615A

THE IASLA SPACE LAW MOOT COURT COMPETITION

IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE
PEACE PALACE, THE HAGUE

CASE CONCERNING ASTEROID MINING ACTIVITIES AND ORBITAL MINERAL PROCESSING

FACILITIES

REPUBLIC OF PROTEUS
(APPLICANT)
V.

GRAND DUCHY OF DESPINA

(RESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE APPLICANT
REPUBLIC OF PROTEUS

CONTENTS
Index of Authorities........................................................................................................................iii
Statement of Jurisdiction..............................................................................................................xiii
Questions Presented......................................................................................................................xiv
Statement of Facts..........................................................................................................................xv
Summary of Pleadings..................................................................................................................xix
PLEADINGS...................................................................................................................................1
I. It is unlawful for Despina to conduct mining activities on asteroids 16 Psyche, 216
Kleopatra, 21 Lutetia and 77 Frigga............................................................................................1
I.A. Article III of the Outer Space Treaty is violated...............................................................2
I.B. Article II of the Outer Space Treaty is infringed..............................................................4
I.C Article IX of the Outer Space Treaty is violated................................................................7
II. It is unlawful for Despina to keep all of the mineral resources extracted from the asteroids
for its domestic use on Earth or its lunar settlements..................................................................9
II.A. Article I of the Outer Space Treaty is violated................................................................9
II.B The Exploits from Outer Space must be shared.............................................................12
III.A Article II of the Outer Space Treaty is violated............................................................16
III.B Article VI of the Outer Space treaty is violated............................................................17
III.C. Despina violated the basic principles of sustainability................................................19
III.D Destruction of Cleoselene violated International Environmental Law.........................20
IV. The Interception And Destruction Of Vesta I was Unlawful..............................................22
IV.A Proteus has an unconditional right to explore Outer Space...........................................22
IV.B. MFA did intercept and destroy Vesta I.........................................................................23
IV.C Despina is liable for the destruction of Vesta I..............................................................24
V. Despina is liable to pay damages for Each of the Above Contraventions.............................29
V.A Despina is liable to pay damages to Member States of the Outer Space Treaty for the
Mining Activities conducted Illegally on 16 Psyche, 216 Kleopatra, 21 Lutetia And 77
Frigga.....................................................................................................................................29
V.B Despina is liable For Damages towards Member States of the Outer Space Treaty for
Appropriating resources from Illegal mining for its Sole Use and Share the same hereon...30

[1]

V.C Despina is liable to pay damages to Member States of the Outer Space Treaty for the
removal and destruction of Cleoselene..................................................................................31
V.D Despina is liable to pay damages to Proteus for the destruction of Vesta I....................32
Prayer for Relief............................................................................................................................34

[2]

Index of Authorities

RESEARCH PAPERS
Aldo Armando Cocca, Legal Status of the Natural Resources of the Moon and Other
Celestial Bodies (1971) 13 PROC. COLL. L. OUTER SP. 146.
Andre DeBusschere, Liability for damage caused by Space Objects, (1984) 3 Journal of
International Law & Practice 97
Armel Kerrest, Commercial Use of Space, Including Launching (2004), in China Institute of
Space Law, 2004 SPACE LAW CONFERENCE: PAPER ASSEMBLE 199
Arvid Pardo, Before and After (1983) 46 L. & CONTEMP. PROBS. 95.
Arvid Pardo, Development of Ocean Space An International Dilemma (1971) 31 LA. L.
REV. 45
Arvid Pardo, Who Will Control the Seabed? (1969) 47 FOREIGN AFF. 123
B.Stern, La responsabilitit internationale, RPERTOIRE INTERNATIONAL DALLOZ 8,
9 (1998).
Back-Impallomeni, The Article VI of the Outer Space Treaty, in United Nations,
PROCEEDINGS OF THE UNITED NATIONS/REPUBLIC OF KOREA WORKSHOP ON
SPACE LAW (2003), 348-351.
Carl Q. Christol, Article 2 of the 1967 Principles Treaty Revisited (1984) 9 ANN. AIR & SP.
L. 217 at 241
Bin Cheng, Article VI of the Outer Space Treaty Revisited: International Responsibility,
National Activities and The Appropriate State (1998) 26 J. SP.I., 10
Bin Cheng, United Nations Resolutions on Outer Space: Instant International Customary
Law? (1965) 5 INDIAN J. INTL. L. 23
Christopher Pinto, The Developing Countries and the Exploitation of the Deep Seabed (1980)
15 COLUM. J. WORLD BUS. 30.
D. Goedhius, Some Recent Trends in Interpretation and Implementation of the Rules of
International Space Law, 19 Columbia J. of Transnational L. 213,219(1981)
Daniel Goedhuis, Reflections on the Evolution of Space Law (1966) 13 NEDERLANDS
TIJDSCHRIFT 109.
[3]

De Vincenzi et al. of 1983,Policy Statement on COSPAR Planetary Protection Policy

E. Brooks, National Control of Natural Planetary Bodies: Preliminary Considerations
(1966) 32 J. AIR L. & COM. 315
Edwin W. Paxon, Sharing the Benefits of Outer Space Exploration: Space Law and
Economic Development, 4 Mich. J. Intl L. 487, 494 (1993)
Elisabeth Mann Borgese, A Constitution for the Oceans: Comments and Suggestions
Regarding Part XI of the Informal Composite Negotiating Text (1978) 15 SAN DIEGO L.
REV. 371
Eric Husby, Sovereignty and Property Rights in Outer Space (1994) 3 DETROIT COLL. L.
J. INTL. L. & PRAC. 359 at 362
Eugene P. Miller and Joseph H. Delehant, Deep Seabed Mining: Government Guaranteed
Financing under the Maritime Aids of the Merchant Marine Act 1936 as an Alternative to
Treaty-Related Loss Compensation (1980) 11 J. MARIT. L. & COM. 453
Ezra J. Reinstein, Owning Outer Space (1999) 20 NW. J. INTL. L. & BUS. 59
F. Kenneth Schwetje, Protecting Space Assets: A Legal Analysis of Keep-Out Zones, 15
JOURNAL SPACE L. 131,141 (1987).
Fabio Tronchetti, The Non-Appropriation Principle Under Attack:Using Article II of The
Outer Space Treaty in its Defence,International Institute of Air and Space Law, Leiden
University, The Netherlands, IAC-07-E6.5.13.
Frederick Arnold, Toward a Principled Approach to the Distribution of Global Wealth: An
Impartial Solution to the Dispute over Seabed Manganese Nodules (1980) 17 SAN DIEGO
L. REV. 557
Gantt, Space Law and the Expanding Role of Private Enterprise, with Particular Attention
for Launching Activities, (2001) 5 Singapore Journal of International & Comparative Law
48.
Gennady M Danilenko, The concept of the "Common Heritage of mankind" in International
law (1988) 13 ANN. AIR & SP. L.
Gennady P. Zhukov, The Problem of the Definition of Outer Space (1967) 10 PROC. COLL.
L. OUTER SP. 271
H. G. Darwin, The Outer Space Treaty (1967) 42 BRIT. Y. B. INTL. L. 282
James J. Trimble, The International Law of Outer Space and Its Effect on Commercial Space
Activity (1983) 11 PEPP. L. REV. 521
[4]

James R. Silkenat, Solving the Problem of the Deep Seabed: The Informal Composite
Negotiating Text for the First Committee of UNCLOS III (1977) 9 N. Y. U. J. INTL. L. &
POLY. 177
Jochen Pfeifer, International Liability for Damage Caused by Space Objects, 30 GER. J. AIR
& SPACE L. 230-1(1981)
John C. Panzar, A Methodology for Measuring the Costs of Universal Service Obligations
(2000) 12 INFO. ECON. & POLY. 211
Karl-Heinz Bckstiegel, Reconsideration of the Legal Framework for Commercial Space
Activities (1990) 33 PROC. COLL. L. OUTER SP. 3.
Kenneth Katkin, Communication Breakdown? The Future of Global Connectivity After the
Privatisation of INTELSAT (2005) 38 VAND. J. TRANSNATL. L. 1323.
Kerrest, Remarks on the Responsibilty and Liability for damage other than those Caused by
the Fall of a space Object(1997) 40 PROC.COLL.L.OUTER SP.134
Kevin V. Cook, The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon
Treaty (1999) 11 GEORGETOWN INTL. ENVTL. L. REV. 647 at 677
L. Frederick E. Goldie, A Note on Some Diverse Meanings of The Common Heritage of
Mankind (1983) 10 SYRACUSE J. INTL. L. & COM. 69
Lampertius, The Need for an Effective Liability Regime for Damage Caused by Debris in
Outer Space, (1992) 13 Michigan Journal of International Law
Lee, Commercial Use of space, Including Launching by Prof Kerrest (2004) SPACE LAW
CONFERENCE:PAPER ASSEMBLE 220.
Leslie I. Tennen, Outer Space: A Preserve for All Humankind (1979) 2 HOUS. J. INTL. L.
145 at 149.
Leslie I. Tennen, Privateering and Profiteering on the Moon and Other Celestial Bodies:
Debunking the Myth of Property Rights in Space (2003) 31 ADV. SPACE RES. 2433
Leslie I. Tennen, Second Commentary on Emerging System of Property Rights in Outer
Space (2003) United Nations, PROCEEDINGS OF THE UNITED NATIONS/REPUBLIC
OF KOREA WORKSHOP ON SPACE LAW 342 at 343.
M. Benko and G. Gruber, Space Debris: Legal problems to be solved within the United
Nations, Proceedings of the first European conference on Space Debris 680
Marc Firestone, Problems in the Resolution of Disputes Concerning Damage Caused in
Outer Space, (1985) 59 Tulane Law Review 747.
[5]

