MarIus

1.4 Sources and methodology

The forthcoming sections explain which legal sources are applied to address the research questions of this thesis, and how they are applied. The purpose of this thesis is first and foremost to provide an understanding of the law as it exists [lex lata] and thus applies the dogmatic method of legal research.

The laws of space constitute a part of international law.^{(1) J. Crawford, Browlie’s Principles of Public International Law (Oxford: Oxford University Press, 2019), 331, Oxford Scholarly Authorities on International Law.} The legal sources applied in addressing the research questions of this thesis, are those reflected in the Statutes of the International Court of Justice (ICJ), Article 38.^{(2) Statute of the International Court of Justice, 33 UNTS 933, adopted June 26th 1945, entered into force October 24th 1945.} Although this article is formally intended for the judges of the ICJ, it is broadly recognized as providing an authoritative statement of legal sources applicable in international law.^{(3) Cassandra Steer, “Sources and law-making processes relating to space activities” In Routledge Handbook of Space Law, ed. Ram Jakhu, Paul Stephen Dempsey (London: Routledge, 2016), 5.} International conventions, general principles of law, and customary law are primary means for determining the rules of law.^{(4) Article 38 (n. 82), litras a, b, and c.} Judicial decisions and the teachings of the most highly qualified publicists are followingly subsidiary means.^{(5) Ibid., litra d.}

Treaties are often referred to as the most importance source of obligation in international law.^{(6) Crawford (2019), 28.} This is certainly true for space activities.^{(7) Lyall and Larsen (2018), 38; Steer (2016), 6.} There are in total five UN space treaties that constitute the backbone of space law: the Outer Space Treaty of 1967^{(8) (n. 21), supra.}, the Rescue and Return Agreement of 1968^{(9) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 672 UNTS 119, adopted 1967, entered into force December 1968.}, the Liability Convention of 1972^{(10) Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187, adopted in the General Assembly in 1971, entered into force September 1972.}, the Registration Convention of 1975^{(11) Convention on Registration of Objects Launched into Outer Space, 1023 UNTS 15, adopted 1974, entered into force September 15 1976.}, and the Moon Agreement of 1979.^{(12) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1363 UNTS 3, adopted December 5th 1979, entered into force July 111984.} The most important agreement in this regard is the Outer Space Treaty of 1967 [OST].^{(13) Tronchetti (2015), 778; Hobe (2019), 59.} As of January 1, 2024, the OST enjoys widespread support with 114 ratifications and 22 signatories, including all major spacefaring nations.^{(14) Status of International Agreements relating to activities in outer space as at 1 January 2024, UN document A/AC.105/C.2/2024/CRP.3, available online: https://www.unoosa.org/res/oosadoc/data/documents/2024/aac_105c_22024crp/aac_105c_22024crp_3_0_html/AC105_C2_2024_CRP03E.pdf. Last accessed May 13th 2024.} It is the main legal source applied in this thesis, as it codifies the fundamental principles of non-appropriation, free use of outer space, and State responsibility – principles central to answering the research questions of this thesis.^{(15) Section 1.3.1, supra.}

Another relevant treaty is the Moon Agreement of 1979 [MA].^{(16) (n. 24), supra.} It is the only space treaty that provides explicit provisions on natural resources in outer space. It also reiterates the non-appropriation principle of the OST Article II.^{(17) Ibid. Article 11 (2).} It is therefore of interest to examine. However, the MA lacks support from the majority of the States Parties to the OST, including all the major spacefaring nations.^{(18) See Status of Treaties (n. 23)} Its provisions initially only apply to its 17 States Parties and its obligations are therefore limited to these.^{(19) Ram Jakhu, “The International Legal Framework” in Space Mining and its Regulation (Cham: Springer Nature, 2017), 114-115.}

The third space treaty of relevance for this thesis is the Liability Convention of 1972.^{(20) (n. 90), supra.} It provides a specialized regulation of liability for damage caused by a space object in outer space. It enjoys close to the same support as the OST.^{(21) With 100 ratifications, including all spacefaring countries, and 18 signatures (n. 23).} It is therefore central for analysis when assessing the State responsibility for damages caused in a future mining operation in outer space.

