A Reexamination International Space Law and Space Mining

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A RE-EXAMINATION OF FUNDAMENTAL
PRINCIPLES OF INTERNATIONAL SPACE
LAW AT THE DAWN OF SPACE MINING
FengnaXu,* Jinyuan Su** & Miqdad Mehdi***+
ABSTRACT
When the Outer Space Treaty and Moon Agreement were con-
cluded, there existed no urgency to regulate space resources extrac-
tion activities. Four decades thereafter, technological development
makes the exploitation and use of space resources not only possible,
but likely a reality in the near future. At present, both governments
and ambitious private actors are engaged in the development of
technologies for space mining activities. The United States and
Luxembourg have enacted domestic legislation to protect property
rights over the resources to be extracted. Consequently, given that
the context in which the Outer Space Treaty operates has become
starkly different from the one in which it was conceived, there is an
urgent need for a new international regime to regulate these activ-
ities. Indeed, the international community is trying to create an ap-
propriate legal framework, in fora such as the Legal Subcommittee
of United Nations Committee on the Peaceful Uses of Outer Space
and the Hague Space Resources Governance Working Group. But
before instigating such a regime, it is important to examine the con-
tents of the Outer Space Treaty, the Magna Carta of international
outer space law, especially the four fundamental principles most
relevant to space mining, including the freedom of exploration and
use, non-appropriation, common benefit and interests and environ-
mental protection. This Article analyzes these fundamental
PhD candidate, The Silk Road Institute of International Law, School of Law, Xi'an
Jiaotong University, [email protected].
Professor specializing in space law, School of Law, Xi'an Jiaotong University,
[email protected].
*** PhD candidate, The Silk Road Institute of International Law, School of Law, Xi'an
Jiaotong University, [email protected].
+ This paper is a fully revised and updated version of a paper with the same title
which was presented at the 2019 China Space Conference, Changsha, China, April 2019.
1
2 JOURNAL OF SPACE LAW [VOL. 44.1
principles of international space law, bearing in mind today's new

circumstances where the mining of space resources is becoming fea-
sible, so as to shed some light on their application in the context of
space mining. It is submitted that the international community
should cooperate to establish a legal framework on space resources
activities.
I. INTRODUCTION
At the dawn of the space age, many expected that outer space
would be used only for peaceful purposes and in the interest of all
humankind. After several years of deadlock in the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS), the ur-
gent need for a space treaty arose partly due to the great strides
humanity was making towards landing on the Moon in the mid-
1960s. 1 Recognizing the need to establish a regime in outer space
before national interests developed and froze positions on the mat-
ter, the Union of Soviet Socialist Republics (Soviet Union) and the
United States (US) tended to agree on proposals about the initial
principles of space legislation. 2 Eventually, the Outer Space Treaty
(OST)3 was concluded with both nations making important conces-
sions. The OST was largely based on the 1963 Declaration of Legal
Principles Governing the Activities of States in the Exploration and
Use of Outer Space (1963 Declaration), 4 but also introduced some
new provisions. Significantly, the OST only precludes States from
appropriating territorial portions of outer space. It never mentions
1 Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on Its
Fifth Session, 44th mtg., U.N. Doc. A/AC.105/PV.44, at 20 (Oct. 25, 1966); Comm. on the
Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. On Its Fifth Session, 72nd
mtg., U.N. Doc A/AC.105/C.2/SR.72, at 3 (Oct. 19, 1966) (The US delegation noted that
"[i]t was important to establish a universally accepted regime of law before the first land-
ing was mode on the moon.").
2 U.N. Doc. A/AC.105/PV.44, supra note 1, at 20. See also Rep. of the First Comm.
on Its Sixteenth Session, 1214th mtg., U.N. Doc. A/C.1/SR.1214, at 268 (Dec. 11, 1961).
The delegate from the Soviet Union noted that "the debate on the question of the peaceful
uses of outer space had shown that all States were anxious to see the establishment of
international co-operation, on a basis of equality, in that new and important field of hu-
man activity [space]."
3 Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T.
2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
4 G.A. Res. 1962 (XVIII) (Dec. 13, 1963).
2020] LAW AT THE DAWN OF SPACE MINING 3
the exploitation and use of space resources, although the COPUOS

was required to study questions related to the utilization of outer
space and celestial bodies. 5 Consequently, the OST left many non-
space powers unsatisfied as negotiations mostly emphasized demil-
itarization and peaceful uses. 6
As newly independent developing States pushed for the estab-
lishment of a "New International Economic Order" during the late
1960s and early 1970s, they also sought to assure their access to
7
the benefits derived from space exploration and exploitation. Con-
sequently, questions related to the utilization of the resources of the
8
Moon continued to be discussed for several years. But little pro-
gress was made by the Legal Subcommittee (LSC) of COPUOS as,
among other things, some States held it was premature to enact
international legal principles on the matter, 9 and consensus could
not be reached on whether a new treaty should govern just the
Moon or other celestial bodies as well. 10 Astonishingly, the Moon
Agreement (MA) 11 was completed after secret discussion within fif-
teen days. 12 But the MA has only been ratified by eighteen
a This idea was first proposed by France. Rep. of the First Comm. on Its Twenty-
First Session, 1492nd mtg., U.N. Doc. A/C.1/SR.1492, at 430 (Dec. 17, 1966) ("[W]hile the
principles established by the [Outer Space Treaty] would no doubt be easy to apply in
the case of the exploration of space, their application would be more difficulty when State
activities involved exploitation.").
6 BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 358 (1997).
7 Nirav S., Comprehensive Essay on New InternationalEconomic Order (NIEO),
PRESERVE ARTICLES, http://www.preservearticles.comlessay/comprehensive-essay-on-
2
new-international-economic-order-nieo/ 0115 (last visited May 2, 2020).
8 See Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on
Its Eighth Session, Annex I, U.N. Doc. A/AC.105/58, at 4-7 (1969).
9 See e.g., Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm.
on Its Eleventh Session, 187th mtg., A/AC.105/C.2/SR.187, at 3 (May 2, 1972). The Jap-
anese delegation "still had some doubts, however, as to the usefulness of trying to pre-
pare a new treaty in addition to the 1967 Treaty."
10 See e.g., Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm.
on Its Eleventh Session, 188th mtg., U.N. Doc A/AC.105/C.2/SR.188, at 21 (May 3, 1972).
The Austrian delegation noted that "there were differences of opinion as to whether [the
treaty] should apply only to the moon, or to other celestial bodies as well."
11 Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies, Dec. 18, 1979, 1363 U.N.T.S. 3 (1979) [hereinafter Moon Agreement].
12 BIN CHENG, supra note 6, at 361-362. After several futile attempts to address re-
source utilization on the Moon, an informal

working group was established in June 1979 to focus on the matter. After four secret
meetings between June 26 and July 3, 1979, whose proceedings are not published, a draft
treaty relating to the Moon was adopted by consensus without a vote.
4 JOURNAL OFSPACE LAW [VOL. 44.1
countries. 13 After that, the international community failed to make

any progress in developing binding space law at the international
level. For a time this caused no great concern, as it would be nearly
three decades before a State attempted space resources activities.
Over the five decades since the adoption of the OST and four
decades since the negotiation of the MA, the global political and
commercial environment has changed dramatically. Today's world
is no longer dominated by two superpowers and tends to be multi-
polar. Technological innovation has increased the possibility of the
exploitation and use of space resources and greatly reduced the cost
of getting into space. At present, the extraction and use of space
resources is not technically feasible, but is expected to happen in
the near future. It is no longer national prestige, but scientific and
economic opportunities that drive missions to space. Many believe
that space mining could support commercial application, stimulate
technological innovation, produce economic return and give im-
portant contribution to create and redistribute wealth in the world.
Consequently, not only governments but also ambitious private ac-
tors are engaged in the development of technologies for space min-
ing activities. For example, several private business entities have
publicly indicated that they are making plans to extract resources
from the Moon and other celestial bodies, including, for example,
Caterpillar, Inc., 14 Moon Express, Inc., 15 (Moon Express) and Blue
Origin, Inc. 16 To support American commercial efforts in space, the
US adopted the Commercial Space Launch Competitiveness Act
(CSLCA), which seeks to facilitate the commercial exploration for
and commercial recovery, of space resources by US citizens. 17
13 State parties are Armenia, Australia, Austria, Belgium, Chile, Kazakhstan, Ku-
wait, Lebanon, Mexico, Morocco, the Netherlands, Pakistan, Peru, Philippines, Romania,
Saudi Arabia, Turkey, Uruguay and Venezuela. See Comm. on the Peaceful Uses of
Outer Space, Status of InternationalAgreements Relating to Activities in Outer Space as
at 1 Jan. 2019, U.N. Doc. A/AC.105/C.2/2019/CRP.3 (2019).
14 Jennifer Leman, Construction Company Caterpillar Wants to Mine the Moon,
POPULAR MECHANIcS. (Oct. 30, 2019), https://www.popularmechanics.com/space/moon-
mars/a29587959/caterpillar-space-mining/.
18 Mike Wall, 50 Years After Apollo 11, A New Moon Rush Is Coming, SPACE.COM
(July 22, 2019), https://www.space.com/moon-exploration-plans-nasa-india-china-and-
more.html.
16 Jayshree Pandya, The Race to Mine Space, FORBES (May 13, 2019),
https://www.forbes.com/sites/cognitiveworld/2019/05/13/the-race-to-mine-
space/#49e7ef3cia70.
17 See 51 U.S.C. §§ 51301-03 (2018).
Luxembourg followed suit two years later and enacted its own na-
tional space law granting property rights to private space resource
extractors. 18 As the US and other States seek to expand extrater-
restrial private property rights, it is apparent that the exploitation
and use of space resources requires clearer international govern-
ance. 19
However, as mentioned above, there was no urgency to regu-
late space resources activities when the OST and MA were con-
cluded. In particular, there was insufficient scientific information
available regarding space resources and the possibility of their eco-
nomic use. Consequently, the two treaties do not regulate the ex-
ploitation and use of space resources. Nevertheless, the OST, as the
cornerstone of international space law, established important prin-
ciples directly related to space mining, including the freedom of ex-
ploration and use, non-appropriation, common benefit and interests
and environmental protection.20 These principles could provide
guidance for space mining, but their precise applications to this ac-
tivity are not at all clear. The MA further developed these princi-
ples, but, as we have seen, it was not accepted by the major space-
faring countries. For the beneficial use of space resources, a specific
legal regime for the exploitation of resources should be elaborated.
In the development of such a regime, the four principles enumer-
ated above need to be clarified, as they should provide the founda-
tion for the management of resource extraction and utilization.
In fact, the international community is trying to create an ap-
propriate legal framework. The LSC of COPUOS meets every year
to discuss legal questions related to the exploration and use of outer
18 Loi 674 du 20 juillet 2017 sur l'exploration et l'utilisation des ressources de l'es-
pace [Law 674 of July 20, 2017 on the Exploration and Use of Space Resources), JOURNAL
OFFICIEL DU GRAND-DUCHE DE Lux., July 28, 2017, http://legilux.pu-
blic.lu/eli/etat/leg/loi/2017/07/20/a674/jo. See also Philip de Man, Luxembourg's Law on
Space Resources Rests on a Contentious Relationship With InternationalFramework,
THE SPACE REV. (Oct. 23, 2017), http://www.thespacereview.com/article/3355/1. The
UAE has also released some details of its new space law which suggest that they are also
considering ways to administer resource extraction and utilization legislation. Melissa
Maday, UAE Space Law Details Announced to Facilitate Space Sector Development,
SPACEWATCH.GLOBAL (Feb. 25, 2020), https://spacewatch.global/2020/02/uae-space-law-
details-announced-to-facilitate-space-sector-development/.
19 Eytan Tepper, Structuring the Discourse on the Exploitation of Space Resources:
Between Economic and Legal Commons, 49 SPACE POL'Y 101290, 2 (2019).

