The Exploitation of Natural Resources of the Moon and Other Celestial Bodies: A Proposal for a Legal Regime (4) (Studies in Space Law)

the Exploitation Of Natural Resources Of The Moon And Other Celestial Bodies Represents One Of The Most Fascinating Developments In The Fields Of Space Law And Space Related Activities. The Mining And Use Of Extraterrestrial Mineral Resources May Not Only Contribute To The Betterment Of Conditions Of People On Earth But May Also Enable The Realization Of Projects Such As Those Envisaging A Permanent Human Presence On The Surface Of The Moon And Other Celestial Bodies. the Exploitation Of Lunar And Other Celestial Bodies’ Resources, However, Requires An Appropriate Legal Framework For It To Develop In An Orderly And Peaceful Manner, Taking Into Consideration Also Such Broader Public Concerns As Regards Security, Safety And The Environment. The Current Legal Regime Regulating Activities In Outer Space Lacks The Required Specific Rules To Govern The Extraction And Use Of Natural Resources Of The Moon And Other Celestial Bodies Once Being Removed From Their Original Location. This Book Tries To Fill This Gap By Proposing A Legal Regime Aimed At Regulating The Mining And Exploitation Of Extraterrestrial Natural Resources For Commercial Purposes. BRILL Contents 8 Acknowledgments 16 Abbreviations 18 Chapter 1. Introduction 20 1.1. The exploitation of natural resources of the Moon and other celestial bodies: a new opportunity of development for mankind 20 1.2. Space law and the natural resources of the Moon and other celestial bodies: the need for a legal regime 22 1.3. The natural resources of the Moon and other celestial bodies 24 1.4. Overview of the analytical framework 25 Chapter 2. The Outer Space Treaty, the Moon Agreement and the 1996 Declaration on Space Benefits 28 2.1. Introduction 28 2.1.1. The background to the discussion on the legal status of outer space 28 2.1.2. Legal scholars and the status of outer space 29 2.1.3. The United Nations and outer space: defining the legal status of outer space in the period 1958–1966 33 2.2. The Outer Space Treaty 37 2.2.1. Background and importance of the Outer Space Treaty 37 2.2.2. Article I of the Outer Space Treaty 39 2.2.3. The principle of freedom of exploration and use 40 2.2.4. The principle of the exploration and use of outer space for the benefit and in the interest of all countries, and the 'province of all mankind' concept 42 2.2.5. Article II of the Outer Space Treaty 45 2.2.6. The application of the 'non-appropriation' principle to private operators and outer space resources 48 2.2.7. Articles VI and VII of the Outer Space Treaty 52 2.3. Th e Moon Agreement 57 2.3.1. Background and importance of the Moon Agreement 57 2.3.2. The 1979 Moon Agreement and the Outer Space Treaty 60 2.3.3. The 'Common Heritage of Mankind' concept and the natural resources of the Moon 64 2.4. The 1996 UNGA Declaration on Space Benefits 80 2.4.1. Introduction 80 2.4.2. The roots of the 1996 Declaration on Space Benefits: the developing States' interpretation of Article I of the Outer Space Treaty 81 2.4.3. The draft ing history of the 1996 Declaration on Space Benefits 84 2.4.4. The 1996 Declaration on Space Benefits 96 2.4.5. Conclusion: what is the value of the 1996 Declaration on Space Benefits? 97 2.5. Conclusion 100 Chapter 3. The Common Heritage of Mankind 104 3.1. Introduction 104 3.2. The 'Common Heritage of Mankind': a new way for managing common areas beyond national jurisdiction 106 3.3. The origin and evolution of the 'Common Heritage of Mankind' concept 110 3.3.1. Introduction 110 3.3.2. From 1967 to 1971 111 3.3.3. 1972–1974: new elements in the 'Common Heritage of Mankind' concept 117 3.3.4. 1975–1979: further development of the 'Common Heritage of Mankind' concept 118 3.3.5. The 1980's: the decline of the 'Common Heritage of Mankind' concept 123 3.3.6. 1980–1982: the failure of the 1982 Law of the Sea Convention 123 3.3.7. The 1990's: a second chance for the 'Common Heritage of Mankind' 129 3.3.8. The 1994 Implementation Agreement 135 3.3.9. The 'Common Heritage of Mankind' and the Moon Agreement 137 3.3.10. The emergence of a new interpretation of the 'Common Heritage of Mankind' concept 142 3.4. The legal status of the 'Common Heritage of Mankind' concept: 'Mankind' as a new subject of international law? 145 3.5. Conclusion 148 Chapter 4. The management of international areas and their limited natural resources: the examples of Antarctica and ITU 150 4.1. Introduction 150 4.2. Antarctica 151 4.2.1. The origins of the Antarctic Treaty System 151 4.2.2. The road to the Antarctic Treaty 153 4.2.3. The 1959 Antarctic Treaty 155 4.2.4. The Antarctic Treaty and the Outer Space Treaty 158 4.2.5. The Convention on the Regulation of Antarctic Mineral Resources 160 4.2.6. The Protocol on Environmental Protection to the Antarctic Treaty 174 4.2.7. The Convention on the Regulation of the Antarctic Natural Resources: a lesson for the extraterrestrial resources regime? 178 4.3. The geostationary orbit 182 4.3.1. Exploiting the geostationary orbit 182 4.3.2. The geostationary orbit and the frequency spectrum as limited natural resources? 183 4.3.3. The allocation system of the orbit/ spectrum resource 187 4.3.4. The limits and problems of the current methods of orbit/spectrum allocation 201 4.3.5. The ITU procedures for the management and allocation of the orbit/spectrum resource: a valuable example for the extraterrestrial resources regime? 