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 e Exploitation of Natural Resources of
the Moon and Other Celestial Bodies
Studies in Space Law
General Editor
F.G. von der Dunk
University of Nebraska, College of Law, Space and
Telecommunications Law Program
Editorial Board
E. Back Impallomeni, University of Padua
S. Freeland, University of Western Sydney
J. Gabrynowicz, National Remote Sensing & Space Law Center,
University of Mississippi
S. Hobe, University of Cologne
R. Jakhu, Institute of Air and Space Law, McGill University
F. L yall, University of Aberdeen
V.S. Mani, Gujarat University
K.U. Schrogl, German Aerospace Center DLR
L.J. Smith, University of Bremen
VOLUME 4
 e Exploitation of Natural
Resources of the Moon and
Other Celestial Bodies
A Proposal for a Legal Regime
By
Fabio Tronchetti
LEIDEN • BOSTON
2009
 is book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Tronchetti, Fabio.

 us, fruit has arisen out of action, and action out of fruit.
From time immemorial, life has been conducted in this manner.
 is is called the wheel of karma.
To act with the motive of gaining fruits is to invite bondage.
Relinquishing the fruits frees us from all miseries.”
Sri Swami Rama, Himalayan master

Contents
Acknowledgments xv
Abbreviations xvii
Chapter 1. Introduction 1
1.1.  e exploitation of natural resources of the Moon
and other celestial bodies: a new opportunity of
development for mankind 1
1.2. Space law and the natural resources of the Moon
and other celestial bodies: the need for a legal
regime 3
1.3.  e natural resources of the Moon and other
celestial bodies 5
1.4. Overview of the analytical framework 6
Chapter 2.  e Outer Space Treaty, the Moon Agreement and
the 1996 Declaration on Space Benefi ts 9
2.1. Introduction 9
2.1.1.  e background to the discussion on the
legal status of outer space 9
2.1.2. Legal scholars and the status of outer
space 10
2.1.3.  e United Nations and outer space:
defi ning the legal status of outer space
in the period 1958–1966 14

interpretation of Article I of the
Outer Space Treaty 62
2.4.3.  e dra ing history of the 1996
Declaration on Space Benefi ts 65
2.4.4.  e 1996 Declaration on Space Benefi ts 77
2.4.5. Conclusion: what is the value of the
1996 Declaration on Space Benefi ts? 78
2.5. Conclusion 81
Chapter 3.  e Common Heritage of Mankind 85
3.1. Introduction 85
3.2.  e ‘Common Heritage of Mankind’: a new way
for managing common areas beyond national
jurisdiction 87
3.3.  e origin and evolution of the ‘Common Heritage
of Mankind’ concept 91
Contents ix
3.3.1. Introduction 91
3.3.2. From 1967 to 1971 92
3.3.3. 1972–1974: new elements in the ‘Common
Heritage of Mankind’ concept 98
3.3.4. 1975–1979: further development of the
‘Common Heritage of Mankind’
concept 99
3.3.5.  e 1980’s: the decline of the ‘Common
Heritage of Mankind’ concept 104
3.3.6. 1980–1982: the failure of the 1982
Law of the Sea Convention 104
3.3.7.  e 1990’s: a second chance for
the ‘Common Heritage of Mankind’ 110
3.3.8.  e 1994 Implementation Agreement 116

4.3.2.  e geostationary orbit and the frequency
spectrum as limited natural resources? 164
4.3.3.  e allocation system of the orbit/
spectrum resource 168
4.3.4.  e limits and problems of the current
methods of orbit/spectrum allocation 182
4.3.5.  e ITU procedures for the management
and allocation of the orbit/spectrum
resource: a valuable example for the
extraterrestrial resources regime? 187
Chapter 5. Property rights in outer space: a crucial issue in the
wake of the commercialisation of outer space and
its resources 193
5.1. I ntroduction 193
5.2. Immovable and movable property rights
in outer space 196
5.3.  e myth of immovable property rights in outer
space: some preliminary considerations 197
5.3.1.  e non-appropriative nature of outer space:
rejecting claims to immovable property
rights in outer space 198
5.3.2. Private claims of ownership and immovable
property rights over the Moon and other
celestial bodies 202
5.3.3. Individual claims of the Moon and market
of extraterrestrial properties: the example
of Lunar Embassy and the case of Nemitz
versus the United States 203
5.3.4. Space commercialization versus the non-
appropriation principle: the issue of

6.6.5. Membership of and decision-making in
the Council 250
6.6.6.  e Technical and Legal Committee 252
6.6.7. Financing the Authority 253
6.7.  e exploitation of lunar resources: applicable
rules and licensing procedure 254
6.7.1.  e exploration of the lunar and other celestial
bodies’ surface: general considerations 254
6.7.2. Legal aspects of the exploration phase 255
6.7.3.  e application procedure 257
6.7.4.  e submission of an exploitative
working plan 257
xii Contents
6.7.5. Review of the plan 259
6.7.6.  e license 260
6.8.  e liability regime applicable to the exploitation
of extraterrestrial resources 263
6.8.1.  e Liability Convention and the
exploitation of lunar and other
celestial bodies’ resources 264
6.8.2. Liability for damage caused to the space
environment 267
6.9.  e proposed dispute settlement mechanism 269
6.9.1.  e need for a dispute settlement
mechanism: general introduction 269
6.9.2.  e WTO dispute settlement mechanism:
general aspects 272
6.9.3.  e procedure for the settlement
of disputes 274
6.9.4. First stage 274

