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2.5.1 Does the freedom to use space include the use of natural resources?

The guaranteed freedom to use space and its celestial bodies in the least seems to involve some freedom to use its natural resources. This may be ascertained from the OST Article I, paragraph 3. The provision emphasizes the freedom of scientific investigation, a principle of significant practical relevance given that space exploration is predominantly scientific in nature:

“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 order to conduct scientific investigation, it is reasonable to assume that the need for natural resources is key. For example, an enduring research station on the Moon would likely require access to resources for research and to sustain a presence without ongoing [and resource-demanding] supply. This may include the extraction and removal of precious metals for study, or frozen water-ice for life support and rocket fuel.^{(4) As introduced in section 1.1.1 (n. 12).} The treaty's intent to nurture scientific progress implies that using space resources on a small scale for scientific research should be generally uncontroversial.^{(5) The Preamble of the OST (n. 21) proclaims that “[The States Parties to this Treaty] Desiringto contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes”.} In fact, extraction of materials from the Moon and asteroids has been conducted several times without protest.^{(6) See for example section 2.6.4, infra, on the Apollo-missions who brought plenty of lunar samples back to Earth. Additionally, China recently opened up access for U.S scientist to their lunar soil samples. The event marks a shift in the cold relationship between the two states, see Leonard David, “China's Chang'e 5 moon samples, beyond NASA's reach for years, are finally available to US scientists”, Space.com, December 1, 2023. https://www.space.com/china-moon-samples-change-5-nasa-researchers. Last accessed March 22, 2024.} Moreover, the allowed use of resources for scientific purposes is widely supported in scholarly discussions on the legal status of space resources.^{(7) Tronchetti (2015), 788.} Some argue that previous extraction of materials constitute State practice, as the collection of lunar material by the U.S and USSR was done for scientific purposes without objection of other States.^{(8) Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies: A Proposal for a Legal Regime. (Boston: Martinus Nijhoff Publishers, 2009), 224.} Some even argue that this collection was in fact ‘space resource appropriation’ and that it constituted the beginning of State practice contributing to a change in customary law regarding the impact of the non-appropriation principle in this regard.^{(9) Pershing (2019), 158.}

Any scientific use would of course need to be in compliance with other provisions of the OST such as the benefit-clause, as well as with general international law. Nevertheless, the initial contemplation on scientific use of resources provides a premise for further discussion on space resource activities:

The use of natural resources is arguably allowed for scientific purposes.

But what then about commercial purposes?

2.5.2 For commercial purposes?

Scientific use of natural resources on celestial bodies often involves the permanent removal of materials. If this does not constitute appropriation, the criteria for appropriation likely depend on the methods employed in these activities. If the scientific use of resources is permitted under Article I, paragraph 3 of the OST, and other types of use are not explicitly prohibited, it can reasonably be assumed that non-scientific activities, including commercial ones, may proceed under the free use provisions of paragraph 2, subject to the constraints of paragraph 1 and the rest of the OST. Thus, commercial extraction and utilization – essentially 'exploitation' – of space resources does not inherently seem to be prohibited. The OST guarantees freedom to use space within certain limits while prohibiting appropriation. These principles interact dynamically to regulate all space activities. It is therefore more logical to assume that activities are permitted by the freedom granted in Article I rather than restricted by the non-appropriation clause of Article II.

Is there any point then, discussing the principle of non-appropriation in relation to space resource activities when they seem to be allowed by OST Article I? The answer is yes, particularly because the scale of these activities repeatedly appears as a critical factor in this regard. Consider yet another hypothetical scenario: a mining operation on the Moon begins on a small scale but gradually expands, covering vast areas and restricting access to these regions. Over time, if this operation becomes extensive and long-term, it effectively places the area under the ongoing control of the operator, preventing others from using it simultaneously. Such large-scale activities could potentially shift from mere use to something akin to appropriation. The critical consideration here is when exclusivity in use extends beyond merely physical possession. For example, if a mining operator indefinitely seals off a large area rich in potential mining materials but does not fully exploit these resources, it might effectively exclude other operators from the “idle” materials located within this area. This activity might entail exclusion based not on mere possession, but on something starting to resemble property rights, even though not formally so. This could potentially be the case if the operating party limits access to the area as a safety measure – not unthinkable in mining activities. In such a case, another fundamental principle, the free access to space, could also be breached.^{(10) OST (n. 21) Article 1, paragraph 2.}

Early contemplations on when use of resources might turn into appropriation can be traced back to the late sixties and early seventies. Some viewed the magnitude of permitted use of resources as crucial, referencing to the freedom of use in the OST Article I. Scholars noted that even while the OST should permit the use of such resources, it draws a clear line against national appropriation.^{(11) De Man (2016), 196, referencing the views of E. Brooks and M.G Markoff.} This distinction arguably hinges on the extent and nature of the resource usage. For instance, it was argued that if a nation derives significant benefit from the extensive use of a tangible resource, or monopolizes a scarce resource, this behavior was interpreted as appropriation. Furthermore, it was argued that the limits of Article I suggested that surpassing a certain level of usage could shift an action from lawful use to unlawful appropriation.^{(12) Ibid.} These views seemingly entailed that breaching Article I could contribute to acts of appropriation, thus establishing a clear link between Article I and Article II.

