«Positive Space Law and
Privatization of Outer Space:
Fundamental Antinomies »
George D. Kyriakopoulos
Lecturer in International Law
Faculty of Law,
Nationale and Kapodistrian University of Athens
“Antinomy” (αντινομία)
 “a fundamental and
apparently
unresolvable
conflict”
The five international space treaties, constitute
agreements among States which leave little
room for private activities
Space Law in force  a collective exploration
and exploitation of outer space [“province of
all mankind”, art. I OST – “Common heritage of
mankind”, art. 11 (1) MA]
 collective exploitation regime of the Moon
and the celestial bodies [art. 11 (5) MA]
Antinomic relationship between:
- existing provisions of space law and
- growing desire for involvement of
private interests in outer space
1. Public Law v. Private Activities
 Space exploration initially undertaken by
governmental entities
 Even today, “public purpose”  the main
characteristic of positive space law
 No recent international space legislation
of binding nature
 Trend towards soft law regulations
(“principles", “guidelines” or “codes of
conduct”)
1. Public Law v. Private Activities
 “In the field of ​space law, no
such regulations that could
systemically be classified under a
separate category of “private
space law” or “private
international space law” through
the institutional form of
conventions of international
uniform law” (Yokaris)
1. Public Law v. Private Activities
 “State keeps private activities
under its control”
 “Only the State is present in the
international sphere, in respect
of the activities undertaken in
relation to the exploration and
exploitation of space” (Yokaris)
2. The Non-Appropriation Principle v. Property
Rights in Space
 Art. II OST, Art. 11 (2) MA: “Outer space,
including the Moon and other celestial bodies, is
not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by
any other means”
 “National appropriation” refers to both the
exercise of sovereign rights (by States) and
private appropriation (by non-governmental
entities)
 In view of the principle of non-appropriation,
difficult to accept property rights in outer space
3. Interests of Mankind v. Interests of States and
Individuals
Art. I (1) OST  “The exploration and use of outer
space, including the Moon and other celestial bodies,
shall be carried out for the benefit and in the
interests of all countries, irrespective of their degree
of economic or scientific development, and shall be
the province of all mankind”
Art. 11 (1) MA  “The Moon and its natural
resources are the common heritage of mankind”.
 Mankind is a subject of international space law
3. Interests of Mankind v. Interests of States and
Individuals
 According to scholars, “Province of mankind”
should only give access to space resources at a fair
market price, “for everyone”, whereas “Common
heritage of mankind” should just impose a space
exploration and exploitation for peaceful
purposes
 The key for the “Province” and “Heritage”
concepts is the “common interest of mankind”
provision (Preamble of OST, UNGA Resolutions
1348(XIII) of 13 December 1958, 1472(XIV) of 12
December 1959, 1721(XVI) of 20 December 1961,
1962(XVIII) of 13 December 1963, A/RES/55/122
of 27 February 2001
Mankind:
 based on consistency, not on division:
different concept from “every nation”
was generally associated with the
notion of “all states” or “all peoples”
Gorove: “mankind describes a collective
body of peoples wherever they may be
found”
4. Antinomies cannot be resolved through legal
interpretation
Interpretation according to Arts. 31-32
VCLT
It seems that the “ordinary meaning” and
“the object and purpose” criteria of the
general rule (31 VCLT), as well as the
“circumstances”
criterion
of
the
supplementary means (32 VCLT) rather
reinforce the notion of “mankind” as
expressed above
In conclusion,
The antinomies exposed hereinabove constitute, in
toto, a “legal discouragement” of private activities in
outer space, despite the increasingly strong intention
to undertake such initiatives. In the context of a
space law of profoundly public character, which has
among its subjects mankind as a whole and dictates
the non-appropriation of resources in outer space,
there is no sufficient ground for an effective
regulation of commercial activities. This lacuna
cannot be redressed by way of interpretation, as the
relevant rules of the the 1969 Vienna Convention are
not able to overcome the intrinsic characteristics of
the existing legal framework
The author is not against the conduct of commercial
activities in outer space, of a private nature. He just
considers that this is not possible under current
space law, which might prove insufficient if, at
present, the desire of States is to put the famous
“use of outer space” concept in a business
perspective. Besides, other important issues for an
effective and secure commercial exploitation of
outer space – as the protection of the space
environment or the creation of a space traffic
management system – should also need the
intervention of State authorities as well as the
undertaking of international action. Therefore, there
is an urgent need for the adoption of fresh binding
regulations, as soft law provisions do not suffice.