Challenges to the Prohibition on Sovereignty in Outer Space-A New Frontier for Space Governance

The current space arena has changed significantly since the 1950s, when outer space activities commenced. At the time of the adoption of the Outer Space Treaty (and the related General Assembly Resolutions), the outer space arena was largely dominated by the political interests of the two major space powers, the USA and the (then) USSR. Although states have remained the primary actors in regulating the use of outer space, the extent to which private companies would become involved in the exploration and use of space was not envisaged at the time of the conclusion of the space treaties. It is particularly the involvement of private space actors that complicates the traditional understanding of the prohibition on territorial sovereignty in outer space. With specific reference to the outer space boundary, the principle of the common heritage of humankind and property rights in outer space, this contribution aims to highlight some of the challenges to the prohibition of sovereignty in view of current developments in the arena of outer space. This analysis suggests that the blanket prohibition on sovereignty in outer space should be re-evaluated in order to keep up with the fast developing technological advancements in space exploration, and that clear legal rules be developed to provide legal certainty for all role players.


Introduction
In his address before the 18 th General Assembly of the United Nations on 20 September 1963, the then President of the United States of America (USA), John F Kennedy, stated that [s]pace offers no problems of sovereignty; by resolution of this Assembly, the members of the United Nations have foresworn any claim to territorial rights in outer space or on celestial bodies, and declared that international law and the United Nations Charter will apply. 1 Since this statement, the arena of outer space has changed significantly. Not only states but also private entities are becoming serious actors in outer space. In fact, private companies are at present performing many of the space activities that were traditionally within the exclusive domain of states. 2 Consequently, the traditional understanding of the prohibition on territorial sovereignty in outer space is becoming more and more contentious. At the time of the adoption of the Outer Space Treaty 3 (and the related General Assembly Resolutions 4 ), outer space was largely dominated by the political interests of the two major space powers, the USA and (then) USSR. Although states have remained the primary actors in regulating the use of * Anél Ferreira-Snyman. B Juris LLB LLM (PUCHE) LLD (UJ). Professor, School of Law, Unisa, South Africa. E-mail: ferremp@unisa.ac.za. ORCID ID: https://orcid.org/0000-0002-5460-0517. 1 See Libquotes 2020 https://libquotes.com/john-f-kennedy/quote/lbo5p1q. 2 For example, the involvement of private companies such as SpaceX in the launching of satellites and the transporting of goods and astronauts to the International Space Station (the ISS). See SpaceX 2020 https://www.spacex.com/. In an historic event on 31 May 2020 SpaceX successfully delivered two NASA astronauts to the International Space Station. See further Kooser and Shankland 2020 https://www.cnet.com/how-to/spacexs-historic-demo-2-delivers-nasa-astronauts-toiss/. Subsequently, on 4 November 2020 SpaceX launched its Crew Dragon spacecraft with one Japanese and three US crew members aboard on NASA's first crew rotation mission to the ISS using a commercial spacecraft. See VOA News 2020 https://www.voanews.com/science-health/nasa-spacex-send-four-astronautsinternational-space-station.