Marko G. Markoff, La Lune et le Droit International (1964) 68 REV. GEV. DR. INTL.
PUB. 248
Maurice N. Endem, The Question of Legitimacy of Threat or Use of Force in and from Outer
Space: A reflection on the Sanctity and Legal Binding force of the Charter of United Nations
and the 1967 Outer Space Treaty, IAC- 2006- 49th Colloquium on the Law of Outer SpaceIAC-06- E6.4.01.
Neil S. Hosenball, Current Issues of Space Law Before the United Nations (1974) 2 J. SP. L.
8.
Patricia M. Sterns and Leslie I. Tennen, Privateering and Profiteering on the Moon and
Other Celestial Bodies: Debunking the Myth of Property Rights in Space (2003) 31 ADV.
SPACE RES. 2433.
Paul Lawrence Saffo, The Common Heritage of Mankind: Has the General Assembly
Created a Law to Govern Seabed Mining? (1979) 53 TUL. L. REV. 492
Dr. jur. Ulrike M. Bohlmann, Planetary Protection in Public International Law, IAC-03IISL.1.05
V Pop, Appropriation in outer space: the relationship between land ownership and
sovereignty on the celestial bodies, 16 Space Policy, 275, (2000)
Proceedings of the Thirteenth Colloquium on the International Law of Outer Space.
Constance, Germany. October. 1970. p. 147 (1971)
Ram Jakhu, Safeguarding the Concept of Public Service and the Global public Interest in
Telecommunications, 5 Sing. J. Intl & Comp. L. 71, 94 (2001)
Ren-Jean Dupuy, The Notion of the Common Heritage of Mankind Applied to the Seabed
(1983) 18 ANN. AIR & SP. L. 347
Ricky J. Lee, Commentary Paper on Discussion Paper Titled Commercial Use of Space,
Including Launching by Prof. Dr. Armel Kerrest (2004), in China Institute of Space Law,
2004 SPACE LAW CONFERENCE: PAPER ASSEMBLE 220.
Ricky J. Lee, Definitions of Exploration and Scientific Investigation with Focus on
Mineralogical Prospecting and Exploration Activities (2005), paper presented at the 56th
International Astronautical Congress, 1721 October 2005, in Fukuoka, Japan.
Robert B. Krueger, Policy Options in the Law of the Sea Negotiations (1978) 6 INTL. BUS.
LAWYER 89

[6]

Robert F. Pietrowski, Jr., Hard Minerals on the Deep Ocean Floor: Implications for
American Law and Policy (1978) 19 WM. & MARY L. REV. 43
Roger K. Hoover, Law and Security in Outer Space from the Viewpoint of Private Industry
(1983) 11 J. SP. L. 115.
Roger K. Hoover, Law and Security in Outer Space from the Viewpoint of Private Industry
(1983) 11 J. SP. L. 115 at 123
Rosanna Sattler, Transporting a Legal System for Property Rights: From the Earth to the
Stars (2005) 6 CHI. J. INTL. L. 23
Stephen Gorove, Implications of International Space Law for Private Enterprise (1982) 7
ANN. AIR & SP. L. 319
Stephen Gorove, Legal Aspects of Space Flight, (1978) 3 Annals of Air and Space Law 416.
Stephen Gorove, Sovereignty and the Law of Outer Space Re-examined (1977) 2 ANN. AIR
& SP. L. 311 at 316
Symposium: The ILCs State Responsibility Articles, (2002) 96 American Journal of
International Law 773.
Tullio Treves, Military Installations, Structures and Devices on the Seabed (1980) 74 AM. J.
INTL. L. 808.
Uchitomi, State Responsibilty/ Liability for National Space Activities: Towards Safe and
Fair Competition in Private Space Activities (2001) 44 PROC.COLL.L.OUTER SP.51.
Weiss, Our Rights and Obligations to Future Generations, American Journal of International
Law, 1990.

REPORTS
ILC Commentary art. 1, 2001, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10
International Law Commissions Second Report on International Liability for Injurious
Consequences Arising out of Acts Not Prohibited by International Law (Prevention of Transboundary Damage from Hazardous Activities), 1999, UN Doc. No. A/CN.4/501
Legality of the threat or Use of Nuclear weapons, ICJ reports 1996
Reparations for Injuries Suffered in the Services of United Nations, (1949) ICJ Reports 174,
184
[7]

Report of the International Law Commission on the work of its 53rd session, Dec. 12, 2001,
GA resolution 56/83
Survey of State Practice Relevant to International Liability for Injurious Consequences
Arising out of Acts not Prohibited by International Law, UN Doc. ST/LEG/15

BOOKS
BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW (1997)
BIRNIE AND A. BOYLE, INTERNATIONAL LAW AND ENVIRONMENT, (2nd ed. 2002)
C. EAGLETON, RESPONSIBILITY OF STATES IN INTERNATIONAL LAW (1928)
Charlottesville, International Law of State Responsibility for injuries to Aliens (R.B. Lillich
ed,) (1983)
CHENG AND BROWN, CONTEMPORARY PROBLEMS OF INTERNATIONAL LAW: ESSAYS
HONOR OF G. SCHWARZENBERGER ON HIS 80TH BIRTHDAY (1988) .
CRAWFORD, J., THE INTERNATIONAL LAW COMMISSIONS ARTICLES
RESPONSIBILITY, INTRODUCTION, TEXT AND COMMENTARIES, Cambridge(2002)
DIEDIRIKS-VERSCHOOR, I.H.PH, AN INTRODUCTION
International, The Hague, (2nd ed,1999)

TO

ON

IN

STATE

SPACE LAW, Kluwer Law

EDWIN W. PAXSON III, SHARING THE BENEFITS OF OUTER SPACE EXPLORATION: SPACE LAW
AND ECONOMIC DEVELOPMENT, 14 Mich. J. Intl L. 487, 489 (1993).
GEORGE T HACKET, SPACE DEBRIS AND THE CORPUS JURIS SPATIALIS (1994).
GREAM HALL, ESSAY ON THE RIGHTS OF THE CROWN AND THE PRIVILEGES OF THE SUBJECT
IN THE SEA SHORES OF THE REALM. (2nd ed., 1875);
H. MOSLER, THE INTERNATIONAL SOCIETY AS A LEGAL COMMUNITY (1980).
IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY (4th ed, 1983)
J. B. MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE
UNITED STATES HAS BEEN A PARTY, VOL. I (1898).
JENKS, SPACE LAW, London, Stevens and Sons, 1965.
JIMNEZ ARCHAGA, INTERNATIONAL RESPONSIBILITY
PUBLIC INTERNATIONAL LAW (1968).

[8]

IN

M. SRENSEN (ED), MANUAL

OF

JUAN FARAMIN GILBERT, SPACE DEBRIS: TECHNICAL AND LEGAL ASPECTS IN OUTLOOK
ON SPACE LAW OVER THE NEXT 30 YEARS (Gabriel Lafferranderie and Daphne Crowther
eds) (5th ed, 1997)
LAW OF THE SEA, ENVIRONMENTAL LAW AND SETTLEMENT OF DISPUTES: LIBER AMICORUM
JUDGE THOMAS A (2007).
M. SPINEDI
(1987)

AND

B. SIMMA (ED), UNITED NATIONS CODIFICATION

OF

STATE RESPONSIBILITY

MALCOM N SHAW, INTERNATIONAL LAW (5th ed. 1997)

MANFRED LACHS, THE LAW OF OUTER SPACE (1972)
MORRIS D. FORKOSCH, OUTER SPACE AND LEGAL LIABILITY (1982).
NANDASIRI JASENTULIYANA AND S.K. LEE (ED), MANUAL ON SPACE LAW (1981).
OPPENHEIM, INTERNATIONAL LAW, (9th ed, 1996)
PETER H. SAND, PUBLIC TRUSTEESHIP
RDIGER WOLFRUM (eds. 2007)

FOR THE

RICKY J LEE, LAW AND REGULATION

SPACE, SPRINGER PUBLICATIONS(2012)

OF

OCEANS,

IN

TAFSIR MALICK NDIAYE

COMMERCIAL MINING

OF

MINERALS

IN

AND

OUTER

WAYNE N WHITE, JR., REAL PROPERTY RIGHTS IN OUTER SPACE (1985).

TREATIES/ACTS
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.
Agreement Relating to the Implementation of Part XI of the United Nations Convention on
the Law of the Sea.
Amended Convention on the International Mobile Satellite Organisation.
International Telecommunications Satellite Organisation, Agreement Relating to the
International Telecommunications Satellite Organisation.
Antarctic Treaty (1959).
Australian Space Activities Act 1998 (Australia).
Buenos Aires International Instrument on the protection of the Environment from Damage
caused by Space Debris.
[9]

Canadian Space Agency Act, 1990 (Canada).

Convention on the Law of the Sea.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the
International Law Commission on Work of its Fifty-Third Session, UN General Assembly
Official Records, 56th session, Supplement No 10, art 1, December 12, 2001, UN Doc.
A/56/10 (ILC Articles).
ICJ Statute.
Ordinance of the cabinet of ministers of Ukraine on supplementary measures in respect of
State regulation of space activity (1996) (Ukraine).
Ordinance of the cabinet of ministers of Ukraine on the preparation, launch and operation of
space object, SICh-1 (1995)
Principles Relating to Remote Sensing of the Earth from Outer Space
Statute of the Centre National dEtudes Spatiales (1961).
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including Moon and Other Celestial Bodies(1976)
UN Draft Treaty Relating to the Moon.(1973)
United States Space Launch Act of 1984/1988 and Commercial Space Act (US).
Vienna Convention on the Law of Treaties(1969).

Resolutions and Proposals

Argentinas proposal for Draft Agreement on the Principles Governing Activities in the Use
of Natural Resources of the Moon and other Celestial Bodies.
General Assembly Resolution 2130(1965).
General Assembly Resolution 2749 (XXV).
Travaux Preparatoires of the Principles Declaration, U.N. Doc A/C1/881.
U.N. Doc. A/AC.105/85, Annex 2.
UN Doc. A/51/20.
[10]

UNGA Res. 1962 (XVIII) (1963).

Cases
Chorzow Factory Case (Germany v. Poland), Merits, (1928) PCIJ (ser A) No 17, 29.
Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y 2003).
Corfu Channel Case, Merits, (1949) ICJ Reports 4, 23.
Dermit Barbato v. Uruguay, decision of 21 October 1982, ibid., Thirty-eighth Session,
Supplement No. 40 (A/38/40).
Diversion of Water from the Meuse Case (Netherlands v. Belgium) [1937], P.C.I.J. (Ser. A/B)
No. 70.
Flores v. Southern Peru Copper Corp., 414 F. 3d 233 (2d Cir. 2003).
Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 I.C.J. 7.
Gann v. Free Fishers of Whitstable (1865) 11 E.R. 1305.
Gulf of Maine Case ICJ Rep., 1984, 246.
Icelandic Fisheries Case , ICJ Rep., 1974.
In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7 (E.D.N.Y 2005).
Island of Palmas Case, (1928) 2 RIAA 829, 839.
Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 467 (S.D.N.Y 2006).
Lac Lanoux Arbitration, (1957) 24 ILR 101.
Lanza v. Uruguay, decision of 3 April 1980.
Malta-Libya Continental Shelf Case ICJ Rep., 1985, 13.
North Sea Continental Shelf Case, ICJ Rep., 1969.
Phosphates in Morocco, Preliminary Objections, (1938) PCIJ (Series A/B) No. 74, 10, 28.
Questions relating to settlers of German Origin in Poland (Advisory Opinion), [1923] PCIJ,
No 22.
[11]

S.S. Wimbledon case, (1923) PCIJ (ser. A) No. 1, 15, 30.

