergé pour « On a marché sur la lune » - 08/03/2016.
France Culture - LES PIEDS SUR TERRE par Sonia Kronlund - Frissons (2/4) : Sous la mer et dans
l’espace - 08/06/2018.
France Culture - LES RACINES DU CIEL par Frédéric Lenoir et Leili Anvar - Science et
Bouddhisme : à la croisée des chemins avec Trinh Xuan Thuan - 30/10/2011.
France Culture - LES RACINES DU CIEL par Frédéric Lenoir et Leili Anvar - La nature et
l’astrophysique, l’histoire de l’univers, la beauté du monde avec Hubert Reeves - 15/01/2012.
France Culture - LES SÉRIES MUSICALES D’ÉTÉ par Etienne Menu, Matthieu Conquet, Laurent
De Wilde, Julie Gacon, Amandine Casadamont, Simon Rico, Arnaud Contreras et Elodie Maillot
- Transports musicaux (5/5) - Le spatial - 07/07/2017.
France Culture - Les stations orbitales, possible avenir de l’humanité ? - Stéphane Iglesis,
09/08/2018.
France Culture - Martyrs ou pionniers : cinq animaux devenus cosmonautes - Pierre Ropert,
02/11/2017.
France Culture - MATIÈRES À PENSER par Dominique Rousset - L’animal est l’avenir de
l’homme (5/5) - L’animal saisi par le droit - 08/02/2019.
France Culture - MÉTRONOMIQUE par Amaury Chardeau - Circa 2030 : Mars, extension du
domaine du cosmos - 31/12/2016.
France Culture - MÉTRONOMIQUE par Amaury Chardeau - Octobre 1957 : la course à la Lune
- 24/12/2016.
France Culture - Objectif Lune, avec Cyrano de Bergerac et Jules Verne - Hélène Combis,
14/11/2016 (MIS À JOUR LE 03/01/2019 À 15:00).
France Culture - PLAN LARGE par Antoine Guillot - S comme Space Opera, des sons dans
l’espace - 01/06/2019.
France Culture - PLANÈTE TERRE par Sylvain Kahn - L’espace, nouveau territoire ? -
12/11/2014.
174
France Culture - RÉVOLUTIONS MÉDICALES par René Frydman - Leçons scientifiques et
médicales des vols spatiaux - 11/11/2014.
France Culture - REVUE DE PRESSE INTERNATIONALE par Camille Magnard - L’Inde de
Narendra Modi s’affirme dans la « guerre des étoiles » - 28/03/2019.
France Culture - REVUE DE PRESSE INTERNATIONALE par Rédaction - Après le "Brexit", le
"Chexit" - 14/07/2016.
France Culture - SAVOIRS - La Chine dans l’espace : un monde à part - Maxime Tellier,
27/09/2018.
France Culture - SAVOIRS - Les balbutiements de l’agriculture dans l’espace - Maxime Tellier,
19/01/2019.
France Culture - SAVOIRS par Noémie Naguet de Saint Vulfran - Hacker dans l’espace, c’est
possible - 15/10/2018.
France Culture - SAVOIRS par Yann Lagarde - Les ovnis, ça existe ? - 17/10/2018.
France Culture - SCIENCE PUBLIQUE par Michel Alberganti - Le tourisme spatial, prochaine
étape de la conquête de l’espace ? - 18/12/2015.
France Culture - SCIENCE PUBLIQUE par Michel Alberganti - Que reste-t-il de la conquête
spatiale ? - 25/05/2012.
France Culture - SCIENCE PUBLIQUE par Michel Alberganti - Une base lunaire, pour quoi faire
? - 10/07/2009.
France Culture - SIGNES DES TEMPS par Marc Weitzmann - La guerre nucléaire peut-elle avoir
lieu ? - 10/03/2019.
France Culture - Superfail par Guillaume Erner - Soyouz : le vol de trop ? - 12/11/2018.
France Culture - SUR LES DOCKS par Irène Omélianenko - L’étoffe française des héros -
22/12/2015.
France Culture - SUR LES DOCKS par Irène Omélianenko - Nouvelles frontières de la conquête
spatiale - 23/12/2015.
France Culture - SUR LES DOCKS par Irène Omélianenko - Station spatiale Internationale : Y
aura-t-il de la dinde à Noël ? - 24/12/2015.
