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SOVEREIGNTY AND OWNERSHIP IN RELATION TO OUTER SPACE …
5.2 Natural resources extracted during exploration on celestial bodies
The issue of exploration of natural resources and their appropriation is regulated
by Article 11 of the Agreement governing the Activities of States on the Moon
and Other Celestial Bodies of 1979. According to Article 11, paragraph 3 of the
Agreement, “neither the surface nor the subsurface of the Moon, nor any part
thereof or
natural resources in place
, shall become property of any State, international
intergovernmental or non-governmental organization, national organization or
non-governmental entity or of any natural person”. This provision
explicitly forbids
appropriation of property
, that is, private law claims. Under national organizations or
non-governmental entities can be understood various legal persons. Problems do not
arise around a natural resource that has not been explored yet, that is, the deposits
of natural resources. The prohibition is expressed through the wording of Article 11,
paragraph 3 “…natural resources in place …”
The question is whether states or other bodies can
appropriate,
and under what
conditions,
resources already explored
(see below). There also arises the question
of a
moratorium,
that is, the prohibition of exploration until the creation of an
international regime of exploration, which is expected to be created according to
Article 11, paragraph 5 of the Agreement about the Moon. The states undertake to
establish such an international regime, including appropriate procedures, to govern
the exploitation of the natural resources of the Moon “as such exploitation is about
to become feasible”.
When considering the possibility of appropriation of resources of the Moon
before the creation of an international regime, it is necessary, in the sense of Article 31
of the Vienna Convention on the Law of Treaties of 1969, to take as a basis the text
of Moon Agreement. According to Christol,
37
who draws from the interpretation of
Article 11, paragraph 3 of Agreement on the Moon, the words “
in place”
were meant
by the creators of Agreement on the Moon as a legalization of transport of natural
resources from the surface or the sub-surface of the Moon, which could form the basis
for appropriation of such sources by their possessors. These could therefore be states,
but also natural or legal persons. There is a relation to Article 6, paragraph 2 of the
Agreement, which gives the states parties the right to remove from the moon samples
of its mineral and other substances in quantities appropriate for the support of their
missions. These provisions, as Gál
38
notes, carefully avoid such terms for collected
samples as property or ownership. However, according to Article 6, paragraph 2,
such samples remain at the
disposal
of those states parties which collected them and
may make a portion of such samples available to other states and the international
scientific community. The term disposal can be viewed as one of the features of the
property right.
37
See Christol, C. Q.,
The Modern International Law of Outer Space
, Pergamonn Press, New York, 1982,
pp. 261-262.
38
See Gál, G., Acquisition of Property in the Legal Regime of Celestial Bodies, the 39th Colloquium on
the Law of Outer Space, China, 1996, p. 47.