Torres Ramirez v. Uruguay, decision of 23 July 1980, Official Records of the General
Assembly, Thirty-fifth Session, Supplement No. 40 (A/35/40).
Trail Smelter Arbitration Case, (1941) 35 AJIL 716.
Tunisia-Libya Continental Shelf Case, ICJ Rep., 1982, 18.
Ward v. Creswell (1741) 125 E.R. 1165.
Articles
Le Monde, September 20, 2003, p. 27.

[12]

Statement of Jurisdiction
The Republic of Proteus and the Grand Duchy of Despina submit the present dispute to the
International Court of Justice under Article 40, paragraph 1 of the Statute of the International
Court of Justice. It provides that the states may bring cases before the Court by special
agreement.

[13]

Questions Presented
I.
II.

WHETHER IT IS UNLAWFUL FOR DESPINA TO CONDUCT MINING ACTIVITIES ON ASTEROIDS

16 PSYCHE, 216 KLEOPATRA, 21 LUTETIA, AND 77 FRIGGA?
WHETHER IT IS UNLAWFUL FOR DESPINA TO KEEP ALL OF

THE MINERAL RESOURCES

EXTRACTED FROM THE ASTEROIDS FOR ITS DOMESTIC USE ON

III.
IV.
V.

EARTH

OR ITS LUNAR

SETTLEMENTS?
WHETHER THE REMOVAL OF CLEOSELENE WAS UNLAWFUL?
WHETHER THE INTERCEPTION AND THE DESTRUCTION OF THE VESTA WAS UNLAWFUL?
WHETHER DESPINA IS LIABLE TO COMPENSATE PROTEUS FOR EACH OF THE ABOVE
CONTRAVENTION?

[14]

Statement of Facts
The Republic of Proteus and Grand Duchy of Despina

The Republic of Proteus and Grand Duchy of Despina are the two largest economies in the
world. Both of them are founding members of the United Nations and Permanent members of the
Security Council, as well as members of the World Bank, the International Monetary Fund, and

the World Trade Organization.

The prevalence of hybrid vehicles has placed significant pressure on the worlds supply of rare
earth metals and has strained relations between both the states as they become increasingly

competitive in the market for such resources.

Joint Venture and Takeover
Aerospace Equipment Corporation (AEC) is a private company in Proteus and was established
for the purpose of designing spacecraft and space installations for the use in outer space and on
the moon and Metals from Asteroids, Inc. (MFA) is a company registered in Despina to engage
in future asteroid mining operations for Despina. On 14th October 2033, AEC announced to the
Proteus Securities Exchange (PSX) that it had entered into a lucrative joint venture with MFA to

customize the Lunar Prospector and the Lunar Miner for asteroid mining operations.
By 2038, the Astro Prospector and Astro Miner as jointly developed by AEC and MFA were
ready for deployment on asteroids. The National Aerospace Authority (NAA) designed Ceres
series of launch vehicles for the launch of Astro Prospector and Astro Miner. Similarly, the Astro

Crusher was constructed and was attached to Despinas main orbital space station, Palomar.
On 11th December 2038, MFA launched a takeover of AEC on PSX. Despina acquired 80% of the
listed shares of AEC and the Foreign Acquistion Panel and the Supreme Court of Proteus decided
the takeover was contrary to the national interests of Proteus. The decisions were held by the

15

International Banking and Finance Tribunal of the World Trade Organisation to be contrary to
2031 Stockholm Convention for the Regulatory Oversight of International Banking and Finance.
Mining activities on Asteroids

On 24 March 2041, MFA launched Astro Miner I to the asteroid 16 Psyche for extraction of rare
earth metals and in 2049 the radio isotopic fuel cells and rocket fuel on board the Astro Miner I
became exhausted. The ores extracted were all ferried to the Astro Crusher facility and the
refined minerals were then used exclusively by Despina for orbital and lunar activities and

domestic consumption on earth .

With cooperation between MFA and NAA , all of the Astro Prospector, Astro Miner and ferry

spacecraft were built in Proteus and launched by NAA from Despina using Ceres V vehicle.
On November 2041, MFA launched Astro Miner II to the asteroid 216 Kleopatra and extraction
activities began in 2044 and on 6th May 2043, Astro Miner III was launched to 21 Lutetia, which
is expected to begin mining activities in February 2046 and on 4 th June 2044, MFA implemented

design changes to Astro Miner IV and launch it to 77 Frigga in September, 2045.

Destruction of Cleoselene
On 3 April 2044, communications between the Earth and the AstroMiner II on 216 Kleopatra
were interrupted by an occultation by Mars, one of the ferry spacecraft had mistakenly latched
onto the smaller of the asteroids two natural moons, Cleoselene. By the time the mistake was
discovered, Cleoselene was no longer within the gravitation field of 216 Kleopatra and there was
not enough fuel in the ferry spacecraft to turn around. Consequently, Cleoselene was brought to
Earth orbit and processed by the AstroCrusher. The loss and destruction of Cleoselene was made
public by Despina on 2 May 2044 by a note delivered to the United Nations to the U.N.

Secretary-General, who then disseminated it among all U.N. Member States.

There were increasing concerns in the international community about the economic and market
effects of continued asteroid mining operations and the use of rare earth metals domestically
16

only. After various discussions and proposals to redress the economic benefits Despina enjoyed
in its monopoly, no resolution or decision were proposed by any member State in the United

Nations or the World Trade Organisation.

Interception of Vesta
During 2044, engineers at the Proteus Space Science Research Organisation (PSSRO) secretly
developed and built a spacecraft named Vesta, designed to prevent any landing by an Astro
Miner spacecraft on that asteroid. The Chancellor of Proteus announced its launch on 12th
February 2045, that till United Nations concludes on multilateral negotiations regarding future

mining in asteroids, Proteus will counter the threat to the province of all humankind.
Vesta I was delayed due to unfavorable weather and was launched on 23 rd February,2045 with 77
Frigga as its intended destination. However, on 26th February 2045, while travelling to the Moon
for a gravity assist boost, Vesta I collided with a MFA ferry spacecraft on its way from the Astro
Crusher to 21 Lutetia and was destroyed. Subsequent investigation by the special rapporteur
appointed by the UN General Assembly found that the ferry spacecraft was ordered by Capt.
Johan Picardo, commander of the Astro Crusher orbiter facility, to change course to intercept the
Vesta I.

Destruction of Astro Crusher and arrest of GSPC Activists

On 21 September, a group of nine individuals from the Gaia & Space Preservation Collective
st

(GSPC) posing as space tourists chartered a shuttle spacecraft PSS Bacchus flew instead to
Palomar and on docking pumped fentanyl gas and rendered every crew member unconscious.
The activists moved all of the crew members from Astro Crusher to Palomar and set off a series
of small explosions on board the Astro Crusher that irrevocably disabled the facility. The impact
killed 746 people in Abe Hamlets and injured thousands more. All of the victims, other than four
backpackers from Themisto are nationals of Proteus.

17

The GSPC activists were arrested immediately on their landing to Proteus and were charged,
convicted of multiple counts of murder, and sentenced to life imprisonment without possibility of
release.

Dispute to International Court of Justice

After months of diplomatic efforts having failed to resolve the disputes between the states,
including good offices of the Secretary General of the United Nations, Proteus and Despina
agreed to refer the dispute to the International Court of Justice.

Summary of Pleadings

I.

IT IS UNLAWFUL FOR DESPINA TO CONDUCT MINING ACTIVITIES ON ASTEROIDS

16

PSYCHE,

216 KLEOPATRA, 21 LUTETIA AND 77 FRIGGA

Article II of the Outer Space Treaty stands violated by Despina as its activities are
resulting in the appropriation of outer space which is absolutely banned.

II.

IT IS UNLAWFUL FOR DESPINA TO KEEP ALL OF THE MINERAL RESOURCES EXTRACTED

FROM THE ASTEROIDS FOR ITS DOMESTIC USE ON EARTH OR ITS LUNAR SETTLEMENTS

18

Article I of the Outer Space Treaty stands violated as Despinas Activities are neither in
the interest of nor for the benefit of other countries. Moreover, the resources

III.

appropriated were consigned only for domestic use.

THE REMOVAL OF CLEOSELENE WAS UNLAWFUL.
Articles XI, II and VI of the Outer Space Treaty stand violated as Despina caused
immense environmental degradation and resulted in perverse appropriation by the
destruction of celestial bodies.

IV.

THE INTERCEPTION AND DESTRUCTION OF VESTA 1 WAS UNLAWFUL

Despina violated Article 1 and 2 of the Outer Space Treaty by impeding on another states
right to explore space. Moreover, it is liable under Articles II, III, IV and V of the
Liability Convention for the said act.

V.

DESPINA IS LIABLE TO PAY DAMAGES FOR EACH OF THE ABOVE CONTRAVENTIONS

Any interference with the rights of others without sufficient jurisdiction is a wrong
recognized by law, which Despina did by using unlawfully exploiting resources on
common property for its own use. Thus, Despina needs to pay damages to the
international community for the same.

19

PLEADINGS

I. IT

IS UNLAWFUL FOR

ASTEROIDS

DESPINA

TO CONDUCT MINING ACTIVITIES ON

16 PSYCHE, 216 KLEOPATRA, 21 LUTETIA

AND

77 FRIGGA.

In contemporary international law, international treaties are the primary and most important
source of international law and its branches, including space law. It is the most effective form
of expressing the concurrent and compromising wills (consent) of the subjects (States) of
international law in the course of their co-operative efforts and mutual relations1.
Article 38 of the Statute of the International Court of Justice stipulates that the Court shall
apply International Conventions establishing rules recognised by States2. Article 31 (1) of the
Vienna Convention states that a treaty will shall be interpreted in good faith and in light of its
object3.
It is hereby submitted that Despinas mining activities in the Outer Space violate its specific
obligations under the Outer Space Treaty4.

