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1.3.1 What is the scope and impact of the non-appropriation principle in relation to natural resources in outer space?

In the Outer Space Treaty, the non-appropriation principle is incorporated in Article II.

It states that

“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” ^{(1) Outer Space Treaty (n. 21), Article II.}

Does the non-appropriation principle extend to cover natural resources in outer space? This is considered unclear. The scope and content of the national appropriation-principle is one of the most heavily debated topics in the field of space law. It is even described by some as the greatest challenge for space resource activities.^{(2) Melissa de Zwart, Stacey Henderson, and Michelle Neumann, “Space resource activities and the evolution of international space law” in Acta Astronautica Volume 211, October 2023, 155-162. https://doi.org/10.1016/j.actaastro.2023.06.009} Discussions on its scope already began in the immediate aftermath of the final treaty entering into force in October 1969. Recent advancements in technology and the upsurge of the private sector have significantly heightened interest and increased discussions regarding the legal status of space resources. This increasing interest is mirrored by the international community, notably through the 2021 [renamed in 2022] establishment of the COPUOS Working Group on Legal Aspects of Space Resource Activities, which has invited submissions to explore its five-year mandate and purpose further.^{(3) Working Group on Legal Aspects of Space Resource Activities: https://www.unoosa.org/oosa/en/ourwork/copuos/lsc/space-resources/index.html. Last accessed May 23, 2024.}

There is still ongoing debate around the interpretation and application of the non-appropriation principle in the context of space resource activities^. Some have argued that appropriation and exploitation of celestial body resources are intrinsically linked.^{(4) As demonstrated by F. Tronchetti and H. Liu when referring to articles in the 1970s by scholars S. Gorove and A.A Cocca; “The White House Executive Order on the Recovery and Use of Space Resources: Pushing the Boundaries of International Space Law”, note 7 in article; Space Policy vol. 57 (August 2021, 101448). https://doi.org/10.1016/j.spacepol.2021.101448.} They point to the spirit of Outer Space Treaty, noting that while it permits limited scientific use under Article I, paragraph 3, it may not support large-scale commercial exploitation, particularly by private entities, as this could contradict the Treaty's original intent and principles.^{(5) Ibid.} Accordingly, the prohibition in Article II may extend to cover natural resources found in outer space.

There are opposing views to this. One perspective draws a parallel with the legal framework governing the high seas. Advocates of this view suggest that resources from celestial bodies might – like the capture of fish – be legitimately appropriated once removed from their original location and utilized for commercial purposes.^{(6) “NASA is looking for private companies to help mine the moon”, The Guardian, September 11, 2020. https://www.theguardian.com/science/2020/sep/11/nasa-moon-mining-private-companies. Last accessed June 2, 2024.} They argue that such activities align with Article I of the treaty, which allows State Parties to the treaty to freely explore and use outer space.^{(7) See e.g Tronhetti (n. 288), infra.} Another related viewpoint suggests that since the Treaty does not explicitly prohibit commercial resource exploitation, neither through wording nor interpretation, it can be inferred that such activities are, in principle, allowed.^{(8) Masson-Zwaan and Sundahl (2023), 402.}

Numerous space-faring nations, as well as many non-space faring countries, have addressed the urgent need for greater legal clarity on a global scale, especially regarding activities related to space resources.^{(9) See paper submitted by the Chair and Vice-Chair of the Working Group (n. 20).} Furthermore, multinational organizations like the European Space Agency have addressed the need for a clarification and specification of the existing international legal framework, including the principles in the Outer Space Treaty in relation to space resource activities.^{(10) European Space Agency’s Input to the Working Group on Legal Aspects of Space Resource Activities, paragraph 3. Available online: https://www.unoosa.org/documents/pdf/copuos/lsc/space-resources/LSC2023/PermObsResponses/ESAINP1.PDF. Last accessed June 2, 2024.}

1.3.2 How does the current legal framework regulate State responsibility and liability in the context of space resource exploitation?

If extraction, utilization, and exploitation of resources in outer space is allowed and initiated, several legal issues emerge. Resource activities are still embryotic and there is no specific framework governing space resource activities. Moreover, the existing legal framework that binds the major spacefaring nations is ambiguous and timeworn. This is problematic because imminent space resource activities are expected to be ultra-hazardous, which again necessitates clear regulation on responsibility and liability.^{(11) de Zwart, Henderson and Neumann (n. 71).} As such regulation does not exist, the activities are ultimately regulated by the space treaties, with the Outer Space Treaty in front. Chapter 3 will therefore analyze and assess the international legal framework for State responsibility and liability with regards to the non-appropriation principle and space resource activities.