Arguably, the suggestion most fully supported to date is that the altitude of 100 kilometres above sea level, the so-called "Von Kármán line", 15 should be considered the legally applicable "edge of space". 16 This means that activities executed and objects placed beyond 100 kilometres above sea level are space activities and space objects. Even though some states refer to this boundary in practice in their national legislation 17 to distinguish activities and objects that fall under their national air laws from those that do not, 18 this delimitation continues to be debated in theory and may constantly vary because of new technology. It is, therefore, doubtful that the Von Kármán line has already attained the status of customary international law, as has been suggested in questionnaires and deliberations of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). 19 The delimitation of outer space thus essentially concerns the question of where airspace ends and where outer space, as the province of all humankind, 20 begins. The answer to this question is significant in order to determine which activities are indeed space activities under international space law, and which activities are governed by other legal regimes. 15 In this regard, Von der Dunk 2005 Proceedings of the IISL 92 suggests that it is time to seriously consider this as the boundary between air and space. See further Neger and Walter "Space Law" 240; Lyall and Larsen Space Law 167-168; Diederiks-Verschoor and Kopal Introduction to Space Law 17. 16 Neger and Walter "Space Law" 239; Diederiks-Verschoor and Kopal Introduction to Space Law 17. See further Cheng 1995 Air and Space Law 299, who explains that "[i]n absolute terms, this point may be put 94 km from the surface of the earth. Conservatively, the figure may be put at 100 or 110 km." He also points out that States may, as they have done in regard to the delimitation of territorial sea, decide to claim a higher or lower limit, or tacitly or expressly agree on a specific border separating national air space from outer space. 17 See further De Oliviera Bittencourt Neto "Delimitation of Outer Space and Earth Orbits" 47-51 for unilateral delimitations. 18 Neger and Walter "Space Law" 241. 19 Comprehensive Analysis of the Replies to the Questionnaire on Possible Legal Issues with regard to Aerospace Objects UN Doc A/AC.105/C.2/L.204 (1997) para 63. See Von der Dunk 2005 Proceedings of the IISL 87. Von der Dunk argues that "[f]rom a customary law perspective these developments certainly raise the question whether, at the national level acceptance is slowly building that (a) some legal boundary will ultimately be necessary for states to create the legal certainty both they themselves and their private entrepreneurs crave for, and (b) that such a boundary would or should be situated at an altitude of 100 km or so. To the extent such acceptance becomes part of law and regulation, and would be expressed in addition by relevant official statements in UNCOPUOS and/or answers to UNCOPUOS questionnaires moreover, it could then certainly come to constitute the state practice and contribute to the opinion juris as the two elements that together make up customary law" (89 Contrary to airspace, which falls under the territorial sovereignty of the underlying state, 21 international law dictates that outer space is not subject to the sovereignty of any particular state. 22 As will be discussed further below, rapid technological advancements and the involvement of private companies in the outer space arena necessitate a re-evaluation of the prohibition on territorial sovereignty in outer space. However, it is submitted that before one can decide on the contents and application of sovereignty in outer space, a clear and final determination 23 on the borderline between Earth and outer space has to be made as soon as possible. As Von der Dunk aptly points out, " [u]ltimately, the development of private space flight depends on legal certainty and predictability." 24

Common heritage of humankind
Article 1 of the Outer Space Treaty determines that [t]he exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. 25 The Moon Agreement, 26 echoes Article 1 of the Outer Space Treaty by providing that [t]he exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interest of all countries, irrespective of their level of development. 27 It further determines in Article 11(1) that "the moon and its natural resources" are the "common heritage of mankind". It is widely accepted that the "common benefit clause" in Article 1(1) of the Outer Space Treaty is the forerunner of the principle of the "common heritage of humankind" as 21 Convention on Civil Aviation (1944) 1994. 22 Neger and Walter "Space Law" 239. 23 In this regard, explicitly included in the Moon Agreement. 28 In this regard, Hobe 29 explains as follows: In essence the common denominator of both provisions is the idea of putting some limitation to the freedoms of States to the advantage of all mankind. Whereas this is only implied in the common province clause, it becomes more specific in the common heritage provision on the MOON [Moon Agreement].
