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2.4.1 “By claim of sovereignty”

As cited earlier the OST Article II prohibits national appropriation by ‘claim of sovereignty’. What does ‘claim of sovereignty’ entail? By its ordinary meaning, ‘sovereignty’ involves holding supreme power, authority, or control over something, often relating to the power and authority of States.^{(1)https://www.merriam-webster.com/dictionary/sovereignty, Last accessed May 20, 2024. https://dictionary.cambridge.org/dictionary/english/sovereignty. Last accessed May 20, 2024.} States usually exercise sovereignty over their territory, i.e they exercise complete authority over that area. Holding specific sovereignty over something thus logically excludes others from obtaining the same specific sovereignty.

The reason for an explicit mentioning of the sovereignty claim stem from the geo-political history that was taken into consideration in the genesis of the OST.^{(2) Jakhu (2017), 120-121, showing to statements made by U.S representative to the UNCOPOUS, July 1969, expressing the underlying rationale of the provision.} Territorial conquest, colonization and conflicts were to be avoided. The objective of, and purpose for, Article II is reflected by the views made by State representatives to the UNCOPOUS briefly after the genesis of the OST. Accordingly it was “to prohibit a repetition of the acquisition of national sovereignty over overseas territories that developed in the sixteenth, seventeenth and eighteenth centuries”.^{(3) Ibid.} The notion of space as a realm for all mankind, referred to as res communis, was already a contextual backbone and leading force in the process of making a binding international legal framework pertaining to space activities.^{(4) Ibid.} The term ‘by claim of sovereignty’ is therefore, by some, described as one of the more clear terms in the non-appropriation principle since it has not endured the same debates as other concepts found in Article II.^{(5) Freeland and Jakhu (2009), 53.}

To analyze the potential meaning of ‘sovereignty’ provided by terminology, differences and coherences in terms and distinctions provided by legal theory should be examined. With regards to territory, public international law scholar James Crawford list four types of ‘spatial regimes’ in international law: i) territorial sovereignty, ii) special status territories not subjected to sovereignty by any State, iii) res nullius and iv) res communis.^{(6) Crawford (2019), 191.} In international law, the ‘sovereignty’ of States usually relate to the power and authority – or ‘legal competency’– they hold over their territory, although it is underscored that use of the terminology is inconsistent.^{(7) Ibid. 192.} Furthermore, uses of ‘sovereign’ that does not pertain to the conventional ‘territory-term’ is pointed out, underscoring the somewhat confusing concept.^{(8) Ibid. 194} The confusion appear to stem from the various types of rights often also depicted as sovereign ones, e.g a coastal State’s sovereign rights to natural resources in its continental shelf.^{(9) UNCLOS Article 77 nr. 1: “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources.”} Crawford furthermore emphasizes that the ‘owning’ of rights essentially constituting some form of sovereignty are a different and broader concept than the conventional territorial sovereignty concept.^{(10) Crawford (2019), 194.}

Thus, it might appear that ‘sovereignty’ in international law indeed does most often refer to territorial concepts. However, Crawford’s inclusion of other concepts of sovereignty indicate that the term can also be used with reference to various types of rights, not limited the strict sense of territory. Recalling the fresh observation just made on the potential broadness of ‘sovereignty’, the term may thus also refer to sovereign rights pertaining to natural resources. Yet, it is wise to yet again recall that applying concepts of general international law directly on the very different and unique legal realm of outer space should be approached with caution.^{(11) As emphasized in section 1.4.2, supra.}