1 Maurice N. Endem, The Question of Legitimacy of Threat or Use of Force in and from
Outer Space: A reflection on the Sanctity and Legal Binding force of the Charter of United
Nations and the 1967 Outer Space Treaty, IAC- 2006- 49th Colloquium on the Law of Outer
Space- IAC-06- E6.4.01.
2 Statute of the International Court of Justice, art. 38(1), 39 AJIL Supp. 215 (1945).
3 United Nations, Vienna Convention on the Law of Treaties, art. 31(1) , 155 U.N.T.S. 331, 8
I.L.M. 679 (1980).
4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including Moon and Other Celestial Bodies, 610 U.N.T.S. 205 (1967) .
1

I.A. ARTICLE III

OF THE

OUTER SPACE TREATY

IS VIOLATED.

Article III states that States can explore outer space in accordance with international law, in
the interest of promoting international cooperation and understanding5.
I.A.1 DESPINAS ACTIVITIES INFRINGES JUS COGENS OF SPACE LAW.
The principle of common interest in outer space laid down in the Outer Space Treaty of 1967
correlates with one of the leading principles of general international law the principle of
Non-Appropriation.6 Since the beginning of the space era, States agreed to consider outer
space, including the Moon and other celestial bodies as a res communis omnium, i.e. as an
area open for free exploration and use by all States which is not subject to national
appropriation7.
I.A.2 DESPINAS ACTIVITIES INFRINGES THE PRINCIPLE OF COMMON HERITAGE OF
MANKIND.
The principle of common heritage of mankind finds expression in Article I of the Outer Space
Treaty and in the Declaration of Principles by the United Nations General Assembly in

5 Ibid, art. III.

6 Fabio Tronchetti, The Non Appropriation Principle under attack using Article II of the
Outer Space Treaty in its Defence, International Institute of Air and Space Law, Leiden
University, The Netherlands, IAC-07-E6.5.13.
7DIEDIRIKS-VERSCHOOR, AN INTRODUCTION TO SPACE LAW, Kluwer Law International, The
Hague 29 (2nd ed.) (1999).
2

19708 . It is heavily influenced by the law of the sea and the treaty framework relating to
Antarctica and the deep seabed.9
It is submitted that the high seas were considered to be held on international public trust, in
the sense that private property rights were excluded and vested trusteeship rights and duties in
the international community to ensure public access and public benefit10.
Thus, the principles which came to be were that the seabed was not subject to appropriation 11;
its use and economic exploitation is to undertaken for safeguarding the interests of
mankind12; and that net financial benefits would be primarily used to promote and help poor
countries. 13

8 General Assembly Resolution 2749 (XXV); Ren-Jean Dupuy, The Notion of the Common
Heritage of Mankind Applied to the Seabed (1983) 18 ANN. AIR & SP. L. 347; Paul
Lawrence Saffo, The Common Heritage of Mankind: Has the General Assembly Created a
Law to Govern Seabed Mining? (1979) 53 TUL. L. REV. 492; L. Frederick E. Goldie, A Note
on Some Diverse Meanings of The Common Heritage of Mankind (1983) 10 SYRACUSE
J. INTL. L. & COM. 69.

9 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the
Moon Agreement),1363 U.N.T.S. 3; 18 I.L.M. 1434(1979);Eric Husby, Sovereignty and
Property Rights in Outer Space (1994) 3 DETROIT COLL. L. J. INTL. L. & PRAC. 359 at
362 and Kevin V. Cook, The Discovery of Lunar Water: An Opportunity to Develop a
Workable Moon Treaty (1999) 11 GEORGETOWN INTL. ENVTL. L. REV. 647 at 677.
10 GREAM HALL, ESSAY ON THE RIGHTS OF THE CROWN AND THE PRIVILEGES OF THE SUBJECT IN THE
SEA SHORES OF THE REALM (2nd ed., 1875); Ward v. Creswell (1741) 125 E.R. 1165; and
Gann v. Free Fishers of Whitstable (1865) 11 E.R. 1305.

11 Tullio Treves, Military Installations, Structures and Devices on the Seabed (1980) 74 AM.
J. INTL. L. 808.
12 Eugene P. Miller and Joseph H. Delehant, Deep Seabed Mining: Government Guaranteed
Financing under the Maritime Aids of the Merchant Marine Act 1936 as an Alternative to
Treaty-Related Loss Compensation (1980) 11 J. MARIT. L. & COM. 453.
3

The Legal Sub-Committee on Peaceful uses of Outer Space has applied the common heritage
of mankind concept to the mineral resources on the celestial bodies and not to the celestial
bodies themselves14. Therefore, Despinas mining activities violates this principle.
I.B. ARTICLE II

OF THE

OUTER SPACE TREATY

IS INFRINGED.

Any act of national appropriation in outer space and on celestial bodies conducted under the
States direction or influence, regardless of whether the act was undertaken by public or
private entities is prohibited and thus contravenes Article II of the Outer Space Treaty.
Accordingly, it is clear that Article II must extend to private acts of national appropriation as
well as those conducted directly by the State itself and further prohibits the creation of private
property rights15. The extension of the non-appropriation doctrine to private entities is firmly
established in space law16.

13 UN. Doc. A/6695 (1967). Arvid Pardo, Who Will Control the Seabed? (1969) 47
FOREIGN AFF. 123; Arvid Pardo, Development of Ocean Space An International Dilemma
(1971) 31 LA. L. REV. 45; and Arvid Pardo, Before and After (1983) 46 L. & CONTEMP.
PROBS. 95.
14 Argentinas proposal for Draft Agreement on the Principles Governing Activities in the
Use of Natural Resources of the Moon and other Celestial Bodies,U.N. Doc.
A/AC.105/C.2/L.71 at 1; and U.N. Doc. A/AC.105/85, Annex 2, at 1; Aldo Armando Cocca,
Legal Status of the Natural Resources of the Moon and Other Celestial Bodies (1971) 13
PROC. COLL. L. OUTER SP. 146.
15 Leslie I. Tennen, Privateering and Profiteering on the Moon and Other Celestial Bodies:
Debunking the Myth of Property Rights in Space (2003) 31 ADV. SPACE RES. 2433; Leslie
I. Tennen, Outer Space: A Preserve for All Humankind (1979) 2 HOUS. J. INTL. L. 145 at
149.
16 Leslie I. Tennen, Second Commentary on Emerging System of Property Rights in Outer
Space (2003) United Nations, PROCEEDINGS OF THE UNITED NATIONS/REPUBLIC
OF KOREA WORKSHOP ON SPACE LAW 342 at 343.
4

I.B.1 ASTEROIDS ARE CELESTIAL BODIES.

The term Celestial bodies includes the planets and their natural satellites, asteroids and
large meteorites but excludes micrometeorites, smaller meteorites and comets17.
It is submitted that in looking for a legally viable definition of celestial bodies, especially in
light of their potential value for human exploitation, exclusion of natural objects of potential
human interest for exploration and exploitation from the definition of celestial bodies
would appear to be contrary to the intent, if not the spirit, of declaring them the province of
all mankind and may, in any event, render meaningless some provisions in the Moon
Agreement relating specifically to the mineral resources on the Moon and other celestial
bodies in the Solar System.18
I.B.2 PROHIBITION OF TITLE.
If the State is prohibited from engaging in a certain conduct, then it lacks the authority to
license its nationals or other entities subject to its jurisdiction to engage in that prohibited
activity. It follows that what is forbidden to a State is not permitted to a chartered company
created by a State or to one of its nationals19.
It is also argued that the prohibition of national would as a consequence prohibit private
appropriation20. Should a State recognize or protect the territorial acquisitions of any of its
subjects, it would constitute a form of national appropriation in violation of Article II.
17 Gennady P. Zhukov, The Problem of the Definition of Outer Space (1967) 10 PROC.
COLL. L. OUTER SP. 271; E. Brooks, National Control of Natural Planetary Bodies:
Preliminary Considerations (1966) 32 J. AIR L. & COM. 315; Marko G. Markoff, La Lune
et le Droit International (1964) 68 REV. GEV. DR. INTL. PUB. 248; Neil S. Hosenball,
Current Issues of Space Law Before the United Nations (1974) 2 J. SP. L. 8.

18 Outer Space Treaty, supra note 4, art I and Moon Agreement, supra note 9, art 11.
19 C W JENKS, SPACE LAW, London, Stevens and Sons, 1965, 201.
5

I.B.3 BY ANY OTHER MEANS.

The phrase by any other means has specific attributes and imports a meaning, by itself 21.
The negotiating history of Article II, as evidenced by the travaux prparatoires of the Outer
Space Treaty, implied the phrase by any other means was designed to impose the same
restrictions on individuals and private entities. If this interpretation is accepted, in light of the
Travaux Preparatoires, as mandated by the Vienna Convention on the Law of Treaties, then
by any other means would include the exercise of sovereign rights by States through
private use, private occupation and assertions of private exclusive rights22.

I.C ARTICLE IX

OF THE

OUTER SPACE TREATY

IS VIOLATED.

Article IX of the Outer Space Treaty requires States to conduct their activities in outer space
and on celestial bodies with due regard to the corresponding interests of all other States.
The adjective corresponding, by definition, means something that is equal or similar to
something else23. In this case, it is clear that the corresponding interests of other States must
be equal or similar to the interests of the State undertaking the space activity; otherwise
the meaning of corresponding would be defeated24.