20 Outer Space Treaty, supra note 3, arts. I, II and IX.
space. In 2016, it agreed on a new item for discussion, entitled "Gen-

eral exchange of views on potential legal models for activities in ex-
ploration, exploitation and utilization of space resources," which be-
came an agenda item in the sessions of 2017-2019.21 The represent-
atives of member States debated on the issue, including the appli-
cation of these principles. In the 2019 session, Belgium and Greece
submitted a working paper proposing the establishment of a work-
ing group for the development of an international regime on the
utilization and exploitation of space resources. 22 Although it was
not successful due to the opposition of some delegations, the pro-
posal was not completely ruled out.
Efforts are also being undertaken outside the COPUOS. The
Hague Space Resources Governance Working Group (HSRGWG),
for instance, gathered interested members from government, indus-
try, universities, civil society and research centers in 2014 to dis-
cuss and propose solutions to the governance of space resources. 23
On September 13, 2017, it released Draft Building Blocks for the
Development of An International Framework on Space Resource
Activities, which were developed to create an enabling environment
for space resources activities. 24 After minor revisions, it adopted a
final version of the Building Blocks (Hague Building Blocks) on No-
vember 12, 2019.25 The HSRGWG members included "stakeholders
of space resource activities and represent[ed] consortium partners,
industry, States, international organisations [sic], academia and
Fifty-Fifth Session, U.N. Doc. A/AC.105/1113, at 250 (2016).
22 Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. Rep. on
Its Fifty-Eight Session, U.N. Doc. A/AC.105/C.2/2019/CRP.22 (Apr. 8, 2019) (working pa-
per by Belgium and Greece); Comm. On the Peaceful Uses of Outer Space, Rep. of the
Legal Subcomm. on Its Fifty-Eight Session, U.N. Doc. A/AC.105/C.2/L.311 (Mar. 11,
2019) (working paper by Belgium and Greece).
23 Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on
Its55th Session, U.N. Doc. A/AC.105/C.2/2016/CRP.17 (Apr. 5, 2016).

24 DRAFT BUILDING BLOCKS FOR THE DEVELOPMENT OF AN INTERNATIONAL
FRAMEWORK ON SPACE RESOURCE ACTIVITIES (2017), https://www.universiteitlei-
den.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht-en-
ruimterecht/space-resources/draft-building-blocks.pdf.
21 BUILDING BLOCKS FOR THE DEVELOPMENT OF AN INTERNATIONAL FRAMEWORK ON
SPACE RESOURCE ACTIVITIES (2019), https://www.universiteitleiden.nl/binaries/con-

tent/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht-en-ruimterecht/space-
resources/hisrgwgbuilding-blocks-for-space-resource-activities.pdf [hereinafter
BUILDING BLOCKS].
NGOs." 26 The Hague Building Blocks represent their consensus

perspective on the fundamental principles set forth in the OST,
namely, the freedom of exploration and use, non-appropriation,
common benefit and interests and environmental protection
This Article analyzes these fundamental principles of interna-
tional space law under today's new circumstances where the exploi-
tation and use of space resources is becoming a reality, so as to shed
some light on their application in the context of space mining. Parts.
II-V address the principles of freedom of exploration and use, non-
appropriation, common benefit and interests and environmental
protection respectively. Each part begins with the interpretation of
the principle in the OST and the MA and proceeds to elaborate on
and evaluate the relevant debates in the LSC and the Hague Build-
ing Blocks of HSRGWG. Part VI concludes and calls for interna-
tional cooperation to establish a legal framework to manage space
resources activities.
II. FREEDOM OF EXPLORATION AND USE

Space mining is considered to be promising. It has provoked
interest by States as well as private actors in recent years. For ex-
ample, the US National Aeronautics and Space Administration
(NASA) launched the OSIRIS-REx spacecraft in 2016 to explore the
asteroid Bennu before collecting a sample to return to Earth, with
the intent to improve our understanding of the resources in near-
Earth space. 27 Similarly, the United Arab Emirates "has launched
a multipronged effort" to establish a space mining industry, includ-
ing an investment of more than $5 billion and continuous launch of
satellites. 28 Luxembourg is also taking part in the race to mine
space resources by setting up a $227 million fund to entice space
mining companies to open offices in the country and make it the
26 The Hague International Space Resources Working Group, UNIV. OF LEIDEN,

https://www.universiteitleiden.nl/en/lawinstitute-of-public-law/institute-of-air-space-
law/the-hague-space-resources-governance-working-group (last visited Apr. 17, 2020).
27 NASA Mission Reveals Asteroid Has Big Surprises, NASA,
https://www.nasa.gov/press-release/nasa-mission-reveals-asteroid-has-big-surprises
(last visited Apr. 17, 2020).
28 Thomas Heath, Space-mining May Be Only A Decade Away. Really, THE WASH.
POST, June 2, 2017, https://www.washingtonpost.com/business/space-mining-may-be-
only-a-decade-away-really/2017/04/28/df33b3ia-29ee- iie7-a616-
d7c8a68cia66_story.html?utm_term=.eOObO Of3a37.
hub of space mining innovation. 29 Additionally, Moon Express, the
first company to receive US government approval to fly a mission
beyond Earth orbit and to the Moon, is planning to set up the first
lunar research outpost and prospect for water and useful miner-
als.30 Moon Express also signed a Memorandum of Understanding
(MOU) with the Canadian Space Agency (CSA) to explore the pos-
sibilities of using its orbiter and lander for missions to the Moon. 31
Clearly, the exploitation and use of space resources is going to take
place. However, whether the activity is sanctioned by the OST is
ambiguous at best.
A. Freedom of Outer Space

Under Article I of the OST, outer space shall "be free for explo-
ration and use by all States." 32 Such freedom shall be non-discrim-
inatory, equal and in conformity with international law. 33 Moreo-
ver, all areas of celestial bodies shall be freely accessible and "there
shall be freedom of scientific investigation." 34 These aspects consti-
tute the freedom of exploration and use principle in the OST. Like
the freedom of high seas, such freedom in outer space stems from
its status of terra communis. Unlike terra nullius, which refers to a
territory not belonging to any particular country, 35 terracommunis
or res communis denotes a common thing or area that cannot be
owned or appropriated, such as light, air and the sea. 36 Accordingly,
outer space is open to all States, but cannot be appropriated by any
of them. The MA developed more specific rules than the OST. Pur-
suant to the MA, States may collect and remove from the Moon
samples of its mineral and other substances for scientific investiga-
tion and use these resources in quantities appropriate to support
29 Lily Hay Newman, Luxembourg Bets Big on Space Mining for Some Reason, SLATE
(June 7, 2016), https://slate.com/technology/2016/06/luxembourg-invests-in-space-min-
ing-research.html.
30 Three Maiden Expeditions, MOON EXPRESS, http://moonexpress.com/ (last visited
May 2, 2020).
31 Supporting Canada's Lunar Initiatives, MOON EXPRESS, http://moonexpress.ca/
(last visited Apr. 21, 2020).
32 Outer Space Treaty, supranote 3, art. I.
33 Id.
34 Id.
38 Terra Nullius, BLACK'S LAW DICTIONARY (9th ed. 2009).
36 Res Communes, BLAcK'S LAW DIcTIONARY (9th ed. 2009).
their missions. 37 These provisions not only reaffirm the freedom of

exploration and use principle, but also expressly refer to the use of
space resources for the first time. Unfortunately, the MA was re-
jected by major spacefaring countries because it recognized the
Moon and its natural resources as "the common heritage of
[hu]mankind" (CHM).38 The concept of CHM means that outer
space belongs to all humanity and should be protected and managed
for its benefit. 39
The freedom of exploration and use principle, which grants all
States the right of access, exploration and scientific investigation,
is similar to John Rawls' equality of opportunity or liberty princi-
ple. 40 Rawls uses a thought experiment widely known as the "veil
of ignorance" where public policy is based on the hypothetical con-
dition that people do not know the social positions or the particular
41
comprehensive doctrines of the persons they represent. As a re-
sult, a fair agreement must eliminate the bargaining advantages
resulting from cumulative social and historical tendencies.42 And
people similarly motivated and endowed should have the same pro-
spects of success. 43 Basically, the OST grants each State an equal
right to the most extensive scheme of equal basic liberties compat-
ible with a similar scheme of liberties for others. Accordingly, outer
space is open for access and all States have an equal chance to ac-
cess space for exploration and use, regardless of their degree of eco-
nomic or scientific development. But it's worth noting that the OST
restricts total freedom to scientific investigation. It does not refer
to commercial exploitation and use of space resources. Indeed, some
argue that the freedom to engage in scientific exploration of outer
space does not justify large-scale exploitation of extraterrestrial re-
sources for commercial purpose. 44 That is why the national laws of
31 Moon Agreement, supra note 11, art 6.

38 See Dennison A. Butler, Who Owns the Moon, Mars, and Other Celestial Bodies:
Lunar Jurisprudencein Corpus Juris Spatialis, 82 J. OF AIR L. & COM. 505, 508-09
(2017).
39 Common Heritageof Mankind, BLACK'S LAW DICTIONARY (9th ed. 2009).
40 JOHN RAwLS, JUSTICE AS FAIRNESS: A RESTATEMENT ¶ 13.1 (2001).
41 Id. 1 6.2.
42 Id.
43 Id.
44 Jinyuan Su, Legality of UnilateralExploitation of Space Resources under Interna-
tional Law, 66 INT'L COMP. LAw Q. 991, 1006 (2017).
the US and Luxembourg caused widespread controversy in the in-

ternational community.
Scientific research and commercial mineral exploitation have
different purposes: the former aims for scientific knowledge while
the latter is focused on profit. Moreover, there exists a marked dif-
ference in quantity of resource collection. The six Apollo missions
brought back 382 kilograms (842 pounds) of lunar material for re-
search and teaching projects, 45 some of which NASA exchanged
with the Soviet Union for some of the approximately 300 grams of
lunar material brought back by three Soviet Luna missions. 46 Alt-
hough these sample collections were never protested by other coun-
tries, it does not mean that commercial space mining was also ac-
cepted by the international community, as the numbers of samples
collected from the Moon are significantly smaller than the normal
scale of mineral exploitation. As the Whaling in the Antarctic case
demonstrates, large-scale extraction of resources is likely beyond
the reasonable need of scientific research. 47 However, the OST does
not give a clear answer as to whether the exploitation and use of
space resources for commercial purpose is in conformity with this
principle. According to Article 31 of the Vienna Convention on the
Law of Treaties (VCLT),48 we must review the object and purpose
of a Treaty during the course of interpretation. From its preamble,
we could observe that the purpose of the OST is to promote rather
than restrict the free exploration and use of outer space, especially
given that the common interest of all humankind is implicated. 49
Accordingly, as long as space mining for commercial purpose could
promote the free exploration and use of outer space, it may be law-
ful under the freedom of exploration and use principle.
4 Lunar Rocks and Soils from Apollo Missions, NASA, https://cura-

tor.jsc.nasa.gov/lunar/(last visited Apr. 18, 2020).
as Berin Szoka and James Dunstan, Space Law: Is Asteroid Mining Legal? WIRED
(May 1, 2012), https://www.wired.com/2012/05/opinion-asteroid-mining/.
4 Whaling in Antarctica (Austl. v. Japan), Judgment, 2014 I.C.J. Rep. 226, ¶ 94
(Mar. 31) ("In particular, a State party may not, in order to fund the research for which
a special permit has been granted, use lethal sampling on a greater scale than is other-
wise reasonable in relation to achieving the programme's stated objectives."); Su, supra
note 44, at 1005-06.
4 Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S.
331 [hereinafter Vienna Convention].
4 Outer Space Treaty, supra note 3, Preamble.
2020] LAW AT THE DAWN OFSPACE MINING 11
B. CommercialIncentives
To answer whether the exploitation and use of space resources
for commercial purpose conforms to this principle, the terms "explo-
ration," "use" and "exploitation" should first be clearly defined. In
the context of outer space, "exploration" refers to all activities that
have as their primary goal the gaining of knowledge, without im-
mediate practical application;6 0 "use" denotes those activities that
could be transformed into actionable interests, be they of economic,
military, civil or other nature.6 1 In comparison, "exploitation"
means the act of taking advantage of something,6 2 regardless of its
purpose. Surely, in practice, the three notions are difficult to distin-
guish from each other, as the finality of activities is not always clear
from the start.5 3 Moreover, taking into account statements made by
French delegate, it is clear the drafters of the OST did not preclude
the concept of the exploitation of space resources from the broad
definition of the concept of "use."64 The delegation referred to prac-
tical uses of space like meteorological research and telecommunica-
tions, but reserved discussion of utilization of minerals on the Moon
as it was "hard" at that time to conceive.5 5 Additionally, the evolu-
tion of these terms in the travauxprdparatoiresof the OST, includ-
ing the United Nations General Assembly Resolution 1348,66
50 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT, THE MEANING OF

THE NON-APPROPRIATION PRINCIPLE FOR SPACE RESOURCE EXPLOITATION 79 (2016).
51 Id. at 79, 80.
52 Exploitation,BLACK'S LAW DICTIONARY (9th ed. 2009).

