615R

THE IASLA SPACE LAW MOOT COURT COMPETITION

IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE
PEACE PALACE, THE HAGUE

CASE CONCERNING ASTEROID MINING ACTIVITIES AND ORBITAL MINERAL PROCESSING

FACILITIES

REPUBLIC OF PROTEUS
(APPLICANT)
V.

GRAND DUCHY OF DESPINA

(RESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE RESPONDENT
GRAND DUCHY OF DESPINA

TABLE OF CONTENTS
INDEX OF AUTHORITIES................................................................................................................... V
STATEMENT OF JURISDICTION........................................................................................................XII
QUESTIONS PRESENTED................................................................................................................XIII
STATEMENT OF FACTS.................................................................................................................. XIV
SUMMARY OF PLEADINGS.............................................................................................................XIX
PLEADINGS...................................................................................................................................1
I.

THE SPACE ACTIVITIES OF MFA DID NOT CONTRAVENE INTERNATIONAL LAW.......................1

I.A. DESPINA DID NOT VIOLATE ARTICLE I OF THE OUTER SPACE TREATY.................................1
I.A.1. PROTEUS CANNOT BRING A CLAIM UNDER ARTICLE I....................................................1
I.A.2. DESPINAS ACTIVITIES WERE CONSISTENT WITH ARTICLE I..........................................2
I.A.3. BENEFITS TO BE UNDERSTOOD IN A GENERAL SENSE..................................................3
I.B. DESPINA HAS NOT VIOLATED ARTICLE II OF THE OUTER SPACE TREATY.............................6
I.B.1. SCOPE OF ARTICLE II.....................................................................................................6
I.B.2. MEANING OF NATIONAL APPROPRIATION....................................................................7
I.C. THE LOSS AND DESTRUCTION OF CLEOSELENE WAS AN ACT OF FORCE MAJEURE...............8

II. IT IS UNLAWFUL FOR PROTEUS TO SEEK TO DENY ACCESS TO 77 FRIGGA THROUGH THE
VESTA.............................................................................................................................................10
II.A. PROTEUS HAS VIOLATED ARTICLE IX OF THE OST...........................................................10
II.B. PROTEUS HAS VIOLATED THE PRINCIPLES OF COOPERATION AND NON-INTERFERENCE WITH
THE ACTIVITIES OF OTHER STATES IN THE OUTER SPACE............................................................11
II.C. PROTEUS BREACHED THE CUSTOMARY INTERNATIONAL LAW BY INTERFERING WITH
OTHER STATES EXPLORATION AND USE OF NEAR EARTH OBJECTS.............................................12
II.D. PROTEUS CANNOT EXONERATE ITSELF FROM THE ABOVE LIABILITY AS IT DOES NOT HAVE
CLEAN HANDS.............................................................................................................................13
III. PROTEUS IS LIABLE FOR THE EFFECTIVE DESTRUCTION OF THE ASTROCRUSHER FACILITY.....15
III.A. PROTEUS HAS VIOLATED THE OUTER SPACE TREATY......................................................15
III.A.1 PROTEUS HAS FAILED TO CONTINUALLY SUPERVISE PSS BACCHUS........................16
III.A.2 PROTEUS MUST BEAR INTERNATIONAL RESPONSIBILITY FOR THE DESTRUCTION......17
III.B. PROTEUS HAS VIOLATED THE LIABILITY CONVENTION....................................................18
III.B.1.PROTEUS IS THE LAUNCHING STATE...........................................................................19
1

III.B.2 FAULT CAN BE ATTRIBUTED TO PROTEUS...................................................................20

IV. PROTEUS IS LIABLE FOR THE DEATHS OF CAPT. PICARDO AND DR. OHARA..........................22
IV.A. THERE WAS AN ACT OF INVOLUNTARY MANSLAUGHTER.................................................22
IV.B THE DEATH OF OHARA IS AN IMMEDIATE CONSEQUENCE OF THE ATTACK......................24
IV.C. THE ACT WAS IN FURTHERANCE OF A LARGER ATTACK ON ASTROCRUSHER...................24
IV.D. THE ACT IS ATTRIBUTABLE TO PROTEUS..........................................................................25
V. PROTEUS IS LIABLE FOR THE ECONOMIC LOSS SUFFERED BY MFA AND DESPINA...................28
V.A PROTEUS IS LIABLE FOR DIRECT ECONOMIC LOSSES SUFFERED..........................................28
V.A.1 EFFECTIVE DESTRUCTION OF ASTROCRUSHER FACILITY............................................28
V.A.2 INCREASED PRODUCTIONS COSTS................................................................................29
V.B PROTEUS IS LIABLE FOR INDIRECT ECONOMIC LOSSES SUFFERED.......................................29
V.C DESPINA CAN CLAIM DAMAGES UNDER INTERNATIONAL CUSTOMARY LAW.......................30
PRAYER FOR RELIEF.......................................................................................................................32

Index of Authorities

CONVENTIONS
Convention on the Prevention and Punishment of the Crime of Genocide, 1948
Liability Convention, 1972
Moon Agreement, 1979
Outer Space Treaty, 1967
Rome Statute of the International Criminal Court, 1998
United Nations Convention on the Law of the Sea, 1982
Universal Declaration of Human Rights, 1948
Vienna Convention on the Law of Treaties, 1969

INTERNATIONAL AGREEMENTS
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and
Herzegovina, 1992
Cairo Declaration on Human Rights in Islam, 1990
Constitution and Convention of the International Telecommunication, July 1994
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
(Protocol III), 1983
Hague Statement on Respect for Humanitarian Principles, 1991
International Law Commission, Articles on Responsibility of States for Internationally Wrongful
Acts, November 2001
International Space Station Intergovernmental Agreement, 1998
Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, 1991
Multilateral Crew Operations Panel Agreement, 2001
Ottawa Treaty, 1997
3

Protocol Additional to the Geneva Conventions (Protocol II), 1949

Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
(Amended Protocol II), 1998

UN REPORTS
Code of Crimes against Peace and Security of Mankind, 1954
Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, 1959
United Nations Juridical Yearbook, 1978, vol. II, Part I

STATUTES
Swedish Space Activities Act, 1982
United Kingdom, Outer Space Act, 1986
United States of America, Commercial Space Launch Act, 1984

ARTICLES
Adrian Copiz, Scarcity in Space: The International Regulation of Satellites, 10 J. COMM. L. &
POLY 207 (2002)
Armel Kerrest, Commercial Use of Space, Including Launching, China Institute of Space Law,
2004 SPACE LAW CONFERENCE: PAPER ASSEMBLE 199, 200 (2004)
Armel Kerrest, Remarks on the Responsibility and Liability for Damage other than Those
Caused by the Fall of a Space Object, 40 PROC. COLL. L. OUTER SP. 134 (1997)
Bin Cheng, Article VI of the Outer Space Treaty Revisited: International Responsibility,
National Activities and The Appropriate State, 26 J. SP. L. 10, (1998)
Bin Cheng, Convention on International Liability for Damage Caused by Space Objects in Outer
Space, JASENTULIYANA AND LEE (EDS.), 1 MANUAL ON SPACE LAW, 83-172 (1979)
Bin Cheng, Nineteen Hundred and Sixty Seven Space Treaty, JOURNAL DROIT INTERNATIONAL
VOL. 95, 532 (1968)

Bin Cheng, Space Activities, Responsibility and Liability For, BERNHARDT (ED.), 11 ENCY. PIL,
299-303 (1989)
Carl Q. Christol, International Liability for Damage Caused by Space Objects 74 AM. J. INTL.
L. 346, (1980)
Carl Q. Christol, Protection of Space from Environmental Harms, 4 ANN. AIR & SP. L. 433
(1979)
Carl Q. Christol, The Common Heritage of Mankind Provision in the 1979 Agreement Governing
the Activities of States on the Moon and Other Celestial Bodies, 14 INTL LAWYER 429, 448
(1980)
Daniel A. Porras, The Common Heritage of Outer Space: Equal Benefits for most of Mankind,
37 CAL. W. INTL L. J. 143, 172 (2006)
Delbert D. Smith, The Technical, Legal and Business Risks of Orbital Debris, 6 N. Y. U. ENVTL.
L. J. 50, 57 (1997)
Derek W. G. Sears and Daniel J. Scheeres, Asteroid Constraints on Multiple Near-Earth Asteroid
Sample Return 36 METEOR. & PLANET. SCI. 186, (2001)
Dr. D. Goedhuis, Some Legal Problems Arising from the utilization of Outer Space,
INTERNATIONAL LAW ASSOCIATION REPORT OF THE 54TH CONFERENCE, THE HAGUE, 434 (1971)
Edwin W. Paxson, Sharing Benefits of Outer Space Exploration: Space Law and Economic
Development, 4 MICH. J. INTL L. 494 (1993)
Eric Husby, Sovereignty and Property Rights in Outer Space, 3 J. INTL L. & PRAC. 359 (1994)
Eric A. Posner & Alan O. Sykes, An Economic Analysis of State and Individual Responsibility
Under International Law, 9 AMERICAN L. & ECON. REV. 72, (2007)
Failat, IRISH LAW JOURNAL 126-127, (2012)
F. Kenneth Schwetje, Protecting Space Assets: A Legal Analysis of Keep-Out Zones, 15 JOURNAL
SPACE L. 131,141 (1987)
Gyula Gl, Some Remarks to General Clauses of Treaty Space Law, 46 PROC. COLL. L. OUTER
SP., (2003)
H Bittlinger, Private Space Activities: Questions of International Responsibility, 30 PROC. COLL.
L. OUTER SP., 191 (1987)
Hobe, NEB. L. REV. 457, (2007)