20 Cf. V Pop, Appropriation in outer space: the relationship between land ownership and
sovereignty on the celestial bodies, 16 SPACE POLICY, 275, (2000).
21 H. G. Darwin, The Outer Space Treaty (1967) 42 BRIT. Y. B. INTL. L. 282.
22 Carl Q. Christol, Article 2 of the 1967 Principles Treaty Revisited (1984) 9 ANN. AIR &
SP. L. 217 at 241.
23 SHORTER OXFORD ENGLISH DICTIONARY (5th ed., 2003).
6

Article IX, does no more than to impose a negative obligation on States in their conduct of
activities in outer space and on celestial bodies 25. This duty is to ensure that such activities do
not interfere with the rights provided under the provisions of the Outer Space Treaty or cause
any detriment to other States. It has been observed that customary state practices of spacefaring nations reflects this interpretation of the requirement under Article IX26.
It must be noted that Despina has monopolized the means to another frontier through a
takeover which had been held as unlawful by Proteus Supreme Court. 27 Through this action,
an entirely new world of possibilities has become the exclusive domain of one country, which
is a most serious violation of the principles behind the Outer Space Treaty. More so, these
actions have drawn condemnation across the board by the very Parties to the treaty, thus
negating the possibility that Despinas position is tenable by a contention that the treaty be
read in a certain beneficial way.
It is, therefore, submitted that the activities of Despina represent an unmistakable disregard
for the corresponding interest of Proteus as well as other nations playing major roles in the
activities of outer space

24 RICKY J LEE, LAW AND REGULATION OF COMMERCIAL MINING OF MINERALS IN OUTER

SPACE, Springer Publications, 159 (2012).
25 BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW (1997) at 234235; James J.
Trimble, The International Law of Outer Space and Its Effect on Commercial Space Activity
(1983) 11 PEPP. L. REV. 521 at 546; and Ricky J. Lee, Definitions of Exploration and
Scientific Investigation with Focus on Mineralogical Prospecting and Exploration
Activities (2005), paper presented at the 56th International Astronautical Congress, 1721
October 2005, in Fukuoka, Japan.
26 Roger K. Hoover, Law and Security in Outer Space from the Viewpoint of Private Industry
123(1983) 11 J. SP. L. 115.
27 Compromis 13
7

II. IT

IS UNLAWFUL FOR

DESPINA

TO KEEP ALL OF THE MINERAL RESOURCES

EXTRACTED FROM THE ASTEROIDS FOR ITS DOMESTIC USE ON

EARTH

OR ITS

LUNAR SETTLEMENTS.

It is prudent to note that the prohibition related to any form of private ownership or territorial
sovereignty over celestial bodies in relation to property rights is already provided for, either
expressly or impliedly, under the Outer Space Treaty 28. One of the paramount obligations
associated with the common heritage of mankind is the requirement that there be an equitable
sharing of the benefits derived from the exploitation and use of the said common heritage29.
It is therefore argued that the monopoly over the means of extraction rare earth minerals by
Despina is in contravention of the Outer Space Treaty.

28 Outer Space Treaty, Article II:Stephen Gorove, Sovereignty and the Law of Outer Space
Re-examined (1977) 2 ANN. AIR & SP. L. 311 at 316; Ezra J. Reinstein, Owning Outer
Space (1999) 20 NW. J. INTL. L. & BUS. 59;
29 Frederick Arnold, Toward a Principled Approach to the Distribution of Global Wealth: An
Impartial Solution to the Dispute over Seabed Manganese Nodules (1980) 17 SAN DIEGO
L. REV. 557; Elisabeth Mann Borgese, A Constitution for the Oceans: Comments and
Suggestions Regarding Part XI of the Informal Composite Negotiating Text (1978) 15 SAN
DIEGO L. REV. 371;
8

II.A. ARTICLE I

OF THE

OUTER SPACE TREATY

IS VIOLATED.

Article I of the Outer Space Treaty provides for three of the most fundamental principles of
international space law, namely the freedoms of exploration, access and use by all States on a
non-discriminatory basis and that space activities are to be carried out for the benefit and in
the interest of all States. This stems from years of diplomatic consultations, practices and
actions, both within and outside the United Nations. 30 Despinas exploitative decision to keep
all of the resources to itself is in violation of Article I of the Outer Space Treaty because it
was not conducted in the interest of and for the benefit of other countries.
II.A.1 THE ACTIVITIES OF DESPINA ARE NOT IN THE INTEREST OF OTHER COUNTRIES.
Article I (2) of the Outer Space Treaty stipulates that outer space shall be free for
exploration and use by all states. However, there are limitations upon states activities.
According to Article I (1) of the treaty, the exploration and use of outer space shall be
carried out for the benefit and in the interests of all countries, irrespective of their degree of
economic or scientific development. The principle was included in U.N. General Assembly
Resolution 1962 (XVII)31, which was incorporated in the Outer Space Treaty32. More so, it is

30 General Assembly Resolution 2130. 21 December, 1965: "Mankind" to share in the

"adventure and the practical benefits of space exploration";Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer Space Including the Moon and
other Celestial Bodies. January 27 1967; Proceedings of the Thirteenth Colloquium on the
International Law of Outer Space. Constance, Germany. October. 1970. p. 147 (1971); UN
Draft Treaty Relating to the Moon. April 27. 1973; UN Draft Treaty Relating to the Moon.
March 11 1975;
31 UNGA Res. 1962 (XVIII) (1963), Preamble.
32 1967 Outer Space Treaty, supra note 4, Preamble.
9

a settled opinion that this duty is positive in nature. 33 Thus, states are prohibited from
disregarding or harming the interests of any other country when conducting space activities34.

It is argued that the mining activities of Despina are an attempt to deplete the mineral
resources of celestial bodies to fuel their industrial needs just as it has been done with those
in the Earths crust. Since these resources are to be extracted from the common heritage of
mankind, such mining activities ought to ensure that the other states of the world are ensured
a baseline supply of these essential mineral resources for their economic development. Such
baseline supply obligations can be compared with the universal service obligations that
existed in International Telecommunication Satellite Organisation (INTELSAT) and
International Maritime Satellite Organisation (INMARSAT)35.
II.A.2 THE ACTIVITIES OF DESPINA ARE NOT FOR THE BENEFIT OF OTHER COUNTRIES.
It has been conclusively laid down that all actions pertaining to
endeavours in space need to be constrained with due regard to the
corresponding interests of all parties and to make sure that it is in no way
inhibiting or damaging others ambitions in the same direction.36
33 Stephen Gorove, Implications of International Space Law for Private Enterprise,
321(1982) 7 ANN. AIR & SP. L. 319.
34 Edwin W. Paxon, Sharing the Benefits of Outer Space Exploration: Space Law and
Economic Development, 4 Mich. J. Intl L. 487, 494 (1993) ; Ram Jakhu, Safeguarding the
Concept of Public Service and the Global public Interest in Telecommunications, 5 Sing. J.
Intl & Comp. L. 71, 94 (2001)
35 John C. Panzar, A Methodology for Measuring the Costs of Universal Service Obligations
(2000) 12 INFO. ECON. & POLY. 211 and Kenneth Katkin, Communication Breakdown?
The Future of Global Connectivity after the Privatisation of INTELSAT (2005) 38 VAND. J.
TRANSNATL. L. 1323.
36 1967 Outer Space Treaty, supra note 4, art IX and art X.
10

In light of commercial uses of outer space and appropriation, it is to be

noted that the action of establishing monopolies through patent laws
maybe in breach of space law37. This is the direct result of the for the benefit and in
the interest of all countries requirements under Article I of the Outer Space Treaty 38.
Commercial activities in space are lawful only to the extent that they provide, in conjunction
to their commercial activities for profit, some element of community service to all States at
no, or nominal cost, as is the case for some intergovernmental satellite organisations 39.
Furthermore, commercial activities in space are lawful only to the extent that the goods or
services they provide may be purchased by any third party governmental or private consumer,
regardless of national origin and on a non-discriminatory basis40.
II.B THE EXPLOITS

FROM

OUTER SPACE

MUST BE SHARED.

It is argued that equitable sharing of benefits derived from the exploitation and use of outer
space is an indispensible obligation and this principle has further, found expression in the
Convention on the Law of the Sea41.

37 Armel Kerrest, Commercial Use of Space, Including Launching (2004), in China Institute
of Space Law, 199 SPACE LAW CONFERENCE: PAPER ASSEMBLE (2004).
38 Ricky J. Lee, Commentary Paper on Discussion Paper Titled Commercial Use of Space,
Including Launching by Prof. Dr. Armel Kerrest (2004), in China Institute of Space Law,
2004 SPACE LAW CONFERENCE: PAPER ASSEMBLE 220.
39 Amended Convention on the International Mobile Satellite Organisation, art 3 [2001]
A.T.S. 11, and International Telecommunications Satellite Organisation, Agreement Relating
to the International Telecommunications Satellite Organisation.
http://216.119.123.56/dyn4000/dyn/docs/ITSO/tpl1_itso.cfm?
location=&id=5&link_src=HPL&lang=english.
40 Principles Relating to Remote Sensing of the Earth from Outer Space (the Remote
Sensing Principles), Principle XII, U.N. Doc. A/41/53 (1986).
11

In the Convention on the Law of the Sea, the economic interests of developing States in
significant terrestrial mining activities are protected by certain economic measures 42. These
measures include limitations placed on the production of mineral resources from the deep
seabed and payments by deep seabed mining operations to a compensation fund to assist such
developing States in adjusting to any resulting adverse economic conditions.
In relation to the exploitation of mineral resources in the deep seabed, a share of 3550% for
the International Seabed Authority (ISA) if provided for before the mining concern has
recovered all its development costs (including interest) and of 4070% after all development
costs have been recovered43.
It is argued that there is a positive duty to share the derived benefits from
non-exclusive commercial space activities and to ensure that the fruits of
such activities are available for purchase by all potential customers on a
non-discriminatory basis. This is because, even though the principle of
non-discrimination contained in Article I of the Outer Space Treaty relates
to the freedom of exploration, use and access by States and not to the
benefit and interests of all countries requirement, such an extension of
41United Nations Convention on the Law of the Sea, Part XI, 1833 U.N.T.S. 3; 21 I.L.M.
1261(1982).
42 North Sea Continental Shelf Case, ICJ Rep., 1969, 50, para 93; Tunisia-Libya Continental
Shelf Case, ICJ Rep., 1982, 18; Malta-Libya Continental Shelf Case, ICJ Rep., 1985, 13;
Gulf of Maine Case, ICJ Rep., 1984, 246; Icelandic Fisheries Case, ICJ Rep., 1974, 3;
Diversion of Water from the Meuse Case (Netherlands v. Belgium) [1937], P.C.I.J. (Ser. A/B)
No. 70; Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 I.C.J. 7, reprinted in 37
I.L.M. 162 (1998); ILA 1966 Helsinki Rules, art IV.
43 Convention on the Law of the Sea, Annex III, art.13; Agreement Relating to the
Implementation of Part XI of the United Nations Convention on the Law of the Sea,(the
1994 Agreement), 1836 U.N.T.S. 3; 33 I.L.M. 1309(1994), Annex, Section 8.
12

the non-discrimination principle is not without precedent. Reiterations of

the same in practical application can be seen in the Agreement Governing
the Moon44, Principles Governing the Use by States of Artificial Earth
Satellites for International Direct Television Broadcasting45, Principles
Relating to Remote Sensing of the Earth from Outer Space 46, so much so,
that it is now considered an essential part of customary law.47
It could be argued that notwithstanding a countervailing opinion that
Article 1 does not literally mean sharing of resources, the consensual
opinion is that it does, however, impose a duty on a party state to not
hinder another states means to explore access and exploit the space. In
the present case, Despina is in a unique position to ease the pressure of
the worsening scarcity of natural resources particularly in fossil fuels,
platinum group metals, rare earth minerals and uranium and remedy the
situation by providing access to them on a non discriminatory basis.