Moreover, no ‘claim’ of sovereignty as the grounds for appropriation can be made in outer space. In the light of the discussion above, a claim of sovereignty involves some sort of assertion to spatial territory. This was the case when claims of sovereignty to Antarctica was made. Before the Antarctic Treaty of 1959^{(12)The Antarctic Treaty, 402 UNTS 71, adopted December 1, 1959, entered into force June 6, 1961.},, historical claims to Antarctica's territories were formalized through decrees and legislative acts. For example, the United Kingdom was the first to claim sovereignty through Letters Patent.^{(13) Government of the British Antarctic Territory, History of the Territory: UK claim. https://www.britishantarcticterritory.org.uk/heritage/history-of-the-territory/. Last accessed May 20, 2024.} Norway followed later through royal decrees.^{(14) Norwegian Ministry of Foreign Affairs, Meld. St. 32 (2014–2015) Report to the Storting: Norwegian Interests and Policy in the Antarctic, p. 15. Available online: https://www.regjeringen.no/contentassets/cef2a67e958849689aa7e89341159f29/en-gb/pdfs/stm201420150032000engpdfs.pdf. Last accessed May 20, 2024.} Despite the suspension^{(15) Antarctic Treaty (n. 224), Article IV.} of these assertions by the Antarctic treaty, they endure as historical claims of sovereignty, reflecting the geopolitical interests of the asserting nations during that period.^{(16) Crawford (2019), 238.} Nevertheless, history indeed shows that sovereignty claims have been made to other assets, specifically natural resources in the seabed. One example in this matter is the national claims of sovereignty to petroleum reserves on the continental shelves. A significant event in State Practice was marked by the 1945 Truman Proclamation, where the United States claimed jurisdictional and exclusive control over natural resources in the continental shelf off its coast.^{(17) Ibid. p. 255, referencing to “Proclamation 2667 of September 28, 1945: Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf.” Made available online through the U.S Department of Commerce (NOAA): https://www.gc.noaa.gov/documents/gcil_proc_2667.pdf. Last accessed May 20, 2024.} A central characteristic of this claim was that they did not lay claim to territory, but to the resources themselves.^{(18) As can be read through the proclamation wording; note 243, supra: “[the] United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States, subject to jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the S[t]ate concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.”} The Proclamation was followed by other States, thus substantiating the practice of sovereignty claims to resources in and under continental shelfs. Other States made later claims of sovereignty to the seabed and subsoil of the shelf, thus constituting a territorial claim.^{(19) Crawford (2019), 255.} The former, ‘alternative’ claims of sovereignty to resources made by the U.S and subsequent States – different from the mentioned more ‘conventional’ territorial claims –reveal that the ‘claim of sovereignty’-term in Article II may in fact reach broader than sovereignty claims to territory or areas. Nevertheless, it is once again wise to recall that space is a unique realm, physically and legally. Adding weight on the historical terrestrial meaning of claims of sovereignty should be done with caution.^{(20) As emphasized in section 1.4.2 on the relationship between space law and general international law.}

Contemplating the concept of ‘sovereignty’, space law scholar Katrin N. Metcalf argues that the ideal way to use the sovereignty term should be limited to territorial sovereignty, i.e a description of the rights of States over territory.^{(21) Katrin N. Metcalf (1999), Activities in space, appropriation or use? (Vol. 75, p. 416). Iustus., p. 96.} She argues that ‘territorial sovereignty’ – the rights to territory – are not the only territorial rights States can have. Also, mere rights to use a territory for different purposes, can arguably exist. These ‘lesser rights’, according to her, include the rights to pass through territory or conduct certain activities on it.^{(22) Ibid.}

The sovereignty term as it appears in the legal framework governing space is difficult to get a grip on. Nevertheless, it – in the least – covers the more conventional sovereignty term pertaining to supreme control over territories. Whether or not the term can be interpreted as to applying to aforementioned ‘lesser rights’ such as to conduct activities, is not as clear. Yet, when contemplating the views of the treaty drafters, the prevalence of territorial references to the sovereignty term, and the fact that natural resources in space was not contemplated at the time, the intention behind the term’s inclusion does not seem to include these ‘lesser’ sovereign rights. Even if claims of sovereignty to natural resources have been made in history, it seems farfetched to argue its heavy significance when discussing the meaning of provisions governing space and its res communis-nature. In other words, even though claim of sovereignty over natural resources has happened on Earth, this fact does not automatically exclude natural resources as part of what is prohibited from being appropriated by claims of sovereignty.

2.4.2 “By occupation”

Continuing our analysis of the terms in Article II, the next actions explicitly mentioned in the wording of the provision are ‘use or occupation’.