Ian Awford, Commercial Space Activities: Legal Liability Issues, in V. S. MANI, S. BHATT & V.
B. REDDY (EDS.), RECENT TRENDS IN INTERNATIONAL SPACE LAW AND POLICY 388 (1997)
Istvan Herczeg, Interpretation of the Space Treaty of 1967 (Introductory Report), 10 PROC.
COLL. L. OUTER SP. 105, 107 (1967)
Jochen Pfeifer, International Liability for Damage Caused by Space Objects, 30 GER. J. AIR &
SPACE L. 230, (1981)
K Tatsuzawa, The Regulation of Commercial Space Activities by the Non-Governmental Entities
in Space Law, 31 PROC. COLL. L. OUTER SP., 341 (1988)
Kerrest de Rozavel & Smith, Article VII, COLOGNE COMMENTARY
HOBE, B SCHMIDT-TEDD & K U SCHROGL) VOL I 141, 55 (2009)

ON

SPACE LAW (EDS. S

Lampertius, The Need for an Effective Liability Regime for Damage Caused by Debris in the
Outer Space, 13 MICH. J. INT. L. 447, 455 (1992)
Luis F. Castillo Argaars, Benefits Arising from Space Activies and the Nedds of Developing
Countries, 43 I.I.S.L. PROC. 50, 57 (2000)
Mallick M, Rubin S, Ba-Ngu Vo, An Introduction to Force and Measurement Modeling for
Space Object Tracking, 16TH INTERNATIONAL CONFERENCE ON INFORMATION FUSION, IEEE,
1013-1020 (2013)
Marc S. Firestone, Problems in the Resolution of Disputes Concerning Damage Caused in Outer
Space 59 TUL. L. REV. 747, (1985).
Marco G Markov, Implementing the Contractual Obligation of Article I, Par. I of the Outer
Space Treaty 1967, 17 I.I.S.L. PROC. 136 (1974)
Masson-Zwaan and Freeland, ACTA ASTRONAUTICA 1604, (2010)
Michel Bourly, Rules of International Law Governing the Commercialisation of Space
Activities, 29 PROC. COLL. L. OUTER SP. 157, 159 (1986)
Michael C. Mineiro, FY-1C and USA-193 ASAT Intercepts: An Assessment of Legal Obligations
under Article IX of the Outer Space Treaty, 34 JOURNAL SPACE L. 321, 335 (2008)
Motoko Uchitomi, State Responsibility / Liability for National Space Activities: Towards Safe
and Fair Competition in Private Space Activities, 44 PROC. COLL. L. OUTER SP. 51, (2001)
Nandasiri Jasentuliyana, Review of recent discussions relating to aspects of Article I of the Outer
Space Treaty, 32 I.I.S.L. PROC. 7 (1989)

Nicolas M. Matte, Evironmental Implications and Responsibilities in the Use of Outer Space, 14
ANALYSIS OF AIR & SPACE LAW 419, 428 (1989)
Patricia M. Sterns & Leslie I. Tennen, Privateering and Profiteering on the Moon and Other
Celestial Bodies: Debunking the Myth of Property Rights in Space, 31 ADV. SPACE RES. 2433,
(2003)
Peter P. C. Haanappel, Some Observations on the Crash of the Cosmos 954, 6 J. SP. L.147, 148
(1978)
Richard Gertsch and Leslie Gertsch, Economic Analysis Tools for Mineral Projects in Space,
SPACE RESOURCES ROUNDTABLE II, COLORADO SCHOOL OF MINES (2000)
Ronald E. Alexander, Measuring Damages under the Convention on International Liability for
Damage Caused by Space Objects 6 J. SP. L. 151, (1978)
Silvia Maureen Williams, Las Empresas Privadas en el Espacio Ultraterrestre, 8 REV. CEN. INV.
DIF. AERO. ESP. 39, (1983)
Stephen D. Krasner, Think Again: Sovereignty, 122 FOREIGN POLICY 20, (2001)
Stephen Gorove, Freedom of Exploration and Use in the Outer Space Treaty, 1 DENVER J. INTL.
L. & POLY. 93 (1971)
Stephen Gorove, Implications of International Space Law for Private Enterprise, 7 ANN. AIR &
SP. L. 319, 321 (1982)
Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 FORDHAM L. REV. 349,
351 (1969)
Stephen Gorove, Legal aspects of space flight, 3 ANN. AIR & SP. L. 416, (1978)
Stephen Gorove, Liability in Space Law: An Overview, 8 ANN. AIR & SP. L. 373, 377 (1983)
Stone, Ferdinand F, Touchstones of Tort Liability, STAN. L. REV. VOL. 2 ISSUE 2, 259-284 (1950)
W. F. Foster, The Convention on International Liability for Damage Caused by Space Objects,
10 CAN. Y. B. INTL. L. 137, 155 (1972)
Wayne N. White, Real Property Rights in Outer Space, 40 PROC. COLL. L. OUTER SP. 370, 372
(1997)

BOOKS
BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 234235 (1998)
7

B. HURWITZ, STATE LIABILITY FOR OUTER SPACE ACTIVITIES 16-17 (1992)

ERNST MUTSCHLER, ARZNEIMITTELWIRKUNGEN 286 (8th ed. 2001)
G.C.M. REIJNEN & W. D. GRAAFF, THE POLLUTION
LEGAL ASPECTS (1989)

OF

OUTER SPACE: SCIENTIFIC, POLICY AND

GRARDINE MEISHAN GOH, DISPUTE SETTLEMENT

DOOR COURTHOUSE FOR OUTER SPACE (2007)

IN INTERNATIONAL

SPACE LAW: A MULTI-

GYRGY HARASZTI, SOME FUNDAMENTAL PROBLEMS ON THE LAW OF TREATIES (1973)

LYALL & LARSEN, SPACE LAW: A TREATISE (2009)
MALCOLM N. SHAW, INTERNATIONAL LAW 416 (5th ed. 1997)
MANFRED LACHS, THE LAW
MAKING (1972)

OF

OUTER SPACE

AN

EXPERIENCE

IN

CONTEMPORARY LAW-

M. M. WHITEMAN, DAMAGES IN INTERNATIONAL LAW 221 (Vol. 1 1937)

STEPHEN GOROVE, STUDIES IN SPACE LAW: ITS CHALLENGES AND PROSPECTS, (1977)
Yun, J AIR L & COM 978, (2009)

CASE LAWS
Brazil v. France, (1929) P.C.I.J. Ser. A, No. 21
Case Concerning Legality of Use of Force (Yugoslavia v. Belgium), (1999) ICJ Rep. 124
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), 1986 ICJ Rep. 14
Chorzow Factory Case (Germany v. Poland), (1928) P.C.I.J. Ser. A, No. 17
Continental Shelf Case (Tunisia v. Libya), (1982) ICJ Rep. 18
Corfu Channel Case (UK v. Albania), (1949) ICJ Reports 4
France v. Greece, (1956) 12 R.I.A.A. 155
France v. Mexico, (1928) 5 R.I.A.A. 327
France v. Serb-Croat-Slovene State, (1929) P.C.I.J. Ser. A, No. 20
Hungary v. Slovakia, (1997) ICJ Reports 68
8

Island of Palmas Case (United States v. the Netherlands), (1928) 2 RIAA 829
Juan Carlos Abella v. Argentina (La Tablada Case), (1997) Case No. 11.137, Report No. 55/97,
Inter-Am. C.H.R
Lake Lanoux Arbitration, (1957) 12 R.I.A.A. 281
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (Nuclear Weapons Case),
I.C.J Rep. 1996, 226
Libya v. Malta Case, (1985) ICJ Reports 13
R. v. Mitchell, (1983) 2 WLR 938
Russia v. Turkey, (1911) 11 R.I.A.A. 421
Saint Vincent and the Grenadines v. Guinea, (1999) 120 ILR 143, 191
Trail Smelter Arbitration (United States v. Canada), (1941) 3 R.I.A.A. 1905
UK v. Iceland, (1974) ICJ Reports 1
United States-German Mixed Claims Commission 1923, Admin. Dec. No. II, 7 R.I.A.A. 23

NEWSPAPER REPORTS
Caley Ramsey, 145 fentanyl-related deaths in Alberta in 2015, Global News, August 11, 2015
Judith Miller & William J. Broad, Hostage Drama in Moscow: The Toxic Agent; U.S. Suspects
Opiate in Gas In Russia Raid, N. Y. Times, Oct. 29, 2002

WEB PAGES
CDC, FENTANYL: Incapacitating Agent,
http://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750022.html (as seen on Mar. 3,
2016)
"WCPI Focus on Pain Series: The Three Faces of Fentanyl",
http://aspi.wisc.edu/wpi/focus/spring96.html (as seen on Mar. 3, 2016)

MISCELLANEOUS
1969 Torrey Canyon Accident, REPORT OF THE HOME OFFICE (LONDON)

U.S. Senate, Treaty on Outer Space: Hearings before the Senate Committee on Foreign
Relations, 90th Cong., 1t Sess., 1967
Statement of Jurisdiction
The Republic of Proteus and the Grand Duchy of Despina submit the present dispute to the
International Court of Justice under Article 40, paragraph 1 of the Statute of the International
Court of Justice. It provides that the states may bring cases before the Court by special
agreement.