44Moon Agreement, supra note 9, art 4.

45 Principles Governing the Use by States of Artificial Earth Satellites for International
Direct Television Broadcasting, Principle 3 and 6, 10 December 1982, A/RES/37/92.
46 Principles Relating to Remote Sensing of the Earth from Outer Space, Principles IV, V and
XIII 3 December 1986,A/RES/41/65.
47Bin Cheng, United Nations Resolutions on Outer Space: Instant International
Customary Law? (1965) 5 INDIAN J. INTL. L. 23 and Daniel Goedhuis, Reflections on the
Evolution of Space Law (1966) 13 NEDERLANDS TIJDSCHRIFT 109; Roger K. Hoover,
Law and Security in Outer Space from the Viewpoint of Private Industry (1983) 11 J. SP. L.
115 at 123; Stephen Gorove, Sovereignty and the Law of Outer Space Re-examined (1977) 2
ANN. AIR & SP. L. 311 at 316.
13

For example, in the Principles Relating to Remote Sensing of the Earth from Outer Space (the
Remote Sensing Principles), it provides that the sensed State shall have access to the
primary and processed data on a non-discriminatory basis on reasonable cost terms48.
Therefore, in the context of commercial mining operations on celestial bodies, it may be seen
that their commercial nature may have the effect of enlivening, causing two further
obligations to be imposed under Article I:
(1) that the raw or processed ores are to be made available to other States on a nondiscriminatory basis; and
(2) that any restrictive or monopolistic practices adopted by the venture relate only to the
means of the activity and not to the general nature of the activity so that it does not prevent
third parties from undertaking the same activity, albeit by different means.
Such obligations may constitute lex specialis which takes precedence over the requirements
of Article I of the Outer Space Treaty, if not an expression or application thereof.

48Remote Sensing Principles, supra note 45,Principle XII

14

III. THE REMOVAL AND DESTRUCTION OF CLEOSELENE WAS UNLAWFUL.

The Outer Space Treaty requires States to avoid harmful contamination of outer space, the
Moon and other celestial bodies in their exploration and use 49. However, the term harmful
contamination is not defined in the Outer Space Treaty. This obligation is expanded in the
Moon Agreement, which requires States to:
. . . take measures to prevent the disruption of the existing balance of its environment,
whether by introducing adverse changes in that environment, by its harmful contamination
through the introduction of extra-environmental matter or otherwise.50
Therefore, it is submitted that Despina did not take any measures to avoid the disruption of
existing balance of the environment in contravention to its obligations under Space Law.
III.A ARTICLE II

OF THE

OUTER SPACE TREATY

IS VIOLATED.

It is submitted that the terms of the Article II restrict national appropriation of spatial areas 51.
The drafters intended that Article II would prohibit claims and exercise of territorial
sovereignty by states party to the treaty52. Destruction can be considered to be the ultimate

49 Outer Space Treaty, supra note 4, art IX.

50 Moon Agreement, supra note 9, art. VII(1).
51 D. Goedhius, Some Recent Trends in Interpretation and Implementation of the Rules of
International Space Law, 19 Columbia J. of Transnational L.213,219(1981).
52 MANFRED LACHS, THE LAW OF OUTER SPACE (1972), p 29; WAYNE N WHITE, JR., REAL
PROPERTY RIGHTS IN OUTER SPACE,12 (1985)
15

form of appropriation, thus contravening Article II of the Outer Space Treaty. 53 Therefore, it
is submitted that Proteus violated Article II by crushing Cleoselene which is a natural moon
of the Asteroid 216 Kleopatra using the AstroCrusher.
III.B ARTICLE VI

OF THE

OUTER SPACE

TREATY IS VIOLATED.

It is submitted that the States Parties to the Treaty shall bear international responsibility for
national activities in outer space, including the Moon and other celestial bodies, whether such
activities are carried on by governmental agencies or by non-governmental entities, and for
assuring that national activities are carried out in conformity with the provisions set forth in
the present Treaty. The same gives rise to a positive obligation of authorizing and continually
supervising space activities.
The obligation under Article VI, with its qualification on national activities, may be seen as
being no more than a restatement of the existing international law54.

III.B.1 DESPINA DID NOT CONFORM TO THE ARTICLE VI OBLIGATION OF AUTHORIZATION AND
CONTINUING SUPERVISION.

It is asserted that almost all the space-faring nations of the world have enacted domestic
legislations, inter alia, regulating authorization through a very strict and comprehensive
licensing procedure55. The grant of the license is a sine qua non if a launch is to proceed. The

53 Moon Agreement, supra note 9, art 11(2).

54 Back-Impallomeni, The Article VI of the Outer Space Treaty, in United Nations,
PROCEEDINGS OF THE UNITED NATIONS/REPUBLIC OF KOREA WORKSHOP ON
SPACE LAW, 348-351(2003).
16

comprehensive process of authorizing and supervising the private launch activity places the
State in a position so as to ensure the safety of the launch process and launch vehicle56.
III.B.2 DESPINA MUST BEAR THE INTERNATIONAL RESPONSIBILITY FOR ITS NATIONAL
ACTIVITIES IN OUTER SPACE

Emphasis has been placed by commentators and Article XVII of the Outer Space Treaty on
the use of the terms in the other languages that are equally authentic for the purposes of
interpreting the Outer Space treaty57. It is also asserted that that the terms used in the Chinese,
French, Russian and Spanish texts of the Outer Space treaty use the same terms for the
English terms responsibility and liability58.

55 Australian Space Activities Act 1998 (Australia); Canadian Space Agency Act, 1990
(Canada); Statute of the Centre National dEtudes Spatiales, 19 December 1961 (Journal
Officiel de la Rpublique Francaise (20 December 1961), 11665; Ordinance of the cabinet of
ministers of Ukraine on the preparation, launch and operation of space object, SICh-1 (23
August 1995) and Ordinance of the cabinet of ministers of Ukraine on supplementary
measures in respect of State regulation of space activity (1 April 1996) (Ukraine); United
States Space Launch Act of 1984/1988 and Commercial Space Act (US).
56 Gantt, Space Law and the Expanding Role of Private Enterprise, with Particular
Attention for Launching Activities, (2001) 5 Singapore Journal of International &
Comparative Law 48.
57 Outer space Treaty, supra note 4,art XVII,. Kerrest, Remarks on the Responsibilty and
Liability for damage other than those Caused by the Fall of a space Object(1997) 40
PROC.COLL.L.OUTER SP.134; Lee, Commercial Use of space, Including Launching by
Prof Kerrest (2004) SPACE LAW CONFERENCE:PAPER ASSEMBLE 220.
58 In French Text, the term responsabilit internationale, the Chinese text, the term ,
the Russian text, the term and in the Spanish text, the term responsabilidad
internacional are used as equivalent term for both international responsibility and liability
under art. VI and VII.
17

It is submitted that the travaux prparatoires which is the official record of negotiation 59 do
not draw distinction between the words responsibility and liability under Article VI and
Article VII of the Outer Space treaty, and as such, Article VI must be interpreted to mean that
States are to be internationally liable for breaches of international law arising from national
space activities that are conducted by both public and private entities.60
III.C. DESPINA

VIOLATED THE BASIC PRINCIPLES OF SUSTAINABILITY.

It is asserted that though the existence of life elsewhere in the solar system may be unlikely;
the conduct of scientific investigations of possible extra-terrestrial life forms, precursors, and
remnants must not be jeopardized.61 In the light of the principle of sustainability, NASAs
Galileo nuclear powered spacecraft was deliberately destroyed by disintegrating it at a high
altitude within Jupiters atmosphere to eliminate the chance of unwanted impact with
Jupiters moon Europe62. Therefore, it is submitted that other States are deprived of their
ability to exercise similar rights over the same celestial body, thus possibly violating Articles
I and IX of the Outer Space Treaty63.

59 Vienna Conventions on Law of treaties, supra note 3, art. 32.

60 Cheng, Article VI of the Outer Space Treaty Revisited: International Responsibility,
National Activities and The Appropriate State (1998) 26 J. SP.I.,10; and Uchitomi, State
Responsibilty/ Liability for National Space Activities: Towards Safe and Fair Competition
in Private Space Activities (2001) 44 PROC.COLL.L.OUTER SP.51.
61 De Vincenzi et al. of 1983, Policy Statement on COSPAR Planetary Protection Policy
(1994).
62 Le Monde, September 20,2003, 27(2003).
63 Moon Agreement, supra note 9,art 15.
18

III.D DESTRUCTION

OF

CLEOSELENE

VIOLATED INTERNATIONAL

ENVIRONMENTAL LAW.
It is asserted that the existence of a general obligation of states to ensure that activities within
their jurisdiction and control respect the environment of other states or of areas beyond
national jurisdiction is now part of the corpus of international law relating to the
environment64.
III.D.1 DESPINA CANNOT RELY ON SCIENTIFIC UNCERTAINTY .
It is also submitted that in performing their obligations of environmental protection, states
cannot rely on scientific uncertainty to justify lack of action when there is enough evidence to
establish the possibility of a risk of serious harm, even if there is as yet no proof of harm 65. It
applies to activities that might be dangerous to the extraterrestrial environment66.
III.D.2 PRINCIPLE 21 OF THE STOCKHOLM CONFERENCE IS VIOLATED.
It is asserted that the States have 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 67. It is submitted that the extraterrestrial
environment is one of the areas beyond the limits of national jurisdiction.
III.D.3 PRINCIPLE 15 OF THE RIO DECLARATION IS VIOLATED.
Principle 15 of Rio Declaration states, In order to protect the environment, the precautionary
approach shall be widely applied by states according to their capabilities. Where there are
64 Legality of the threat or Use of Nuclear weapons, ICJ reports 1996, p 226 ff.
65 Dr. jur. Ulrike M. Bohlmann, Planetary Protection in Public International Law , IAC-03IISL.1.05.
66 Id.
67 Trail Smelter Arbitration Case (1941) 35 AJIL 716.
19

threats of serious or irreversible damage, lack of full certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.
This internationally accepted universal principle has been upheld through its usage by
national and international courts, by international organizations and in International treaties.68
Therefore, it is submitted that the destruction of Cleoselene is the direct outcome of willful
negligence and is an unlawful act, making Despina liable for compensation