The concept of the "common heritage of humankind" has been enunciated in a number of UN treaties and applies to the areas of Antarctica, outer space, the high seas and the seabed. 30 These areas cannot be monopolised by any state or group of states, but should be used for the benefit and in the interest of all humankind 31 and not only for those who have the technological expertise to exploit the natural resources. 32 The meaning of the requirement, that outer space must be explored and used for the benefit and in the interest of all countries is, however, not clear. Although states may have some common interests, the interests of one country may be disadvantageous for other states. 33 It is also not clear if benefit-sharing means monetary compensation, 34 or whether technological 28 Hobe "Article 1" 37. Scholtz 2008 CILSA 280 points out that Article 1 of the Outer Space Treaty addresses the principle of the CHM [the common heritage of mankind] by determining that "the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind." The Outer Space Treaty and the Moon Agreement use the phrase "province of mankind" instead of "common heritage of mankind". Nath and Bhattacharyya 2010 Proceedings of the IISL 602 point out that while the two phrases may overlap, the key difference is that "province" has a jurisdictional connotation, while "heritage" denotes property and benefits derived from it. Also see Oduntan 2005 Manchester J Int'l Econ L 33; Tronchetti 2010 J Space L 498. 29 Hobe "Article I" 37. 30 See Christol 1981 Western State U Int'l LJ 63-75 on the development of the principle of the common heritage of humankind. This contribution will, however, deal with the principle only in the context of outer space. It is not the aim of this contribution to provide an in-depth analysis of the principle but to point out specifically how its ambiguous nature challenges the prohibition on sovereignty in outer space. 31 Schmidt "International Space Law and Developing Countries" 696. No one definition of the concept the "common heritage of humankind" is thought to prevail. Fountain 2003 Conn L Rev 1759 lists the following five elements of the modern doctrine of the common heritage of humankind: "1) the area is not subject to national appropriation; 2) all states share in the management of the area; 3) the benefits derived from exploitation of resources in the area must be shared with all regardless of the level of participation; 4) the area must be dedicated to peaceful purposes; and 5) the area must be preserved for future generations." Also see Joyner 1986 ICLQ 191-192;Scholtz 2008 CILSA 275. 32 Joyner 1986 ICLQ 197. 33 Soucek "International Law" 311. Oduntan 37 submits that because of the prohibition of sovereignty in outer space by international instruments such as the Outer Space Treaty and the Moon Agreement, "it makes no sense in conventional terms to speak of sovereignty in outer space." 38 He is therefore of the opinion that the concept of jurisdiction (rationae instrumenti and rationae personae) … applies to outer space and is recognised in the entire legal framework for regulation of man's activity wherever it occurs in the entire universe. Most significantly the concepts of 'province of mankind' and 'Common heritage of Mankind' have been developed in space law to govern outer space, thereby establishing outer space as a public utility. 39 However, the extent of the international regulation needed to ensure the equitable 40 use of "outer space as a public utility" 41 remains a matter of contention between developed and developing countries. 42 Developing states often use the concept "common heritage of humankind" to contend that the freedom to explore and use outer space legally obliges space-faring nations to share the benefits of their activities with developing countries, and that this even constitutes an enforceable right on the part of the developing countries. 43 Contrary to the "common property approach" 44 of developing states, developed countries deny that the Outer Space Treaty or any other international law instruments provide for such a benefit-sharing obligation 35 Tronchetti 2010  on their part or an enforceable right on the part of developing states. 45 Developed states therefore contend that any state may access the natural resources in these common areas as long as exclusive jurisdiction is not claimed over them. 46 Thus, contrary to Oduntan's 47 submission that the notion of sovereignty is irreconcilable with outer space, it may be argued that the principle of the common heritage of humankind denotes the notion of "pooled sovereignty". In other words, states have individual sovereignty of their own natural resources, but pooled sovereignty over common areas such as outer space. This implies that a state would need the permission of all other states to access and use common resources.
The precise interpretation of the common-benefit provision in Article 1(1) can be determined only in the context of subsequent state practice, 48 as provided for in the Vienna Convention on the Law of Treaties. 49 Although the Moon Agreement, which was adopted subsequent to the Outer Space Treaty, explicitly places the Moon and its resources in the realm of the common heritage of humankind, it does not provide a further answer on the issue of benefit-sharing. 50 The United Nations Declaration on Space Benefits 51 provides the clearest guidance on the interpretation of Article 1(1) by determining that "[s]tates are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis." There is thus no general obligation or duty on space-faring nations to grant benefits derived from their space activities to non-space-faring states. Several commentators have expressed their concern about an interpretation of Article 1(1) that places a duty of benefit-sharing on spacefaring states. In this regard Reinstein 54 submits that the phrase "for the benefit of all countries, irrespective of their degree of economic and scientific development" with its "strong egalitarian flavour" may reasonably be interpreted as "creating a legal mandate for wealth distribution." 55 He cautions that such a system would be detrimental to the development of space, since it would be more politics driven than profit driven. 56 In a similar vein, Buxton 57 finds it "inherently unfair" that a nation which did not contribute to financing or developing the relevant technology should benefit from the space exploration activity. She cautions that this "hardly provides an incentive for technologically advanced nations to conduct expeditions" and for "less-developed nations to develop technology or fund expeditions". Hence, the principle of the common heritage of humankind, as reflected in the space treaties, has been criticised for slowing down the commercialisation and development of outer space. 