10

Questions Presented
I.
II.

Whether the space activities of MFA contravened International Law?

Whether it was unlawful for Proteus to seek to deny access to 77 Frigga through the

III.
IV.
V.

Vesta?
Whether Proteus is liable for the effective destruction of the AstroCrusher facility?
Whether Proteus is liable for the deaths of Capt. Picardo and Dr. OHara?; and
Whether Proteus is liable for the economic loss suffered by MFA and Despina?

11

Statement of Facts

The Republic of Proteus and Grand Duchy of Despina are the two largest economies in the

world. Both of them are founding members of the United Nations and Permanent members of the
Security Council, as well as members of the World Bank, the International Monetary Fund, and
the World Trade Organization.

The prevalence of hybrid vehicles has placed significant pressure on the worlds supply of

rare earth metals and has strained relations between both the states as they become increasingly
competitive in the market for such resources.
Joint Venture and Takeover

Aerospace Equipment Corporation (AEC) is a private company in Proteus and was

established for the purpose of designing spacecraft and space installations for the use in outer
space and on the moon and Metals from Asteroids, Inc. (MFA) is a company registered in
Despina to engage in future asteroid mining operations for Despina. On 14th October 2033, AEC
announced to the Proteus Securities Exchange (PSX) that it had entered into a lucrative joint
venture with MFA to customize the Lunar Prospector and the Lunar Miner for asteroid mining
operations.

By 2038, the Astro Prospector and Astro Miner as jointly developed by AEC and MFA

were ready for deployment on asteroids. The National Aerospace Authority (NAA) designed
Ceres series of launch vehicles for the launch of Astro Prospector and Astro Miner. Similarly, the
Astro Crusher was constructed and was attached to Despinas main orbital space station,
Palomar.

12

On 11th December 2038, MFA launched a takeover of AEC on PSX. Despina acquired

80% of the listed shares of AEC and the Foreign Acquisition Panel and the Supreme Court of
Proteus decided the takeover was contrary to the national interests of Proteus. The decisions were
held by the International Banking and Finance Tribunal of the World Trade Organization to be
contrary to 2031 Stockholm Convention for the Regulatory Oversight of International Banking
and Finance.
Mining activities on Asteroids

On 24 March 2041, MFA launched Astro Miner I to the asteroid 16 Psyche for mining and

in 2049, the fuel cells and rocket fuel on board the Astro Miner I became exhausted. The ores
extracted were all ferried to the Astro Crusher facility and the minerals were then used
exclusively by Despina for orbital activities and domestic consumption on earth.

With cooperation between MFA and NAA, all of the Astro Prospector, Astro Miner and

ferry spacecraft were built in Proteus and launched by NAA from Despina using Ceres V vehicle.

On November 2041, MFA launched Astro Miner II to the asteroid 216 Kleopatra and

extraction activities began in 2044 and on 6th May 2043, Astro Miner III was launched to 21
Lutetia, which is expected to begin mining activities in February 2046 and on 4th June 2044,
MFA implemented design changes to Astro Miner IV and launch it to 77 Frigga in September,
2045.

Destruction of Cleoselene
13

On 3 April 2044, communications between the Earth and the AstroMiner II on 216

Kleopatra were interrupted by an occultation by Mars, one of the ferry spacecraft had mistakenly
latched onto the smaller of the asteroids two natural moons, Cleoselene. By the time the mistake
was discovered, Cleoselene was no longer within the gravitation field of 216 Kleopatra and there
was not enough fuel in the ferry spacecraft to turn around. Consequently, Cleoselene was brought
to Earth orbit and processed by the AstroCrusher. The loss and destruction of Cleoselene was
made public by Despina on 2 May 2044 by a note delivered to the United Nations to the U.N.
Secretary-General.
There were concerns aired by the international community of the market effects of asteroid
mining and a policy of using minerals only domestically by Despina. Notwithstanding various
discussions and proposals in this regard, no decision was reached in either the United Nations or
the World Trade Organization.
Interception of Vesta

During 2044, engineers at the Proteus Space Science Research Organization (PSSRO)

secretly developed and built a spacecraft named Vesta, designed to prevent any landing by an
Astro Miner spacecraft on that asteroid. Proteus announced its launch on 12th February 2045 that
till United Nations concludes on negotiations regarding future mining in asteroids, Proteus will
counter the threat to outer space.

Vesta I was delayed due to unfavorable weather and was launched on 23rd February, 2045

with 77 Frigga as its intended destination. However, on 26th February 2045, while travelling to
the Moon, Vesta I collided with a MFA ferry spacecraft on its way from the Astro Crusher to 21
Lutetia and was destroyed. Subsequent investigation by the special rapporteur appointed by the
14

UN General Assembly found that the ferry spacecraft was ordered by Capt. Johan Picardo,
commander of the Astro Crusher orbiter facility, to change course to intercept the Vesta I.
Destruction of Astro Crusher and arrest of GSPC Activists

On 21st September, a group of nine individuals from the Gaia & Space Preservation

Collective (GSPC) posing as space tourists chartered a shuttle spacecraft PSS Bacchus flew
instead to Palomar and on docking, pumped fentanyl gas and rendered every crew member
unconscious. The activists moved all of the crew members from Astro Crusher to Palomar and
set off explosions on board the Astro Crusher that irrevocably disabled the facility. The impact
killed 746 people in Abe Hamlets and injured thousands more. All of the victims, other than four
backpackers from Themisto are nationals of Proteus.

The GSPC activists were arrested immediately on their landing to Proteus and were

charged, convicted of multiple counts of murder, and sentenced to life imprisonment without
possibility of release.
Dispute to International Court of Justice

After months of diplomatic efforts having failed to resolve the disputes between the states,

including good offices of the Secretary General of the United Nations, Proteus and Despina
agreed to refer the dispute to the International Court of Justice.

15

Summary of Pleadings
1. DESPINAS SPACE ACTIVITIES DID NOT VIOLATE INTERNATIONAL LAW
Article I of the Outer Space Treaty is little more than a moral obligation and is not
enforceable. Nevertheless, Despinas activities were consistent with it as they were in

the interest of and beneficial to the world.

Article II is not violated as there took place no national appropriation as regards the

intent of the phrase in the Outer Space Treaty.

The loss of the moon Cleoselene can be attributed to Force Majeure, owing to the
inadvertent nature of the event, having taken full precaution in the course of the

activity.
2. IT IS UNLAWFUL FOR PROTEUS TO SEEK TO DENY ACCESS TO 77 FRIGGA THROUGH
THE VESTA.
Proteus cannot at any rate seek to hinder anothers right to explore and access the

outer space, especially with a unilaterally and offensive tool such as Vesta.
Proteus has violated the principles of cooperation and non- interference with the
activities of other states in outer space, implicit in Article IX of the Outer Space

Treaty and in customary international law.

3. PROTEUS IS LIABLE FOR THE EFFECTIVE DESTRUCTION OF THE ASTROCRUSHER
FACILITY.
Proteus has violated both the Outer Space Treaty and the Liability Convention by its
actions and lack of due diligence with regard to PSS Bachus, for which it must bear
international responsibility.

4. PROTEUS IS LIABLE FOR THE DEATHS OF CAPT. PICARDO AND DR. OHARA
As part of the larger attack on AstroCrusher, the liability for the deaths of Capt.
Picardo and Dr. OHara need to be attributed to Proteus on the charge of involuntary
manslaughter.
16

5. PROTEUS IS LIABLE FOR THE ECONOMIC LOSS SUFFERED BY MFA AND DESPINA.
The direct and indirect losses including increased production costs to Despina
resulting from the effective destruction of the AstroCrusher Facility need to be
compensated for by Despina as according to the attributed liability for them, as under
various international treaties.

17

PLEADINGS

I.

