The lawfulness of space mining activities

by Louis de Gouyon Matignon

under the supervision of Prof. Jean-Pierre Desideri

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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

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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.

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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

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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

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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

Outer Space of 1976.

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.

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Remote Sensing Principles: Principles Relating to Remote Sensing of the Earth from

Outer Space of 1986.

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/

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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.

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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

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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.

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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

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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

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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 https://www.spacelegalissues.com/the-origins-of-the-space-age/

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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 https://www.spacelegalissues.com/the-origins-of-the-space-age/ 27 https://www.spacelegalissues.com/the-origins-of-the-space-age/ 28 https://en.wikipedia.org/wiki/History_of_spaceflight

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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 https://www.spacelegalissues.com/the-origins-of-the-space-age/ 31 https://www.nasa.gov/centers/kennedy/about/history/spacehistory_toc.html 32 https://www.iislweb.org/website/docs/2010keynote.pdf 33 https://www.spacelegalissues.com/the-origins-of-the-space-age/ 34 https://www.iislweb.org/website/docs/2010keynote.pdf

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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/

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(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 Space Law: A Treatise, Francis Lyall and Paul B. Larsen, 2007.

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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 194442. 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/

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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 https://www.iislweb.org/website/docs/2010keynote.pdf 45 Space Law: A Treatise, Francis Lyall and Paul B. Larsen, 2007. 46 Space Law: A Treatise, Francis Lyall and Paul B. Larsen, 2007.

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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/

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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 https://en.wikipedia.org/wiki/United_Nations_Committee_on_the_Peaceful_Uses_of_Outer_Space 54 http://www.unoosa.org/pdf/gares/ARES_14_1472E.pdf 55 https://en.wikipedia.org/wiki/United_Nations_Committee_on_the_Peaceful_Uses_of_Outer_Space

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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 it58,

“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 Space Law: A Treatise, Francis Lyall and Paul B. Larsen, 2007. 59 Space Law: A Treatise, Francis Lyall and Paul B. Larsen, 2007.

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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.

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014. 66 PAUL D. SPUDIS, THE VALUE OF THE MOON: HOW TO EXPLORE, LIVE, AND PROSPER IN SPACE USING THE MOON’S RESOURCES (2016). 67 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 68 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970).

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 70 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 responsabilite

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 space74. 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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 74 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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 PAUL D. SPUDIS, THE VALUE OF THE MOON: HOW TO EXPLORE, LIVE, AND PROSPER IN SPACE USING THE MOON’S RESOURCES (2016).

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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

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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

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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 Act82, 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

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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/

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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.

38

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 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 88 https://www.spacelegalissues.com/opinio-juris-sive-necessitatis/ 89 https://www.britannica.com/event/Outer-Space-Treaty

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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/

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 95 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014. 96 M. COUSTON, L’émergence des activités spatiales à vocation économique et l’évolution du droit de l’espace, Thèse.

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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 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 99 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970).

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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 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970). 101 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 102 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 103 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 104 https://undocs.org/A/RES/1884(XVIII)

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 107 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 108 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 111 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 112 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 114 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE.

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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 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 2018. 116 HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW (11 ed. 1952). 117 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 118 https://iislweb.org/docs/NewPerspectivesonSpaceLaw.pdf

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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 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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 space121. 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

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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 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 124 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970). 125 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 2018.

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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 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE. 128 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 129 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 131 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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.

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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

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been established in order to avoid any discrimination between space and non-space powers,

it is clearly more political than legal.

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 135 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 136 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 137 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 139 https://www.spacelegalissues.com/the-lawfulness-of-extraterrestrial-real-estate/ 140 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970).

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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 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 142 https://www.spacelegalissues.com/space-law-the-res-communis-concept-in-space-law/ 143 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 2018. 144 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 145 https://en.wikipedia.org/wiki/Res_communis 146 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 147 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 2018.

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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 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 150 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil 151 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE. 153 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 154 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970). 155 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE. 156 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 158 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 159 https://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf 160 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 2018. 163 https://www.researchgate.net/publication/269792693_From_Terra_Nullius_to_Terra_Communis_in_advance 164 https://www.spacelegalissues.com/the-lawfulness-of-extraterrestrial-real-estate/

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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 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 166 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-space-law/ 167 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970). 168 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 169 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil 170 https://www.spacelegalissues.com/the-lawfulness-of-extraterrestrial-real-estate/

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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 https://www.spacelegalissues.com/the-lawfulness-of-extraterrestrial-real-estate/ 172 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 174 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 175 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE. 176 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014.