68 Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 467 (S.D.N.Y 2006); In re
Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7 (E.D.N.Y 2005); Flores v.
Southern Peru Copper Corp., 414 F. 3d 233 (2d Cir. 2003); Church of Sudan v. Talisman
Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y 2003); BIRNIE AND A. BOYLE, INTERNATIONAL
LAW AND ENVIRONMENT, (2nd ed.) 120, (2002).
20

IV. THE INTERCEPTION AND DESTRUCTION OF VESTA I WAS UNLAWFUL.

The liability of states for damage caused by space objects is regulated by the Outer Space
Treaty and the liability convention. Proteus, in exercise of its right, launched Vesta I to
safeguard the asteroid 77 Frigga from destructive acts by Despina and MFA. 69 It is
submitted that the actions of Despina have resulted in the interception and destruction of
Vesta I.
IV.A PROTEUS

HAS AN UNCONDITIONAL RIGHT TO EXPLORE

OUTER SPACE.

The Outer Space Treaty prescribes an unconditional right to explore space. 70 Scientific
exploration is a cornerstone of space travel. A relevant analogy would be the exploration of
Antarctica and the creation of Antarctic Treaty71 which acknowledged the importance of
exploration and created freedom to explore Antarctica "on the basis of freedom of scientific
investigation". Furthermore, the substantive part of the Outer Space Treaty provides that there
"shall be free access to all areas of celestial bodies."72
"Promoting the development of space science and technology and of its application" is also
the objective of the UNGA Declaration on International Cooperation in the Exploration and
Use of Outer Space for the Benefit and in the Interest of All States, taking into consideration

69 Compromis 25
70 Karl-Heinz Bckstiegel, Reconsideration of the Legal Framework for Commercial Space
Activities, art I (1990) 33 PROC. COLL. L. OUTER SP. 3.
71 Antarctic Treaty, 402 UNTS 71 (1959)
72 Outer Space Treaty, supra note 4, art 1.
21

the needs of Developing Countries. 73 The freedom to explore is closely linked to the fact that
outer space is not subject to claims of sovereignty.74
Thus, it is argued that Despina had no right in law to impede Proteus endeavours in space
exploration in any way, and that the interception can only be classified as a military activity.
IV.B. MFA

DID INTERCEPT AND DESTROY

VESTA I.

The 1975 Convention on Registration of Space Objects 75 requires a state to maintain a

registry of objects it launches into space. Moreover, information on each registered object
including date and location of launch, basic orbital parameters, and the general function of
the space objectis to be provided in timely manner to the United Nations register for full
and open access to the international community. Proteus had declared its intent to launch
Vesta I on 12th February 2045 to the United Nations, thus fulfilling its duty to disclose
pertinent information about any launch of a spacecraft to the international community.76
Therefore it is submitted that Despina had prior knowledge about the impending launch of
Vesta I including details of orbital parameters which would decide the path and apogee of the
spacecraft. It is noteworthy to mention that the Special Rapporteur appointed by the U.N.
General Assembly concluded that the ferry spacecraft bearing the flag of Despina was indeed
ordered by the incumbent Captain in charge of the Orbiter Facility to change course and
intercept Vesta I, thus immobilizing and destroying it.77 Moreover, in a blatant display of
73 UN Doc. A/51/20.
74 Outer Space Treaty, supra note 4, art. II.
75 Convention on Registration of Objects Launched into Outer Space, 1023 UNTS 15 (1974).
76 Compromis 24.
77 Compromis 25.
22

impunity, Despina did not cooperate with the Special Rapporteur, throwing light on its
intentions and agenda. 78
IV.C DESPINA

IS LIABLE FOR THE DESTRUCTION OF

VESTA I.

A state or international organization from whose territory or with whose assistance or

permission a space vehicle is launched bears international responsibility for personal injury,
loss of life or property damage caused by such vehicle on the Earth or in air space 79. Article
VII of the Outer Space Treaty assigns international liability on a state for damage to another
State or its natural or juridical persons.
IV.C.1 DESPINA IS LIABLE UNDER THE LIABILITY CONVENTION.
The Convention, in its Articles II, III, IV and V, renders the launching State liable for any
damage which may be caused by a space object.
i) Despina is the launching State.
Article I (c) of the Liability Convention defines a launching state as a state (a) which
launches or procures the launching of a space object, or (b) A state from whose territory or
facility a space object is launched.80
States need not actively participate in the launching of a space object, but any involvement
with the launching or flight of a space object is sufficient for the state to fall within the
definition of the launching state.81

78 Compromis 25.
79 Travaux Preparatoires of the Principles Declaration, U.N. Doc A/C1/881.
80 Edwin W. Paxson III, Sharing the Benefits of Outer Space Exploration: Space Law and
Economic Development, 14 Mich. J. Intl L. 487, 489 (1993).
23

In the present case, the ferry is a spacecraft belonging to Despina and exclusively used by
MFA, a state sponsored agency of Despina, to move extracted ores from the asteroid to
AstroMiner, a minerals processing facility belonging to Despina.82 By the application of the
principles enumerated above, Despina is a launching state.
ii) Ferry Spacecrafts are Space Objects.
The Liability Convention regulates damage caused by space objects, which is defined as
component parts of a space object as well as its launch vehicle and parts thereof .83

This definition of space object includes all sorts of man-made objects84 launched into outer
space85. The space object in question is a ferry spacecraft designed to facilitate the transfer of
the extracted ores from the AstroMiner to the AstroCrusher.

81 Stephen Gorove, Legal Aspects of Space Flight, (1978) 3 Annals of Air and Space Law
416; Lampertius, The Need for an Effective Liability Regime for Damage Caused by Debris
in Outer Space, (1992) 13 Michigan Journal of International Law 447, 455; Report of the
Ad Hoc Committee on the Peaceful Uses of Outer Space, UN Doc. A/4141/25 (1959),
excerpted in Nandasiri Jasentuliyana and S.K. Lee, Manual on Space Law(ed.) (1981) 3-4.
82 Compromis 25.
83 Convention on International Liability for Damage Caused by Space Objects (LC), art.
1(d), 24 U.S.T. 2389(1973).

84 M. Benko and G. Gruber, Space Debris: Legal problems to be solved within the United
Nations in Proceedings of the first European conference on Space Debris 680; Buenos Aires
International Instrument on the protection of the Environment from Damage caused by Space
Debris, ESA/IRC (96), 16, Annexe 3, art 1(c).
85 See Juan Faramin Gilbert, Space Debris: Technical and Legal Aspects in Outlook on
Space Law over the Next 30 Years (Gabriel Lafferranderie and Daphne Crowther) 311(5th
ed.1997).
24

(iii) Despina liable under the Liability Convention.

According to Article III of the Liability Convention, In the event of damage being caused
elsewhere than on the surface of the Earth to a space object of one launching State or to
persons or property on board such a space object by a space object of another launching
State, the latter shall be liable only if the damage is due to its fault or the fault of persons for
whom it is responsible. 86
As already submitted above in Contention IV.2, Despina did in fact send its space ferry out of
its path to intercept, collide and destroy Vesta I.87 Moreover, extant regulations in place
require the sharing of orbital and other parameters of any space object being launched,
making it clear that Despina had full knowledge about Vesta I and the flightpath it was taking,
making the entire act of interception highly malevolent in nature, thus making it fully liable
for its actions under the Liability Convention.
IV.C.2 DESPINAS ACTS ARE IN CONTRAVENTION OF CUSTOMARY INTERNATIONAL LAW.
An internationally wrongful act of one state establishes immediate international responsibility
of the state committing the wrong towards the state suffering the wrong 88. No breach of
obligation is necessary to incur liability, if the activity resulting in damage is inherently

86 Andre DeBusschere, Liability for damage caused by Space Objects, (1984) 3 Journal of
International Law & Practice 97; Marc Firestone, Problems in the Resolution of Disputes
Concerning Damage Caused in Outer Space, (1985) 59 Tulane Law Review 747.
87 Compromis 25.
88 ILC Commentary, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 art 1 (2001);
C. Eagleton, Responsibility of States in International Law (1928); Charlottesville,
International Law of State Responsibility for injuries to Aliens (R.B. Lillich ed,) (1983); Ian
Brownlie, System of the Law of Nations: State responsibility ( 4th ed, 1983) part I; M. Spinedi
and B. Simma (ed), United Nations Codification of State Responsibility (1987).
25

dangerous, as it is the harm, actual or potential, which causes liability 89. For state
responsibility to arise are; firstly, there must exist a legal principle of Customary International
Law which the act of the State violates, secondly, such act or omission must be imputable to
the state, and finally, the loss or damage must arise from such act or omission90.
As contended before, there exists the unconditional right of Proteus to explore outer space,
which has been impeded by the actions of the agents of Despina, which has lead to the
infringement of Proteus right and the loss of a spacecraft.
It is a general principle of law that States can only act through agents and representatives 91.
Here, it is alleged that the act of interception and destruction of Vesta I was ordered by Capt.
Johan Picardo, commander of the AstroCrusher.
The actions of the commander of the AstroCrusher lead to the collision of the ferry spacecraft
with Vesta I and its subsequent destruction. Therefore, Despina is liable for its actions in the
interception and destruction of Vesta I.
Thus, it is finally submitted, that on account of impeding on Proteuss rights to explore space,
and on causing the interception and destruction of Vesta I, Despina is to be held liable under

89 Survey of State Practice Relevant to International Liability for Injurious Consequences

Arising out of Acts not Prohibited by International Law, UN Doc. ST/LEG/15; Cheng and
Brown, Contemporary Problems of International Law: Essays in Honor of G.
Schwarzenberger on his 80th Birthday (1988) 324.
90 H. Mosler, The International Society as a Legal Community (1980) 157; Jimnez
Archaga, International Responsibility in M. Srensen (ed), Manual of Public
International Law 531, 534(1968).
91 Questions relating to settlers of German Origin in Poland (Advisory Opinion), [1923]
PCIJ, No 22; Oppenheim, International Law, (9th ed, 1996) 540; Symposium: The ILCs
State Responsibility Articles, (2002) 96 American Journal of International Law 773.
26

the Outer Space Treaty, customary international law and the relevant provisions of the
Liability Convention.