The space activities of MFA did not contravene International Law

MFAs mining activities are in total conformation with the Outer Space Treaty because it is
consistent with the canon of free use of outer space.
I.A. DESPINA

DID NOT VIOLATE

ARTICLE I

OF THE

OUTER SPACE TREATY

Article I provides that the outer space shall be free for exploration and use by all States without
discrimination of any kind. Article I sets forth limitations on that freedom, namely that space
activities shall be carried out for the benefit and in the interests of all countries. 1 Despina
cannot bring a claim under Article I as the provision is not self-executing, thus is merely a
guiding principle. Nevertheless, it is submitted that Proteus activities were consistent with
Article I, taking into account the limits set forth therein.
I.A.1. Proteus cannot bring a claim under Article I
Article I not only constitutes a statement of general goals but also imposes an obligation on
Parties to carry out space activities for the benefit and in the interest of all countries which is too
vague to be self executing.2 A testament to the assertion is that no claims have ever been asserted

1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies art. I, Dec. 19, 1966, UN GA resolution
2222 (XXI).
2 Nandasiri Jasentuliyana, Review of recent discussions relating to aspects of Article I of the
Outer Space Treaty, 32 I.I.S.L. PROC. 7 (1989); Marco G Markov, Implementing the Contractual
Obligation of Article I, Par. I of the Outer Space Treaty 1967, 17 I.I.S.L. PROC. 136 (1974).
1

against a party under Article I of the OST, although there have arisen plenty of potential
grounds.3
Therefore, it is submitted that Despinas claim to resources under Article 1 is not tenable in law,
and is liable to be dismissed.
I.A.2. Despinas activities were consistent with Article I
It is submitted that even if Article I created affirmative obligations for the parties to the treaty,
the phrase for the benefit and in the interests of all countries has to be interpreted in a
restrictive manner. It is noteworthy that the treaty contains no indication as to what constitutes
benefit and interests.4
This clause does not require the direct sharing of benefits5 but merely requires that activities are,
in general terms, beneficial.6 In fact, the space-faring nations do not have an affirmative
obligation to help less developed nations enjoy any benefits of space.7

3 Eric Husby, Sovereignty and Property Rights in Outer Space, 3 J. INTL L. & PRAC. 359
(1994).
4 STEPHEN GOROVE, STUDIES IN SPACE LAW: ITS CHALLENGES AND PROSPECTS, (1977).
5 Adrian Copiz, Scarcity in Space: The International Regulation of Satellites, 10 J. COMM. L. &
POLY 207 (2002).
6 Stephen Gorove, Implications of International Space Law for Private Enterprise, 7 ANN. AIR
& SP. L. 319, 321 (1982); Luis F. Castillo Argaars, Benefits Arising from Space Activies and
the Nedds of Developing Countries, 43 I.I.S.L. PROC. 50, 57 (2000).
7 Edwin W. Paxson, Sharing Benefits of Outer Space Exploration: Space Law and Economic
Development, 4 MICH. J. INTL L. 494 (1993); Daniel A. Porras, The Common Heritage of
Outer Space: Equal Benefits for most of Mankind, 37 CAL. W. INTL L. J. 143, 172 (2006).
2

In the hearings prior to the US Senate Approval of the Outer Space Treaty, it was stated that
Article I is a statement of general goals, and that a separate international agreement would be
required to cover the use of particular satellites.8 The legal opinion submitted in the same
hearings stated that Art. I does not undertake to set any terms or conditions on which
international cooperation would take place.9 The Committee nevertheless attached an
understanding in its report to the effect that nothing in Article 1 paragraph 1 of the OST
diminishes or alters the right of the US to determine how it shares the benefits and results of its
space activities.10
I.A.3. Benefits to be understood in a general sense
Gorove has argued and regarded most commercial space activities, such as telecommunications,
broadcasting, remote sensing and power generation, as being beneficial in a general sense and
were sufficient to satisfy the requirement.11 There are several factors that persuaded him to that
view, which is shared even by commentators from developing States, the country which would
probably stand to be affected the most by readings of this article.12

8 U.S. Senate, Treaty on Outer Space: Hearings before the Senate Committee on Foreign
Relations, 90th Cong., 1t Sess. (1967) at 33.
9 Ibid at 53.
10 Ibid at 74.
11 Stephen Gorove, Freedom of Exploration and Use in the Outer Space Treaty, 1 DENVER J.
INTL. L. & POLY. 93 (1971).
12 Silvia Maureen Williams, Las Empresas Privadas en el Espacio Ultraterrestre, 8 REV. CEN.
INV. DIF. AERO. ESP. 39, (1983); Luis F. Castillo Argaars, Benefits Arising from Space Activies
and the Nedds of Developing Countries, 43 I.I.S.L. PROC. 50, 57 (2000).
3

I.A.3.a. No uniform and reliable set of criteria

Various geopolitical and economic factors determine the question as to what can be termed
beneficial. The gallop of science and the influx of new information could render a hitherto
beneficial activity detrimental13. Moreover, it inherently follows that a lack of facility be used so
as to create a possibility of profits, ensuring that the business runs on exclusion. Therefore, what
is in interest of a country to benefit from an enterprise, might not be to another, due to the
inherent nature of advantages given.
I.A.3.b. Interest of the State
The phrase must include the interests and benefits of the very State conducting the particular
activity14. Any commercial space activity must take into account what profit could be derived out
of such a mammoth and risky venture to the conducting Party. Therefore, it cannot be in the
interest and to the benefit of the conducting party itself if a commercial venture churns out no
promise of profit.
I.A.3.c Subject Matter of Benefit
The provision is unclear as to whether it is the means of conducting the activity or the results
derived therefrom that must be in the interests and for the benefits of all Parties 15. It is
noteworthy that, in practice, there is no treaty in the corpus of space law which provides an

13 Ibid.
14 Stephen Gorove, Implications of International Space Law for Private Enterprise, 7 ANN AIR
& SP. L. 319, 321 (1982).
15 Armel Kerrest, Commercial Use of Space, Including Launching, China Institute of Space
Law, 2004 SPACE LAW CONFERENCE: PAPER ASSEMBLE 199, 200 (2004).
4

arrangement to share the same. If it is the means then it is merely a negative obligation on
States to not conduct activities which are detrimental to other States.
Moreover, the legislative discussions on several articles of the Treaty clearly showed that its
draftsmen hardly intended this part of the Article I to be anything more than a declaration of
principles from which no specific rights of a legal nature were to be derived, even though it may
give rise to a moral obligation16.
I.A.3.d Scope of Treaty Obligation
When the scope of a treaty obligation cannot be definitely established, it has to be presumed that
the Parties to the treaty intended to limit their sovereignty as little as possible 17, especially when
they impose unilateral obligations on space faring nations like Despina, towards other countries.
The wording of Article I of the OST indicates that activities only have to be beneficial to all
countries, not to every country.
MFA had taken over AEC in a hostile albeit lawful takeover, which had been affirmed by the
WTO. Since lunar mining took off with the introduction of LunarMiner, no less than twenty
entities have entered mining to appropriate rare metals. It is submitted that MFAs decision to
restrict supply of AstroMiner is wholly within the confines of Article I, as it is merely holding on
to a technological advantage in a business. Moreover, the advantage is simply about a certain

16 BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 234235 (1998); Cheng, Nineteen
Hundred and Sixty Seven Space Treaty, JOURNAL DROIT INTERNATIONAL VOL. 95, 532 (1968);
Goedhuis, Some Legal Problems Arising from the utilization of Outer Space, INTERNATIONAL
LAW ASSOCIATION REPORT OF THE 54TH CONFERENCE, THE HAGUE, 434 (1971).
17 GYRGY HARASZTI, SOME FUNDAMENTAL PROBLEMS ON THE LAW OF TREATIES (1973);
France v. Mexico, (1928) 5 R.I.A.A. 327.
5

way and method of mining the same metals that are mined on the Moon, therefore, rendering any
concerns of a monopoly over a certain resource, wholly unfounded.
I.B. DESPINA

HAS NOT VIOLATED

ARTICLE II

OF THE

OUTER SPACE TREATY

Article II of the Outer Space treaty contains the universally acknowledged principle of space law,
namely the principle of non-appropriation. The adjective national qualifying the principle
prohibits only national appropriation. It is also submitted that the loss and destruction of
Cleoselene was an act of Force Majeure.
I.B.1. Scope of Article II
The prohibition espoused under Article II does not purportedly prohibit all forms of
appropriation but merely national appropriation. This must be considered as an issue of
scope18. In considering the meaning of national appropriation, it is interesting to note that the
French and Spanish texts both use similar wording to that of the English text. The Chinese text,
on the other hand, stipulates a different meaning 19. Because Vienna Convention on the Law of
Treaties determined that the terms used in each authentic text is presumed to have the same
meaning, the Chinese text must be given some degree of weight in determining the content and
effect of Article II20.

