Although, there is not a concrete agreement concerning the definition and delimitation of outer space, it is generally accepted world-wide that the geostationary orbit belongs to outer space. This is evidenced in the practice of States as well as the international space organizations such as Intelsat, Inmarsat, Intersputnik, Eutelsat, Arabsat, and others. It follows that outer space law applies to the use of solar power satellites in geostationary orbit. Therefore, the Outer Space Treaty of 1967 (OST), the Astronaut Agreement of 1969; Liability Convention of 1972; Registration Convention of 1975; Moon Agreement of 1979; and any other rule of international outer space law, are applicable to the activities surrounding the utilization of solar power satellites. Hence, the geostationary orbit (and in our opinion also the lower Earth orbits), the Moon, etc., are affected by the principle of freedom of use, non appropriation, and restriction of use for peaceful purposes, as articulated in the above treaties. The principle of freedom on use of outer space, including the Moon and other celestial bodies (art. I of OST) is a customary norm of public international law that implies the right of free access, free exploration and free utilization. These rights of States are not absolute but rather relative and limited. The same article I, par.2 of OST establishes that outer space “shall be free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law”. In reality, only a few States, those that have enough financial and technological capacity, can exercise such freedom. Article I, par.l of OST, imposes other limitations: 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, and shall be the province of all mankind”. This paragraph was included to satisfy the aspirations of less-developed countries. Since 1989, the Committee on the Peaceful Uses of Outer Space (COPUOS) is studying the legal aspects related to the application of the principle that the exploration and utilization of outer space should be carried out for the benefit and in the interests of all States, taking into particular account the needs of developing countries. Up to now, no agreement has been reached because of the deep differences, especially relating to the legal regime of the geostationary orbit, existing between less developed countries. The latter countries claim that the geostationary orbit has to be considered the common heritage of mankind. Most of the delegations in the COPUOS agree that such a regime must guarantee to all States equitable access to the geostationary orbit, but the discrepancies remain with respect to how such access will be implemented. Relating to the principle of non appropriation, article II of OST states that “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”. Appropriation is understood to include either the exercise of exclusive control or use on a permanent basis. According to this principle, what about the legality of building lunar bases, for example, to manufacture solar power satellites? There is no clear answer, but we have to take into account that when the OST was negotiated, the overriding concern of article II was to avoid any claim of sovereignty over outer space, including the Moon, not to forbid production activities on the surface of the Moon. The Moon Agreement, after having reiterated article II of OST in article 11.2, establishes that “neither the surface nor the subsurface of the Moon, nor any part thereof, or natural resources in place, shall become the property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof' (art. 11.3). Accordingly, it seems lawful, or at least nor forbidden, to establish a lunar base to manufacture solar power satellites because such a base does not imply the extension of rights of ownership or sovereignty over the surface of the Moon. An analog exists with bases established in the Antarctic. Moreover, the legality of lunar bases is corroborated by article 12 of the Moon Agreement. The Moon's resources, such as metals, glasses, oxygen, etc., appear to provide materials for the construction of the system of solar power satellites. The question then is, would the appropriation of extraterrestrial materials, in particular lunar natural resources, be banned by international space law?. This is a very controversial issue. Article II of OST forbids the appropriation of any part of outer space and celestial bodies, but neither the U.N. General Assembly Resolution 1962 (XVIII) nor the OST address the issue of appropriation of resources existing in outer space or in celestial bodies. At first glance, the Moon Agreement may give us a solution. After declaring that “the Moon and its natural resources are the common heritage of mankind” (art. 11.1), as we have seen supra, article 11.3
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