53 See DE MAN, supra note 50, at 78-82.
84 According to the French delegation:

It was quite clear that the treaty was to apply both to celestial bodies
and to outer space, but what type of activity was it to regulate? The
text referred to exploration and "use." Did the latter term imply use
for exploration purposes, such as the launching of satellites or did it
mean us in the sense of exploitation, which would involve far more
complex issues?
Comm. On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on Its Fifth
Session, 63rd mtg., U.N. Doc A/AC.105/C.2/SR.63, at 8 (July 20, 1966). See also Comm.
On the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on Its Fifth Session,
69th mtg., U.N. Doc A/AC.105/C.2/SR.69, at 5-6 (July 27, 1966) (Indicating that the
French delegation had no "theoretical preference as to whether the treaty should be lim-
ited to scientific exploration or should also deal with use.").
55 U.N. Doc A/AC.105/C.2/SR.63, supra note 54, at 8.
56 The Resolution, entitled "Question of the Peaceful Use of Outer Space," addresses
the desire "to promote energetically the fullest exploration and exploitation of outer
space for the benefit of [hu]mankind." G.A. Res. 1348 (XIII), at Preamble (Dec. 13, 1958).
United Nations General Assembly Resolution 172157 and the 1963

Declaration,5 8 confirmed to some extent the synonymity between
the concept of use and exploitation. Hence, the exploitation of space
resources is encompassed by the freedom of exploration and use
principle.
Commercial incentives are essential to develop space mining
ventures because of the high cost and risk involved. In 2009, NASA
reported that the total cost of the Apollo program "arrived at a fig-
ure of [US]$170 billion in 2005 dollars (or around [US]$200 billion
in today's money)." 5 9 This figure does not calculate the associated
risk of no return on investments, death, pollution and other invest-
ment-limiting factors. Out of financial pressure, governments are
increasingly turning to private companies to spearhead space re-
source utilization efforts and providing confidence for investors by
way of regulations and laws in order to generate revenues and open
new markets. According to Hayek's theory of free-market, 60 com-
mercial incentives could promote investment in the exploration of
space resources and enable the development of the most efficient
use of such resource. With the prospect of obtaining some sort of
property rights, the private sector would likely make every effort to
invest and develop technology for profit. Free markets would in-
crease the means of production by placing it directly in the hands
of laborers, which makes it possible for private sectors to acquire
space resources legitimately. Such a spontaneous order-which is
not designed by anyone but evolves slowly as the result of human
actions, would do a remarkable job of coordinating people's actions
in outer space. For instance, Moon Express, by using robotic explor-
ers, claims it will collapse the cost of lunar access and deliver
67 The Resolution, entitled "InternationalCo-operation in the Peaceful Uses of Outer

Space," indicates a belief that "the exploration and use of outer space should be only for
the betterment of [hu]mankind." G.A. Res 1721 (XVI), at Preamble (Dec. 20, 1961).
68 The 1963 Declaration opens with the statement that delegates are "inspired by
the great prospects opening up before [hu]mankind as a result of man's entry into outer
space." G.A. Res. 1962 (XVIII), at Preamble (Dec. 13, 1963).
69 Sebastian Anthony, The Apollo 11 Moon Landing, 45 Years On: Looking Back at
Mankind's Giant Leap, EXTREMETECH (July 21, 2014), https://www.extremetech.com/ex-
treme/186600-apollo-11-moon-landing-45-years-looking-back-at-mankinds-giant-leap.
6s For a succinct explanation of F.A. Hayek's theory as considered in the context of
space, see Lawrence A. Cooper, Space Exploration Through A New Application of Space
Property Rights, 19 SPACE POL'Y 115-16 (2003).
breakthrough opportunities for scientific and commercial explora-

tion.61 As a result, space mining for commercial purpose would pro-
mote rather than limit the exploration and use of outer space and
be to the benefit and in the interests of all countries. Thus, in this
regard, space mining driven by commercial incentives is in line with
the purpose of the OST.
However, the hand of the market is blind to issues of distribu-
tional justice.6 2 Paretooptimum and perfect markets have never ex-
isted and may not be theoretically possible.63 Without government
interference, the laissez-faire market does indeed generate extreme
distributions of wealth. Extrapolating this concept to space re-
sources, due to huge economic and technological disadvantages, de-
veloping countries may be left far behind by spacefaring countries.
Free markets may do nothing to help developing countries escape
from their current predicaments; they may even make their situa-
tion worse. For example, the introduction of space resources to the
global market may hurt the gross domestic product of countries that
have industries mining these resources terrestrially. Gradually,
these developing countries may never be able to participate in space
mining and enjoy its attendant benefits. Consequently, the freedom
of exploration and use principle should be restricted by the terms of
the OST and general international law, including the treaty's
61 Scalable Robotic Spacecraft, MOON EXPRESS, http://moonexpress.com/ (last visited
Apr. 18, 2020).

62 Free Market Prosand Cons - Should We PrivilegeAllocative Efficiency and Accept
the Resulting Inequality? NETIVIST, https://netivist.org/debate/free-market-pros-and-

cons (last visited Apr. 23, 2020). A free market may nevertheless sometimes result in
unsatisfactory outcomes too. It is considered by many economists as one of the major
causes of income inequality and economic disparity. For instance, monopolistic and car-
telistic behavior of companies can disrupt allocative and productive efficiency, as well as
generate a welfare loss.
s Supriya Guru, Economic Efficiency and Pareto Optimality: Marginal Condition
and CriticalEvaluation, YOUR ARTICLE LIBRARY, http://www.yourarticlelibrary.com/eco-
nomics/economic-efficiency-and-pareto-optimality-marginal-condition-and-critical-eval-
uation/3770 (last visited Apr. 23, 2020). Pareto optimum (often called economic effi-
ciency) is a position from which it is impossible to make anyone better off without making
someone worse off by any reallocation of resources or distribution of outputs. However,
the conditions under which a perfect competitive market system achieves Pareto-opti-
mality are quite restrictive, including: (1) the second order conditions are satisfied; (2)
the externalities in production and consumption are absent; (3) prevailing distribution
of income is optimal from the social point of view; and (4) available resources are fully
employed. It may also be noted that in present-day free enterprise capitalist economies
perfect competition is an exception rather than the rule.
common benefit and interests principle and its environmental pro-

tection principle.
In the debates within the LSC, States expressed views on po-
tential legal models for space resources activities. These statements
may be qualified as State practice "that contributes to the for-
mation, or expression, of rules of customary international law," 64 as
it is now generally accepted that verbal conduct (whether written
or oral) of a State may count as practice. 65 For example, delegates
often referred to "exploration," "exploitation," "use" and "extraction"
interchangeably when talking about space mining. And they did not
make a distinction between scientific and commercial exploration,
but it could be inferred that they primarily focused on the latter, as
the term "commercial" or "private entities" was repeatedly used.
For space resources activities, most delegates expressed that the
extraction of space resources is included in the scope of Art. I of the
OST,66 although the opposite view exists. 6 7 Besides, some argued
that resources extraction needs to adhere to this principle, ensuring
that free access to all areas of the celestial body would be main-
tained. 68 Meanwhile, some held that the freedom of exploration and
use principle should be restricted by other principles in the OST
and international law6 9 and in a manner that respects the freedoms
of others. 70 Hence, it can be observed that the mainstream view of
the international community is that the exploitation and use of
space resources for commercial purpose conforms to this principle,
subject to some limitations.
The Hague Building Blocks also support the freedom of explo-
ration and use principle and envisages some mechanisms to
64 Int'l Law Comm'n, Rep. on the Work of its Sixty-Eighth Session, U.N. Doc.
A/71/10, at 76 (2016).
65 Id. at 77.
es See Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Questions and
Observations by Belgium on the Establishment of National Legal Frameworks for the
Exploitation of Space Resources, U.N. Doc. A/AC.105/C.2/2018/CRP.8, at 2 (2018);
Comm. on the Peaceful Uses of Outer Space, Draft Rep. of the Legal Subcomm. on Infor-
mation on the Activities of International Non-Governmental Organizations, U.N. Doc.
A/AC.105/C.2/L.304/Add.3, ¶ 27 (2018) [hereinafter 2018 Information Report]; Comm. on
the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm on Its Fifty-Sixth Session,
U.N. Doc. A/AC.105/1122, T¶ 232, 246 (2017) [hereinafter Fifty-Sixth Legal Subcomm.].
67 Fifty-Sixth Legal Subcomm., supra note 66, ¶ 247.
68 2018 Information Report, supra note 66, at 1 31.
6 Id. 1 41.
promote commercial incentives. Principle goals include: promoting

and securing "the orderly and safe utilization of space resources,"
promoting "the sustainable, rational, efficient and economic use of
space resources," providing "legal certainty and predictability for
operators" and taking "into particular account the contributions of
pioneer operators."7 1 These principles perhaps reflect the fact that
the members of the HSRGWG are primarily from spacefaring and
emerging space powers and include representatives of commercial
72
entities like ispace Inc. and Asteroid Mining Corporation.
C. The Rule of Capture

Another important problem in the freedom of exploitation and
use of space resources is that some actors may simply use first pos-
session as a justification for ownership of space resources. Indeed,
space resources, as res communis, can be appropriated to some ex-
tent on the basis of the freedom of exploration and use principle.
But the rule of capture, 73 which illustrates the role of first posses-
sion, still needs to be carefully studied. In fact, this rule drove early
and rapid development of the oil industry of the US in the 19th cen-
tury, although a frenetic race among surface owners followed and
led to an extraordinary waste of oil and gas. Today, the rule of cap-
ture is still in force, with some functional substitutes incorporated
to effectively control its side effects. 74 Given that so far there is no
71 BUILDING BLOCKS, supra note 25, ¶ 4.

72 There are 22 confirmed members, including members from the following coun-
tries: Brazil, Australia, Indonesia, South Africa, the Netherlands, Italy, the United King-
dom, the United States, Switzerland, India, France, Mexico, China, Luxembourg. See
Members, UNIV. OF LEIDEN, https://www.universiteitleiden.nl/binaries/content/as-
sets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht-en-ruimterecht/space-re-
sources/members-website-1-3.pdf (last visited Apr. 18, 2020).
79 The rule of capture means that the owner of a tract of land acquires title to the oil
and gas which he produces from wells drilled thereon, though it may be proved that part
of such oil or gas migrated from adjoining lands. For a fuller explanation see Bruce M.
Kramer & Owen L. Anderson, The Rule of Capture - An Oil and Gas Perspective, 35
ENVTL. L. 900 (2005).
74 See Terence Daintith, The Rule of Capture: the Least Worst Property Rule for Oil
and Gas, in AILEEN MCHARG, PROPERTY AND THE LAW IN ENERGY AND NATURAL
RESOURCES 140-158 (2010). Functional substitutes include: binding work or work ex-
penditure programs at the exploration stage as well as creating obligations to relinquish
substantial amounts of acreage at fixed intervals and on entering the production phase,
continue exploration obligations even on production acreage. See generally TERENCE
agreement regarding property rights in space resources, they are

essentially in a "state of nature." Allocation by the capture rule is
simple and requires very little government involvement to deter an-
other person or entity (called a "junior") from displacing the rightful
first comer (called a "senior"). 7 5 And it would maximize overall effi-
ciency of the exploitation and use of space resources by developing
more rapid and more diverse space exploration vehicles. 7 6
However, considering the defects of the capture rule, 77 we
should not vest an absolute monopoly in the senior and deprive a
whole neighborhood or community of its rights. The international
community should equitably distribute rights therein so as to pre-
vent waste and abstract claims, learning from the experience of wa-
ter rights and mineral rights in the expansion of the western US.78
The senior who has mined substances and removed them from a
celestial body would be awarded priority rights, but not a monopoly
on that land's limited resources. The junior, who begins appropri-
ating resources from the same land, could also receive rights and
prevent the senior from enlarging his share to the junior's detri-
ment. Alternatively, a dual system may be another good choice. For
instance, the International Telecommunication Union (ITU) em-
ploys the rule of "first-come, first-served," supplemented by a nom-
inal allocation of an orbital slot to each ITU member. 79 Similarly,
due to the vastness of outer space and the uncertainty of resources,
DAINTITH, DIScRETION IN THE ADMINISTRATION OF OFFSHORE OIL AND GAS: A

