«Positive Space Law and Privatization of Outer Space: Fundamental Antinomies » George D. Kyriakopoulos Lecturer in International Law Faculty of Law, Nationale and Kapodistrian University of Athens

“Antinomy” (αντινομία)  “a fundamental and apparently unresolvable conflict”

The five international space treaties, constitute agreements among States which leave little room for private activities Space Law in force  a collective exploration and exploitation of outer space [“province of all mankind”, art. I OST – “Common heritage of mankind”, art. 11 (1) MA]  collective exploitation regime of the Moon and the celestial bodies [art. 11 (5) MA]

Antinomic relationship between: - existing provisions of space law and - growing desire for involvement of private interests in outer space

1. Public Law v. Private Activities  Space exploration initially undertaken by governmental entities  Even today, “public purpose”  the main characteristic of positive space law  No recent international space legislation of binding nature  Trend towards soft law regulations (“principles", “guidelines” or “codes of conduct”)

1. Public Law v. Private Activities  “In the field of ​​space law, no such regulations that could systemically be classified under a separate category of “private space law” or “private international space law” through the institutional form of conventions of international uniform law” (Yokaris)

1. Public Law v. Private Activities  “State keeps private activities under its control”  “Only the State is present in the international sphere, in respect of the activities undertaken in relation to the exploration and exploitation of space” (Yokaris)

2. The Non-Appropriation Principle v. Property Rights in Space  Art. II OST, Art. 11 (2) MA: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”  “National appropriation” refers to both the exercise of sovereign rights (by States) and private appropriation (by non-governmental entities)  In view of the principle of non-appropriation, difficult to accept property rights in outer space

3. Interests of Mankind v. Interests of States and Individuals Art. I (1) OST  “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind” Art. 11 (1) MA  “The Moon and its natural resources are the common heritage of mankind”.  Mankind is a subject of international space law

3. Interests of Mankind v. Interests of States and Individuals  According to scholars, “Province of mankind” should only give access to space resources at a fair market price, “for everyone”, whereas “Common heritage of mankind” should just impose a space exploration and exploitation for peaceful purposes  The key for the “Province” and “Heritage” concepts is the “common interest of mankind” provision (Preamble of OST, UNGA Resolutions 1348(XIII) of 13 December 1958, 1472(XIV) of 12 December 1959, 1721(XVI) of 20 December 1961, 1962(XVIII) of 13 December 1963, A/RES/55/122 of 27 February 2001

Mankind:  based on consistency, not on division: different concept from “every nation”  was generally associated with the notion of “all states” or “all peoples”  Gorove: “mankind describes a collective body of peoples wherever they may be found”

4. Antinomies cannot be resolved through legal interpretation  Interpretation according to Arts VCLT  It seems that the “ordinary meaning” and “the object and purpose” criteria of the general rule (31 VCLT), as well as the “circumstances” criterion of the supplementary means (32 VCLT) rather reinforce the notion of “mankind” as expressed above

In conclusion, The antinomies exposed hereinabove constitute, in toto, a “legal discouragement” of private activities in outer space, despite the increasingly strong intention to undertake such initiatives. In the context of a space law of profoundly public character, which has among its subjects mankind as a whole and dictates the non-appropriation of resources in outer space, there is no sufficient ground for an effective regulation of commercial activities. This lacuna cannot be redressed by way of interpretation, as the relevant rules of the the 1969 Vienna Convention are not able to overcome the intrinsic characteristics of the existing legal framework

The author is not against the conduct of commercial activities in outer space, of a private nature. He just considers that this is not possible under current space law, which might prove insufficient if, at present, the desire of States is to put the famous “use of outer space” concept in a business perspective. Besides, other important issues for an effective and secure commercial exploitation of outer space – as the protection of the space environment or the creation of a space traffic management system – should also need the intervention of State authorities as well as the undertaking of international action. Therefore, there is an urgent need for the adoption of fresh binding regulations, as soft law provisions do not suffice.