International Space Law and Space Resource Utilization : The United States’ Approach to Freedom of Use

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Title: International Space Law and Space Resource Utilization : The United States’ Approach to Freedom of Use
Author: Pennanen, Heidi
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2019
Language: eng
Thesis level: master's thesis
Discipline: Kansainvälinen oikeus
International law
Abstract: Activities in outer space are governed at an international level, above all, by international space law. As for treaty law, there are five United Nations treaties on outer space, all drew up during 1960’s and 1970’s. The first one of them is the Outer Space Treaty. Out of the five space treaties, the Outer Space Treaty has been ratified or acceded to the most. By 2019, the treaty had over a hundred States Parties to it whereas the most recent one of them, the Moon Agreement has only 18. These two treaties contain relevant provisions when it comes to the topic of the present thesis, space resource utilization. According to article I of the Outer Space Treaty, outer space and celestial bodies are free for exploration and use by all states. However, such freedoms are not absolute. One of the limitations can be found in article II of the treaty, known as the nonappropriation principle. The Moon Agreement echoes these principles but is a bit more specific than the Outer Space Treaty by further declaring that any areas of celestial bodies or natural resources in place are not subject to ownership rights unless there is an international regime saying otherwise (Art. 11(3) MOON). So far, there is no such regime, and the legal significance of the Moon Agreement is rather limited as it lacks binding force upon majority of states. Nonetheless, the question of property rights and the right of ownership over space resources is a relevant one. Whether one can extract such resources and do, more or less, whatever one pleases with them once removed from their original place is subject to controversy. The scope of freedom of use in relation to the non-appropriation principle remains ambiguous when it comes to space resource utilization. The research problem of the thesis is to study the formation of the United States’ position within the context of indeterminate space law. The United States is a state party to the Outer Space Treaty, but not to the Moon Agreement. It was the first country to enact a domestic law dealing with space resource utilization – the U.S. Act 2015. The Act sets out a national framework for commercial space resource utilization including an ownership regime regarding space resources obtained by U.S. citizens. An accompanying report notes that the state’s stand has long been that “the right to remove, take possession, and use in-situ natural resources from celestial bodies” and “the right of exploitation” are allowed under freedom of use granted in the Outer Space Treaty. It is further reported that the state has taken this position while being aware that there is no uniform understanding among states on the interpretation of the relevant principles and that, contrary to the United States, some regard the non-appropriation principle precluding exploitation of space resources and private property rights over such resources. Space resource utilization may have seemed like a distant future throughout the negotiating history of the Outer Space Treaty and the Moon Agreement, but the privatization and commercialization in the space sector in general was well anticipated by the United States. The state made clear that private sector involvement in the space arena is expected and shall be permitted. Article 11 of the Moon Agreement was held risky with regard to the interests of the private sector, and the agreement was left unratified in the United States. Therefore, the issue of space resource utilization rests upon the general principles of the Outer Space Treaty. At the hearings of July 1980, where the Moon Agreement was discussed before the U.S. Senate Committee, the representative of the Department of State addressed that the state’s position was that space resource utilization was allowed under the Outer Space Treaty whether for scientific investigation, or sustaining of missions in outer space, or for commercial purposes. The purpose of the U.S. Act is to give effect to the provisions of the Outer Space Treaty through a national law stating that private entities may use space resources in accordance with the treaty. The aim of the Act was to promote the development of space resource industry by decreasing legal uncertainties. When the Act was under preparation it was suggested that eventually the issue of space resource utilization would require solution on an international level as a state cannot make unilateral promises on how such issues will be dealt with on an international plane. However, the U.S. Act appears as a logical addition in the continuum, which dates back at least to July 1980 when the representative of the Department of State declared the states’ position on space resource utilization being allowed under the principle of free use.

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