France Culture - SUR LES DOCKS par Irène Omélianenko - Univers (4/4) : Les yeux rivés au ciel,
la recherche au LATMOS - 08/09/2011.
France Culture - Un pas de plus vers le Far West spatial - 02/08/2017 (MIS À JOUR À 14:17) -
Par Éric Chaverou.
France Culture - UNIVERSITÉ DE NANTES - CONFÉRENCES - Qui sont les « croyants » de la Terre
plate ? - 11/01/2019.
France Inter - LES SAVANTURIERS par Fabienne Chauvière - Michel Viso, 16/10/2016.
National Geographic - Objectif : Mars - Le premier podcast National Geographic - 14/12/2018.
Paris 1 Panthéon-Sorbonne - Droit constitutionnel et institutions politiques (CAVEJ, Michel
Verpaux, 2010) - Présentation de l’enseignement de droit constitutionnel et institutions
politiques.
175
Verpaux, 2010) - L’État et le pouvoir.
Verpaux, 2010) - La Constitution.
Verpaux, 2010) - La démocratie.
Verpaux, 2010) - Les régimes politiques.
Verpaux, 2010) - La Constitution de la Ve République.
Radio Sputnik - The ISS has been a wonderful example of cooperation amongst many countries
- 10/04/2019.
Recharge - Florent Derue : Space X, Virgin Galactic : Histoire de la nouvelle conquête spatiale
- 16/12/2018.
RFI - Chronique Espace - Patrick Chompré : « Orion », le prochain vaisseau spatial américain -
31/05/2014.
RFI - Chronique Espace - Patrick Chompré : 6e conférence sur les débris spatiaux - 27/04/2013.
RFI - Chronique Espace - Patrick Chompré : Aller sur Mars ? - 18/05/2013.
RFI - Chronique Espace - Patrick Chompré : Ariane 6, la prochaine fusée européenne, dévoile
son architecture - 13/07/2013.
RFI - Chronique Espace - Patrick Chompré : Ariane au 50e lancement de l’aéronautique et de
l’espace - 22/06/2013.
RFI - Chronique Espace - Patrick Chompré : Comment ravitailler l’ISS ? - 19/07/2014.
RFI - Chronique Espace - Patrick Chompré : De l’eau dans l’atmosphère de Jupiter ! -
04/05/2013.
RFI - Chronique Espace - Patrick Chompré : De la vie extraterrestre dans la Voie lactée ? -
31/08/2013.
RFI - Chronique Espace - Patrick Chompré : Des animaux dans l’espace - 29/06/2013.
RFI - Chronique Espace - Patrick Chompré : Des satellites pour suivre les avions ? - 17/05/2014.
RFI - Chronique Espace - Patrick Chompré : Exploitation des minerais de l’espace.
RFI - Chronique Espace - Patrick Chompré : L’Inde spatiale - 15/03/2014.
RFI - Chronique Espace - Patrick Chompré : L’Italie dans l’espace avec Luca Parmitano -
01/06/2013.
RFI - Chronique Espace - Patrick Chompré : La Chine, un acteur incontournable du domaine
spatial - 12/10/2013.
RFI - Chronique Espace - Patrick Chompré : La création d’une coentreprise Airbus-Safran -
21/06/2014.
176
RFI - Chronique Espace - Patrick Chompré : La découverte du ciel astral par Nicolas-Louis de La
Caille - 28/09/2013.
RFI - Chronique Espace - Patrick Chompré : La France finance près de 80% de l’accès européen
à l’espace - 20/04/2013.
RFI - Chronique Espace - Patrick Chompré : La météo spatiale - 03/08/2013.
RFI - Chronique Espace - Patrick Chompré : La mondialisation du secteur spatial - 12/07/2014.
RFI - Chronique Espace - Patrick Chompré : La NASA suspend ses contacts avec la Russie -
10/05/2014.
RFI - Chronique Espace - Patrick Chompré : La première découverte d’un astéroïde avec des
anneaux - 29/03/2014.
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The Lawfulness of Space Mining Activities