COMPARATIVE STUDY (2006).
75 Robert P Merges & Glenn Harlan Reynolds, Space Resources, Common Property,
and the Collective Action Problem, 6 N.Y.U. ENVTL. L. J. 119 (1997). Aside from a method
of recording claims and some threat or sanction to deter stronger second-comers from
displacing rightful first possessors, very little in the way of governmental authority is
needed.
76 Id. at 120. The rule of capture will encourage a race ever deeper into space. Such
inefficient races to claim and develop space resources will come with a significant spillo-
ver benefit: the development of more rapid and more diverse space exploration vehicles.
77 "The two major problems associated with a rule of capture ownership regime [are]
overdrilling and the dissipation of the reservoir's natural energy." Kramer & Anderson,
supra note 73, at 902 (internal citations omitted).
7S Ross Meyers, The Doctrine of Appropriation and Asteroid Mining: Incentivizing
the Private Explorationand Development of Outer Space, 17 OR. REV. INT'L L.190, 198-
200 (2015).
79 See Mark Griffin, Space Servs. Dep't, Intl Telecomm. Union, Orbit/Spectrum Al-
location Procedures 10-13 (Sept. 28-30, 2010), https://www.itu.int/en/ITU-
R/space/workshopBangkok201O/03a-Orbit_Spectrum%20Allocation%20Proce-
duresMG.pdf.
it may be more necessary and advisable to establish reserve zones

on the Moon and Mars than asteroids passing by the Earth for those
countries with limited capabilities for space mining.
In the debates within the LSC, some delegates expressed that
resource extraction on the Moon and other celestial bodies based on
"first come, first served" basis was not compatible with the princi-
ples of equality of access to space. 80 Conversely, the Hague Building
Blocks enable the attribution of priority rights for a maximum pe-
riod of time. 81 Based on the analyses above, giving States equal lib-
erty to explore and use outer space does not negate the "first come,
first served" rule, as such freedom is implemented in terms of their
abilities in practice. Recognizing priority rights of spacefaring coun-
tries to search and/or recover space resources may stimulate them
to invest and develop mining industry. Nevertheless, overprotect-
ing the "senior" by awarding priority rights could run the risk of
disorder, waste, inequality and even monopoly. At present, space
resources are accessible to only a very limited number of States and
to a handful of enterprises within those States. Consequently, con-
sidering the interests of developing countries, priority rights should
not be absolute but subject to some arrangements. For example,
such rights would necessarily be limited in terms of the size of the
area and the duration to be exploited or by reserve zones. After all,
others' freedom should be respected too. Otherwise, the free explo-
ration and use of outer space might be hindered.
In sum, the exploitation of space resources for commercial pur-
pose is subsumed by the freedom of exploration and use principle
and is therefore lawful under the OST. Commercial incentive and
the capture rule could give stimulus for mining in outer space, while
their defects must be tackled.
III. NON-APPROPRIATION
Anticipating a race for space resources, some States took the
lead by enacting legislation to grant and recognize property rights
over mined resources. For example, the 2015 CSLCA states that US
citizens engaged in commercial recovery of an asteroid resource or
80 Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm on Its
Fifty-Fifth Session, U.N. Doc. A/AC.105/1113, ¶ 83 (2016) [hereinafter Fifty-Fifth Legal
Subcomm.].
a space resource are entitled 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." 8 2 Similarly, Luxembourg developed a legal frame-
work in 2017, which not only guarantees miner's rights to the re-
sources they extract, but also provides for the authorization and the
issuance of licenses by States. 83 However, due to the lack of an in-
ternational regime, concerns have been raised about whether these
domestic laws conflict with international law, especially the non-
appropriation principle.
Article II of the OST embodies the non-appropriation principle,
which proscribes the national appropriation 'of outer space "by
claim of sovereignty, by means of use or occupation, or by other
means." 84 From Article VI of the OST, it can be inferred that "na-
tional appropriation" covers both appropriation by States and by
private entities. 85 Although this principle precludes the possibility
of the appropriation of outer space and celestial bodies, whether it
extends to natural resources therein is uncertain. The OST never
makes a distinction between space and celestial bodies on the one
hand and resources extracted from them on the other. Put differ-
ently, it is unclear whether the term "outer space" includes both
outer space broadly considered and its natural resources. In con-
trast, the MA clearly states that the Moon and its resources are the
CHM and prohibits national appropriation of the resources of the
Moon. There is no proprietary right over natural resources in place,
which is without prejudice to the establishment of an international
regime referred to in Article 11(5) of the Agreement. 86 Due to this
provision, the MA has garnered limited support and will not pre-
vent the majority of spacefaring countries from carrying out space
mining.87
82 51 U.S.C. § 51303 (2018).

83 Jeff Foust, Luxembourg Adopts Space Resources Law, SPACENEWS (July 17, 2017),
https://spacenews.com/luxembourg-adopts-space-resources-law/.
84 Outer Space Treaty, supranote 3, art II.
85 Id. at art VI. Among other things, Article VI indicates that States "shall bear in-
ternational responsibility for national activities in outer space ... whether such activities
are carried on by governmental agencies or by non-governmental entities . . . ." Id. (em-
phasis added).
88 Moon Agreement, supra note 11, art 11.
87 See Butler, supra note 38, at 508-09.

Given these tensions, the legal status of resources on celestial

bodies has raised much controversy over the years. While some hold
the prohibition in Article II applies both to outer space and its nat-
ural resources, 88 others argue that the non-appropriation principle
refers only to celestial bodies but not to the resources.8 9 The latter
view is supported by the US and Luxembourg, whose national law
stipulates that private entities only have rights to resources and
not to the body from which they are extracted. Under this interpre-
tation, space resource extraction does not violate non-appropriation
principle. Similarly, for the HSRGWG, the concept of exploitation
in this manner conforms to its purpose, namely to "enable, support
and co-ordinate the use of space resources [in a manner] acceptable
for spacefaring nations and other interested States." 90
In comparison, delegates in the LSC differ on this question.
Some argued that the unilateral national legislation to protect pri-
vate property rights in resources extracted from the Moon or any
other celestial body may amount to either a claim of sovereignty or
a national appropriation of those bodies. 91 Conversely, some held
that such legislation did not constitute a violation of the OST with-
out an authorization granted to an entity for space mining as its
application would necessarily be reviewed in accordance with the
international treaty obligations of that State. 92 Besides, some dele-
gates expressed that the principle of non-appropriation only applies
to resources that are "in place," 93 while others expressed that
whether the resources are to be used in situ or transported to Earth
would not make any difference to the determination of the lawful-
ness of that space resource activity. 94 What's more, national laws
38 Carl Q. Christol, The Common Heritage of Mankind Provisionin the 1979 Agree-
ment Governing the Activities of States on the Moon and Other CelestialBodies, 14 INT'L
L. 429, 440 (1980).
89 Id. at 441.
9o The Hague InternationalSpace Resources Governance Working Group, UNIV. OF
LEIDEN, https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-of-air-
space-law/the-hague-space-resources-governance-working-group (last visited Apr. 18,
2020).
91 Fifty-Fifth Legal Subcomm., supra note 80, ¶ 74; Fifty-Sixth Legal Subcomm., su-
pra note 66, ¶¶ 241, 247.

92 Fifty-Fifth Legal Subcomm., supra note 80, ¶ 75; 2018 Information Report, supra
note 66, T¶ 31, 47.
94 2018 Information Report, supra note 66, 1 49.
on space resource exploitation and utilization were questioned, 95

and the view was expressed by multiple delegates that an interna-
tional framework is required to provide legal certainty on commer-
cial activities in outer space. 96 Thus, the essential question is still
whether exploitation of space resources amounts to appropriation
prohibited by the OST.
A. DistinctionBetween Exploitation and Appropriation

The OST was concluded during the Cold War and should be
read as anti-imperial.97 By excluding sovereignty in outer space un-
der Article II, the OST encourages States to choose a peaceful and
cooperative strategy rather than engage in intense and heavy ex-
traterritorial land grab. As legal theorist Carl Schmitt demon-
strated, the history of international law could be traced through
land appropriation. 98 Indeed, the term "appropriation" is primarily
concerned with the expansion of State territory. But the legal status
of natural resources is not necessarily the same as the surface of
land. There are three different types of property rights over natural
resources of the subsoil in Earth: i) the regime of accessio; ii) the
national property model; and iii) the model of absolute property of
the State. 99 Consequently, the land in outer space not under na-
tional or private dominion doesn't mean that exploitation of natural
95 Id. 1 37.
9 Id. 1¶ 34, 40 and 48. See also Fifty-Sixth Legal Subcomm., supranote 66, IT 228,
234 and 250.
97 P. J. Blount and Christian J. Robison, One Small Step: The Impact of the U. S.
Commercial Space Launch Competitiveness Act of 2015 on the Exploitation of Resources
in Outer Space, 18 N.C. J. L. & TECH. 160, 164 (2016).
9 Id. at 169.
9 Jose Juan Gonzalez, The Scope and Limitations of the Principleof NationalProp-
erty of Hydrocarbons in Mexico, in AILEEN MCHARG ET.AL., PROPERTY AND THE LAW IN
ENERGY AND NATURAL RESoURcEs, 210-12 (2010). Under the regime of accessio, the nat-
ural resources of the subsoil belong to the land owner. The national property model dis-
tinguishes between property in land and property of other natural resources whose na-
ture is different from the soil, such as hydrocarbons. It means property of resources in
the subsoil is vested in the State. In contrast, the model of absolute property of the State
recognizes the absolute property of the State over natural resources. These different
types of property rights over natural resources of the subsoil demonstrate that the legal
status of natural resources is not necessarily the same as the surface of land. In this
respect, although outer space is not subject to national appropriation, it does not neces-
sarily mean natural resources therein cannot be subject to appropriation.
resources in the subsoil is unlawful under the non-appropriation

principle.
When the OST was adopted, the issue of exploitation and use
of natural resources did not emerge, thus it was not addressed ex-
pressis verbis. But explicit prohibition does not amount to lawful-
ness. As Brooks posited, the question about the rights of States in
using the resources of celestial bodies may still be open. 100 The re-
cent advancements of science and technology and the increasing in-
terest in space resources makes it urgent to develop a clear inter-
national legal regime to handle these activities. In the search for
such a regime, existing international mechanisms such as those
regulating international fisheries or seabed mining might be in-
structive.1 01
Outer space is identified as a global commons, like the high
seas, the atmosphere and Antarctica.10 2 Many examples confirm
that the exploitation and use of resources to some extent can occur
in global commons. The protection of property rights over resources
that private actors may recover from an area beyond national juris-
diction or of global interest, as shown by international regulations
governing mining from the deep seabed, does not necessarily
103
amount to a sovereignty claim over the territorial area. Mineral
resources in the deep seabed, which is recognized as CHM, could
become the property of miners based on their labor or effort rather
than sovereignty. 104 And the operators are obliged to respect inter-
national law and get licensed by the International Seabed Author-
ity.105
Nevertheless, concerns have been raised that apart from sov-
ereignty, under the OST, "use or occupation" or "other means" may
100 See Christol, supranote 88, at 442.

