THE FREEDOM TO USE OUTER SPACE, OR: THE ABSENCE OF CLAIMS OVER AREAS IN SPACE AND THE OBLIGATION TO ACTUALLY USE ITS RESOURCES

摘要

The legality of property rights over natural resources in outer space is strongly contested, despite, or perhaps because of, the broadly formulated ban on national appropriation of outer space, including the Moon and other celestial bodies, in the existing space treaties. The provision is often explained as proscribing territorial sovereignty, while allowing the appropriation of resources. The strict distinction is not universally accepted, however. Further, the discussion is not helped by the absence of a definition of the national appropriation notion in the space treaties. Neither is there an autonomous international definition of property rights that could be transposed to clarify the use of the term in these treaties. Nevertheless, it should be possible to deduce from the general theories on property law one or more distinguishing characteristics of property rights (I). Absent any indications to the contrary, the same features should guide our understanding of the national appropriation concept in the space treaties (II). In light of this basic understanding of property rights, we may then reassess the legality of resource exploitation in outer space and on celestial bodies (III). This exercise will help determine whether a distinction between territories and resources is necessary or useful to align the language of the non-appropriation principle with current and planned space exploitation activities (IV).