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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 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.

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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

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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.

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 181 http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html 182 https://www.spacelegalissues.com/the-1979-moon-agreement/ 183 https://www.spacelegalissues.com/the-1979-moon-agreement/ 184 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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 https://www.spacelegalissues.com/the-1979-moon-agreement/ 186 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 187 http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html 188 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 https://www.spacelegalissues.com/the-1979-moon-agreement/

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 required192.

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 RICKY LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2014). 192 https://www.spacelegalissues.com/the-1979-moon-agreement/ 193 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 194 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil

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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 convention197. 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 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil 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 https://www.spacelegalissues.com/the-1979-moon-agreement/ 198 RICKY LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2014).

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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 RICKY LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2014). 200 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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

heritage of mankind.

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 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil 202 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 203 https://www.spacelegalissues.com/the-1979-moon-agreement/ 204 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 205 https://www.un.org/depts/los/convention_agreements/convention_20years/Montego%20Bay.htm 206 https://www.isa.org.jm/

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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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 210 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 212 https://www.spacelegalissues.com/the-1979-moon-agreement/ 213 https://www.spacelegalissues.com/space-law-the-outer-space-treaty-of-1967-and-the-main-principles-of-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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 218 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - CHARLES CHAUMONT (1960 - 1970). 219 https://www.spacelegalissues.com/the-1979-moon-agreement/ 220 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 222 RICKY LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2014). 223 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 224 https://www.spacelegalissues.com/the-1979-moon-agreement/ 225 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 226 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.

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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

heritage of mankind.

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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 228 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014. 229 COLOGNE COMMENTARY ON SPACE LAW, 1 (STEPHAN HOBE, BERNHARD SCHMIDT-TEDD, & KAI-UWE SCHROGL eds., 2009). 230 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 231 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE. 232 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 234 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 235 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 States239 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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 237 PAUL D. SPUDIS, THE VALUE OF THE MOON: HOW TO EXPLORE, LIVE, AND PROSPER IN SPACE USING THE MOON’S RESOURCES (2016). 238 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 239 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 240 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf

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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 PAUL D. SPUDIS, THE VALUE OF THE MOON: HOW TO EXPLORE, LIVE, AND PROSPER IN SPACE USING THE MOON’S RESOURCES (2016). 242 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 244 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991). 245 https://www.spacelegalissues.com/the-1979-moon-agreement/ 246 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.

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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 https://www.spacelegalissues.com/the-1979-moon-agreement/ 248 https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1845&context=jil 249 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016).

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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.

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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 resources253. 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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 252 https://www.airbus.com/public-affairs/brussels/our-topics/space/new-space.html 253 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE.

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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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 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.

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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.

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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 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014. 260 https://en.wikipedia.org/wiki/Commercial_Space_Launch_Competitiveness_Act_of_2015

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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 https://en.wikipedia.org/wiki/Commercial_Space_Launch_Competitiveness_Act_of_2015 262 https://www.congress.gov/bill/114th-congress/house-bill/2262 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 http://www.qil-qdi.org/regulation-space-resource-rights-meeting-needs-states-private-parties/

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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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 267 https://www.congress.gov/bill/114th-congress/house-bill/2262 268 http://www.qil-qdi.org/regulation-space-resource-rights-meeting-needs-states-private-parties/

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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 https://www.congress.gov/bill/114th-congress/house-bill/2262 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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.

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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 not274. It

may well be that other countries are also starting to follow their own legislation, even though,

272 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 273 https://spacenews.com/lunar-exploration-providing-new-impetus-for-space-resources-legal-debate/ 274 https://spacenews.com/lunar-exploration-providing-new-impetus-for-space-resources-legal-debate/

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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 https://spacenews.com/lunar-exploration-providing-new-impetus-for-space-resources-legal-debate/ 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.

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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 https://www.wired.com/story/luxembourg-asteroid-mining/ 282 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.

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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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 284 https://www.wired.com/story/luxembourg-asteroid-mining/ 285 https://www.reuters.com/article/us-luxembourg-russia-space/russia-wants-to-join-luxembourg-in-space-mining-idUSKCN1QN1OQ 286 https://space-agency.public.lu/en/space-resources.html

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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 https://space-agency.public.lu/en/space-resources.html 288 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 289 https://space-agency.public.lu/en/space-resources.html 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 bases297.