18 Patricia M. Sterns & Leslie I. Tennen, Privateering and Profiteering on the Moon and Other
Celestial Bodies: Debunking the Myth of Property Rights in Space, 31 ADV. SPACE RES. 2433,
(2003).
19 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies art. VII, Dec. 19, 1966, UN GA resolution
2222 (XXI).
20 Vienna Convention on the Law of Treaties art. 33, 23 May, 1969, 1155 U.N.T.S. 331.
6

Furthermore, taking in consideration the Moon Agreement, if national appropriation as

contained in Article II of the Outer Space Treaty and Article 11(2) of the Moon Agreement
means appropriation by both the State and private entities, then the first provision of Article
11(3) is redundant. If Article 11(3) of the Moon Agreement is to have a meaning distinct to that
of Article 11(2) and, therefore, Article II of the Outer Space Treaty, then national
appropriation, as a term, must have a meaning different to that of attaining property rights by
the State.
I.B.2. Meaning of National Appropriation
The Principal of Non-Appropriation is also reflected in the United Nations Convention on the
Law of the Sea. Amongst the acts expressly prohibited under Article 137(1), exercise of
sovereignty by natural or juridical persons is not expressly provided for 21. It is reasoned that the
Convention envisaged that only States can assert or exercise sovereignty over territory whereas
both States and nationals can appropriate land22.
This is consistent with the distinction drawn in customary international law, which considers
sovereignty and the ability to assert jurisdiction, to be the exclusive province of State and
appropriation or title and the ability to obtain exclusive possession, to be capable of assertion by
both States and private nationals23.
21 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 31363 U.N.T.S. 397.
22 Wayne N. White, Real Property Rights in Outer Space, 40 PROC. COLL. L. OUTER SP. 370,
372 (1997).
23 Carl Q. Christol, The Common Heritage of Mankind Provision in the 1979 Agreement
Governing the Activities of States on the Moon and Other Celestial Bodies, 14 INTL LAWYER
429, 448 (1980); Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 FORDHAM
L. REV. 349, 351 (1969).
7

When read in light of this distinction, national appropriation in Article II of the Outer Space
Treaty may mean no more than the exercise of sovereignty. Accordingly, Articles II does not
prescribe any rights or duties concerning the assertion of title by private nationals, as long as
they do not amount to an exercise of sovereignty by the State24.
I.C. THE

LOSS AND DESTRUCTION OF

CLEOSELENE

WAS AN ACT OF

FORCE

MAJEURE
Articles of Responsibility of States for Internationally Wrongful Acts envisage a situation of
Force Majeure precluding wrongfulness under Article 2325. ILC took the view that force majeure
was a circumstance precluding wrongfulness in relation to treaty performance, just as
supervening impossibility of performance was a ground for termination of a treaty26.
A situation of force majeure precluding wrongfulness only arises where three elements are met:
(a) the act in question must be brought about by an irresistible force or an unforeseen event; (b)
which is beyond the control of the State concerned; and (c) which makes it materially impossible
in the circumstances to perform the obligation. Such material impossibility of performance
giving rise to force majeure may be due to a natural or physical event27.

24 Stephen D. Krasner, Think Again: Sovereignty, 122 FOREIGN POLICY 20, (2001).
25 International Law Commission, Articles on Responsibility of States for Internationally
Wrongful Acts, Nov. 2001, Supplement No. 10 (A/56/10), chp.IV.E.1.
26 M. M. WHITEMAN, DAMAGES IN INTERNATIONAL LAW 221 (Vol. 1 1937).
27 United Nations Juridical Yearbook, 1978, vol. II, Part One (United Nations publication, Sales
No. E.80.V.I (Part I)).
8

The principle has also been accepted by international tribunals. In the Lighthouses arbitration28,
the arbitral tribunal denied the French claim for restoration of the lighthouse on grounds of force
majeure. It was acknowledged as a general principle of law by PCIJ in the Serbian Loans and
Brazilian Loans cases29 as well as the Russian Indemnity case30.

28 France v. Greece, (1956) 12 R.I.A.A. 155.

29 France v. Serb-Croat-Slovene State, (1929) P.C.I.J. Ser. A, No. 20; Brazil v. France, (1929)
P.C.I.J. Ser. A, No. 21.
30 Russia v. Turkey, (1911) 11 R.I.A.A. 421.
9

II.

It is unlawful for Proteus to seek to deny access to 77 Frigga through the Vesta

The right to exploration is an unalienable tenet of the rights guaranteed to the parties of the Outer
Space Treaty. Proteus cannot in any way seek to restrict the right of access of Despina to any
celestial body.
II.A. PROTEUS

HAS VIOLATED

ARTICLE IX

OF THE

OST

Article IX binds State Parties to undertake appropriate international consultations before

proceeding with any activity or experiment planned by it in outer space, including the moon and
other celestial bodies that the State Party has reason to believe that it would cause potentially
harmful interference31. It should be noted that due to the inherent nature 32 of space travel and
indeed, the announcement made by Proteus, Vesta is clearly a planned activity, with resolute
intent to interfere with Despinas activities.
It is submitted that this requirement has severe limitations, the first of which is that this provision
is not retrospective in nature and relates only to activities proposed and not to activities already
completed33.It is also submitted that the is no proper definition of harmful interference and, if
the similar provision relating to the use of radio frequencies in space in the Constitution of the
31 OST, supra note 1, art. IX.
32 Michael C. Mineiro, FY-1C and USA-193 ASAT Intercepts: An Assessment of Legal
Obligations under Article IX of the Outer Space Treaty, 34 JOURNAL SPACE L. 321, 335 (2008);
Nicolas M. Matte, Evironmental Implications and Responsibilities in the Use of Outer Space, 14
ANALYSIS OF AIR & SPACE LAW 419, 428 (1989).
33 Delbert D. Smith, The Technical, Legal and Business Risks of Orbital Debris, 6 N. Y. U.
ENVTL. L. J. 50, 57 (1997).

ITU is any guide, harmful interference would mean an impairment or total restriction to the
ability of the other State to conduct its space activities34.
II.B. PROTEUS

HAS VIOLATED THE PRINCIPLES OF COOPERATION AND NON-

INTERFERENCE WITH THE ACTIVITIES OF OTHER STATES IN THE OUTER SPACE.

The principle of international cooperation has been affirmed to by the ICJ in the case of
Gabcikovo-Nagymaros Project35. Articles III, IX and XI of the OST also provide for international
cooperation in the use of outer space. Further the preamble and Articles II, IV, XI of the Moon
Treaty also provide for international mutual cooperation for exploration with a nondiscriminatory view, making moon and all other celestial bodies within the solar system province
of all mankind36. The same point is established under Article I OST, which is binding under
present international law.37 Article VIII of the Moon Treaty also provides for international
consultations in cases of interference with the activities of other State parties38.

34 Constitution and Convention of the International Telecommunication art. 45, July 1, 1994,
1825 U.N.T.S. 3; 28 U.S.T. 7645.
35 Hungary v. Slovakia, (1997) ICJ Reports 68.
36 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies art. IV,
art. XI, Dec. 18,1979, UN GA Resolution 34/68.
37 Gyula Gl, Some Remarks to General Clauses of Treaty Space Law, 46 PROC. COLL. L.
OUTER SP., (2003).
38 Moon Treaty, supra note 36, art. VIII (3).

Moreover, the principle of due regard, vide the 1974 Fisheries Jurisdiction case39, states that a
State has to take into consideration legitimate interests of other States when it exercises its
freedom of action40. Proteus clearly and blatantly violated this principle by hoping to put in an
instrument in outer space whose express purpose is disruption of lawful activities of others.
II.C. PROTEUS

BREACHED THE CUSTOMARY INTERNATIONAL LAW BY INTERFERING

WITH OTHER STATES EXPLORATION AND USE OF NEAR EARTH OBJECTS

Principles of international customary law also prohibit one State from harmfully interfering with
another states beneficial and efficient use of the res communis area. An interference with the
rights of others without a sufficient justification is a wrong recognized by law 41. In Corfu
Channel case it was held that states are not knowingly to allow their territory to be used for acts
contrary to the rights of other states42.
Under the principles of customary international law, the principle of necessity is well recognized
in exceptional circumstances43. Article 25 of the ILC Draft Articles on State Responsibility
provides that a State may claim necessity if its response was the only means of safeguarding
39 UK v. Iceland, (1974) ICJ Reports 1.
40 Id.
41 Corfu Channel Case (UK v. Albania), (1949) ICJ Reports 4; Trail Smelter Arbitration (United
States v. Canada), (1941) 3 R.I.A.A. 1905; Island of Palmas Case (United States v. the
Netherlands), (1928) 2 RIAA 829; Lake Lanoux Arbitration, (1957) 12 R.I.A.A. 281.
42 MALCOLM N. SHAW, INTERNATIONAL LAW 416 (5th ed. 1997); F. Kenneth Schwetje,
Protecting Space Assets: A Legal Analysis of Keep-Out Zones, 15 JOURNAL SPACE L. 131,141
(1987); G.C.M. REIJNEN & W. D. GRAAFF, THE POLLUTION OF OUTER SPACE: SCIENTIFIC,
POLICY AND LEGAL ASPECTS (1989).
43 supra note 35.

