MarIus

4.2.1 Part I

The first part of this thesis addressed the legal status of natural resources in outer space, and particularly those located on and within celestial bodies. It started off with emphasizing that there exists no agreement on the interpretation of the legal framework pertaining to space resource activities. The main topic was whether, or to what extent, the non-appropriation principle provided in Article II of the OST covers the natural resources of outer space.

In 2.2, the term ‘celestial bodies’ was analysed. The ordinary meaning of the term in conjunction with the contributions of legal scholars, provided a broad understanding of this term, encompassing all natural bodies in space, which aligns with the inclusive language used in the treaty itself.

Section 2.3 analyzed and assessed the meaning of ‘national appropriation’. First, a brief look at the term ‘appropriation’ implied exclusive rights to something, including property rights. ‘National’ was concluded to include also private entities. This interpretation was especially made in conjunction with the OST Article VI, which includes non-governmental entities under its State responsibility for national activities and for assuring that non-governmental entities comply with the provisions of the OST. The contextual approach which included the purpose and object of the terms provided several reasons for the inclusion of private entities. Firstly, States cannot allow private entities to do something that they themselves are prohibited from doing. This would undermine the effect of the non-appropriation principle. Secondly, any ‘private appropriation’ cannot exist without State appropriation. Such rights are effectively not realized until granted by a State, yet States cannot grant rights they do not have themselves. Thirdly the purpose of Article II suggests that private entities are included since the core aim of the provision was to prohibit appropriation by any means. An interpretation where private entities are not subjects to its regulation would arguably violate the effectiveness of the intended meaning, because private entities in theory may be capable of State-like conduct in the future. Treaty negotiations reveal that private activities in space were not a priority at the time of drafting, and therefore explains that there was no reason for an explicit mention of them in Article II. This substantiates the conclusion of an inclusive interpretation of ‘national’.

Section 2.4 analyzed the meaning and implications of the phrase "by claim of sovereignty, by means of use or occupation, or by any other means". It aimed to clarify how these terms contribute to the meaning ‘appropriation’, in light of the conclusion on ‘national’. The term "claim of sovereignty" was understood to involve assertions of supreme authority or control, typically associated with State power over territory. The term ‘use’ was examined in detail in the context of ‘use’ in OST Article I, which guarantees the free exploration and use of outer space. The nexus between ‘use’ in Articles I and II suggests that space activities are ‘use’ per Article I that can amount to appropriation by ‘use’ per Article II. This creates a delicate balance between permissible activities and those that could amount to appropriation. The phrase ‘by any other means’ was identified as a “safety net-provision” designed to cover any forms of appropriation not explicitly mentioned. Section 2.4 established that the non-appropriation principle of Article II is broad and inclusive, covering both explicit and implicit forms of appropriation. The findings from this section laid the groundwork for the subsequent analysis of the relationship between the non-appropriation principle and space activities, particularly concerning the exploitation of space resources and how such activities must be conducted within the legal framework to avoid appropriation.

Section 2.5 discussed the relationship between the non-appropriation principle and space activities, particularly resource exploitation, building on the previous discussion of ‘use’ in section 2.5 It was first concluded that the OST Article I (3) allows the use of space, including resources, for scientific purposes. This agreed interpretation underscores that resources are included in 'use', and by implication extends to commercial use as well. The key issue highlighted was when use becomes appropriation, which is determined by the interplay between OST Articles I and II. Article I allows the use of outer space when conducted in the benefit of all countries. Thus, while commercial exploitation of space resources may be permitted, it must be conducted in a way that avoids excessive or monopolistic use and considers the interests of all countries.

Section 2.6 explored how subsequent agreements and practices may have influenced the interpretation of the non-appropriation principle. It considered the Moon Agreement, which reiterates the non-appropriation principle and regulates natural resources but, due to its limited support has limited impact on others than those party to it. It also reviewed whether practices like previous extraction and collection of lunar and asteroid material, national legislations, and particularly the Artemis Accords have affected interpretation. It was found that especially the growing support for the Artemis Accords may play a significant role in shaping contemporary views on space resource activities, as it emphasizes that resource extraction does not ‘inherently’ constitute appropriation.

4.2.2 Part II

The second part of this thesis addressed the obligations of States the context of future resource activities.

Section 3.2 examined the obligations imposed by Article VI of the OST on States.

An important premise for further discussion was established: States are responsible for ensuring that both governmental and non-governmental space activities are conducted in compliance with the treaty's provisions and international law.

The obligation to authorize and supervise non-governmental entities was emphasized, high- lighting the necessity of ongoing oversight even after initial authorization is granted. This means that States are obligated to adhere to the non-appropriation principle when both them- selves, or non-governmental entities under their jurisdiction, are conducting space resource activities. This entails making certain such activities are not so excessive and long-term that they violate Article II.

In Section 3.3, the focus shifted to the consequences of States breaching their obligations un- der international law, particularly regarding space activities. It was noted that the breach of obligations could lead to international responsibility and necessitate reparations for damages caused. The interplay between the OST Article VI and the LC Article III was discussed, underscoring the necessity of proving fault when assigning liability for damages caused in space. This analysis highlighted the significant role of the fault standard, which is inherently tied to the due diligence expected of States in regulating space activities.