Lyall and Larsen highlights the difference between exploration of a celestial body such as the moon and exploitation of it. A key feature, they argue, is the nature of the activity. Exploration does arguably “not entail permanent appropriation of materials in situ”, but they mention that “exploitation may be thought necessarily to do so”.^{(13) Lyall and Larsen (2018), 172.} If understood correctly, the possibility of legal infringement upon the non-appropriation principle, according to them, may start with the notion of exploitation leading to ownership rights to said materials.

Metcalf underscores the intricate task of determining when space activities become appropriation. The author emphasizes that the ‘benefit clause’ in Article I (2) may impact when use becomes appropriation, effectively making a borderline appropriation act less “appropriative” when significantly beneficial for mankind.^{(14) Metcalf (1999), 169.} The author seems in other words to argue that the freedom to use space in Article I (1) may ‘raise the bar’ of what constitutes appropriation in Article II, but only when substantially beneficial to mankind. Yet, argues Metcalf, the only activities clearly qualifying as appropriation, thus never allowed, are taking complete possession or substantial possession of a celestial body for a long period of time.^{(15) Ibid. 169-170.}

Jakhu underscores how the “three key legal principles” in the OST – common interest, freedom of use, and principle of non-appropriation – form the fundamental pillar of space law.^{(16) Jakhu (2017), 125.} Any infringement upon these principles would weaken the existing order of law the interaction between them provides. A significant exploitation of natural resources in space such as on a commercial scale, would thus amount to appropriation, according to Jakhu, if they were not conducted in compliance with not only Article I of the OST but also other provisions.^{(17) Ibid., 126.}

Tronchetti emphasizes that commercial exploitation of resources is a type of space activity included in the term ‘use’ in the OST, specifically with reference to the right to use space in Article I, paragraph 1.^{(18) Tronchetti (2009), 223.} One of the contextual arguments for this according to Tronchetti, is that in today’s world, the use of outer space is no longer only scientific, but also commercial. Subsequently, ‘use’ may include or involve ‘exploitation’.^{(19) Ibid.} Additionally, practical realities can be considered. Tronchetti underscores that the use of outer space logically involves the use of its natural resources. He argues that the only sensible use of space is the one where the possibility of utilizing its natural resources is considered.^{(20) Ibid., 224.}

De Man also ask the question: When does exploitation become appropriation? Building upon the notion that the OST Article I stipulates the right to exploitation of natural resources, he argues it only can be considered to be appropriation when based on exclusive rights, such as ownership rights. These rights are based on the authority of ownership to exclude others from the resource, regardless of one’s own use or not. De Man emphasizes that exploitation of resources does not require property rights to exist, but that such activities can be safeguarded on the basis of its factual use. Exemplified by the conducting of any space activity, De Man points out that as no one can interfere with an entity exercising the free use of space, they similarly cannot interfere with the exploitation of natural resources in space.^{(21) De Man (2022), 204.} An interesting point made by the author pertains to the telecommunications industry. This industry has, for quite some time, conducted activities pertaining to the use of immaterial orbit slots and radio frequencies. Earlier assertions of exclusive rights to such resources have been refuted by the international community.^{(22) E.g the Bogotá declaration, where several equatorial States claimed sovereignty over parts of the geostationary orbit slots of outer space directly above their respective territories. The claim violated the non-appropriation principle; see De Man (2016), 223-224.} De Man argues that even though these resources are renewable, thus different from non-renewable, material ones, their usage hinges on the freedom to use space and not property rights. In other words, when a satellite operator uses an orbital slot, no one else can use the exact same slot. Thus, according to De Man, the freedom of use requires some form of exclusivity to function, but as a consequence of factual use and not exclusive property rights.^{(23) Ibid. 207.}

Christol argues that the exploitation of natural resources in outer space initially is allowed on the basis of the res communis-principle codified in the OST Article II, which according to the author, prohibits exclusive rights to private property in non-sovereign areas.^{(24) C. Christol, “The 1979 Moon Agreement: Where is it today?”. In Journal of Space Law, vol 27. No. 1, 1999. Found in in Space Law (Aldershot: Ashgate, 2007), ed. Larsen, B. Paul and F. Lyall, 276.} Christol shares similar views with De Man, as a key point in his argumentation is that the exploitation of resources do not require property rights to be conducted. Drawing upon analogy from the law of the sea, the author sees no reason for differentiating the high seas from the similar legal sphere of outer space: “The law of the sea rule, relying on the res communis principle, which prevents a nation from exercising sovereignty on the high seas, but which accords to its fishermen, who are subject to its jurisdiction, proprietary rights in the fish which they may catch, applies to natural resources of the space environment.”^{(25) Ibid.}

2.5.3 Summary

What is the relationship between the non-appropriation principle and space resource activities? The recent discussion suggests that while the OST permits resource exploitation, extensive or exclusive activities could potentially breach the non-appropriation principle of Article II if not conducted within the stipulated legal boundaries. Thus, while small-scale scientific use appears uncontroversial, the scalability of resource exploitation demands careful consideration to ensure it is conducted in accordance with international law. A notable point in the recent discussion is that the lawfulness of any resource exploitation seems to depend on how it is conducted, either being scientific or commercial in nature, as opposed to either lawful or not.