58 It has therefore been predicted that in future benefit-sharing would be on a "equitable and mutually acceptable basis" as provided for in the Space Benefits 52 Hobe "Article 1" 42.   According to Joyner, 61 the focus of the principle of the "common heritage of humankind" is on access to the natural resource rather than on ownership, possession or sovereign acquisition of title, as the concept implies management of the common area and oversight of its use. 62 Since the Outer Space Treaty and the Moon Agreement use the phrase "province of mankind", it has been suggested that this rather means responsibility, control or management over a territory instead of appropriation and property. 63 The heritage of humankind thus lies in the access to celestial bodies and not in the bodies themselves. 64 However, it may prove difficult to distinguish between control, use, access and ownership 65 due to the direct link of "heritage" with the notions "property" 66 and "ownership". 67 Moreover, as will be discussed later, some types of "use" suggest at least some measure of appropriation, for example, when materials are removed from a celestial body. 68 Although the principle of the common heritage of humankind has been used to describe the legal status of areas such as the deep sea, outer space and Antarctica, Joyner 69 argues that "substantial confusion persists over the nature of the concept and its appropriate place in international law." 70 In this regard, he submits that it is not clear "how international law can be applied jurisdictionally to 'all mankind'", 71 1986 ICLQ 194-195. 62 As Buxton 2004 J Air L & Com 693 points out, this is also the interpretation of developed states: "Developed nations interpret the principle as meaning that anyone can exploit these natural resources so long as no single nation claims exclusive jurisdiction over the area from which they are recovered. Simply stated, every nation enjoys access and each nation must make the most of that access. of all humankind are different from and greater than those of all states and national governments. 72 As the "heritage" of all humankind, the common area, such as outer space, has to be regarded as an inheritance passed on to future generations, and a failure to protect the interests of these generations would result in breaching the obligation implicit in supervising and protecting such heritage. 73 This is, however, exactly where the problem with the concept lies. Because of the equal freedom to use the commons, the resource is vulnerable to overexploitation and degradation. 74 Especially in outer space with its vast untapped resources attracting both states and private entities, 75 this could lead to the tragedy against which Hardin 76 cautions: 77 Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons.
Joyner 78 reaches the conclusion that due to states' reluctance to accept the principle of the common heritage of humankind as a mandatory legal obligation, the concept does not meet the requirements of a legal rule 79 and States, for example, those people in non-self-governing territories which lack full independence. Hence, the interests, needs and aspirations associated with 'all mankind' would appear greater than the sum of all States' national interests." Also see Hobe "Article 1" 39, who submits that this the meaning and goal of this provision are "that the interest of all mankind shall be taken into consideration, not just the interest of specific countries." 72 Joyner 1986 ICLQ 195. As Reinstein 1999 NWJILB 68 points out, "[t]he difficulty is that 'mankind' is not a defined term in international law." In this regard Jakhu 2005 Zeitschrift Für Luft-und Weltraumrecht 255 submits that "'mankind' (in its various forms, like international community, community of nations, world/global community, humanity, humankind, etc.), … has not yet been fully accepted as one of the distinct subjects of international law, but certainly is in its recognition process which is rapidly increasing due to several developments, including globalization of all human activities. It is not impossible to foresee that in the near future, the interests and possessions of mankind as opposed to those of its individual members (i.e. States) will be distinctly and clearly recognised and protected under international legal instruments, including those that would apply to outer space activities." that it could at most be regarded as "a philosophical notion with the potential to emerge and crystallise as a legal norm." 80 Oduntan criticises this predominately "western inclination" that the principle is not a legal concept. 81 He argues that because the principle "has enjoyed legal, obligatory and institutional validity in the law of the sea" it also has legal effect in space law 82 and submits that it is fast becoming part of customary international law. 83 However, since Article 11(1) of the Moon Agreement determines that the principle "finds its expression in the provisions of this Agreement" it could be argued that in interpreting the principle of the common heritage of humankind no reference could be made to any other treaty, including the Law of Sea Convention. 84 It should also be kept in mind that although the law of the sea may be useful in clarifying some of the legal uncertainties pertaining to outer space, it could not merely be mirrored in the unique outer space arena. 85 Moreover, it is clear that the contents and application of the principle of the common heritage of humankind are ambiguous and that its status as a binding legal norm is at best doubtful. As such, the principle has very little practical effectiveness to prevent states and private companies from asserting property rights in outer space, as will also be pointed out further below.

