Non-Appropriation in the Outer Space Treaty and Exploitation of Natural Resources in Outer Space

This master’s thesis utilizes an analytical research methodology paired with an international law research methodology to seek an answer to the question if the rule on national appropriation in the Outer Space Treaty prevents appropriation of natural resources in outer space or on celestial bodies. In the near future the possibility to venture into space to use and exploit natural resources will become possible. As this has become feasible, some spacefaring nations have created their own national legislation on how to conduct exploitation of natural resources in outer space and on celestial bodies. It is therefore crucial to assess what conducts in space regarding the extraction and utilization of space resources is permitted or possibly prohibited. By analysing the work of legal scholars on the area of resource use in outer space and using state practice and subsequent agreements regarding the subject and looking at analogies from similar regime’s, this thesis seeks to interpret art. I and II of the Outer Space Treaty. Firstly, the thesis investigates how the freedom of use in outer space, as it is enshrined in the Outer Space Treaty, relate to the use of natural resources in outer space. This thesis concludes that resource use is included under the freedom to use, and the very broad scope of the article includes exploitation of natural resources in space, with practically no limitations besides the fact that using natural resources must be beneficial for all countries and encourage cooperation. Secondly, this thesis investigates the meaning of prohibition against appropriation in the Outer Space treaty and how it relates to the exploitation of natural resources. The meaning of the nonappropriation principle is that states cannot claim ownership of outer space as a whole or on any celestial bodies or any parts thereof as there can be no territorial sovereignty in space. The prohibition also includes private actors, who can neither be given spatial property rights from a state or create their own property rights. There is not a consensus if the prohibition includes exploitation of natural resources. Thirdly, this thesis investigates how the freedom of use and the prohibition against appropriation in the Outer Space Treaty can be understood with contextual insights, such as state practice and subsequent agreements relating to the use of natural resources in outer space. By looking at state practice and subsequent agreements this thesis finds that the non-appropriation principle does not include natural resources. Therefore, the answer to the research question is that the Outer Space Treaty does not prohibit appropriation of extracted natural resources. As the prohibition on appropriation prevents claims of spatial ownership it would follow that claiming ownership of natural resources in situ would amount to an illegal spatial claim. Extracting and utilizing natural resources until they are no longer in situ would make it possible to appropriate them by claiming them for property as it does not amount to a territorial claim of sovereignty. Consequently, the answer to the research question of this thesis is that the rule on national appropriation in the Outer Space Treaty does not prevent appropriation of extracted natural resources no longer in situ.