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The Lawfulness of Space Mining Activities

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The lawfulness of space mining activities

by Louis de Gouyon Matignon

under the supervision of Prof. Jean-Pierre Desideri

Louis de Gouyon Matignon

1968 Rescue Agreement: Agreement on the Rescue of Astronauts, the Return of

1972 Liability Convention: Convention on International Liability for Damage Caused

1976 Registration Convention: Convention on Registration of Objects Launched into

1979 Moon Agreement: Agreement Governing the Activities of States on the

COPUOS: Committee on the Peaceful Uses of Outer Space.

COSPAR: Committee on Space Research.

CSLCA: U.S. Commercial Space Launch Competitiveness Act of

ESA: European Space Agency.

FAA: Federal Aviation Administration.

IISL: International Institute of Space Law.

ISA: International Seabed Authority.

ISRU: In-Situ Resource Utilization.

ISS: International Space Station.

Kyoto Protocol: Kyoto Protocol to the United Nations Framework

NASA: National Aeronautics and Space Administration.

Space Benefit Declaration: Declaration on International Cooperation in the

Title IV: Space Resource Exploration and Utilization Act of 2015.

U.N.: United Nations.

UNCLOS: United Nations Convention on the Law of the Sea.

UNGA: United Nations General Assembly.

UNOOSA: United Nations Office for Outer Space Affairs.

VCLT: Vienna Convention on the Law of Treaties of 1969.

Robert Zubrin, in The Case for Mars, 1996.

a. A synthetic history of the outer space conquest

32. The scientific-industrial revolution eventually led to developments in flying machines

b. What is space law?

c. The origins of space law

52. In 1932, Vladimír Mandl of Pilsen, Czechoslovakia, attempted specifically to treat of

54. Evgeny Alexandrovich Korovin, a Soviet jurist specialising in international law,

d. The United Nations

a. Province of all mankind, benefits and interests of all countries

b. Freedom of exploration and use, and peaceful use of outer space

c. Non-appropriation and non-sovereignty

d. State responsibility for space activities by non-governmental entities

e. State liability for damage caused by space objects

f. Jurisdiction and control, ownership of space objects and registration

g. Avoidance of harmful interference and harmful contamination

a. 1969 to 1972, U.S.A. Apollo missions bring back Moon rocks

b. 2005, Hayabusa recovers dust samples from Itokawa asteroid

c. 2015, U.S.A. space mining law

90. With the technological plausibility demonstrated by the unmanned missions of

d. 2016, Luxembourg’s SpaceResources initiative

e. 2019, Russia wants to join

132. After 1958, a number of non-space powers suggested a very broad

162. The principle of non-appropriation is a custom of international law formed following

191. The prohibition of national ownership remains ambiguous, although it is enshrined in

211. Article 11 is of fundamental importance in the whole discussion on lunar exploitation

A. Facilitate the commercial exploration and utilisation of space resources to meet

A. The allocation of responsibilities relating to the exploration and utilisation of space

A. Shall avoid causing harmful interference in outer space;

278. By allowing commercial organisations to extract and conserve resources in outer

283. Recent developments in space technologies foreshadow a substantial reduction in

289. In a push to diversify Luxembourg’s investment funds and banking dominated

294. The signing of a “Memorandum of Understanding” between Luxembourg and the

311. Antarctica is a condominium326. In international law, a condominium (plural either

a. The Antarctic Treaty System

320. Those articles illustrate Antarctica’s protected status. It is interesting to understand

b. The Protocol on Environmental Protection to the Antarctic Treaty

385. Is the principle of national non-appropriation of space and these resources

Treaties and International Agreements