Starting with the ‘occupation’ alternative, the terms ‘sovereignty’ and ‘occupation’ are at first glance related. They both represent actions pertaining to control or authority over something. Occupation is perceivably a more ‘hands-on’ term, in international context usually referring to taking possession or control of a place or area, including by force.^{(23)https://www.merriam-webster.com/dictionary/occupation. Last accessed March 12, 2024. https://dictionary.cambridge.org/dictionary/english/occupation. Last accessed March 12. 2024.} In international law the term is often used in relation to the acquisition of territory, usually being referred to as an ‘original mode’ of acquisition.^{(24) However, Crawford criticizes the ‘labelling’ of territorial acquisition such as the classification constituted by ‘modes of acquisition’, arguing that the complexity of any real-world case cannot be explained by a singular theoretical term, see Crawford (2019), 208-209.} Yet, like the sovereignty term, ‘occupation’ is seemingly more multi-faceted than it first appears. Some argue that this is evident by the concept of ‘effective occupation’, a concept which is reflected in statements made by the ICJ; linking the sovereignty and occupation terms.^{(25) Ibid., 210.} For example, in Legal Status of Eastern Greenland, the Permanent Court declared that sovereignty claims, not grounded in specific acts or titles like treaties but in ongoing demonstration of authority, must include both the i) intention and determination to govern as sovereign and ii) an actual display of governance or authority.^{(26) Ibid., showing to Legal Status of Eastern Greenland, Judgment of April 5th 1933, General List No. 43, pp. 45-46. Available online: https://www.icj-cij.org/sites/default/files/permanent-court-of-international-justice/serie_AB/AB_53/01_Groenland_Oriental_Arret.pdf} Furthermore, such effective and ongoing occupation is also mentioned as a prerequisite for claiming ‘acquisitive prescription’.^{(27) Ibid., 210-211.} Still, in practical terms the concepts of rights through prescription and occupation may be difficult to distinguish. The real question is often if rights can be established through i) ongoing display of authority and ii) that such exercise of authority is by jurisdiction or State functions, on a continuous and peaceful basis.^{(28) Ibid.}

And so, it once again seems that the meaning of ‘occupation’ as is appears in the OST Article II is broader than at first glance, as other modes of acquisition such as prescription apparently also should be covered by the term. Thus, the reason for explicitly mentioning the actions of ‘claim of sovereignty’ and ‘occupation’ – even though they technically seem to be covered by the ‘any other means’-provision – reflect the gravity of concern the drafters and States Parties to the OST had for space as a future realm for humankind. The term shares a historical background with the sovereignty-term. This is because the attempted acquiring of areas not subject to sovereign States was made by maintaining physical control over the area, whilst maintaining a peaceful demeanor.^{(29) Freeland and Jakhu (2009), 54.} This contextual description reasoned by Freeland and Jakhu is elaborated on by the authors when pointing to the difference between underlying terrestrial and spatial doctrines. The authors emphasize on the fact that terrestrial areas previously have been regarded as being terra nullius, in which anyone were free to occupy and subsequently establish exclusive rights to that area.^{(30) Ibid.} Additionally, the authors reference the (international) legally allowed concept of prescription further contrasting terrestrial matters from the res communis-doctrine that applies to the realm of outer space.^{(31) Ibid.} This yet again underscores the necessity of caution when applying terrestrial concepts to spatial ones.^{(32) As briefly discussed in section 1.4.2.}

The above discussion emphasizes that outer space with all its components is indeed a res communis. A claim of sovereignty to territory in outer space and celestial bodies – arguably including resources located therein – is prohibited by the non-appropriation principle. Occupation and other modes of acquisition as a means to establish sovereign rights is also banned by the prohibition.

2.4.3 “By means of use”

Next is the meaning of ‘by means of use’. What does appropriation by ‘use’ entail? Can you use a celestial body in a manner that amounts to appropriation? If so, it also indicates a line to be crossed, but drawing that line is difficult. The word ‘use’ is, on its own, far more general than the previously addressed words. However, we can find ‘use’ in other parts of the OST. Most notable is Article I.

It states:

“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.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.”