an essential interest of the State against a grave and imminent peril 44. Further, Article 51 of the
U.N. Charter provides that the State has an inherent right of self-defence, which cannot be
impaired. Even State practice clearly recognizes this principle, as in the Torrey Canyon incident
where a Liberian oil tanker had to be destroyed by UK to stop oil spill 45. For the application of
this defence, there should be evidence of grave and imminent peril46.
It is submitted that in the present case, it is totally inconceivable to think of Proteus facing a
grave and imminent peril so as to warrant almost expressly offensive measures in violation of
binding international law.
II.D. PROTEUS

CANNOT EXONERATE ITSELF FROM THE ABOVE LIABILITY AS IT DOES

NOT HAVE CLEAN HANDS

The doctrine of clean hands is a principle of equity and judicial procedure, recognized in all
legal systems, by which he who seeks the assistance of a court must come to the court with clean
hands47. In the Case Concerning Military and Paramilitary Activities in and against Nicaragua
case, the ICJ has held that, being the aggressor, Nicaragua did not have clean hands to come
before the Court48. Moreover, the principles of equity govern all international law49. Comparing
the Rescue Agreement with the Liability Convention as these are the only space treaties to deal
44 ILC Articles, supra note 25, art. 25.
45 1969 Torrey Canyon Accident, REPORT OF THE HOME OFFICE (LONDON), Cmnd. 3246 (1967).
46 Saint Vincent and the Grenadines v. Guinea, (1999) 120 ILR 143, 191.
47 Case Concerning Legality of Use of Force (Yugoslavia v. Belgium), (1999) ICJ Rep. 124.
48 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), 1986 ICJ Rep. 14.

with liability is useful in understanding the principles of equity therein. The Liability Convention
clearly prohibits any recovery where a State violates international law.50 As already established,
Proteus has violated both express provisions as well as general and customary principles of
international law. Proteus has violated Articles VII and IX of the OST along with Articles II, IV,
VIII and XI of the Moon Treaty. It has also violated the principles of co-operation, consultation
and non-interference.

49 Continental Shelf Case (Tunisia v. Libya), (1982) ICJ Rep. 18; Libya v. Malta Case, (1985)
ICJ Reports 13.
50 Convention on International Liability for Damage Caused by Space Objects art. VI, Nov. 29,
1971, UN GA resolution 2777 (XXVI).

III. Proteus is liable for the effective destruction of the AstroCrusher facility

The Outer Space Treaty makes it incumbent upon every state party to be responsible for entities,
governmental or not, operating from its soil and going into outer space. Moreover, the scheme
and language make it clear that a state is strictly liable for all national space activities
notwithstanding the absence of express permission and grant for the impugned actions.
III.A. PROTEUS

HAS VIOLATED THE

OUTER SPACE TREATY

Article 33(4) of the Vienna Convention stipulates a reconciliatory approach to difference in

meaning across different texts51. Accordingly, if the meaning of different texts of the Outer Space
Treaty is to be harmonized, then the words responsibility and liability are to be understood in
similar context and Article VI must be interpreted to mean that States are to be internationally
liable for national space activities conducted by both public and private entities52.
In regard to non-governmental activities, Article VI lays down three incumbent obligations.
Firstly, to bear responsibility for national activities. Secondly, to ensure national activities are in

51 Ian Awford, Commercial Space Activities: Legal Liability Issues, in V. S. MANI, S. BHATT &
V. B. REDDY (EDS.), RECENT TRENDS IN INTERNATIONAL SPACE LAW AND POLICY 388 (1997);
Armel Kerrest, Remarks on the Responsibility and Liability for Damage other than Those
Caused by the Fall of a Space Object, 40 PROC. COLL. L. OUTER SP. 134 (1997).
52 Bin Cheng, Article VI of the Outer Space Treaty Revisited: International Responsibility,
National Activities and The Appropriate State, 26 J. SP. L. 10, (1998); Motoko Uchitomi,
State Responsibility / Liability for National Space Activities: Towards Safe and Fair
Competition in Private Space Activities, 44 PROC. COLL. L. OUTER SP. 51, (2001).

conformity with International Law and thirdly, to authorize and continually supervise the
activities of non-governmental entities53.
III.A.1 Proteus has failed to continually supervise PSS Bacchus
The responsibility of a state under Article VI does not end with national activities as it obliges
the appropriate state to authorize and continually supervise all non-governmental space
activities. It is an obligation imposed on the State concerning all private activities, regardless of
the existing degree of State control, direction or influence over the activity54.
In regards to the extent of supervision, both the United States 55 and Sweden56 extends such
obligation to all space activities within their territory irrespective of nationality while the United
Kingdom57 applies such control only to space activities of UK nationals.
It is to be noted that the path, apogee and trajectory of every object put into space is
predetermined on Earth by the handling entity way before the actual travel and the same is
monitored closely due to the peculiar nature of space travel, which needs immaculately timed
and meticulously planned use of the boosters on board, to change direction and speed. This is

53 B. Cheng, Space Activities, Responsibility and Liability For, BERNHARDT (ED.), 11 ENCY.
PIL, 299-303 (1989).
54 H Bittlinger, Private Space Activities: Questions of International Responsibility, 30 PROC.
COLL. L. OUTER SP., 191 (1987); K Tatsuzawa, The Regulation of Commercial Space Activities
by the Non-Governmental Entities in Space Law, 31 PROC. COLL. L. OUTER SP., 341 (1988).
55 Commercial Space Launch Act, 51 USC 509 (1984).
56 Swedish Space Activities Act, Act n. 1982:1963 (1982).
57 Outer Space Act, Chapter 38 (1986).

because space travel involves jumping from one orbit and sphere of gravity to another, and not a
directly boosted path using engines58.
Therefore, through these acts, the State would be asserting some degree of control, direction or
influence over the private space activity, thus making it a national activity and produces the
overall effect of requiring a State to bear international responsibility for all public or private
space activities59.
A reformulation for this obligation may be found in Article 14(1) of the Moon Treaty which
states that non-governmental entities under a States jurisdiction shall engage in space activities
only under the authority and continuing supervision of appropriate State party.
III.A.2 Proteus must bear International Responsibility for the destruction
Article VII of the Outer Space Treaty states that parties must bear international responsibility for
national activities, including those by non-state actors. For the purpose of attributing
responsibility upon states, space activities carried out by non-governmental entities must be
assimilated with governmental activities only in respect of the States obligation vis--vis other
States, not only under the Outer Space Treaty but also general international law60.
The activities would comprise all acts and omissions by such non-governmental entities which, if
they had been committed by governmental agencies, would have engaged in International
58 Mallick M, Rubin S, Ba-Ngu Vo, An Introduction to Force and Measurement Modeling for
Space Object Tracking, 16TH INTERNATIONAL CONFERENCE ON INFORMATION FUSION, IEEE,
1013-1020 (2013).
59 supra note 15.
60 B Cheng, Convention on International Liability for Damage Caused by Space Objects in
Outer Space, JASENTULIYANA AND LEE (EDS.), 1 MANUAL ON SPACE LAW, 83-172 (1979)

Liability towards other States. It also includes, within such notion, the activities carried out by
any person a ship or aircraft of a States nationality61.
In the travaux prparatoires of the Principles Declaration, the U.S. proposal had stated, A state
or international organization from whose territory or with whose assistance or permission a
space vehicle is launched bears international responsibility for the launching, and is
internationally liable for personal injury, loss of life or property damage caused by such vehicle
on the Earth or in air space62.
A State may have jurisdiction over an entity but not effective jurisdiction and if a regime of
assigning liability under the Outer Space Treaty is to be established then it is humbly submitted
that a State should also be held responsible for the activities of any person not within its effective
jurisdiction to the extent that a State is liable for consequences of any failure to measure up to its
responsibility63.
III.B. PROTEUS

HAS VIOLATED THE

LIABILITY CONVENTION

The liability convention imposes absolute liability on the state parties for the damage caused by its
space objects to natural or juridical persons. Article III states that a State shall be liable for damage

to another State if it is due to its fault or of persons for whom it is responsible. Therefore, two

61 B CHENG, STUDIES IN INTERNATIONAL SPACE LAW (OUP 1997).

62 Oct. 14, 1962, U.N. Doc. A/C1/881.
63 Istvan Herczeg, Interpretation of the Space Treaty of 1967 (Introductory Report), 10 PROC.
COLL. L. OUTER SP. 105, 107 (1967); Stephen Gorove, Liability in Space Law: An Overview, 8
ANN. AIR & SP. L. 373, 377 (1983); Michel Bourly, Rules of International Law Governing the
Commercialisation of Space Activities, 29 PROC. COLL. L. OUTER SP. 157, 159 (1986).

factors must be satisfied to invoke liability. Firstly, the State should be the launching State &
secondly, fault can be attributed to it.
III.B.1.Proteus is the launching State
States need not take an active participation in the launching of a space object, but a mere
involvement of any kind with the launching or flight of a space object is sufficient for the state to
fall within the definition of the launching state.64 A state can be said to be involved in the
launching when the state is:65 State of registry, State of manufacture of the booster (Launch
Vehicle), State of manufacture of space capsule, State that manufactured the embarked
equipment, State from whose territory a spacecraft is launched, State that provides the ground
stations for the launch, State whose nationals man the aforementioned stations, State of planned
landing, State of nationality of the Astronauts.
The satisfaction of any one of the aforementioned conditions suggests that the state is involved in
the launching. In the instant case, the shuttle spacecraft, PSS Bacchus, was chartered in Proteus.
Furthermore, the group of 9 individuals was of Protean nationality. Therefore, there was a clear
involvement of Proteus in the instant space activity; hence it satisfies the definition of launching
State.