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 https://space-agency.public.lu/en/space-resources.html 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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 295 https://www.wired.com/story/luxembourg-asteroid-mining/ 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/

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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 https://www.wired.com/story/luxembourg-asteroid-mining/ 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 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014. 301 L’ESSENTIEL DU DROIT INTERNATIONAL PUBLIC, 9E ÉDITION, CATHERINE ROCHE, GUALINO - LES CARRÉS, 2018. 302 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 303 VINCENT GRELLIERE, COURS DE DROIT AÉRIEN ET SPATIAL, UNIVERSITÉ DE TOULOUSE.

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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.

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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 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017. 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 https://www.spacelegalissues.com/the-1979-moon-agreement/ 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 https://www.spacelegalissues.com/space-law-the-lawfulness-of-mining-activities-in-antarctica/ 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/

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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

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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 zones327.

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

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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

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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

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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”.

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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 science349.

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

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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.

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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

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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”.

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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.

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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,

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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

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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

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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 http://www.unoosa.org/pdf/publications/STSPACE11E.pdf 383 https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123 384 https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123 385 https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123 386 https://en.wikipedia.org/wiki/Convention_on_the_Regulation_of_Antarctic_Mineral_Resource_Activities

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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 https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123

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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”.

348. Article 6 of the Convention on the Regulation of Antarctic Mineral Resource Activities

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.

351. Article 8 of the Convention on the Regulation of Antarctic Mineral Resource Activities

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 https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123 389 https://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=123

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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”.

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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 20th 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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 395 https://www.spacelegalissues.com/the-convention-on-the-high-seas/

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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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 398 https://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm

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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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 403 http://legal.un.org/avl/ha/gclos/gclos.html 404 http://www.armateursdefrance.org/sites/default/files/publications/montego_juin18.pdf

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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 https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea 406 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 410 http://legal.un.org/avl/ha/gclos/gclos.html

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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 https://www.spacelegalissues.com/the-convention-on-the-high-seas/ 413 https://www.iflscience.com/space/who-owns-space-us-asteroid-mining-act-dangerous-and-potentially-illegal/ 414 https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea 415 https://www.britannica.com/topic/International-Seabed-Authority 416 https://en.wikipedia.org/wiki/International_Seabed_Authority

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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 zone417. The

Authority is not only in charge of an activity, but also have to assume its responsibility418.

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 https://www.britannica.com/topic/International-Seabed-Authority 419 https://www.spacelegalissues.com/the-united-nations-convention-on-the-law-of-the-sea/ 420 https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea 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 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 423 https://www.britannica.com/topic/International-Seabed-Authority

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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 https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea 427 https://www.spacelegalissues.com/the-united-nations-convention-on-the-law-of-the-sea/

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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 https://en.wikipedia.org/wiki/International_Seabed_Authority 429 https://www.britannica.com/topic/International-Seabed-Authority 430 https://www.isa.org.jm/

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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 https://www.spacelegalissues.com/the-united-nations-convention-on-the-law-of-the-sea/ 432 https://en.wikipedia.org/wiki/International_Seabed_Authority 433 https://www.britannica.com/topic/International-Seabed-Authority

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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 https://www.isa.org.jm/ 435 https://en.wikipedia.org/wiki/International_Seabed_Authority 436 https://www.britannica.com/topic/International-Seabed-Authority 437 http://www.csh-ci.org/doc/Convention%20de%20Montego%20Bay%20sur%20le%20Droit%20de%20la%20mer.pdf 438 https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_fr 439 https://en.wikipedia.org/wiki/International_Seabed_Authority

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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 https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea

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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 https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_fr

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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 QUE SAIS-JE ? - LE DROIT DE L’ESPACE - PRESSES UNIVERSITAIRES DE FRANCE - PIERRE-MARIE MARTIN (1991).

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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 RICKY LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER SPACE (2014). 447 http://www.thespacereview.com/article/3256/1 448 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT: THE MEANING OF THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION (2016). 449 LETERRE, GABRIELLE. PROVIDING A LEGAL FRAMEWORK FOR SUSTAINABLE SPACE MINING ACTIVITIES, UNIVERSITY OF LUXEMBOURG, SEPTEMBER 2017.

140

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 practices453.