101 Fifty-Fifth Legal Subcomm., supra note 80, ¶ 81.
102 U.N. SYSTEM TASK TEAM ON THE POST-2015 UN DEVELOPMENT AGENDA 5 (2013),
https://www.un.org/en/development/desa/policy/untaskteamundf/think-
pieces/24_thinkpiece-global-governance.pdf.
103 See generally Tepper, supra note 19, at 6-7.
104 United Nations Convention on the Law of the Sea art. 137(2), Dec. 10, 1982, 1833
U.N.T.S. 397 [hereinafter UNCLOS] ("All rights in the resources of the Area are vested
in [hu]mankind as a whole, on whose behalf the Authority shall act. These resources are
not subject to alienation. The minerals recovered from the Area, however, may only be
alienated in accordancewith this Part and the rules, regulations and procedures of the
Authority.") (emphasis added).
105 Id. at arts. 138, 151(2).
also be equivalent to appropriation. In this respect, whether exploi-

tation and use of space resources amounts to appropriation would
largely depend on the manner in which it is to be implemented. The
OST demonstrates the possibility of occupation or inhabitation in
Article XII by recognizing that "all stations, installations, equip-
ment and space vehicles on the Moon and other celestial bodies," 106
are something different from appropriation. It is also true when it
comes to geostationary slots and frequencies in the outer space.
These resources in this inclusive area are administrated and allo-
cated by the ITU and can be exclusively used and not interfered
with by other users. States using frequency bands for radio services
temporarily are given rights based on the ITU Constitution rather
than their ownership over these resources. One of the conditions is
that States have the obligation to ensure equitable access to those
orbits and frequencies. 107 In this way, a balance could be struck be-
tween maintaining the open access, non-appropriable and collec-
tively beneficial nature of space while also ensuring that private
property rights can attach to space resources.
What's more, the exploitation of space resources is not equated
with appropriation to some extent. The reasons are multiple. First
of all, as referred to above, the exploitation of space resources is
permitted by the freedom of exploration and use principle encapsu-
lated in Article I of the OST. Considering the consistency with Ar-
ticle II, a reasonable explanation may be that acts of exploitation of
space resources are lawful and not included in the scope of non-ap-
propriation principle. Second, the MA also differentiates the con-
cept of exploitation from appropriation. On the one hand, it refers
to exploitation of the natural resources of the Moon and other celes-
tial bodies in the preamble and the need for an international regime
in Article 11 (5); on the other hand, in Article 11 (2) and (3),108 it
repeats the non-appropriation principle, much like Article II of the
OST. The structure in the MA demonstrates that the exploitation
of the natural resources of the Moon does not constitute a means of
appropriation. Third, some have argued that exploitation of space
resources always accompanying actual use determines the
106 Outer Space Treaty, supra note 3, art. XII.

107 Constitution of the International Telecommunication Union [ITU] art. 44(3),
https://www.itu.int/council/pd/constitution.html [hereinafter ITU Constitution].

10 Moon Agreement, supra note 11, art. 11.
lawfulness of the exclusion of others from use of these resources. In

contrast, the justification of appropriationof an area is derived from
authority rather than effort. In this respect, claims over space re-
sources are different from claims over areas. 109 Nevertheless, it can-
not be argued that traditional property rights over space resources
are lawful under the OST.
It is noted that rules relevant in other global commons cannot
be automatically applied to outer space, as they are distinct in many
ways. For example, the approach that each ITU member is entitled
to an orbital position should not be introduced into the legal regime
regulating space mining.1 10 In addition to the great difficulty of
physically allocating space resources fairly, regulation tends to
cause inefficiency and potential waste. Although the MA has pro-
vided a valuable framework to govern the exploitation of space re-
sources,. due to its poor ratification, an international regime for
such exploitation should be formulated independent of the MA.
Otherwise, the legal uncertainty will shrink the investment pool
and impede the process of exploration and use of outer space by hu-
mankind. In this context, the national legislation of the US and
Luxembourg as well as the Hague Building Blocks are of great im-
portance and can greatly enhance discussions in the international
community. The following section will focus on these subsequent
practices, which introduce a new version of the concept of appropri-
ation in international space law as a starting point for a workable
regime of resources exploitation.
B. Subsequent Practice
As the context of space mining evolves, some provisions of the
OST are more likely to be re-interpreted or even informally modi-
fied to fulfil its object and purpose, or maintain its foundation in the
109 DE MAN, supra note 50, at 207-08, 410-11.

110 For a review of major principles regarding the ITU regulation of orbit usage, see
ITU Radio Regulatory Framework for Space Services, online at:
https://www.itu.int/en/ITU-R/space/snl/Documents/ITU-Spacereg.pdf. Space mineral
resources are different from geosynchronous orbit in many ways. For instance, as space
is quite large and many asteroids are movable, there are great difficulties in physical
allocation of mineral resources therein. More importantly, space mineral resources are
exhaustible while orbital positions are not. For this reason, space mining may seek its
own distinct legislation.
agreement of the parties."' For example, the US and Luxembourg,

by transforming their interpretation of Article II, the non-appropri-
ation principle, into national law, may lead the future development
of international space law in their desired direction. According to
Article 31(3)(b) of VCLT,112 these domestic laws can be subsequent
practice in the application of Article II, which is helpful to establish
agreement among the parties regarding its interpretation. Besides,
given that space resource activities depend on the level of techno-
logical and economic power of the State, they can be conducted by
only a limited number of States Parties of the OST. It is these
States that are most active in pursuing a particular interpretation
through domestic legislation. For this reason, these State practices
can be considered to be representative and should be given more
weight as an interpretative tool of the OST. However, we should be
careful in examining whether the limited State conduct is accepted
by those parties not engaged in this particular practice, albeit tac-
itly.11 3 In this respect, the practice of US and Luxembourg is one of
several possible interpretations, but the consensus of the interna-
tional community on this issue has not been reached.1 1 4
Actually, the Hague Building Blocks also uphold the non-ap-
propriation principle by indicating that the rights to space re-
sources and products derived therefrom should be lawfully acquired
and mutually recognized between States.1 15 Moreover, it permits
the establishment of safety zones. 116 The mutual recognition of re-
sources rights is similar to a "reciprocating States regime," a prac-
tice among States on international seabed mining. Before the
United Nations Convention of the Law of the Sea (UNCLOS)11 7 en-
tered into force, some western States wanted to protect their do-
mestic companies which had invested much in preparation for sea-
bed mining. The reciprocating states regime requires that each
State adopt similar national legislation on deep seabed mining and
111 Int'l Law Comm'n Rep. on the Work of the Sixtieth Session, Annex A, U.N. Doc.
A/63/10, ¶ 14 (2008).
112 Vienna Convention, supra note 48, art. 31(3)(b).
113 Philip De Man, State Practice,Domestic Legislation and the Interpretationof Fun-
damental Principlesof InternationalSpace Law, 42 SPAcE POL'Y 98 (2017).

114 Id. at 92, 97.
116 Id. ¶ 11.
117 UNCLOS, supra note 104.
commit to coordinate and not interfere with each other's activi-

ties. 118 But this regime only served as a transition and was later
replaced by the 1994 Implementation Agreement of Part XI of the
UNCLOS.11 9 Hence, given the status quo of technological and in-
dustrial development at the dawn of space mining, the practice of
mutual recognition of space resources rights could also play a simi-
lar role before an international framework is reached. In fact, Lux-
embourg is concluding cooperative agreements with like-minded
States such as Poland, the United Arab Emirates, Portugal and Ja-
pan, comparable to those concluded under a reciprocating states re-
gime.120
On the other hand, the practice of mutual recognition of space
resources rights may also be established by the ag-eement of all
States, although the fundamental principles of the OST-the free-
dom of exploration and use, common benefit and interests-war-
rant a particularly rigorous assessment of the conditions for subse-
quent practice as an interpretative tool. Nevertheless, such practice
may primarily reflect or protect the interests of technologically ad-
vanced countries, as the majority of developing countries do not
have meaningful space capabilities. Consequently, it is important
to exchange views continually on new and upcoming issues on space
mining like in the LSC to take the developing countries' concerns
into account.121 Additionally, with the numerous challenges and
questions posed by the utilization of space resources, the determi-
nation of the legality of such activities cannot be resolved through
unilateral action but requires an inclusive multilateral process.1 22
An international framework that clearly defines and provides guid-
ance on commercial activities in outer space is indispensable in
avoiding gaps and ensuring the consistency of national legislation.
Regarding the issue of safety zones, although the access to
these zones is restricted only to a limited period of time, it
118 FABIO TRONcHETTI, THE EXPLOITATION OF NATURAL RESoURcES OF THE MOON

AND OTHER CELESTIAL BODIES A PROPOSAL FOR A LEGAL REGIME 111-12 (2009).
119 Agreement relating to the implementation of Part XI of the United Nations Con-
vention on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 U.N.T.S. 3.
120 Luxembourg Ministry of the Economy, Luxembourg and the Republic of Poland
Agree to Cooperate on Space Activities (Oct. 12, 2018), https://space-agency.pub-

lic.lu/en/news-media/news/2018/LuxPoland.html.
121 De Man, supra note 113, at 101-02.
122 Fifty-Sixth Legal Subcomm., supra note 66, 1 237.
nevertheless does not amount to appropriation because of the lack
of claims to that area. For example, under the ITU system, during
a limited and predetermined period of time, the operator is allowed
to use a certain orbital slot located in a non-appropriable area ex-
clusively, without ownership rights granted over it.123 Similarly,
the safety zone is also permitted in the exclusive economic zones
created by UNCLOS to ensure the safety both of navigation and of
offshore oil and gas facilities. 124 Additionally, during the Cold War,
both the US and the Soviet Union established keep out zones and
safety zones in outer space. Such jurisdiction would not involve a
claim of ownership rights but in the interest of national security to
repel other human-made objects coming close to their space sys-
tem. 1 25 Hence, a safety zone is necessary to assure safety and avoid
any harmful interference with others' space resources activities. In
particular, considering that space resources are scarce with limited
quantity, accessibility and affordability, an inevitable economic ri-
valry is likely to occur in the exploitation and use of these resources.
Consequently, a safety zone should be established to protect a min-
ing activity or a habitat on an asteroid or other celestial body from
intrusion by a competitor. Otherwise, it wouldn't be guaranteed for
the business certainty and investor confidence as well as continued
safety of operations. 126 However, when a safety zone is established
and how an appropriate limited period of time is authorized need to
be clearly addressed. Without proper regulation, there is a high risk
that the safety zone is equivalent to de facto appropriation. Imagine
a safe area for space mining established in a manner that excludes
others from entering a particular location for a significant period of
time. How would this be different from appropriating the celestial
body?
To summarize, the exploitation of space resources is not un-
lawful under the non-appropriation principle. It is simply a matter
left for the future development of international law. In the search
for such a regime, it would be useful to look at existing legal
123 ITU Constitution, supra note 107, art. 44(5).

124 UNCLOS, supra note 104, art. 60.
125 Colleen Driscoll Sullivan, Defining and Strengthening the Common Nature of the
Outer Space, 64-65 (Apr. 19, 1993) (unpublished Ph.D. thesis, Temple University (on file
with author).
126 See Cody Knipfler, Revisiting 'Non-Interference'Zones in Outer Space, THE SPACE
REV. (Jan. 29, 2018), https://www.thespacereview.com/article/3418/1.

framework regulating the exploration and use of resources in other

global commons and relevant contents in the national legislation of
the US and Luxembourg and the Hague Building Blocks.
IV. COMMON BENEFIT AND INTERESTS

Article I of the OST provides that the exploration and use of
outer space shall be: carried out for the benefits and in the interests
of all countries, regardless of their degree of economic or scientific
development; and the province of all humankind.127 It reflects the
common benefit and interests principle, which means that the in-
terests of spacefaring countries and non-spacefaring countries, de-
veloped countries and developing countries should be taken into ac-
count. Under this provision, the obligation of countries to share ben-
efits is legally binding. As the word "shall"' indicates, it cannot be
relegated to the preamble of the OST and has the full strength of a
duly formulated international contractual norm.128 However,
States hold opposing positions on what constitutes "the interests of
all countries" and how to share benefits which might rely largely on
their good faith. The MA further adds the interests of future gener-
ations and requires that benefits equitably derived from space re-
sources be shared on the basis of CHM.129 But the CHM of the Moon
and its natural resources was one of the biggest barriers for the MA
to be ratified by most major developed States. 1 30
A. Maximum Benefits
Basically, the exploitation and use of space resources would
bring a wide-range of benefit and interests to all countries. For in-
stance, it is argued that these activities are incentives: to develop
new technologies for furthering deep space missions; promoting ter-
restrial development activities;1 3 1 expanding the use of outer space;
and impelling future generations to reach beyond the relatively
132
close resources of our solar system for "their share." So it is of
great significance to encourage activities of space mining to
127 Outer Space Treaty, supra note 3, art. I.