Certain non-binding instruments are of relevance when addressing the legal aspects of space resources. They are not traditional sources of international law as per the ICJ-Statutes, but they can transition into customary law when requisite state practice and opinio juris exist.^{(22) Masson-Zwaan and Sundahl (2023), l, 388.} Resolutions adopted by the UN General Assembly such as the 1996 “Benefits Declaration” may be relevant, as it affirms that outer space should be used on an equitable basis.^{(23) Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries. UNGA Res. 51/122 of December 13, 1996. Available online: https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/space-benefits-declaration.html. Last accessed May 30, 2024.} The declaration essentially echoes Article I of the OST as it states that spacefaring States should give particular attention to “[t]he benefit for and the interest of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities.”^{(24) See the Outer Space Treaty (n. 21) Article I.}

Other instruments of importance when addressing the rules of responsibility and liability in space resource exploitation are the ones provided by the International Law Commission [ILC], codifying the rules of State responsibility and liability for damage in general international law. The most important is the Draft Articles on State Responsibility adopted by the UNGA in 2001.^{(25) Responsibility of States for Internationally Wrongful Acts, adopted by A/RES/56/83, 12 December 2001. Provided in Report of the ILC on the Work of its Fifty-third Session, Official Records of the UNGA, 56th session, Supp. No. 10. A/56/10 (2001).} There are two reasons for their relevance in this thesis. Firstly, they are considered to increasingly reflect customary law.^{(26) Steer (2016), 14.} Secondly, their general applicability to all branches of international law also include space activities.^{(27) Ibid.} They therefore contribute as complimentary sources to the rules of the OST and the LC.^{(28) Ibid.} They express that the wrongful act of a State entails international responsibility of that State.^{(29) (n. 105) Article I.} An act is wrongful when conduct is attributable to the State and constitutes a breach of an international obligation of the State.^{(30) Ibid. Article 2 (a) and (b).} Because the OST Article VI obligates States to assure conformity with the provisions of the OST and international law including non-governmental entities, and to authorize and continually supervise these entities, they are relevant in clarifying the legal framework of State responsibility in outer space. Moreover, the 2001 Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities may provide useful when examining the concept of due diligence in relation to what ‘fault’ as a prerequisite for liability in the LC entails.^{(31) Article III, (n.457), infra.}

There are no judicial decisions directly relevant for the topic of this thesis, given that space activities are relatively novel, and space resource activities embryonic. Nonetheless, this thesis references to judicial decisions, primarily judgments of the ICJ, as they can help determine rules of international law.^{(32) Either as supplementary means or as elements of customary law, see Article 38 (n. 83).} They can also provide authoritative statements on treaty interpretation.^{(33) See section 1.4.1.1 on ICJ-judgment as authoritative statements in treaty interpretation rules.}

The use of scholarly writings is a central element of this thesis. Because there is a lack of legal sources providing evidence of the law like judicial decisions, this makes the insights and opinions of eminent legal scholars in the field essential for clarifying and resolving legal questions. Scholarly contributions are considered subsidiary means of determining legal rules.^{(34) Article 38 (n. 83), d.} Given this context, it's important to approach the views found in literature with caution. Furthermore, although the Statutes stipulate the requirement of ‘the most highly qualified publicist of the various nations’, there is no clear line between a ‘highly qualified’ publicist and merely a “qualified” one. There exists a significant amount of literature in the field of space law, which in some cases is not of a satisfactory standard, and/or that provide unthorough analysis and reasoning.^{(35) Lyall and Larsen (2018), 28.} This makes the selection and assessment of literature challenging, especially in the case where the qualification of the publicist is not completely obvious. However, elements such as the formative influence of a writer or authority in the field provide weight.^{(36) Crawford, (2019), 40.} This thesis has been written with such considerations in mind and has mainly applied literature that adheres to the qualification of Article 38 (d).