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 DROIT SPATIAL, MIRELLE COUSTON, MISE AU POINT - ELLIPSES, 2014. 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_html/AC105_C2_2018_CRP18E.pdf

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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.

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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

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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

144

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.

145

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/

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CECILE GAUBERT ET SYLVAIN DEVOUGE, Pratiques juridiques dans l’industrie aéronautique et spatiale, Risques et assurances de responsabilité civile spatiale, Editions A. Pedone, 2014.

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CHAUVIN JOHANNA, FORSTER Fréderic, Les principes du droit de l’espace : pour un espace sacralisé, Lexing, 8 novembre 2018.

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GOSSET OLIVIER, Un accord belgo-luxembourgeois pour l’exploitation des ressources spatiales ; L’Echo ; 23 janvier 2019, en ligne à l’adresse : https://www.lecho.be/economie-politique/europe/general/un-accord-belgo-luxembourgeois-pour-l-exploitation-des-ressources-spatiales/10090134.html.

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KARLEN JEROME, L’exploitation des ressources spatiales, un nouvel eldorado ; 24 Matins ; 21 décembre 2018, en ligne à l’adresse : https://www.24matins.fr/lexploitation-des-ressources-spatiales-un-nouvel-eldorado-944531.

KERREST ARMEL, Droit de l’espace. Droit des activités spatiales. Quelques définitions et remarques sur une approche pluridisciplinaire, en ligne à l’adresse : http://www.unoosa.org/pdf/pres/lsc2007/symp-02-1F.pdf.

KHALATBARI AZAR, La Lune est-elle à vendre ?, Science et avenir, 18 février 2015, en ligne à l’adresse : https://www.sciencesetavenir.fr/espace/la-lune-est-elle-a-vendre_34485.

Le Luxembourg, pionnier de l’exploitation des ressources spatiales ; Tends Tendances ; 13 juillet 2017, en ligne à l’adresse : https://trends.levif.be/economie/entreprises/le-luxembourg-pionnier-de-l-exploitation-des-ressources-spatiales/article-normal-693031.html?cookie_check=1554050462.

VINCENT RICOULEAU, Professeur de droit, “La loi luxembourgeoise autorisant l’exploitation des ressources de l’espace”. Village Justice, 18/08/2017, https://www.village-justice.com/articles/loi-luxembourgeoise-autorisant-exploitation-des-ressources-espace-par-vincent,25663.html.

Public Law 114–90; U.S. COMMERCIAL SPACE LAUNCH COMPETITIVENESS ACT; The term ‘space resource’ means an abiotic resource in situ in outer space; TITLE IV; ‘CHAPTER 513; § 51301; p°19; 25 novembre 2015 https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf.

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FABIO TRONCHETTI, The Space Resource Exploration and Utilization Act: A move forward or a step back?, 34 JSPA SPACE POLICY 6–10 (2015).

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KARL LEIB, State Sovereignty in Space: Current Models and Possible Futures, 13 ASTROPOLITICS 1–24 (2015).

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LESLIE I. TENNEN, Enterprise Rights and the Legal Regime for Exploitation of Outer Space Resources, 47 MCGEORGE LAW REVIEW 281–299 (2015).

MARIAM YUZBASHYAN, Interaction between Diverse Sources of Law Applicable to Legal Challenges Caused by Commercial Space Activities, 55 INTERNATIONAL INSTITUTE OF SPACE LAW 74–91 (2012).

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Miscellaneous

Asteroid mining plans revealed by Planetary Resources, Inc., PLANETARY RESOURCES (2012), http://www.planetaryresources.com/2012/04/asteroid-mining-plans-revealed-by-planetary-resources-inc/.

ASTEROID RETRIEVAL FEASIBILITY STUDY, 8 (2012), http://kiss.caltech.edu/study/asteroid/asteroid_final_report.pdf.

ATTILA MATTAS, SEMINAR ON THE EUROPEAN FRAMEWORK ON ELECTRONIC COMMUNICATIONS (2017).

BERNARD FOING, EARTH-MOON SYSTEM THE MOON; ESA’S INTERACTIVE GUIDE, https://lunarexploration.esa.int/#/explore/science/225?oa=257.

COSPAR, https://cosparhq.cnes.fr/.

COSPAR, COSPAR Planetary Protection Policy (2008) http://cosparhq.cnes.fr/Scistr/Pppolicy.htm.