128 Su, supra note 44, at 1003.
129 Moon Agreement, supra note 11, arts. 4, 11.
130 Butler, supra note 38, at 508-09 (2017).
132 Cooper, supra note 60, at 114.
maximize welfare for humankind. Spacefaring countries who have

invested much on such activities are certainly entitled to profit from
the work of their own labor. Developing countries, despite their lim-
ited capabilities for space exploration, could also benefit from such
activities.
However, the common benefit and interests of all countries are
not equivalent to the common benefit and interests of every coun-
try. As Bentham proposed, the highest principle of morality re-
quires "the greatest happiness for the greatest number," namely a
focus on the sum whole of happiness. 133 It's conceivable that, with
different levels of economic or scientific development among States,
the benefits and interests they gain from space mining will also
vary. Inequalities are inevitable, as it is often difficult to satisfy
each and every State. But some inequalities could be tolerable if
they are to the greatest benefit of the least advantaged. Based on
Rawls' difference principle, such inequalities should be arranged so
that they are both (a) reasonably expected by every State's ad-
vantage and (b) attached to positions and offices open to all. 134 The
difference principle provides a "social minimum," including basic
liberties such as freedom of thought, choice, wealth, self-respect and
so on. In many ways, it is about fair procedure to kick in unequal
distribution of talents instead of outcomes distributed at exactly the
same levels to all States. In Article I of the OST, every State is en-
dowed with a minimum set of "primary goods" like freedom of ac-
cess, exploration and scientific investigation. Accordingly, they
have self-respect to pursue their good as an equally worthy member
of societies. Such arrangement expresses the commitment of space-
faring countries to share their fate and could help maximize re-
sources of developing countries to explore and use the outer space.
In this respect, inequalities in practice should be allowed, as they
133 BENJAMIN K. SOVACOOL & MICHAEL H. DWORKIN, GLOBAL ENERGY

JUSTICE,
PROBLEMS, PRINCIPLES, AND PRACTICES 93 (2014).
134 Id. at 157-159. The difference principle justifies social and economic inequalities
only if they are to the greatest benefit of the least advantaged. It ensures that society is
endowed with a minimum set of "primary goods" or "goods every rational man is pre-
sumed to want," including basic liberties such as freedom of thought, freedom of move-
ment and freedom of choice, powers and prerogatives of offices and positions of respon-
sibility, income and wealth, and self-respect and confidence. It provides a "social mini-
mum" and kicks in to correct for unequal distribution of talent by rewarding only attrib-
utes that benefit society as a whole.
would benefit the least advantaged and help avoid an even greater
inequality.
Nevertheless, under current space law, developing countries
hardly benefit from space mining. Rawls' difference principle can-
not avoid a greater inequality. Actually, the gap among spacefaring
and developing countries is widening instead. As a pragmatic com-
promise, Rawls only designs a procedure to divide slices of cake, but
pays less attention to the size of each slice of cake, as for Rawls, the
goal is to design a procedure that encourages fairness and impar-
tiality. But basic liberties are far from enough to reach socioeco-
nomic equality. For this reason, this principle is widely criticized.
Sen and Nussbaum developed Rawls' theory and referred to
notions of "functioning" and "capabilities" which refer to the sub-
stantial freedoms people ought to have to enjoy the various things
they may value doing. 135 It is implied that every State ought to have
access to a "social minimum" energy or technology so that its citi-
zens can enjoy a modern, healthy lifestyle. In furthering distribu-
tion, developing countries need to be assured that they will not be
excluded from the vast potential that space resources offer. In short,
Sen and Nussbauum argue that outcomes matter. As Nussbaum
puts it, "the capabilities approach is fully universal: the capabilities
in question are held to be important for each and every citizen, in
each and every nation, and each person is to be treated as an end."
In this way, they would benefit from the exploitation and use of
space resources. 136 Thus, an international legal framework govern-
ing space mining to maximize welfare is essential, not necessarily
in the narrow utilitarian way argued by Bentham, but also in the
ability to enable peoples to realize functions and capabilities.
This view is also supported by some delegates in the LSC and
HSRGWG. In the LSC, views were expressed that the benefits of
the exploration and use of outer space will be enjoyed by all human-
ity, and all countries will stand to benefit from the progress made
in space resource utilization. 137 Similarly, the Hague Building
138
Blocks reiterate the common benefit and interests principles.
135 Id. at 159-61.

136 Id. at 160.
137 Fifty-Fifth Legal Subcomm., supra note 80, ¶ 79; Fifty-Sixth Legal Subcomm., su-
pra note 66, ¶¶ 230, 232, 238 and 242; 2018 Information Report, supra note 66, ¶J 31,
42 and 45.
138 BUILDING BLOCKS, supra note 25, ¶¶ 1, 4 and 9.
They refer to several relevant principles, such as considering the

needs of developing countries and the contributions of pioneer op-
erators. 139
B. InternationalCooperation
Similar to other global commons, outer space faces a collective
action problem. Because of the competing views and interests
among different countries, substantial disagreement exists with re-
gard to benefit sharing. This issue has become more tangible and
pressing especially given that space mining will become a reality
soon. Specifically, spacefaring countries are seemingly reluctant to
sacrifice their "hard earned" benefits to those who do not have the
capacity to invest or gain them on their own, while developing coun-
tries are pressing for equitable distribution of benefits. To make
these benefits truly accrue to all countries and avoid the tragedy of
the anti-commons, the concept of a "community of shared future for
humankind" (CSFM) provides a potential solution. It was first pro-
posed by China, 140 and has been written into several resolutions
adopted by the UN. 141 Unlike CHM, CSFM requires States to coop-
erate to jointly tackle current security and developmental chal-
lenges and properly handle State-to-State relations. On the one
hand, CSFM highlights the idea of common interest and harmoni-
ous coexistence for universal prosperity in the outer space. By in-
ternational cooperation, States would conduct space resources ac-
tivities with due regard to the corresponding interests of other
States and the international community. Developing countries
could be enabled to bridge the still widening gap of technology and
knowledge, which is beneficiary for their future development and
139 Id. ¶ 4.
140 The term of CSFM first appeared in a White Paper of the State Council of China
in September 2011, entitled "China's Peaceful Development," where it was translated as
"the Community of common density." President Jinping Xi then put forward and ex-
pounded on the vision of CSFM on a number of international occasions. See Fengna Xu
& Jinyuan Su, Shaping 'A Community of Shared Futurefor Mankind': New Elements of
GeneralAssembly Resolution 72/250 on FurtherPracticalMeasures for the PAROS, 44-
45 SPACE POLY 57, 59 (2018).
141 The concept of CSFM has been written into several resolutions adopted by the UN,
including: G.A. Res. 74/6, at 2 (Oct. 31, 2018); G.A. Res. 37/23 (Mar. 19, 2018); G.A. Res
72/250 (Dec. 24, 2017); S.C. Res. 2344 (Mar. 17, 2017).
considerably contributes to worldwide stability and peace. 142 On the

other hand, as a community of shared interests, CSFM advocates
win-win cooperation instead of confrontation and exclusiveness.
Given that the space mining industry, with high cost and risk, has
posed developmental challenges to humankind, all States need to
jointly tackle it. International cooperation provides a feasible way
to strike a balance among different players. For developing coun-
tries, their interests would be guaranteed by directly participating
in the exploitation and use of space resources, as they would be rec-
ognized as partners in formulating decisions and not merely recip-
ients of benefits. 143
It is clear that international cooperation, as an important prin-
ciple in both general international law as well as the lex specialis of
space law, does not incur mandatory monetary benefit-sharing. In
the discussion within COPUOS and the LSC on a relevant item,
developing countries were willing to allay the concerns of developed
countries and struck a compromise to resolve the issue. 144 And in
the 1996 Declaration on International Cooperation, States are al-
lowed to determine freely "all aspects of their participation in inter-
national cooperation on an equitable and mutually acceptable ba-
sis."146 The fate of Part XI of the UNCLOS also demonstrates this.
After hard negotiations among developed and developing countries,
the 1994 Implementation Agreement 146 was adopted. It accepted a
142 STEPHAN HOBE, COLOGNE COMMENTARY ON SPACE LAw, VOL. I: OUTER SPACE
TREATY ¶ 72 (2009).
143 Xu & Su, supranote 140, at 59, 60.
144 See Marietta Benkii & Kai-Uwe Schrogl, History and Impact of the 1996 UNDec-
larationon 'Space Benefits', 13 SPACE POL'Y 139-42 (1997).
145 G.A. Res. 51/122, ¶ 2 (Dec. 13, 1996).
146 Agreement Relating to the Implementation of Part XI of the United Nations Con-
vention on the Law of the Sea, Nov. 16, 1994, 1386 U.N.T.S. 3. In the 1980s, some marine
powers like the US, the UK, Germany and France refused to join UNCLOS due to their
skepticism of Part XI. There are many requirements of equalitarianism in Part XI, such
as compulsory economic assistance or compensation to developing States whose econo-
mies are seriously affected by deep seabed mining activities (UNCLOS, Article 151, 6
(10)), unconditional transfer of technology (UNCLOS, Annex III, Article 5(3), (6)), high
annual fee from the date of entry into force of the contract (UNCLOS, Annex III-, Article
13(3)). But after hard negotiations between them and developing countries, the 1994
Implementation Agreement of Part XI of the UNCLOS was adopted with notable
changes to reflect commercial interests. For instance, economic assistance fund should
not exceed payments received from contractors and voluntary contributions (1994 Im-
plementation Agreement of Part XI of the UNCLOS, Annex, Section 7); the transfer of
technology should be based on fair and reasonable commercial terms and conditions on
free-market approach to some extent. For this reason, for spacefar-

ing countries, with a considerable amount of money and effort going
into space mining, compulsory monetary benefit-sharing would
generate disincentives for them to invest in space mining. And re-
quirements that benefit or technology be shared with others regard-
less of their level of involvement in the endeavor would also place
substantial burdens on private space development, especially in its
early stage.1 47 Hence, international cooperation must be considered
to be subject to some extent to commercial incentives, which are
vital for investment in the exploitation and use of space resources
as mentioned above. As argued by Olson, in a large group, rational
and self-interested individuals will not voluntarily act in their com-
mon or group interest, unless there is coercion or some separate in-
centive.1 48 Besides, developing countries should also make what
contribution they can to an activity of common interest to all.1 49 A
lesson drawn from the failure of the MA is that concepts like CHM
focusing on rights and benefits while neglecting obligations and
burdens are unacceptable for spacefaring countries. Developing
countries should indicate a readiness to cooperate through positive
action rather than as free-riders, as voluntary cooperation implies
win-win cooperation.
As a result, the international community needs to carefully
balance the interests of developed and developing countries which
are reconcilable and not mutually exclusive. Fortunately, there are
various options we could use to expand access to energy and tech-
nology, such as joint ventures like pro-poor public private partner-
ships (5Ps).I50 According to this new pro-poor partnership model,
developing countries are recognized not only as consumers receiv-
ing benefits but also as partners in business ventures. In this way,
each party could benefit a lot from this model. Besides, assistance
the open market, or through joint-venture arrangements (Section 5); and the annual fee
is reduced and paid from the date of commencement of commercial production (Section
8). As a result, the UNCLOS was joined and ratified by most countries in the world.
147 Thomas R. Irwin, Space Rocks: A Proposal to Govern the Development of Outer
Space and Its Resources, 76 OHIO ST. L. J. 217, 232 (2015).
148 MANCUR OLSON, LOGIC OF COLLECTIVE ACTION, PUBLIC GOODS AND THE THEORY
OF GROUPS 2 (2002).
Fifth Session, U.N. Doc. A/AC.105/C.2/SR.71, at 23 (1966).
110 Akanksha Chaurey et al., New Partnershipsand Business Models for Facilitating
Energy Access, 47 ENERGY POL'Y 48, 50 (2012).
programs could help avoid inequality and protect the interests of

developing countries. In fact, it is quite practical to compensate
those countries who are adversely affected to achieve the "ultimate
good" for society. According to the principle of rational benevolence
refined by Henry Sidgwick, the good of any State is of no more im-
portance, from the point of view of the Universe, than the good of
any other.1 51
What's more, procedural justice also matters because it tends
to promote better outcomes in terms of the traditional welfare eco-
nomics approach.15 2 Unlike distributive justice, procedural justice
is oriented towards process rather than outcome. It is recognized as
an important determinant of perceived fairness1 53 by providing
meaningful involvement and access to the decision-making process.
Specifically, procedural justice deals with recognition (who is recog-
nized), participation (who gets to participate) and power (how
power is distributed in decision-making forums).15 4 Outer space, as
a global commons, should be collectively managed by all States or
all humankind. The exploitation and use of space resources is no
exception. To establish relevant regimes of benefits sharing, the UN
should play a key role due to its legitimacy and inclusivity. At the
same time, stakeholders, including private sectors, governments of
spacefaring and developing countries and experts, should be en-
couraged to participate in it. As in the LSC, the majority of delega-
tions have actively participated in the discussion on potential legal
models for activities in exploration, exploitation and use of space
resources. Nevertheless, decisions should not be made on a "one
State, one vote" basis, as demonstrated by the failure of Part XI of
the UNCLOS. Those countries contributing much to the exploita-
tion and use of space resources should be given an impact propor-
tionate to their interest and the involvement. But it is still reward-
ing for developing countries to be included in the decision-making
forums to raise possible concerns. Additionally, other measures
may also be useful, such as better information disclosure and
151 SOVAcOOL & DWORKIN, supra note 133, at 94.