64 Stephen Gorove, Legal aspects of space flight, (1978) 3 ANN. AIR & SP. L. 416; Lampertius,
The Need for an Effective Liability Regime for Damage Caused by Debris in the Outer Space, 13
MICH. J. INT. L. 447, 455 (1992).
65 Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, 1959, UN Doc.
A/4141/25

III.B.2 Fault can be attributed to Proteus

A State is liable under Article III if the damage is due to its fault or fault of persons for whom it
is responsible. Article V of the Outer Space Treaty obliges states to provide astronauts with all
possible assistance in the event of accident, distress, or emergency landing. The text of the
Rescue Agreement which supplements this rescue provision employs the broader term personnel
of the aircraft, which may include space tourists66.
The International Space Station Intergovernmental Agreement (IGA)67 and the Multilateral Crew
Operations Panel Agreement (MCOP)68 serve as examples to clarify the legal status of the
different participants in a commercial spaceflight69. The Agreement divides crew members into
"professional astronauts/cosmonauts" and "spaceflight participants", including space tourists,
which can be designated as "expedition crewmembers" and "visiting crewmembers"70.
However, no such distinction can be made for the purposes of liability, as all participants in a
space flight must be treated on an equal footing 71. All space flight participants undergo extensive

66 Yun, J AIR L & COM 978, (2009).

67 Agreement concerning cooperation on the Civil International Space Station, Jan. 29, 1998.
68 Multilateral Crew Operations Panel, Principles regarding Processes and Criteria for Selection,
Assignment, Training and Certification of ISS (Expedition & Visiting), Nov. 28, 2001.
69 Yun, J AIR L & COM 980, (2009); Failat, IRISH LAW JOURNAL 126-127, (2012); MassonZwaan and Freeland, ACTA ASTRONAUTICA 1604, (2010); Hobe, NEB. L. REV. 457, (2007).
70 supra note 68, III
71 MANFRED LACHS, THE LAW OF OUTER SPACE AN EXPERIENCE IN CONTEMPORARY LAWMAKING (1972); LYALL & LARSEN, SPACE LAW: A TREATISE (2009).

training to take part in space activities which makes them specialized people who must
necessarily be viewed on an equal platform.
Thus, it is submitted that Proteus should be held liable for the activities of GSPC on the
AstroCrusher facility and be made to pay compensation for the effective destruction of the
facility and revenue loss due to the incident.

IV. Proteus is liable for the deaths of Capt. Picardo and Dr. OHara

The deaths of Capt. Picardo and DrHara have a direct causal link to the ill-fated attack on
Astrocrusher, during which fentanyl gas was used to render the incumbent crew unconscious
while the facility would be rigged to blow. The use of fentanyl gas and the intent and objective of
the attack show indisputable malice. The death of Capt. Picardo was involuntary manslaughter
due to an unlawful and dangerous act. Such an act of the 9 GSPC activists was in conjunction to
a larger effort to destroy the Astrocrusher facility, in which they succeeded. Finally, the act is
attributable to Proteus. It is therefore submitted that Proteus is liable for the death of Capt.
Picardo.
IV.A. THERE

WAS AN ACT OF INVOLUNTARY

MANSLAUGHTER

Manslaughter is an offence recognized by all nations 72. Involuntary manslaughter is the term given

to an unlawful killing where the necessary mens rea for murder is not present and will not have
had any intention to kill or do greater bodily harm. In case of constructive manslaughter, firstly,
there must be an unlawful act. Secondly, the act is dangerous and recognized as to carry risk of
harm. Thirdly, the act must be the substantial cause of death. And lastly, the act committed must
be distinct to the intended consequence73.

72 Universal Declaration of Human Rights, Dec. 10, 1948, UN GA resolution 217 A (III);
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, UN GA
resolution 260 A (III); Code of Crimes against Peace and Security of Mankind, April 12, 1954,
U.N. Doc. A/2693.
73 R v Mitchell, (1983) 2 WLR 938.

In the present matter, the 9 GSPC activists aboard PSS Bacchus docked into Palomar without
authorization. Upon docking, they pumped fentanyl gas into the facility and rendered everyone
unconscious74. Capt. Picardo never regained consciousness and instead suffered an anaphylactic
reaction to the gas causing his death75.
Fentanyl is a potent and synthetic opioid analgesic76. Fentanyl is approximately 80 to 100 times
more potent than morphine77 and roughly 40 to 50 times more potent than pharmaceutical
grade heroin78. It is potentially a dangerous drug, used primarily as a pain reliever as well as an
anesthetic, which can be harmful and in some cases fatal 79. The intent of the activists was to
incapacitate the persons aboard Palomar and resulted in the death of Capt. Picardo. As such, it is
contended that the death of Capt. Picardo was an act of involuntary manslaughter due to an
unlawful and dangerous act.

74 Compromis 27
75 Compromis 29
76 "WCPI Focus on Pain Series: The Three Faces of Fentanyl",
http://aspi.wisc.edu/wpi/focus/spring96.html (as seen on Mar. 3, 2016).
77 CDC, FENTANYL: Incapacitating Agent,
http://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750022.html (as seen on Mar. 3,
2016).
78 ERNST MUTSCHLER, ARZNEIMITTELWIRKUNGEN 286 (8th ed. 2001).
79 Judith Miller & William J. Broad, Hostage Drama in Moscow: The Toxic Agent; U.S.
Suspects Opiate in Gas In Russia Raid, N. Y. Times, Oct. 29, 2002; Caley Ramsey, 145 fentanylrelated deaths in Alberta in 2015, Global News, August 11, 2015.

IV.B THE

DEATH OF

OHARA

IS AN IMMEDIATE CONSEQUENCE OF THE ATTACK

It is submitted that the suicide of Dr. OHara was an immediate and certain consequence of the
attack on AstroCrusher, leading from acute and grave mental distress accruing from the loss of a
loved one, more so, one who she was supposed to marry in two days after the fated attack.
Therefore, owing to the presence of a distinct 80 and irrefutable81 connection to the attack, it is
submitted that Proteus be held liable for the suicide of Dr. OHara.
IV.C. THE

ACT WAS IN FURTHERANCE OF A LARGER ATTACK ON

ASTROCRUSHER

The Rome Statute provides for crime against humanity of other inhumane acts 82. It provides that
the perpetrator must have inflicted great suffering or serious injury by means of an inhumane act
and that the object of the attack was to be part of a widespread or systematic attack directed
against a civilian population83.
Upon pumping fentanyl gas into the facility, the activists then entered the Space Station wearing
gas masks. They moved the unconscious crew from the AstroCrusher to the Palomar and
undocked it while simultaneously setting off a series of explosions on board which irrevocably

80 Stone, Ferdinand F, Touchstones of Tort Liability, STAN. L. REV. VOL. 2 ISSUE 2, 259-284
(1950).
81 Eric A. Posner & Alan O. Sykes, An Economic Analysis of State and Individual Responsibility
Under International Law, 9 AMERICAN L. & ECON. REV. 72, (2007).
82 Rome Statute of the International Criminal Court, July 17, 1998, A/CONF.183/9.
83 Id. art. 7 (1) (k).

disabled the facility84. The activists then captured the explosion in holographic video and posted
it over the internet before boarding PSS Bacchus to return to earth85.
It is submitted that the ambush carried out upon every crew member on board Palomar was in
furtherance of an intended larger attack upon the Orbital Minerals Processing Facility.
IV.D. THE

ACT IS ATTRIBUTABLE TO

PROTEUS

Article 13(2) of Additional Protocol II prohibits making the civilian population as such, as well
as individual civilians, the object of attack 86. The prohibition on directing attacks against
civilians is also contained in Amended Protocol II to the Convention on Certain Conventional
Weapons87. It is also set forth in Protocol III to the Convention on Certain Conventional
Weapons, which has been made applicable in non-international armed conflicts pursuant to an
amendment of Article 1 of the Convention adopted by consensus in 200188.
The Ottawa Convention banning anti-personnel landmines states that the Convention is
based, inter alia, on the principle that a distinction must be made between civilians and
84 Compromis 27
85 Compromis 28
86 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 13(2), June 8, 1977,
1125 UNTS 609.
87 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
(Amended Protocol II) art. 3(7), Dec. 3, 1998, U.N. Doc. CCW/CONF.I/16 (Part I).
88 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol III)
art. 2(1), Dec. 2, 1983, 1342 U.N.T.S. 137.