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ETIENNE SCHNEIDER about the Importance of the Legal and Regulatory Framework of the Luxembourg, SPACERESOURCES.LU (2017), https://www.facebook.com/SpaceResources.lu/videos/1842846859363340/.

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Slate: http://www.slate.fr/story/169512/espace-asteroides-exploitation-miniere-metaux-precieux-terres-rares.

Deep space industries: http://deepspaceindustries.com.

Asteroid mining corporation: https://asteroidminingcorporation.co.uk.

Planetary resources: https://www.planetaryresources.com.

Mission Hayabusa 2: https://mascot.cnes.fr/fr/MASCOT/Fr/GP_mission.htm.

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Podcast sur France Culture en date du 30 décembre 2017, en ligne à l’adresse : https://www.franceculture.fr/emissions/affaires-etrangeres/lexploitation-de-lespace.

Lunar Embassy : https://lunarembassy.com.

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Luxembourg to launch framework to support the future use of space resources, GOUVERNEMENT.LU (2016), http://www.gouvernement.lu/5653386/03-space-resources.

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Podcasts

Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 1 - Christopher Hearsey - 19/12/2018.

156

Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 2 - Elsbeth Magilton - 15/01/2019.

Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 3 - Laura Montgomery - 29/01/2019.

Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 4 - Diane Howard - 12/02/2019.

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 Harrington - 26/03/2019.

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 Burnett - 30/07/2019.

Astro, Esq. | What Space Law Offers the World, by Nathan Johnson - Episode 12 - Charity Weeden - 13/08/2019.

BBC World Service - 13 Minutes to the Moon - T-minus 4 - 12/04/2019.

BBC World Service - 13 Minutes to the Moon - T-minus 3 - 22/04/2019.

BBC World Service - 13 Minutes to the Moon - T-minus 2 - 26/04/2019.

BBC World Service - 13 Minutes to the Moon - T-minus 1 - 29/04/2019.

BBC World Service - 13 Minutes to the Moon - Ep.01 - We choose to go - 12/05/2019.

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.

157

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.

BBC World Service - Space - The First Woman in Space - 21/12/2015.

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.

158

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.

159

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.

160

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.

161

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.

162

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.

France Culture - CULTURES MONDE par Florian Delorme - Un peu plus près des étoiles… (1/4) - Chine vs États-Unis : Viser la lune pour dominer la Terre ? - 08/04/2019.

France Culture - CULTURES MONDE par Florian Delorme - Un peu plus près des étoiles… (4/4) - Que nous apprend l’exploration spatiale ? - 11/04/2019.

France Culture - CULTURES MONDE par Florian Delorme - Un peu plus près des étoiles… (2/4) - 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.

163

France Culture - CULTURESMONDE par Florian Delorme - Les nouveaux aventuriers de l’espace (3/4) - De l’Inde au Japon : la constellation des nouvelles puissances - 18/03/2015.

France Culture - CULTURESMONDE par Florian Delorme - Les nouveaux aventuriers de l’espace (1/4) - Le privé dans la course aux étoiles - 16/03/2015.

France Culture - CULTURESMONDE par Florian Delorme - Les nouveaux aventuriers de l’espace (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.

France Culture - DE CAUSE À EFFETS, LE MAGAZINE DE L’ENVIRONNEMENT par Aurélie Luneau - La voix est libre avec… Guillaume Nery - 13/01/2019.

France Culture - DE CAUSE À EFFETS, LE MAGAZINE DE L’ENVIRONNEMENT par Aurélie Luneau - 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.

164

France Culture - ENTENDEZ-VOUS L’ÉCO ? par Maylis Besserie - Économie de l’espace (2/4) - Vers l’industrie et au-delà - 24/04/2018.

France Culture - ENTENDEZ-VOUS L’ÉCO ? par Maylis Besserie - Économie de l’espace (4/4) - L’esprit de conquête - 26/04/2018.

France Culture - ENTENDEZ-VOUS L’ÉCO ? par Maylis Besserie - Économie de l’espace (3/4) - 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.

France Culture - ENTENDEZ-VOUS L’ÉCO ? par Tiphaine de Rocquigny - L’économie de l’aviation (1/4) - La conquête du ciel - 08/04/2019.

France Culture - ENTENDEZ-VOUS L’ÉCO ? par Tiphaine de Rocquigny - L’économie de l’aviation (3/4) - Low cost, le ciel à prix réduits - 10/04/2019.