In its first paragraph, it states that “The exploration and use of outer space […] shall be carried out for the benefit and in the interest of all mankind […] and shall be the province of all mankind”. In its second paragraph, it is stated that outer space “shall be free for exploration and use […]”. One can here distinguish a line between the free use of space in Article I and the prohibition of the non-appropriation principle in Article II. Whilst Article I articulate the freedom to use outer space, provided it is carried out in the interest and benefit of all mankind, Article II entails certain restrictions on this use. When Article I and II of the OST are interpreted in conjunction with one another, this seemingly entails a “provisional dynamic” that operates like this:

The binding rules of Article I allows the free use of outer space when it is carried out for the benefit and in the interest of all countries. This use must not, however, constitute an action of appropriation. States and their private nationals are thus free to use space in any equitable way^{(33) As per the wording “(..) shall be carried out for the benefit and in the interest of all mankind”.} but this use cannot result in the taking of something as their own resulting in de facto possession constituting exclusive ownership rights, amounting to appropriation.

Given this premise, it is once more evident that the very general and broad wording of Article II provides uncertainty with regards to its potential scope. An example can be made based on the logical assumption that the exploitation of resources in outer space is ‘use’ as it appears in the OST. As the non-appropriation principle sets limits on space activities, but only when they constitute appropriation, it would appear that exploitation of resources – as one of many activities under the umbrella term ‘use ‘– is not prohibited as long as it does not constitute said appropriation. Thus, the legality of the exploitation of space resources may depend on the way they are exploited.

So, how – or when – may use not be in accordance with the OST Article II? While acknowledging the hypothetical nature of the question, several new questions emerge. If the exploitation of resources in space initially is a use allowed by the OST Article I, when – if at all – does it qualify as an action of appropriation? The different nature between the ordinary meaning of ‘use’ on one side and ‘claim of sovereignty’ and ‘occupation’ on the other, seemingly point to ‘use’ as a less “orthodox” means of appropriation.^{(34) In the light of the discussion on ‘claim of sovereignty’ and modes of acquisition such as occupation, supra.} When contemplating ‘use’ as a basis for appropriation, it would appear – if actually realized – to constitute a more “discreet” means of appropriation than occupation or sovereignty claims. Instead of actively engaging in occupation or expressly claiming rights, use may exist under the “flag” of Article I, para 2, until it eventually infringes on the non-appropriation principle by excessive use. Yet, it is a challenge to simulate situations where such use would constitute, or border on, de facto appropriation. Prescription could be involved in the term; however, the occupation term covers such acquisition of ownership.^{(35) See previous discussion on ‘occupation’.}

In this matter, interesting scenarios that occasionally are addressed by legal scholars are indeed those connected to the extensive exploitation of celestial bodies to recover their resources. Space law scholar Ernst Fasan contemplates several examples of use that may or may not be in accordance with the space treaties. One of the examples is questioning the legality of the action of hollowing out an asteroid and using the material to build structures, including the covering of the asteroid with such structures.^{(36) Fasan, Ernst, “Asteroids and Other Celestial Bodies – Some Legal Differences, in Journal of Space Law, Vol. 26, 1998, pp.39-40.} The main issue addressed by Fasan concerns the definition of a ‘celestial body’ and not the meaning of ‘use’ in the OST. Still, his train of thought on questionable uses of celestial bodies catches the interest. Fasan notes that the destruction of an object is the ultimate form of appropriation.^{(37) Ibid. p. 39. Fasan’s article is also referenced to by both De Man and the European Space Agency on the question of resource exploitation versus appropriation, see De Man (2022), 205; “Property Rights and Commercialisation of Natural Resources”, European Space Agency: European Centre for Space Law, https://www.esa.int/About_Us/ECSL_-_European_Centre_for_Space_Law/Property_Rights_and_Commercialisation_of_Natural_Resources, last accessed June 2, 2024.} Given such a premise, one can imagine scenarios where a small asteroid – presumably still a ‘celestial body’ – is mined out of existence.^{(38) Example made by Freeland and Jakhu (2009), 53.} In such a scenario, given Fasan’s premise, what is the actual difference between destruction of said celestial body and mining it out of existence? Furthermore, there are views arguing that appropriation ‘by means of use’ may involve the establishment of exclusive rights, such as “exclusionary rights of way or the monopolistic exploitation of cosmic resources”.^{(39) Jakhu (2017), 121, referencing to the views of legal scholar Manfred A. Dauses.} A ‘monopolistic’ exploitation of resources suggests, in this regard, controlling the majority of available resources.