Bibliography 361
Books 361
Ar ticles 365
Internet and web-based sources 378
Index 379

Acknowledgments
 is book is a revised and enhanced version of my doctoral thesis, which
I successfully defended at Leiden University on 18 December 2008.
As it has been said many times before, writing a PhD is a lonely and
hard job.  e hours I sp ent in the lib rary looking for materials and at
home on the PhD manuscript are countless.
Numerous p ersons ha ve co ntributed t o the p rocess of writing and
fi nalising this book; I am much indebted to them for these contributions
and helping me with my research.
Firstly, I had the ho nor t o b e guide d a nd su pervised b y P rofessor
Frans von der Dunk. He always represented a support and a s ource of
scientifi c inspiration. His co mments a nd ad vices have co ntributed t o
signifi cantly enhance the quality of this book.
Secondly, I am thankful to Professor Elisabeth Back Impallomeni and
to Professor Henri Wassenbergh, for their comments to and remarks on
my PhD ma nuscript. A sp ecial tha nks als o goes t o Professor I sabella
Castangia, my fi rst mentor in the early years of my research in Italy.
I would like to express my gratitude to my mother Marilena for the
love she has shown my whole life. No amount of thanks will ever come
to being suffi cient. My love goes to my sister Silvia, her husband Marcello,
my nephews Ricca rdo and Chiara, my cousins Luigi and S imone, my
aunt Maria Teresa, my father Carlo. A special thank goes to the Arnold
family for their unconditioned love. Last, but of course not the least, my
Kinga.  is book would have never seen the light of day without you.

PCIJ Permanent Court of International Justice
UK U nited Kingdom
UN U nited Nations
xviii Abbreviations
UNCLOS United Nations Convention on
the Law of the Sea
UNESCO United Nations Educational, Scientifi c and
C ultural Organization
UNGA United Nations General Assembly
UNISPACE United Nations Conference on the Exploration
and Peaceful Uses of Outerspace
UNOOSA United Nations Offi ce for Outer Space Aff airs
UNTS United Nations Treaty Series
US United States of America
WARC World Administrative Radio Conference
WRC World Radiocommunication Conference
WTO World Trade Organization
1
W. S h a ke sp e ar e, Romeo and Juliet, act 2, sc. 2.
2
P. B. Sh el le y, To the Moon.
3
G.G. Byron, We’ll go no more a-roving.
4
T. Hardy, At a Lunar Eclipse.
5
A det ailed a nalysis o f the na ture a nd co mposition o f thes e na tural r esources is
provided at p. 5.
Chapter 1
Introduction

Earth once brought to our planet. It has been estimated that the use of
extraterrestrial r esources as a s ource o f ener gy no t o nly wi ll ha ve
2 Chapter 1
6
S ee: h ttp://www.upenn.edu/
gazette/0397/0397gaz2.html; h ttp://aerospacescholars.isc.nasa.gov/HAS/cirr/em/6/6
.cfm.
7
See in this r espect the ac tivities and the r esults achieved by the Ares I Crew Launch
Vehicle Project operating within the Nasa. See: http://spacefl ightsystems.grc.nasa.gov/
LaunchSystems/.
8
In this respect the United States has launched the Vision for future space exploration
in 2004 (s ee ash/Vision/index.html).  e Vision fore-
sees the return of astronauts on the Moon by 2020, the establishment of a permanent
manned basis o n the l unar surface a nd use of the M oon as a basis f or future space
exploration.  e fi rst step in the r ealization of the Vision has o ccurred on June 18,
2009, when the Lunar Reconaissance Orbiter (LRO), whose main purpose is to study
the physical nature of the Moon by focusing particular attention on the Polar Region,
has b een la unched. S ee f or f urther det ails: h ttp://lunar.gsfc.nasa.gov/mission.html.
tremendous impact but also will have the capability to solve the energy
crisis currently existing on E arth. As is w ell known, the st ocks of raw
materials are running out and experts estimate that fossil oil will be fi n-
ished in thir ty to f ourty years. Alternative ways for generating energy,
such as usin g hydrogen, nuclear p ower, and s olar power, have already
been employed on Earth in order to try to solve this problem. However,
it has been proven by scientists that the utilization of the natural resources
of the Moon and other celestial bodies will produce better results in this
respect due to the quality and quantity of such resources.
6

