states that “neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State” (the underlining is ours). But this solution has some problems. First, the Moon Agreement that entered into force on July 11, 1984, has only been ratified by seven countries (Australia, Austria, Chile, The Netherlands, Pakistan, the Philippines and Venezuela). The Moon treaty is the only space treaty that has not been ratified by the major space powers. Since no major space nation is a signatory, it is not generally accepted as binding space law. The Moon Agreement, to be relevant, needs the participation of the major space powers, in particular, the United States. That represents a huge handicap with respect to the legal relevance of its provisions. Second, according to some scholars, the use of expressions such as “shall” implies that the general character of the obligation prescribed in article 11.3 of Moon Agreement, is practically transformed to a voluntary option. To safeguard the implementation of “the common heritage of mankind” principle, the States parties to the Moon Agreement, “undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible” (art. 11.5), with the main purpose of guaranteeing “an equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries” are considered (art. 11.7, par. d). The problem is that such an “international regime” has not been implemented yet. Then the question is, does the provision for an international regime mean a de facto moratorium regarding the exploitation of natural resources on the Moon until the establishment of such regime?. Whereas many less developed countries, advocating a maximum of common heritage of mankind, would suggest such a moratorium, most others disagree because the OST, the Moon Agreement itself and its travaux prep^ratoires do not give evidence in law for the existence of a moratorium (again, the main aim of article II was rather to avoid any claim of sovereignty). Furthermore, in light of the preceding controversy on the U.N. General Assembly resolution 2574 D of December 15th 1969, when the moratorium on the exploitation of the resources of the sea bed and ocean floor was proposed, the United States delegates, twice alleged that there was no moratorium regarding the Moon. No other delegation challenged this assertion. In spite of these circumstances no clear affirmation can be made concerning the existing lege lata. In our view, even in the legal absence of a moratorium, it is not clear that the exploitation of lunar materials does not go against the spirit of the Moon Agreement and specifically of the OST. Such an exploitation by any State will contradict the principles recognized in article I of OST: outer space “shall be free for exploration and use by all States without discrimination on any kind” (par.2), and “for the benefit and in the interest of all countries” (par.l). Furthermore, what is not forbidden is not necessarily allowed from the point of view of public international law. Thus, it is not possible to give a clear answer, legally speaking. However, from a perspective of lege ferenda (close to what is meant by common heritage of mankind), it would be unacceptable to perform any Moon activities on a larger scale. Another issue related to the principle of non-appropriation is the use of solar beams, since a feature of solar power satellites is the large-scale utilization of the Sun's rays. In regard to this question, it seems suitable to consider the distinction suggested by space scholars between the appropriation of inexhaustible resources, such as cosmic beams or gases, which can be the object of appropriation, and the acquisition of limited resources, which is not permitted by the OST. Hence, since solar energy is an inexhaustible and renewable resource of the space environment, it would be illogical and contrary to common sense to limit its utilization and appropriation by those able to capture and transmit it to Earth, lunar bases or other satellites. Also, the capture and use of solar energy in space is lawful as a principle of customary international law, since satellites have been making regular use of solar panels without objection from any State. Regarding the appropriation of resources existing in the space environment, a transcendental question is raised in relation to the orbits, in particular to the geostationary one. As we know, the geostationary orbit offers great advantages for solar power satellites because, on the one hand, a satellite can receive from four to eleven times the amount of solar energy available to areas on Earth, and on the other hand, is available almost continuously except for short periods around the equinoxes. But, unlike solar beams, the geostationary orbit has been recognized as a limited natural resource (art.33 of the 1982 ITU Convention). Thus, according article II of OST, it cannot be “subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”, since any contrary solution would imply a fundamental limitation to the principle of freedom of use of outer space. However, up to now the use of geostationary orbit by numerous satellites, especially for telecommunications, has been a practice accepted by most States, in spite of the fact that such practice
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