In relation to the related use of the Moon, equally a celestial body, it has been pointed out that activities relating to lunar mining may break the fundamentals of space law. A central issue pointed out, is the potential dividing of the lunar surface. This would often be necessary when conducting space activities such as resource extraction and the establishment of industrial safety zones. It is argued that such dividing may be prohibited by the non-appropriation-principle.^{(40) Nelson, Jack Wright, “The Artemis Accords and the Future of International Space Law”, Insights; the American Society of International Law, Vol 24: Issue 31, December 10th 2020, available online: https://www.asil.org/insights/volume/24/issue/31/artemis-accords-and-future-international-space-law. Last accessed March 19, 2024. Reference found in article by Larsen, Paul B. "Is There a Legal Path to Commercial Mining on the Moon?." University of Pittsburgh Law Review, vol. 83, no. 1, Fall 2021, pp. 1-50. HeinOnline.} Though not emphasized, the argument seems to hinge on the purpose of Article II being breached if uses are of such magnitude that the principle of non-appropriation fails to be effective.^{(41) Both the VCLT and the principle of effectiveness serves to ensure that the aims of the treaty is advanced by its interpretation.} Hence, some reflections can be drawn:

Is there a scenario where the use of a celestial body is so largescale that the non-appropriation principle is effectively undermined? If not, how does appropriation, as it appears as a legal term in the OST, happen by ‘means of use’? Does it also necessitate a formal declaration amounting to appropriation? Isn’t that virtually the same as a claim of sovereignty? If it does not necessitate a formal declaration, and some scale of use is enough, why couldn’t an excessive use of a celestial body infringe the non-appropriation principle?

The questions simulate a hypothetical scenario concerning largescale and excessive use of a celestial body. Conversely, given the same premise used above, a small-scale use of a celestial body hence entails a completely different scenario when discussing appropriation. This once more indicates that appropriation by means of use seem to depend on how the use is conducted.

The answer to the meaning of ‘by means of use’ lies, according to Freeland and Jakhu, in reading it in conjunction with Article I.^{(42) Freeland and Jakhu (2009), 53-54.} According to the authors, the relevant limits for such use is determined by the limitations in Article I, second paragraph, which stipulates that it must “be carried for the benefit and in the interest of all countries […]”.^{(43) Ibid.} It seems therefore that the authors view the limits on the use of space as hinging on the way such use is conducted. If understood correctly, they view the use of resources in space as a freedom guaranteed by Article I and therefore consequently not prohibited by the non-appropriation principle. Hobe – while essentially sharing this view – is more laconic in his conclusion, building on the argument that Article II only prohibits the use of space in “terms of territorial appropriation”, and that “appropriation of space resources is not regulated in the form of a strict prohibition but only indicated in Article 1 […]”.^{(44) Hobe (2019), 96.} De Man views it differently, arguing that the notion of the non-appropriation principle only applying to territories is arbitrary.^{(45) P. De Man, Exclusive Use in an Inclusive Environment: The Meaning of the Non-Appropriation Principle for Space Resource Exploitation. Springer E-Books (2016), 205.} Such a denial of the relevance of Article II on the use of natural resources, would according to De Man, allow circumvention of the non-appropriation principle by reclassifying parts of territories as natural resources.^{(46) Ibid.} Essentially De Man argues that a “workable application of the non-appropriation principle thus natural resources as such remain covered, in a very literal way, by the non-appropriation principle, though not necessarily with the implication that they are non-exploitable.”^{(47) Ibid., 205-206.}

What does appropriation by ‘use’ entail? The answer is not obvious. However, when interpreted in light of Article I, it implies that any free use of space can constitute, or amount to, appropriation. Moreover, comparing the term with ‘claim of sovereignty’ suggests that ‘appropriation’ as it appears in Article II does not require a proclamation or assertion, nor any intentional occupation, but can occur as a consequence of lawful space activities. Perhaps it may even amount to appropriation regardless of the intention of those conducting space activities.