Commercialisation of outer space
The exploration of outer space has always been hampered by technological and financial considerations. Because of the tightening of national budgets, states are increasingly involving private enterprises in space activities such as exploration and transportation. 86 Many space activities such as launches conduct and behaviour must be manifest, or at least sufficiently broad-based to attest to the CHM's wide-spread acceptance." Also see Scholtz 2008 CILSA 282, who points out that "[t]he majority of international legal scholars do not consider the CHM principle as customary international law." Resources L 32, who state that: "International law provides a conceptual framework for resource development in outer space, and existing treaties and proposed regulations and laws borrow heavily from the principles of international law. Still, outer space is not the sea, and an asteroid is not an island or a distant land. Over time, the law of space will evolve in its own direction, and sail away from the current metaphorical relationship with the law of the sea." and robotic space missions are steadily becoming more economically feasible because inter alia of improved technology and increased market competition. 87 Apart from the economic incentives of commercial space activities, these activities are justified by maintaining that mining the minerals on the moon and asteroids could increase the Earth's diminishing resources 88 and reduce the adverse environmental effects of terrestrial mining. 89 In addition, it is argued that the eventual colonisation of the moon and Mars may alleviate overpopulation on Earth. 90 However, as Reinstein 91 points out, whilst the "[c]ommercialization of space is no longer technologically unimaginable … it may be illegal." The uncertainties pertaining to the interpretation of the current legal regime regulating property rights in outer space, clearly illustrates this conundrum.

Property rights and appropriation
From the discussion thus far, it should be clear that consensus is yet to be reached (at least for legal purposes) on where outer space is and on what outer space is. 92 The latter question is especially relevant in the context of the commercialisation of outer space. As was discussed earlier, developed and developing states differ significantly in their interpretations of the legal consequences of regarding outer space as the common heritage of humankind. Consequently, the principle of the common heritage of humankind has specifically been criticised for hindering the commercial development of space. 93 The prohibition on establishing property rights in outer space is premised on the notion that outer space is the common heritage of humankind and therefore, as a res communis, 94 not subject to appropriation. Concerns over space imperialism were the main impetus for the non-appropriation principle in the Outer Space Treaty that was created in the midst of the Cold War space race between the USA and the then international framework regulating activities in space was put in place, has grown, while government investment in space has 'schrunk. Consequently, according to this interpretation, neither states, private individuals, nor companies may own void space, the moon, or any celestial body. 105 In a similar vein, Wrench 106 argues that it would be "paradoxical" to allow private entities to violate their own state's international obligations. An interpretation of the Outer Space Treaty that allows private entities to be exempted from the appropriation prohibition in the Treaty "would allow nations to 'avoid their obligations' by acting vicariously through their private businesses" and consequently would render the private entities' "rights" effectively unenforceable. 107 Contrary to these submissions, Wasser and Jobes 108 argue that "private citizens do not suddenly become mere legal parts, 'creatures' or branches of the State because the State authorizes and supervises their space activities." According to them, the framers of the Outer Space Treaty would have specifically stated as such if this was their intention. However, as will be argued later, this argument does not sufficiently recognise the role of the state in outer space activities in the sense that the activities of private entities may be attributed to states under certain circumstances.
The Moon Agreement echoes the Outer Space Treaty by determining in Article 11 (2)  In contrast with the Outer Space Treaty, that (seemingly) limits the prohibition on property rights to states, the Moon Agreement explicitly extends the non-appropriation principle to include private entities. According to Freeland and Jakhu 111 the prohibition of appropriation in the Moon Agreement, would not prevent public and private entities from receiving socalled "extraterrestrial exploitative rights", provided they comply with the space treaties, customary international law and the rules and procedures of the envisaged international regime to be established by states parties in terms of Article 11 (5). 112 The precise scope of the non-appropriation principle in Article 11 of the Moon Agreement will inter alia have to be determined in view of subsequent state practice as determined by the Vienna Convention. 113 It should, however, be noted, that largely due to the inclusion of the notion of the "common heritage of humankind" as a "cardinal provision" 114 the Moon Agreement has to date been ratified by only a very limited number of states. 115 Very little state practice on the interpretation of the treaty thus currently exists. The Agreement is therefore regarded as a minor obstacle 110 Own emphasis. 111 Freeland and Jakhu "Article II" 60. 112 Article 11(5) of the Moon Agreement reads as follows: "States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible." There are divergent opinions amongst commentators whether Art 11 (5)  in the way of establishing property rights in outer space. 