152 See Paul Dolan et al., It Ain't What You Do, It's the Way that You Do It: Charac-
teristics of ProceduralJustice and Their Importance in Social Decision-Making, 64 J.
ECON. BEHAVIOR & ORG. 159 (2007).
163 See Robert J. Bies et al., ProceduralFairness and Profit Seeking: The Perceived
Legitimacy of Market Exploitation, 6 J. BEHAVIORAL DECISION-MAKING 253 (1993).

164 SOVACOOL & DWORKIN, supra. note 133, at 137, 138.
auditing to promote transparency of decisions, effective remedies

mechanism and so on.
In the debates within the LSC, many delegations held that
solid cooperation is beneficial to maximize space resources for the
common prosperity, security and the long-term sustainability of
outer space activities. 15 5 And international space cooperation
should be based on the concepts of equality, mutual benefit and in-
clusive development. 156 In particular, developing countries must be
involved for their rights and benefits to be considered.157 Hence, it
is important to strengthen technical assistance and sharing. 158 Re-
garding procedural justice, delegates stressed the important role of
the UN in strengthening and developing cooperation and collabora-
tion among countries, 15 9 since taking a multilateral approach to
space resources within COPUOS and its LSC is the only way to en-
sure that the concerns of all States. 160 Obviously, these views are
basically consistent with our above analyses. In contrast, the Hague
Building Blocks address some measures and requirements of bene-
fits sharing, including: promoting the participation in space activi-
ties by all countries, in particular developing countries; no compul-
sory monetary benefit-sharing; and encouraging operators to pro-
vide for benefit-sharing. 161 But these provisions only cover distrib-
utive justice; not procedural justice. Given its membership, there is
no broad participation in the HSRGWG, which makes it impossible
to fully reflect the demands of the international community. As Bel-
gium argued, without any actual mandate received from States and
of a formal mechanism ensuring their representation, the
HSRGWG does not provide a "forum for negotiations on an interna-
tional framework." 16 2 Besides, the neutrality of the Working Group
155 Rep. of the Comm. on the Peaceful Uses of Outer Space on Its Sixtieth Session,
U.N. Doc. A/72/20, 1 58 (2017) [hereinafter the COPUOS 2017 Report].
156 Fifty-Fifth Legal Subcomm., supra note 80, 1 244; Fifty-Sixth
Legal Subcomm.,
supranote 66, ¶ 264.
157 COPUOS 2017 Report, supra note 155, ¶ 229.
16 Id. ¶ 311. See also Fifty-Fifth Legal Subcomm., supra note 80, ¶ 65.
16 COPUOS 2017 Report, supra note 155, 1 58.
160 Fifty-Sixth Legal Subcomm., supranote 66, ¶ 225; 2018 Information Report, supra
note 69, ¶ 28.
162 Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm., Ques-
tions and Observations by Belgium on the Establishment of National Legal Frameworks
for the Exploitation of Space Resources, U.N. Doc. A/AC.105/C.2/2018/CRP.8, 1 3 (2018).
can be questioned, as it is primarily financed by the Dutch Minis-

tries of Foreign and Economic Affairs, the Secure World Founda-
tion, Deep Space Industries, ispace, the University of Luxembourg,
Nishimura & Asahi and the Ten to the Ninth Plus Foundation 163
Thus, the exploitation and use of space resources for commer-
cial purpose conforms to common benefit and interests principle.
International cooperation is conducive to balancing, the interests of
developed and developing countries and contributes to a CSFM of
outer space. In addition to distributive justice, procedural justice
could also promote equitable benefits sharing.
V. ENVIRONMENTAL PROTECTION
When the OST was concluded, it emphasized the peaceful use
of outer space; environmental protection was not a priority or con-
cern. But this issue is becoming particularly important at the dawn
of space mining. Article IX of the OST has laid the basis for envi-
ronmental protection in outer space. It requires that States pursue
studies and conduct exploration of outer space so as to avoid their
harmful contamination and also adverse changes in the environ-
ment of the Earth. 164 In addition, according to Article VI, States are
obliged to consider environmental aspects for the authorization and.
supervision of national activities in outer space 165 and adopt appro-
priate measures when necessary. This is the environmental protec-
tion principle. However, the provisions contained in this principle
are rather vague and broad. The MA also addresses this principle
in Article 7, using the terms "preventing the disruption of the exist-
ing balance of its environment," and "avoiding harmfully affecting
the environment of the Earth through the introduction of extrater-
restrial matter or otherwise."1 66 It also creates an obligation of no-
tification of States to the maximum extent feasible, concerning the
measures adopted by them and all placements of radioactive mate-
rials. What's more, it refers to areas as international scientific pre-
serves which should be reported and protected by special
163 Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm., The
Hague Space Resources Governance Working Group, Information Provided by the Neth-
erlands, U.N. Doc. A/AC.105/C.2/2018/CRP.18, at 4 (2018).
164 Outer Space Treaty, supra note 3, art. IX.
165 Id. at art. VI.
166 Moon Agreement, supra note 11, art. 7.

arrangements. 167 But major spacefaring nations who have not rat-
ified the MA may argue that they do not have to comply with these
obligations. As a result, current space law cannot protect the envi-
ronment of outer space and the Earth adequately.
Space resources activities are perse ultra-hazardous activities,
which may be harmful to both the outer space and the Earth envi-
ronment. Forward contamination arising from Earth affects the en-
vironment of outer space. This type of contamination may include:
all forms of debris found in outer space of nonhazardous nature;
hazardous waste which is chemically or physically dangerous; radi-
oactive waste which is the residue of nuclear-powered space ob-
jects; 168 and biological material from Earth to a planetary body with
space probes or human space missions. On the other hand, back-
ward contamination arising in space adversely affects the surface
or atmosphere of Earth. In particular, returning spacecraft may
also spread pollution or bring back waste, such as radioactive debris
and extraterrestrial material. For this reason, we should carry out
these activities with a high standard of care and due diligence, in
spite of uncertainties about specific contamination at present.
According to Article III of the OST, general international en-
vironmental law is applicable to protect the environment of outer
space as well as the Earth. For example, the 1972 Stockholm Dec-
laration and the 1992 Rio Declaration affirm that, "States have ...
the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States
or of areas beyond the limits of national jurisdiction." 169 In addition
to post hoc action, Principle 15 of the Rio Declaration also requires
States to take "the precautionary approach . . . according to their
capabilities. Where there are threats of serious or irreversible dam-
age. . . [and] the lack of full scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent
167 Id.
168 Major Bernard K. Schafer, Solid, Hazardous, and Radioactive Wastes in Outer
Space: Present Controls and Suggested and Changes, 19 CAL. W. INT'L L. J. 2, 3 (1988).
169 U.N. Conf. on Environment and Development, Rio Declarationon Environment
and Development, Principle 2, U.N. Doc. A/CONF.151/26 (Vol. 1) (Aug. 12, 1992) [here-
inafter Rio Declaration]; U.N. Conference on Environment and Development, Declara-
tion of the United Nations Conference on the Human Environment, Principle 21, U.N.
Doc. A/CONF.48/14/Rev.1 (June 16, 1972).
environmental degradation.17 0 Actually, the duty of prevention and

due diligence has been recognized by the International Court of Jus-
tice (ICJ) in the Gabcikovo-NagymarosProject'7' case.
Regarding forward contamination, the fragility of the space
environment itself, and our general lack of understanding of that
environment are behind the reasoning of the precautionary princi-
ple. After all, it is always easier to avoid contamination than deal
with it after it emerges. As for backward contamination, we should
also take prudent precautions to protect the Earth environment.
For instance, the Committee on Space Research (COSPAR) prom-
ulgated a Planetary Protection Policy as an international standard
on procedures to avoid organic constituent and biological contami-
nation in space exploration.1 72 There are five categories for target
body/mission type combinations. Category V pertains to all Earth-
return missions. For the subcategory defined as "Restricted Earth
Return," destructive impact upon return is absolutely prohibited.
Post-mission, there is a need for strict containment and timely anal-
yses of any unsterilized sample collected and returned to Earth. If
any sign of the existence of a non-terrestrial replicating organism
is found, the returned sample must be treated by an effective steri-
lization procedure.1 73 Similarly, NASA had a Lunar. Quarantine
Program during the Apollo program for the astronauts when they
came back from their lunar missions to maintain its planetary pro-
tection policy.1 7 4 Both the European Space Agency (ESA) as well as
170 Rio Declaration, supra note 169, at Principle 15. Similarly, several international
environmental law conventions, such as the Vienna Convention for the Protection of the
Ozone Layer of 1985 and the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes of 1992 repeat this principle. See EIRIK BJORGE
& CAMERON MILES, LANDMARK CASES IN PUBLIC INTERNATIONAL LAW 438 (2017).
171 Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovk.), Judgment,
1997 I.C.J. Rep. 7, 1 97 (Sept. 25). In the Gabcikovo -Nagymaros proceedings, Hungary
connected prevention to precaution in its arguments by urging that "[t]he previously ex-
isting obligation not to cause substantive damage to the territory of another State had
.
. . evolved into an erga omnes obligation of prevention of damage pursuant to the 'pre-
cautionary principle."' Id.
172 COSPAR PLANETARY PROTECTION POLICY (2005), http://w.astro.berke-
ley.edu/-kalas/ethics/documents/environ-
ment/COSPAR%20Planetary%20Protection%20Policy.pdf.
173 Id. at 2.
174 Interplanetary Contamination and ExtraterrestrialLife, SPACE SAFETY MAG.,
http://www.spacesafetymagazine.com/space-exploration/extraterrestrial-life/ (last vis-

ited Apr. 19, 2020).
the Japanese Aerospace Exploration Agency (JAXA) are also coop-

erating with NASA to implement and develop planetary protection
policy. 175
Recently, there has been a growing tendency not only towards
tackling the problem of environmental preservation and protection
in outer space, but also towards trying to avoid their harmful con-
tamination to the maximum possible extent. 176 Space sustainability
has become an important concern at modern times, and is a priority
agenda in the Scientific and Technical Subcommittee (STSC) of
COPUOS. In 2010, the STSC established the Working Group on the
Long-Term Sustainability of Outer Space Activities (LTS) to pro-
pose measures that could enhance sustainability and produce vol-
untary guidelines to reduce risks to long-term sustainability. 177 Af-
ter continuous discussion, STSC has made tangible progress and
reached consensus on the text of twenty-one guidelines. Although
these guidelines are safety-oriented, they could help protect the en-
vironment of outer space to some extent by: supervising national
space activities; sharing information on space objects and orbital
events; and managing space debris in the long term. 178 Addition-
ally, these guidelines are also meaningful because they raise a
broad awareness among COPUOS members of the need to address
space sustainability concerns by international cooperation. Simi-
larly, in the debates within LSC, some delegates also expressed that
there is a need to care for the outer space environment in the same
way as the Earth for the benefit of future generations. 179 And some
delegates held that studying the conditions under which both public
and private operators could conduct resource utilization activities
176 Office of PlanetaryProtection, NASA, https://planetaryprotection.nasa.gov/intpol-

