Sovereignty, jurisdiction, and property in outer space: space resources, the outer space treaty, and national legislation

Cheney, Thomas Eric Leslie (2020) Sovereignty, jurisdiction, and property in outer space: space resources, the outer space treaty, and national legislation. Doctoral thesis, Nothumbria University.

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Abstract

Space resources and space property rights have long been popular topics. This interest has increased recently. The development of an embryotic space resources industry, and national legislation intended to foster it, has turned what had previously been a somewhat academic discussion about the true scope of the ‘freedom’ to use outer space and the limitations of the ‘non-appropriation principle’ into one of significance not just for outer space but the international order more broadly. There is an ambiguity at the heart of the Outer Space Treaty, it places the ‘freedom of use’ of outer space in the first article, its preamble talks of opening outer space for the human future, yet the non-appropriation principle potentially prevents all of that. In order for there to be a human future in outer space humanity needs to be able to make use of the resources in outer space, but if they cannot be ‘appropriated’ then that cannot happen. This thesis seeks to understand that contradiction and identify solutions.

It examines the Outer Space Treaty as the foundational and fundamental core of the space governance regime but also seeks to place it and the concept of property rights in a wider context. Utilizing, treaties, laws, negotiating records, and secondary sources from a range of disciplines, this thesis will examine the seeming contradiction between being free to use something but not to appropriate it. It will find that it is possible to construct a property rights regime for space resources within the framework of the Outer Space Treaty. However, in order for that regime to be practically useful, it will require international cooperation and coordination. It will require positive action to achieve. The alternative is anarchy, the likes of which Article II of the Outer Space Treaty was intended to avoid.

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