116 Nevertheless, the Moon Agreement still has some significance, since it defines and elaborates on many of the provisions of the Outer Space Treaty as applied to the moon and other celestial bodies. 117 Thus, although the Agreement is not binding on many states, some commentators regard it as useful to interpret or clarify certain provisions of the Outer Space Treaty. 118 Reinstein 119 finds the Outer Space Treaty's provisions dealing with property law "oddly conflicted" as on the one hand it "seems to acknowledge the rights of nations and persons to exploit 120 space, but subjects it to vague qualifications about benefitting all nations and mankind generally." It has also been argued by some that Article VI of the Outer Space Treaty "opens the door" for private entities to explore outer space by determining that states parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and celestial bodies, irrespective of whether "such activities are carried out by governmental agencies or by non-governmental entities." 121 A distinction should, however, be drawn between the exploration of outer space -as the province of all humankind -"for the benefit and in the 116 Erlank 2015 PELJ 2506. It should also be noted that in its Executive Order on Encouraging International Support for the Recovery and Use of Space Resources (White House 2020 https://www.whitehouse.gov/presidentialactions/executiveorder-encouraging-international-support-recovery-use-space-resources/), the USA states that it "does not consider the Moon Agreement to be an effective or necessary instrument to guide nation states regarding the promotion of commercial participation in the long-term exploration, scientific discovery, and use of the interests of all countries, irrespective of their degree of economic or scientific development" in Article 1 of the Outer Space Treaty, and economic exploitation, which may suggest the permanent appropriation of celestial bodies. 122 In many respects, space exploration has entered a new era due to the increasing active involvement of private actors in this sphere. It is selfevident, however, that private companies will invest in risky and expensive outer space activities only if there is some economic incentive for them to do so. 123 It is precisely the economic value of space resources on celestial bodies that is the impetus for "the current space race among numerous nations and private enterprises." 124 The economic exploitation of outer space thus seems inevitable. The increasing focus of states, space agencies 125 and the private space industry 126 on the economic advantages of exploiting the resources on celestial bodies such as the moon, comets and asteroids clearly illustrates this fact. 127 However, the current outer space treaties do not provide sufficient legal certainty regarding the ownership of space resources, which certainty is obviously essential for the viability of planned space mining projects. 128 122 Lyall In the absence of clear international rules on the appropriation of space resources, states have started to adopt national legislation in an attempt to fill the void. The United States Commercial Space Launch Competitiveness Act 129 was passed by the United States House of Representatives in 2015 and gives certain rights to American commercial companies to explore for and extract so-called "asteroid resources" 130 and "space resources" 131 from asteroids and other celestial bodies respectively. It specifically determines that commercial entities have the right to "possess, own, transport, use and sell the asteroid resource or space resource" that they "obtained". 132 The Act thus introduces a significant shift from the traditional understanding of the non-appropriation principle in the Outer Space Treaty and the Moon Agreement, 133 which regards celestial bodies as the property of all humankind and therefore not susceptible to ownership in the conventional sense. 134 The Act, however, carefully circumvents this issue by specifically including the disclaimer that by passing the Act the USA does not "assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body." 135 Therefore, the USA argues that in the absence of a sovereign claim by the state, the Outer Space Treaty cannot be applicable to American private companies asserting a similar claim. 136 On 6 April 2020 the White House issued an executive order, signed by President Trump, titled "Encouraging International Support for the Recovery 129 The full text of the Act is available at Congress.Gov https://www.congress.gov/bill/114th-congress/house-bill/1508/.
The term "asteroid resource" is defined as "a space resource found on or within a single asteroid". See Ch 513, s 51301(1) of the United States Commercial Space Launch Competitiveness Act of 2015. 131 The term "space resource" is defined generally to mean "an abiotic resource in situ in outer space" including water and minerals. See Ch. 513, s 51301 (2) and Use of Space Resources". 137 According to the executive order, "[s]uccessful long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies will require partnerships with commercial entities to recover and use resources, including water and certain minerals, in outer space." 138 However, the legal uncertainties pertaining to the recovery of space resources "has discouraged some commercial entities from participating in this enterprise". 139 The executive order makes it clear that " [o]uter space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons. Accordingly, it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law." 140 The executive order has been described as "a clear statement of the US negotiating and diplomatic position regarding the Moon Agreement and global commons in multilateral discussions of space resources utilization." 141 It is thus to be expected that the United States will hold this position in any multilateral negotiations on an international framework for space resource utilisation.