27

V. DESPINA

EACH

IS LIABLE TO PAY DAMAGES FOR

OF THE

ABOVE

CONTRAVENTIONS.

V.A DESPINA

IS LIABLE TO PAY DAMAGES TO

SPACE TREATY

FOR THE

MINING ACTIVITIES

MEMBER STATES

OF THE

OUTER

CONDUCTED ILLEGALLY ON

16

PSYCHE, 216 KLEOPATRA, 21 LUTETIA AND 77 FRIGGA.

The act of conducting mining activities on the asteroids is regarded as an act of the state and
Despina is liable to pay compensation for its unlawful activities under international law. Article 1
of the ILC Draft articles states that every internationally wrongful act of a State entails
international responsibility92.
In the Corfu Channel case, it was held that states are not knowingly to allow any territory to be
used for acts contrary to the rights of other states 93. Additionally, jurisdictional competence over

92 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the
International Law Commission on Work of its Fifty-Third Session, UN General Assembly
Official Records, 56th session, Supplement No 10, art 1, December 12, 2001, UN Doc. A/56/10
(ILC Articles); Phosphates in Morocco, Preliminary Objections, (1938) PCIJ (Series A/B) No.
74, 10, 28; S.S. Wimbledon case, (1923) PCIJ (ser. A) No. 1, 15, 30; Chorzow Factory Case
(Germany v. Poland), Merits, (1928) PCIJ (ser A) No 17, 29; Corfu Channel Case, Merits, (1949)
ICJ Reports 4, 23; Reparations for Injuries Suffered in the Services of United Nations, (1949)
ICJ Reports 174, 184.
93 Corfu Channel Case, (1949) ICJ Reports 4, 22; Trail Smelter Arbitration Case, (1941) 35
AJIL 716; Island of Palmas Case, (1928) 2 RIAA 829, 839; Lac Lanoux Arbitration, (1957) 24
ILR 101.
28

special zones of limited res communis has historically been recognized94. These special
jurisdictional zones vest the right to reasonably use part of a global commons area, but they do
not vest any sovereignty right over those areas 95.It is asserted that Celestial bodies are analogous
to special jurisdictional zones in res communis areas. States have a right to the free exploration and
investigation of the celestial bodies 96 but they are precluded from claiming sovereignty over them 97.
Therefore, it is submitted that Despina is liable for mining unreasonably on the asteroids 16 Psyche,
216 Kleopatra, 21 Lutetia and 77 Frigga and has interfered with another states freedom by over
exploiting the resources. Despina is liable to pay compensation to the international community as a
whole.

V.B DESPINA

IS LIABLE

SPACE TREATY

FOR

SOLE USE

SHARE

AND

FOR DAMAGES

APPROPRIATING

TOWARDS

MEMBER STATES

OF THE

OUTER

RESOURCES FROM ILLEGAL MINING FOR ITS

THE SAME HEREON.

It is argued that based on the emphasis drawn by the confluence of Articles I and IX of the Outer
Space Treaty and other sources of law regarding space and exploitation of resources, Despina is
mandated by international law to ensure that the resources obtained from the common heritage of

94 F. Kenneth Schwetje, Protecting Space Assets: A Legal Analysis of Keep-Out Zones, 15

JOURNAL SPACE L. 131,141 (1987), MALCOM N SHAW, INTERNATIONAL Law 416 (5th
ed.1997).
95 F. Kenneth Schwetje, Id.
96 Moon Agreement, supra note 9, art. VI.
97 Id., art. 11.
29

mankind, are shared amongst other nations as well. This principle finds a real time application in
the fields of Remote Sensing98 and in the case of deep sea bed mining99.
As laid out earlier in Contention II, Despina is bound to share the profit and the resources as the
space is in legal terms res communis, or at the very least make available the resource obtained to
other by way of a sale or otherwise on a non-discriminatory basis.
V.C DESPINA

IS LIABLE TO PAY DAMAGES TO

SPACE TREATY

MEMBER STATES

FOR THE REMOVAL AND DESTRUCTION OF

OF THE

OUTER

CLEOSELENE.

According to Article 42 of the Draft Articles on State Responsibility for Internationally Wrongful
Acts adopted by the ILC in 2001, a state that is an injured party is entitled to compensation by
the other state whose ibligations either towards the injured state or towards the International
community as a whole, are breached.100.
It is asserted that the protection of the Outer Space environment is inherently linked with the
concept of Outer Space as a common heritage of humanity, thus imposing upon exploration and
use of Outer Space resources, the principle of intergenerational equity.101.

98 Remote Sensing Principle, supra note 45, Principle XII.

99 Gennady M. Danilenko, The Concept of the Common Heritage of Mankind in
International Law (1988) 13 ANN. AIR & SP. L. 247 at 249; and Christopher Pinto, The
Developing Countriesand the Exploitation of the Deep Seabed (1980) 15 COLUM. J. WORLD
BUS. 30.
100 Crawford, J., The International Law Commissions Articles on State Responsibility,
Introduction, Text and Commentaries, Cambridge, 254 ff. and 276 ff(2002).
101 Weiss, Our Rights and Obligations to Future Generations, American Journal of International
Law, 198-207(1990).
30

V.D DESPINA

IS LIABLE TO PAY DAMAGES TO

PROTEUS

FOR THE DESTRUCTION OF

VESTA I.
Fault may be attributed to an action when the act in question is not reasonable and prudent in the
light of the circumstances.102 By violating the corpus juris spatialis, a State is automatically
deemed to be at fault since violation of these provisions is neither reasonable nor prudent.103
Despina has also violated the general principle of due diligence which is an obligation of all the
States.104 This principle implies that all States have to reduce the risk of accidents which could
affect another State.105
The right of Proteus has been substantially impaired by the actions of Despina which includes
the right of exploration and use of outer space106. Further, Despina has violated the principles of
cooperation107 and non-interference108 as has been established in the preceding contentions.

102MORRIS D. FORKOSCH, OUTER SPACE AND LEGAL LIABILITY 80-3 (1982);

103GEORGE T. HACKET, SPACE DEBRIS AND THE CORPUS JURIS SPATIALIS 180 (1994).
104B.Stern, La responsabilitit internationale, RPERTOIRE INTERNATIONAL DALLOZ 8, 9
(1998).
105Intenational Law Commissions Second Report on International Liability for Injurious
Consequences Arising Out of Acts Not Prohibited By International Law (Prevention of
Transboundary Damage From Hazardous Activities), UN Doc. No. A/CN.4/501 (1999); The
Geneva Arbitration (The Alabama case) in J. B. MOORE, HISTORY AND DIGEST OF THE
INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY, VOL. I 95
(1898).
106Outer Space Treaty, supra note 4, art. I.
107Outer Space Treaty, supra note 4, art. III, IX, XI; Moon Agreement, supra note 9, art. II, IV,
XI.
108Outer Space Treaty, supra note 4, art. IX; Moon Agreement, supra note 9, art. VIII.
31

In Arguendo, if it is held by the Court that the destruction of Vesta I mission due to the actions of
Despina did not violate any rules of international law, the liability would still vest upon Despina,
as the liability envisaged under Article VII of the Outer Space Treaty and Article VIII of the
Liability Convention and the duty to pay compensation are connected to an international
wrong109.
The obligation to make full reparation110 is the second general obligation of the responsible State
consequent upon the commission of an internationally wrongful act. The general principle of the
consequences of the commission of an internationally wrongful act was stated by PCIJ in the
Factory at Chorzw case111 and further relied upon in many judgements112:
It is a principle of international law that the breach of an engagement involves an obligation to
make reparation in an adequate form.

109Jochen Pfeifer, International Liability for Damage Caused by Space Objects, 30 GER. J. AIR
& SPACE L. 230-1(1981); Karl Zemanek, Causes and Forms of International
Liability,CONTEMPORARY PROBLEMS OF INTERNATIONAL LAW: ESSAYS IN HONOUR OF GEORG
SCHWARZENBERGER ON HIS EIGHTIETH BIRTHDAY 319 (Bin Cheng, E.D. Brown eds. 1988).
110 Report of the International Law Commission on the work of its fifty-third session, General
Assembly resolution, art. 31, 56/83 of 12 December 2001.
111 Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26).
112 Trial Smelter Arbitration; Torres Ramirez v. Uruguay, decision of 23 July 1980, Official
Records of the General Assembly, Thirty-fifth Session, Supplement No. 40 (A/35/40), p. 126,
para. 19; Lanza v. Uruguay, decision of 3 April 1980, ibid., p. 119, para. 17; and Dermit Barbato
v. Uruguay, decision of 21 October 1982, ibid., Thirty-eighth Session, Supplement No. 40
(A/38/40), p. 133, para. 11.
32

The above liability will arise upon Despina as a consequence of its actions in violation of its
obligations under International Treaties. Thus, Despina is liable to compensate Proteus for all the
losses suffered by it.

33

Prayer for Relief

For the foregoing reasons, the Republic of Proteus, Applicant, respectfully requests the Court to
adjudge and declare that:
A. Despina acted unlawfully in conducting mining activities on asteroids 16 Psyche, 216
Kleopatra, 21 Lutetia, and 77 Frigga.
B. Despina unlawfully kept all of the mineral resources extracted from the asteroids for its
domestic use on Earth or its lunar settlements.
C. Despina unlawfully removed and destroyed Cleoselene from its natural orbit.
D. The interception and destruction of the Vesta was unlawful
E. Despina is liable to compensate Proteus for unlawfully conducting mining activities and
keeping them for domestic use on Earth or lunar settlements, removal of Cleoselene and
for interception and destruction of Vesta.
Or any other relief which the court may deem appropriate.

34