2.4.4 “By any other means”

Lastly, the broadest reaching term is provided by Article II as it prohibits appropriation by ‘any other means’. The inclusion of such a profound term initially appears as a reflection of the intended broad scope of the non-appropriation principle. The meaning and intended implications of the term, however, remain somewhat unclear. Being the last term in the wake of the other more ‘traditional’ actions [e.g sovereignty, occupation], the scope of the term is soundly far more dynamic than the traditional terms. Subsequently, all actions stipulated in Article II would technically be covered by the term. Showing similarity to the generality of ‘use’, the wording of ‘any other means’ broadens the potential scope of means to appropriate in outer space. Thus, it is sometimes argued that – if perceived on the basis of its very definition – the provision covers any form of ownership, hindering any national claim to any matter outside the Earth’s atmosphere.^{(48) Zach Miller, “Space Settlement and the Celestial Subjectivity Model: Shifting Our Legal Perspective of the Universe. In A Fresh View on the Outer Space Treaty, ed. Anette Froelich (Springer Charm: 2018), 62. https://doi.org/10.1007/978-3-319-70434-0.}

The concept of ‘constructive ambiguity’ comes to mind when contemplating the provision. The intentional use of ambiguous terms when negotiating an agreement can likely serve a dual purpose. Firstly, by easing the negotiation process whilst, secondly, providing flexibility to accommodate unforeseen future advancements.^{(49) Michael Byers, 2020. “Still Agreeing to Disagree: International Security and Constructive Ambiguity.” Journal on the Use of Force and International Law 8 (1): 91–114. https://doi.org/10.1080/20531702.2020.1761656.} As emphasized earlier, the dynamic properties of a law-making treaty such as the OST may thus adapt with time and subsequent events, particularly considering treaty interpretation.^{(50) See 1.4.1 supra. This is also addressed in section 2.6 infra when the significance of subsequent agreements and practice regarding the interpretation of the non-appropriation principle of Article II are discussed.}

Legal scholar and space law pioneer Carl Christol expressed his view already in 1984 on its contents. Contemplating the historical negotiation background leading to the OST, Christol acknowledged that the negotiators’ primary focus was the regulation of State activity in space.^{(51) C. Christol, Article 2 of the 1967 Principles Treaty Revisited, 9 Annals of Air and Space Law 217 (1984). In Reynolds & Merges (2019), 81.} However, he also highlighted views arguing that the ‘by any means’ term extend to international intergovernmental organizations.^{(52) Ibid.} This highlighting relates to questions asked during the drafting of the OST on the scope of Article II and whether it extended to other entities than governmental states. When the negotiation and drafting of the OST was ongoing, there was a view expressing that the provision acted as a sort of “safety net”, ensuring that future non-governmental claims was intercepted.^{(53) Ibid.} Consequently, with this last and broad reaching term the drafters of the OST cut off any potential “loopholes” that could be argued as grounds for actions not constituting national appropriation, effectively acting as a “catch all phrase”.^{(54) Freeland and Jakhu (2009), 54.} The phrase is therefore intrinsically linked to the meaning of ‘national’ previously examined in this thesis. An example of this could be if a claim to ownership rights was made in combination with the notion that the non-appropriation principle only applies to the actions of States.^{(55) Ibid.}

Some emphasize that a States’ recognition of private property rights to even already extracted resources might constitute appropriation by ‘any means’.^{(56) Tronchetti (2015), 791-792.} The reason for this, according to Tronchetti, is the questionable scenario of States authorizing licenses for private mining operators to conduct commercial exploitation activities [akin to mining in the high seas]. The author, describing outer space as a ‘global commons’, argues that a State cannot use its national laws to ensure these interests of both private and public businesses.^{(57) Ibid. p. 791.} This view is interesting considering the recent actions of States guaranteeing ownership rights to resources in space.^{(58) Stipulated in the national legislation of e.g the U.S (n. 7).}

2.4.5 Summary

The recent analysis of the terms of Article II reveals that the scope of the non-appropriation principle is broader than what it seems in verbatim. Firstly, non-governmental entities are included as legal subjects under its scope. Secondly, appropriation can take many forms, including appropriation through the actions of non-governmental entities. An important element of the perceived broadness of the non-appropriation principle is that appropriation can happen gradually depending on how close to constituting appropriation the space activity essentially is. This implies that initially lawful space activities may, theoretically, constitute de facto appropriation if such activities become excessive, exclusive, and so forth.

The recent discussions transition from general space activities to a more focused examination of how the non-appropriation principle interacts with space resource activities. Specifically, the pressing issue is to determine when resource activities potentially violate – or come close to violating – the non-appropriation principle.