combatants89. Under the Statute of the International Criminal Court, intentionally directing
attacks against the civilian population as such or against individual civilians not taking direct part
in hostilities constitutes a war crime in non-international armed conflicts 90. In addition, this rule
is included in other instruments pertaining also to non-international armed conflicts91.
In their pleadings before the International Court of Justice in the Nuclear Weapons case, many
States invoked the principle of distinction92. In its advisory opinion in the Nuclear Weapons
case, the Court stated that the principle of distinction was one of the cardinal principles of
international humanitarian law and one of the intransgressable principles of international
customary law93.
To direct attacks against civilians in any armed conflict is an offence under the legislation of
numerous States94. There are also a number of official statements pertaining to non-international
89 Ottawa Convention Preamble, Sept. 18, 1997.
90 Supra note 82, art. 8 (2) (e) (i)
91 Memorandum of Understanding on the Application of IHL between Croatia and the SFRY,
Nov. 27, 1991; Agreement on the Application of IHL between the Parties to the Conflict in
Bosnia and Herzegovina, May 23, 1992; Cairo Declaration on Human Rights in Islam art. 3 (a),
Aug 5, 1990, Res. 49/19-P; Hague Statement on Respect for Humanitarian Principles, Nov. 5,
1991.
92 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (Nuclear Weapons
Case), I.C.J Rep. 1996, 226.
93 Id.
94 Australia (ibid., 220), Belgium (ibid., 224), Canada (ibid., 228), Germany (ibid., 241),
Ireland (ibid., 244), Netherlands (ibid., 250), Slovenia (ibid., 257), Spain (ibid., 259),
Sweden (ibid., 260), Tajikistan (ibid., 261), United Kingdom (ibid., 265), Vietnam (ibid.,
266), Yemen (ibid., 267) and Yugoslavia (ibid., 268)

armed conflicts invoking the principle of distinction and condemning attacks directed against
civilians95. States submissions to the International Court of Justice in the Nuclear Weapons
case referred to above were couched in general terms applicable in all armed conflicts.
The jurisprudence of the International Court of Justice in the Nuclear Weapons case, of the
International Criminal Tribunal for the Former Yugoslavia, in particular in the Tadi case, Marti
case and Kupreki case, and of the Inter-American Commission on Human Rights in the case
relative to the events at La Tablada in Argentina provides further evidence that the obligation to
make a distinction between civilians and combatants is customary in both international and noninternational armed conflicts96.

95 the statements of Belgium (ibid., 274), France (ibid., 286 and 288289), Germany (ibid.,
294295), Malaysia (ibid., 306), Netherlands (ibid., 308), Philippines (ibid., 47),
Slovenia (ibid., 314) and Uganda (ibid., 317)
96 Juan Carlos Abella v. Argentina (La Tablada Case), (1997) Case No. 11.137, Report No.
55/97, Inter-Am. C.H.R.

V. Proteus is liable for the Economic Loss suffered by MFA and Despina

It is asserted that the standard for determining the liability and amount of compensation payable
under the Liability Convention is found in Article VII and Article XII of the Outer Space
Treaty97. It does not matter whether the loss is directly or indirectly sustained so long there is a
clear unbroken connection between the act of a State and the loss of injured party 98. As liability
has already been attributed specifically and in general for the unlawful acts of Proteus, it is
imperative that compensation flows for the damage caused by those acts.
V.A PROTEUS

IS LIABLE FOR DIRECT ECONOMIC LOSSES SUFFERED

Despina has suffered economic losses on account of multiple direct damages inflicted upon its
space activities.
V.A.1 Effective destruction of AstroCrusher Facility
It is submitted that the systematic and effective destruction of the AstroCrusher by 9 activists has
rendered the Orbital Minerals Processing Facility unusable. It has resulted in the loss of
proprietary assets of MFA including the extracted ores from outer space.
Other economic losses arising out of the effective destruction of AstroCrusher includes loss of
time, earnings and impaired earning capacity, destruction or deprivation of the use of property,
reasonable medical, hospital and nursing costs associated with injuries sustained by natural
97 Jochen Pfeifer, International Liability for Damage Caused by Space Objects, 30 GER. J. AIR
& SPACE L. 230, (1981).
98 United States-German Mixed Claims Commission 1923, Admin. Dec. No. II, 7 R.I.A.A. 23.

persons, physical and mental impairment, pain and suffering, humiliation, reasonable costs for
the repair of property; and costs incurred in acts taken to mitigate the damage caused99.
V.A.2 Increased productions costs
In a mining venture in outer space, the duration of time between exploration missions and the
delivery of processed ores in the low Earth orbit or the surface of the Earth on the other, is even
longer than that of terrestrial projects 100. Moreover, launching costs for the mining plant and
equipment is a significant cost barrier101.
The irreversible damage to the AstroCrusher facility has compelled MFA to ferry the ores to
Despina for processing. Repeated launches to collect these ores have increased the production
costs for MFA substantially. It is submitted that Proteus is liable for the cost inflation.
V.B PROTEUS

IS LIABLE FOR INDIRECT ECONOMIC LOSSES SUFFERED

The word caused under Article II and III of the Liability Convention should be interpreted as
merely direct attention to the need for some causal connection between the accident and the
damage, while leaving a broad discretion so that each claim can be determined purely on its
merits102.

99 B. HURWITZ, STATE LIABILITY FOR OUTER SPACE ACTIVITIES 16-17 (1992); Carl Q. Christol,
International Liability for Damage Caused by Space Objects 74 AM. J. INTL. L. 346, (1980);
Marc S. Firestone, Problems in the Resolution of Disputes Concerning Damage Caused in Outer
Space 59 TUL. L. REV. 747, (1985).
100 Richard Gertsch and Leslie Gertsch, Economic Analysis Tools for Mineral Projects in Space,
SPACE RESOURCES ROUNDTABLE II, COLORADO SCHOOL OF MINES (2000).
101 Derek W. G. Sears and Daniel J. Scheeres, Asteroid Constraints on Multiple Near-Earth
Asteroid Sample Return 36 METEOR. & PLANET. SCI. 186, (2001).

It is submitted that since caused by requires no more than a causal connection between the
space object and the damage, the Liability Convention covers both direct and indirect damage 103.
Proteus is liable to pay for the search and recovery cost and costs incurred to mitigate probable
damage that are recoverable indirect damage for the purposes of Article VII of the Outer Space
Treaty and the provisions of the Liability Convention as it was in the situation of Cosmos-954104.
V.C DESPINA

CAN CLAIM DAMAGES UNDER INTERNATIONAL CUSTOMARY LAW

It is submitted that customary law allows for damages and compensation on account of damnum
emergens (loss suffered) and damnum lucrans (gain or profit) to be claimed 105.In Chorzow
Factory, the PCIJ went on to say that reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would in all probability, have
existed if that act had not been committed106. When restitution in kind is ruled out, the duty to
make reparation becomes a duty to pay financial compensation corresponding to the value
102 W. F. Foster, The Convention on International Liability for Damage Caused by Space
Objects, 10 CAN. Y. B. INTL. L. 137, 155 (1972); Carl Q. Christol, Protection of Space from
Environmental Harms, 4 ANN. AIR & SP. L. 433 (1979).
103 Ronald E. Alexander, Measuring Damages under the Convention on International Liability
for Damage Caused by Space Objects 6 J. SP. L. 151, (1978); Carl Q. Christol, International
Liability for Damage Caused by Space Objects 74 AM. J. INTL. L. 346, (1980); Marc S.
Firestone, Problems in the Resolution of Disputes Concerning Damage Caused in Outer Space,
59 TUL. L. REV. 747, (1985).
104 Peter P. C. Haanappel, Some Observations on the Crash of the Cosmos 954, 6 J. SP. L.147,
148 (1978).
105 Kerrest de Rozavel & Smith, Article VII, COLOGNE COMMENTARY ON SPACE LAW (EDS. S
HOBE, B SCHMIDT-TEDD & K U SCHROGL) VOL I 141, 55 (2009).
106 Chorzow Factory Case (Germany v. Poland), (1928) P.C.I.J. Ser. A, No. 17.

which restitution in kind would bear 107. It is also submitted that indemnity should also include
damages for loss sustained beyond restitution in kind or payment in its place108.

107 Ibid.
108 Grardine Meishan Goh, Dispute Settlement in International Space Law: A Multi-Door
Courthouse for Outer Space (2007).

Prayer for Relief

For the foregoing reasons, the Grand Duchy of Despina, Respondent, respectfully requests the
Court to adjudge and declare that:
1. Despinas space activities relating to mining on the asteroids namely, 216 Kleopatra, 77
Frigga, 21 Lutetia & 16 Psyche are consistent with the provisions of the Outer Space
Treaty and did not contravene International Law.
2. It was unlawful for Proteus to seek to deny access to 77 Frigga through the Vesta and
impede Despinas right of passage and use of the outer space.
3. Proteus is liable for the actions of the 9 activists of Protean origin in the ambush of the
space station Palomar and the effective destruction of the AstroCrusher facility.
4. Proteus is liable for the deaths of Capt. Johan Picardo and Dr. Louise OHara.
5. Proteus is liable for the economic loss suffered by MFA and Despina resulting from the
effective destruction of the AstroCrusher facility.