icy/ (last visited Apr. 19, 2020).
16 HOBE, supra note 142, ¶ 36.
177 Long-term Sustainability of Outer Space Activities, U.N. OFF. FOR OUTER SPACE
AFF.,
http://www.unoosa.org/oosa/en/ourwork/topics/long-term-sustainability-of-outer-space-
activities.html (last visited May 17, 2019).
178 Rep. of the Comm. On the Peaceful Uses of Outer Space, U.N. Doc. A/73/20, at'207,
208 (2018); Comm. on the Peaceful Uses of Outer Space, Rep. of the Sci. and Technical
Subcomm. on Its Fifty-Fifth Session, U.N. Doc. A/AC.105/1167 (2018); Comm. on the
Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on Its Fifty-Ninth Session,
U.N. Doc. A/71/20 (2016).;
179 COPUOS 2017 Report, supra note 155, 1 34; Fifty-Fifth Legal Subcomm., supra
note 80, ¶ 33; Fifty-Sixth Legal Subcomm., supra note 66, ¶¶ 51, 232.
and reaching a multilateral consensus to prevent multiple new po-

tential risks to both the terrestrial and space environments, 180
would ultimately contribute to the preservation of a safe, secure
and sustainable space environment. 181
The Hague Building Blocks also mark a significant step for-
ward in addressing the very complex topic of space sustainability.
In paragraph 4, the Building Blocks refer to "contributing to sus-
tainable development" and "promoting the use of sustainable tech-
nology."1 82 In paragraph 10, they address a variety of harmful im-
pacts resulting from space resources activities, including but not
limited to harmful contamination of outer space and adverse
changes in the environment of the Earth. Specifically, the para-
graph also adds "[r~isks to the safety of persons, the environment
or property," "[d]amage to persons, the environment or property,"
"[h]armful interference with other on-going space activities,"
"[c]hanges to designated and internationally endorsed outer space
natural or cultural heritage sites," as well as "[a] dverse changes to
designated and internationally endorsed sites of scientific inter-
est."1 83 Hence, HSRGWG keeps pace with COPUOS to enhance the
long-term sustainability of outer space activities by improving the
safety of space operations and the protection of the space environ-
ment. For example, avoiding harmful interference could mitigate
risks posed by congestion and ensure the freedom of all States to
explore and use outer space. Regarding the space environment, it is
also progressive by protecting the areas in the last two categories
due to their important value. 184 Additionally, the provisions in par-
agraphs 11 and 12 address corresponding measures in the whole
process of space mining to avoid harmful impacts. In paragraph 11,
the Hague Building Blocks require that space mining activities be
reviewed. prior to a decision to proceed with a space resource activ-
ity, develop technical standards and assess conformity to avoid
harmful impacts.185 These precautionary measures are rewarding
for space mining activities to be carried out in a safer manner. For
180 2018 Information Report, supra note 66 at ¶ 30.

181 COPUOS 2017 Report, supra note 155, ¶ 45.
183 Id. ¶ 10.
184 Mark Williamson, A PragmaticApproach to the "Harmful Contamination" Con-
cept in Art. IX of the Outer Space Treaty, 53 PROC. INT'L INST. SPACE L. 666, 668 (2010).
example, standardization could facilitate routine interactions and

decrease operational risk by increasing predictability, which is an
effective method to promote coordination among many operators. 1 86
In contrast, section 12 provides post hoc solutions. It requires States
to monitor these activities, conduct response measures and adap-
tive management if a harmful impact occurs. 187
However, these regulations are not enough to avoid harmful
contamination of the environment of outer space and the Earth. The
stress on "safety," "technical standards" and the scope of harmful
impacts demonstrate that the Hague Building Blocks are more con-
cerned with protecting activities rather than protecting the envi-
ronment. This conclusion is consistent with our previous analysis
that the HSRGWG is in favor of the industrial development. But
HSRGWG should not be blamed for this. After all, considering the
increasing use of outer space, all States are concerned about the
ability to continue operating in a safe environment. 188 That is why
the international community at present are focusing mainly on the
safety and security of space activities for long-term sustainability.
In contrast, the more forward-looking topics of protection and
preservation of the space environment are not fully discussed, as
space mining has not yet become a reality.
Last but not least, in regulating the negative effects of space
mining on the environment, a balance needs to be made between
protection and preservation on the one hand and exploration and
development on the other. Compared with passive preservation or
non-activity, active preservation is more in line with the purpose of
the OST. As a result, the growth of this nascent industry should not
be impeded by over-regulation. 189 Further, the sustainability of
space activities might be enhanced through the formulation of best
practices, standards and rules applicable to space operators, which
are not burdensome or unnecessary.
188 Blount & Robison, supra note 97, at 160.

187 BUILDING BLoCKs, supranote 25, ¶ 12.
188 Comm. on the Peaceful Uses of Outer Space, Rep. of the Sci. & Technical Comm.,
Long-term Sustainability of Outer Space Activities, Preliminary Reflections, U.N. Doc.
A/AC.105/C.1/2010/CRP.3, at 5 (2010).
189 S.M. Mousavi Sameh, Suborbital Flights: Environmental Concerns and Regula-
tory Initiatives, 81 J. AIR L. & COM. 65, 90 (2016).
VI. CONCLUSION
As the resource supplies of the Earth continue to dwindle,
outer space is the only place where we can find fresh supplies of
energy and raw materials. And technological development makes
the exploitation and use of space resources possible and likely to
become a reality in the near future. Besides, more and more emerg-
ing space actors as well as private entities are developing capabili-
ties to involve them to a much greater extent than hitherto in space
resources activities. But, as mentioned above, the OST was con-
cluded during the Cold War, it cannot effectively protect and pro-
mote these activities. Given that the context in which the OST op-
erates has become different from the one in which it was conceived,
there is an urgent need for a new international regime to regulate
these activities. But before expounding such a regime, we need to
examine the contents of the OST, the Magna Cartaof international
outer space law, especially the four fundamental principles most
relevant to space mining. Elaborating them could help us find out
the legality of exploitation and use of space resources, as these prin-
ciples reflect the object and purpose of the OST, though generous
and ambiguous. Additionally, considering the debates within the
LSC from 2017 to 2019 and the Hague Building Blocks, it is signif-
icant to analyze and review these principles so as to correctly un-
derstand and apply them.
It is concluded that the exploitation and use of space resources
conforms to the principles of freedom of exploration and use, com-
mon benefit and interests and is hence permitted. However, with-
out further regulation, it is likely to lead to a laissez-faire approach
to space mining in an open access commons. A number of issues can
be anticipated, such as over-consumption, disorder, intra-genera-
tional inequality and even monopoly. Besides, as the legality of
space resources activities is unclear under the non-appropriation
principle, some spacefaring countries are interpreting their inter-
national obligations to serve their own interests best. For example,
the US and Luxembourg adopted their national laws to protect in-
vestors' rights and enhance their confidence. Such a unilateral ap-
proach has challenged the spirit and wording of the OST to some
extent. 190 What's more, although environmental protection is a

technical issue to a large extent, a relevant regime is also needed.
States are obliged to consider environmental protection and preser-
vation when they carry out space resources activities with a view
towards long-term sustainability. As a result, a legal framework is
called for to include three essential points: universal benefit rather
than monopoly; guarantees of legal certainty; and rationality and
sustainability. 191
To search for such a regime, international cooperation and di-
alogue pave the way to balance interests among different countries.
For example, through active participation by the majority of dele-
gations in the LSC during 2017-2019, a growing awareness of the
need for internationally agreed rules and multilateral approach has
been raised. And, despite its failure, a working group was proposed
by Belgium and Greece in the LSC 2019 session to address the de-
velopment of an international regime for space mining activities.
More than that, the twenty-one agreed guidelines in the STSC also
opened new avenues for negotiation of some difficult issues. 192
Thus, we are moving in the direction of multilateralism rather than
unilateralism regarding the regulation of exploration and use of
outer space, and space mining is no exception.
However, given that COPUOS operates in a manner that re-
quires for a program of work to be adopted by consensus, it is diffi-
cult to negotiate such an international regime among States in a
short period of time. For this reason, establishing a working group
in COPUOS with a clear mandate might be a viable option to
achieve concrete results. Besides, relevant customary practice is of
a comparatively short duration and historical experience does not
necessarily transfer into the unique environment of outer space.
Consequently, the working group could consider developing soft in-
ternational space law to clarify, interpret and develop these princi-
ples above. On one hand, it could refer to subsequent practice like
national legislation of the US and Luxembourg as well as the Hague
190 Fabio Tronchetti, Multilateralism vs Unilateralism, the Road Ahead in the Explo-
ration and Utilization of Outer Space Resources, Presentation at China Space Confer-
ence (Apr. 2019).
191 Fifty-Sixth Legal Subcomm., supra note 66, at 1272.
192 Peter Martinez, Development of An InternationalCompendium of Guidelines for
the Long-Term
Sustainabilityof Outer Space Activities, 43 SPACE POL'Y 13, 17 (2018).
Building Blocks to enable, support and coordinate the exploitation
and use of space resources. On the other hand, taking into account
the needs and interests of developing countries, this group could
encourage them to participate in a continued high-level exchange
of views on space mining to raise possible concerns. Only in this
way, is the space age deemed to be an opportunity of development
for all countries, rather than for a limited group of States. Accord-
ingly, the vision of a CSFM of outer space is likely to be fulfilled.

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

FengnaXu,* Jinyuan Su** & Miqdad Mehdi***+

principles of international space law, bearing in mind today's new

the exploitation and use of space resources, although the COPUOS

source utilization on the Moon, an informal

countries. 13 After that, the international community failed to make

Between Economic and Legal Commons, 49 SPACE POL'Y 101290, 2 (2019).

space. In 2016, it agreed on a new item for discussion, entitled "Gen-

Its55th Session, U.N. Doc. A/AC.105/C.2/2016/CRP.17 (Apr. 5, 2016).

SPACE RESOURCE ACTIVITIES (2019), https://www.universiteitleiden.nl/binaries/con-

NGOs." 26 The Hague Building Blocks represent their consensus

II. FREEDOM OF EXPLORATION AND USE

26 The Hague International Space Resources Working Group, UNIV. OF LEIDEN,

A. Freedom of Outer Space

their missions. 37 These provisions not only reaffirm the freedom of

31 Moon Agreement, supra note 11, art 6.

the US and Luxembourg caused widespread controversy in the in-

4 Lunar Rocks and Soils from Apollo Missions, NASA, https://cura-

50 PHILIP DE MAN, EXCLUSIVE USE IN AN INCLUSIVE ENVIRONMENT, THE MEANING OF

52 Exploitation,BLACK'S LAW DICTIONARY (9th ed. 2009).

84 According to the French delegation:

United Nations General Assembly Resolution 172157 and the 1963

67 The Resolution, entitled "InternationalCo-operation in the Peaceful Uses of Outer

breakthrough opportunities for scientific and commercial explora-

61 Scalable Robotic Spacecraft, MOON EXPRESS, http://moonexpress.com/ (last visited

Apr. 18, 2020).

the Resulting Inequality? NETIVIST, https://netivist.org/debate/free-market-pros-and-

common benefit and interests principle and its environmental pro-

promote commercial incentives. Principle goals include: promoting

C. The Rule of Capture

71 BUILDING BLOCKS, supra note 25, ¶ 4.

agreement regarding property rights in space resources, they are

DAINTITH, DIScRETION IN THE ADMINISTRATION OF OFFSHORE OIL AND GAS: A

it may be more necessary and advisable to establish reserve zones

a space resource are entitled to "possess, own, transport, use, and

82 51 U.S.C. § 51303 (2018).

87 See Butler, supra note 38, at 508-09.

Given these tensions, the legal status of resources on celestial

pra note 66, ¶¶ 241, 247.

on space resource exploitation and utilization were questioned, 95

A. DistinctionBetween Exploitation and Appropriation

resources in the subsoil is unlawful under the non-appropriation

100 See Christol, supranote 88, at 442.

also be equivalent to appropriation. In this respect, whether exploi-

106 Outer Space Treaty, supra note 3, art. XII.

https://www.itu.int/council/pd/constitution.html [hereinafter ITU Constitution].

lawfulness of the exclusion of others from use of these resources. In

109 DE MAN, supra note 50, at 207-08, 410-11.

agreement of the parties."' For example, the US and Luxembourg,

FengnaXu,* Jinyuan Su & Miqdad Mehdi*+