France Culture - ENTENDEZ-VOUS L’ÉCO ? par Tiphaine de Rocquigny - L’économie de 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.

165

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.

166

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.

167

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.

168

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.

169

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.

170

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.

171

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.

172

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.

173

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.

174

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.

175

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.

176

Paris 1 Panthéon-Sorbonne - Droit constitutionnel et institutions politiques (CAVEJ, Michel Verpaux, 2010) - L’État et le pouvoir.

Paris 1 Panthéon-Sorbonne - Droit constitutionnel et institutions politiques (CAVEJ, Michel Verpaux, 2010) - La Constitution.

Paris 1 Panthéon-Sorbonne - Droit constitutionnel et institutions politiques (CAVEJ, Michel Verpaux, 2010) - La démocratie.

Paris 1 Panthéon-Sorbonne - Droit constitutionnel et institutions politiques (CAVEJ, Michel Verpaux, 2010) - Les régimes politiques.

Paris 1 Panthéon-Sorbonne - Droit constitutionnel et institutions politiques (CAVEJ, Michel 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.

177

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.

RFI - Chronique Espace - Patrick Chompré : La Terre vue par les satellites - 21/12/2013.

RFI - Chronique Espace - Patrick Chompré : Le champ magnétique terrestre - 16/11/2013.

RFI - Chronique Espace - Patrick Chompré : Le mystère autour de la « Zone 51 » - 07/09/2013.

RFI - Chronique Espace - Patrick Chompré : Le nouveau télescope géant européen sera installé au Chili - 28/06/2014.

RFI - Chronique Espace - Patrick Chompré : Le point sur la mission chinoise Chang’E3 - 22/02/2014.

RFI - Chronique Espace - Patrick Chompré : Le satellite Gaia - 27/07/2013.

RFI - Chronique Espace - Patrick Chompré : Le satellite Sentinel-2A bientôt sur orbite - 28/02/2015.

RFI - Chronique Espace - Patrick Chompré : Le secteur spatial russe : un nouveau départ ? - 13/09/2014.

RFI - Chronique Espace - Patrick Chompré : Le succès de l’astronomie participative - 13/12/2014.

RFI - Chronique Espace - Patrick Chompré : Le système de balise Argos - 30/03/2013.

RFI - Chronique Espace - Patrick Chompré : Les débris spatiaux - 10/08/2013.

RFI - Chronique Espace - Patrick Chompré : Les métaux précieux des astéroïdes - 16/03/2013.

RFI - Chronique Espace - Patrick Chompré : Les pôles magnétiques du Soleil - 04/01/2014.

RFI - Chronique Espace - Patrick Chompré : Les spectaculaires aurores boréales de cet hiver - 21/02/2015.

RFI - Chronique Espace - Patrick Chompré : Mars express : 10 ans déjà - 08/06/2013.

RFI - Chronique Espace - Patrick Chompré : Mission Shenzou X - 15/06/2013.

RFI - Chronique Espace - Patrick Chompré : Russie : crash d’une fusée au décollage - 06/07/2013.

RFI - Chronique Espace - Patrick Chompré : Sagittarius A, « le trou noir de notre galaxie » - 11/05/2013.

RFI - Chronique Espace - Patrick Chompré : Un Français dans l’espace - 23/03/2014.

178

RFI - Chronique Espace - Patrick Chompré : Une fusée africaine vers la Lune - 14/02/2015.

RFI - Chronique Espace - Patrick Chompré : Uwingu propose au public de baptiser les cratères de Mars - 07/06/2014.

RFI - Chronique Espace - Patrick Chompré : Virgin Galactic, après l’accident - 06/12/2014.

The Guardian - Today in Focus - The new space race - 07/05/2019.

Thinkerview - Interview de Jacques Blamont - 30/01/2013.

Thinkerview - P. Servigne & J. Blamont : Introduction au siècle des menaces - 18/10/2018.

UN Web TV - The United Nations Live & On Demand - Dr. Géraldine Goh Escolar on Introduction to International Space Law - Audiovisual Library of International Law, 25/08/2018.

UN Web TV - The United Nations Live & On Demand - Dr. Géraldine Goh Escolar on Jurisdiction and Control over Space Objects - Audiovisual Library of International Law, 25/08/2018.

UN Web TV - The United Nations Live & On Demand - Dr. Géraldine Goh Escolar on Non-Appropriation and Sovereignty in Outer Space - Audiovisual Library of International Law, 25/08/2018.