moon-mission-blasts-off /. On 14 S eptember 2007 Japan launched the Selene mission
whose purpose is t o analyze the M oon’s origin and its physical composition. See for
details: h ttp://www.jaxa.jp/projects/sat/selene/index_e.html. I ndia has la unched i ts
fi rst mission to the Moon, Chandrayaan-1 on 22 O ctober, 2008.  e mission aims at
mapping the entire lunar surface, both on the near and far side, in order to get a better
knowledge of the minerals contained on the Moon and to facilitate the future perma-
nent presence of human beings on its surface. For information see: o.
org/Chandrayaan/htmls/mission_sequence.htm.
specifi c rules establishing how this exploitation has to t ake place and
the rights and duties of the pa rties involved. B ecause of this uncer -
tainty, both States and private operators interested in thes e resources
might well have refrained f rom investing money and technologies in
exploitative activities in outer space. A sound legal regime to manage
and regulate the exploitation of the natural resources of the Moon and
other celestial bodies is the key, and this book aims at contributing to
enhance it by its concrete proposals. Such a legal regime not only will
stimulate the pa rticipation o f S tates a nd p rivate o perators in this
exploitation but w ill a lso c ontribute to it s s afe an d ord erly d e
-
velopment.
1.2 Space law and the natural resources of the Moon and other
celestial bodies: the need for a legal regime
As already indicated, one major reason to explain the fact that States and
private operators have not started to exploit the resources of the Moon
and other celestial yet is the absence of rules setting out how this exploi-
tation s hould b e c arried out .  e major space la w treaties, indeed, do
not co ntain a ny sp ecifi c r ule d ealing wi th th e u se o f e xtraterrestrial
resources, and thus there is no clearcut regime dealing with it which has
4 Chapter 1
9

rejected by the majority of States, and none of the space-faring nations
are Parties to the Agreement itself.
 e consequence is, as we will see, that in order to ensure the safe,
rational, peaceful and orderly exploitation of the resources of the Moon
and other celestial b odies a lega l regime containing rules est ablishing
how this exploitation has to be organized and carried out must be estab-
lished. On the one hand, this legal regime has to be based on the existing
space law principles which, in the last f orty years, have provided com-
prehensive direction and guidance to space activities. On the other hand,
the legal regime has to take into consideration the present state of space
activities, in w hich private operators are playing a mo re relevant role
day b y da y. S uch o perators, w ho a re v ery in terested in exp loiting
Introduction 5
11
See: http://www. popularmechanism
.com/science/air/.
extraterrestrial resources, must be stimulated to accept and comply with
the provisions of such a legal regime.
In o ther w ords, the success o f any legal r egime for exploitation o f
such resources will rely on its ability to strike a balance between these
two distinct interests.
1.3  e natural resources of the Moon and other celestial bodies
As r eferred t o, the M oon a nd the o ther celestial b odies o f o ur s olar
system contain large quantities of natural resources.
As for the Moon, it presents vast amount of mineral resources distrib-
uted uniformly across its surface a nd subsurface. It has b een demon-
strated tha t the M oon is rich in al uminum, ir on, si licon, o xygen,
hydrogen, chromium, manganese, potassium, and other minerals.  es e
minerals can be utilized in their original form or refi ned into structural
and electrical materials.  ey can be brought back to Earth or used for

and of advanced and innovative environmentally sound technologies”.
For the text of the Kyoto Protocol to the United Nations Framework Convention
on Climate Change see: />13
See: Sci/Tech. Moon map aids discovery, />.stm and supra, n. 11.
Helium-3 is an isotope, scarcely present on Earth but abundant on the
Moon, which combined with other materials, such as deuterium, can be
used as fuel in fusion power reactors.  e value of Helium-3 is that it can
generate nuclear power and, as a co nsequence, energy in a c lean way,
namely thr ough a p rocess of nuclear f usion w hich do es not p roduce
toxic waste.  anks t o thes e sp ecial c haracteristics the extrac tion o f
Helium-3 is likely to have a huge impact on the way energy is produced
and distributed on Earth. Helium-3, indeed, has the potential to replace
fossil fuels and other substances as primary source of energy on Earth.
12

It has b een estimated that twenty-fi ve tonnes of Helium-3 can provide
all the power that the United States needs in a year.
13
As to the resources contained in the celestial bodies others than the
Moon, it has been estimated that some 1400 Near Earth Asteroids with
a diameter larger than one kilometer cross the Earth’s orbit around the
Sun.  ese asteroids are easy t o b e reached f rom the M oon. S ome of
these ast eroids a re dead co mets wi th la rge a mounts o f wa ter; o thers
contain vast amounts of iron. Also the two Martian moons, Phobos and
Deimos, contain vast quantities of minerals.
1.4 Overview of the analytical framework
 is book starts with a critical comparative approach among the legal
regimes r egulating t he ac tivities in o uter sp ace, o n t he hig h s eas, in
Antarctica an d i n t he ge ostationary or bit, i n ord er to fi nd o ut w hat
elements a nd c haracteristics o f thes e r egimes ca n b e us ed w hen