206 Chapter 5. Property rights in outer space: a crucial issue in the wake of the commercialisation of outer space and its resources 212 5.1. Introduction 212 5.2. Immovable and movable property rights in outer space 215 5.3. The myth of immovable property rights in outer space: some preliminary considerations 216 5.3.1. The non-appropriative nature of outer space: rejecting claims to immovable property rights in outer space 217 5.3.2. Private claims of ownership and immovable property rights over the Moon and other celestial bodies 221 5.3.3. Individual claims of the Moon and market of extraterrestrial properties: the example of Lunar Embassy and the case of Nemitz versus the United States 222 5.3.4. Space commercialization versus the nonappropriation principle: the issue of property rights over natural resources in outer space 230 5.3.5. Conclusion 236 5.4. Movable property rights in outer space: the legal regime governing extraterrestrial natural resources 237 5.4.1. Resource appropriation and use under the Outer Space Treaty 239 5.4.2. Resource appropriation and use under the Moon Agreement 244 5.5. Conclusion 250 Chapter 6. Elements of a legal regime to govern the commercial exploitation of extraterrestrial resources 252 6.1. Introduction: is there a need for a dedicated legal regime? 252 6.2. Underlying foundations of the legal regime required 257 6.3. General characteristics of the legal regime required 260 6.4. Legal nature of the legal regime required: towards an international agreement 261 6.5. Purpose and main principles of the proposed Agreement 263 6.6. The institutional part of the Agreement 265 6.6.1. The International Space Authority 265 6.6.2. Characteristics of the International Space Authority 265 6.6.3. The Assembly 266 6.6.4. The Council 268 6.6.5. Membership of and decision-making in the Council 269 6.6.6. The Technical and Legal Committee 271 6.6.7. Financing the Authority 272 6.7. The exploitation of lunar resources: applicable rules and licensing procedure 273 6.7.1. The exploration of the lunar and other celestial bodies' surface: general considerations 273 6.7.2. Legal aspects of the exploration phase 274 6.7.3. The application procedure 276 6.7.4. The submission of an exploitative working plan 276 6.7.5. Review of the plan 278 6.7.6. The license 279 6.8. The liability regime applicable to the exploitation of extraterrestrial resources 282 6.8.1. The Liability Convention and the exploitation of lunar and other celestial bodies' resources 283 6.8.2. Liability for damage caused to the space environment 286 6.9. The proposed dispute settlement mechanism 288 6.9.1. The need for a dispute settlement mechanism: general introduction 288 6.9.2. The WTO dispute settlement mechanism: general aspects 291 6.9.3. The procedure for the settlement of disputes 293 6.9.4. First stage 293 6.9.5. Second stage 294 6.9.6. Third stage 296 6.9.7. Appeal 296 6.9.8. After the DSB ruling 297 6.10. The dispute settlement mechanism of the proposed legal regime 297 6.11. The exploitation of lunar resources for the benefit of all mankind 300 Chapter 7. Conclusion 306 Annexes 310 Annex 1. Draft International Agreement on the exploitation of natural resources of the Moon and other celestial bodies 312 Annex 2. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 330 Annex 3. Convention on International Liability for Damage Caused by Space Objects 338 Annex 4. Convention on Registration of Objects Launched into Outer Space 350 Annex 5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 356 Annex 6. 1962 (XVIII). Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space 368 Legal documents 372 Treaties and conventions 372 Declarations, principles and documents 374 Case Law 378 Bibliography 380 Books 380 Articles 384 Internet and web-based sources 397 Index 398 ISBN-13:,9789004175358 La 4e de couv. indique : "The exploitation of natural resources of the moon and other celestial bodies represents one of the most fascinating developments in the fields of space law and space related activities. The mining and use of extraterrestrial mineral resources may not only contribute to the betterment of conditions of people on earth but may also enable the realization of projects such as those envisaging a permanent human presence on the surface of the moon and other celestial bodies. The exploitation of lunar and other celestial bodies resources, however, requires an appropriate legal framework for it to develop in an orderly and peaceful manner, taking into consideration also such broader public concerns as regards security, safety and the environment. The current legal regime regulating activities in outer space lacks the required specific rules to govern the extraction and use of natural resources of the moon and other celestial bodies once being removed from their original location. This book tries to fill this gap by proposing a legal regime aimed at regulating the mining and exploitation of extraterrestrial natural resources for commercial purposes." "The purpose of this book is to propose a legal regime to govern the exploitation of natural resources of the Moon and other celestial bodies. Considering, on the one side, the interest shown by States and private operators to extract and use extraterrestrial natural resources and, on the other, the absence of specific rules dealing with such an option, the establishment of a legal framework to regulate the exploitation of natural resources of the Moon and other celestial bodies is needed so as to ensure its peaceful, safe and orderly development."--Publisher's blurb