Proceedings of the Workshop - United Nations Office for Outer ...

The Outer Space Treaty sets forth certain basic and fundamental principles, whichprovide substantial protection for the rights of private entities conducting activities in space, inconformity with the corpus juris spatialis, from in situ interference by other entities. Suchinterference could come from the state, which granted the authority to the private entity, otherentities authorized by that state, or other states or their nationals. Space activities are difficult,costly, and fraught with risk. It is unlikely that a state, which granted authorization to a privateentity purposely, would interfere with the activities of that authorized entity. Should the statedesire to limit or restrict the activities of the private entity, a broad array of means andmechanisms would be available, which would be much less costly and considerably moreefficient than launching a mission to conduct interference with activities in situ. Such means andmechanisms include the revocation of authorizations, restriction of communications, issuance ofinjunctions, attachment of property, and/or the utilization of a number of provisional or otherremedies under domestic law.It also is unlikely that an authorized entity would be subject to interference by anotherentity granted authority by the same State-licensing regime. A request for authorization, whichexpressed the clear intention to cause physical interference with the operations of a previouslyauthorized facility, would have little chance of obtaining approval. The State itself would objectto such a purpose, which otherwise might constitute a violation of the peaceful purposesprovisions of space law. Moreover, the operator of the licensed facility, or members of the public,may have an opportunity to voice a formal objection to the second request for authority pursuantto domestic licensing or judicial procedures. Objections based on the potential for interference,which would be caused by the second applicant, would be well founded. Objections based onexpressly stated intentions to cause such interference would be even more compelling.It is possible, of course, that a second entity could be granted authority to operate afacility near the vicinity of a previously authorized facility, provided that no interference wascaused thereby. If both entities produced the same product or service utilizing extraterrestrialresources, there could be the potential for claims such as infringement of intellectual propertyrights and unfair competition. However, these types of claims are raised on a daily basis, andresolved on a daily basis, according to extant law. It will be observed in this context that thevalidity or defence of these actions is wholly unrelated to a claim of ownership of areas of acelestial body.The remaining potential source of interference is from other States or their nationals. TheOuter Space Treaty obligates states to prevent harmful interference with the activities of otherStates, and to participate in consultations where such interference may occur. It is apparent that aclaim of private appropriation would not add a scintilla of credibility or substance to the rights ofan authorized operator of a facility, if a foreign State sought to interfere with the operationsdirectly or through its private entities. The interference with the facility would existindependently of any claim of ownership, as a State which was intent on committing interferencedirectly, or indirectly through its private entities, would do so in violation of the Outer SpaceTreaty, and if applicable, the Moon Agreement. Such a state would not be deterred by theassertion of a claim of private ownership of an area of a celestial body.The duty of States to prevent harmful interference, together with the provision forconsultations, establishes a mechanism by which the rights of a private entity conductingactivities in space may be protected. Should interference occur, liability could be imposedpursuant to the provisions of the Outer Space Treaty, and where applicable, the LiabilityConvention.