In 2017 Luxembourg became the second country after the USA to adopt a legal framework on the exploration and use of space resources. Article 1 of the Law on the Exploration and Use of Space Resources 142 explicitly secures property rights for space resources by determining that "space resources are capable of being owned". Similar to the United States' legislation, the Luxembourg law does not mention the objective to effect the national appropriation of outer space, including the moon or any celestial body, but to "clarify Luxembourg's national position on the status of the resources that can be extracted from those celestial bodies and in space in general." 143 137 White House 2020 https://www.whitehouse.gov/presidentialactions/executive-orderencouraging-international-support-recovery-use-space-resources/ (the Executive Order According to Pershing, 144 such domestic laws provide evidence "of the shift in customary international law surrounding the issue of non-appropriation as it relates to extracted resources." 145 The international-law position on property rights over space resources is, however, not as settled as perhaps suggested by the domestic legislation. In this regard, Force 146 points out that although the view that states and private entities may exploit and appropriate space resources is widely accepted, 147 it is still debated and "it cannot be said that the entire international community accepts it as an authoritative interpretation of law." An apt example is Russia's condemnation of the United States' legislation and subsequent executive order on space resources. 148 The current legal uncertainty is also evident from the divergent opinions expressed by delegates on potential legal models to regulate the exploration, exploitation and utilisation of space resources at the latest session of the UNCOPUOS' Legal Subcommittee. 149 Apart from the fact that there are contradictory interpretations on whether the non-appropriation principle also binds private entities, the scope of the non-appropriation principle is debatable. 150 The comprehensive space freedomsaccess, use and explorationinclude economic activity, but these freedoms are limited 151 specifically by the non-appropriation principle. 152 There are, however, diverse opinions amongst scholars and states on the scope of the restrictions posed by the non-appropriation principle.  Some argue that the principle bans ownership of both celestial bodies and their resources, 154 while others prefer a narrower interpretation by arguing that while a celestial body may not be owned, a state or private entity has ownership over its extracted resources. 155 In this regard, Pershing 156 submits that [s]ince the drafting of the Outer Space Treaty, several States have chosen to reinterpret the non-appropriation principle as narrower in scope than its drafters originally intended. This reinterpretation has gone largely unchallenged and has in fact been widely adopted by space-faring nations. In turn, this has had the effect of changing customary international law relating to the non-appropriation principle. Shifting away from its original blanket application in 1967, States have carved out an exception to the nonappropriation principle, allowing appropriation of extracted space resources. 157 Despite the poor ratification of the Moon Agreement, this Agreement is often used to motivate arguments in favour of the ownership of extracted space resources, by arguing that the Moon Agreement's reference to "natural resources in place" 158 means that once a natural resource is removed from the surface or sub-surface of a celestial body, it is no longer within the scope of the non-appropriation principle. 159 Opponents, 160 however, submit that such an interpretation contradicts the "spirit and letter of the common heritage of mankind principle" as embodied in the Moon Agreement. 161 As was pointed out above, it is widely accepted that because of the ambiguous nature of the principle of the common heritage of humankind it is not a legal rule and certainly not customary international law, 162 which therefore weakens this opposing argument. It has also been suggested that the international community's acceptance of ownership of harvested scientific samples is indicative that the non-appropriation principle is not an absolute ban on the ownership of extracted space resources. 163 It is questionable, however, whether the international community's acceptance of a state's ownership of extracted resources for scientific use is indicative of a similar acceptance of the ownership of resources extracted for pure commercial gain. It may be argued that the former is accepted because it aligns with the imperative in Article 1 of the Outer Space Treaty that the exploration and use of outer space must be carried out for the benefit and in the interest of all countries. It is doubtful therefore that developing states in particular would readily accept the ownership of extracted resources exclusively for the commercial gain of individual states and private businesses.
Then, there are others who argue that the granting of comprehensive private property rights 164 over celestial bodies is necessary to protect investments and to guarantee that outer space may indeed be used for the benefit of all humankind. 165 These commentators caution that without private ownership, companies will maximise their own benefit by extracting as much value as quickly as possible without regard to the communal nature of the space resource. 166 Wrench finds it unlikely that the non-appropriation principle constitutes an absolute ban on the ownership of extracted space resources. 167 He submits 168 that, analogous to the Earth-based rules regulating the sea, Antarctica and the prior appropriation doctrine used in the American West to regulate water claims, a distinction should be made between ownership and use (i.e. resource extraction): 169 Without violating the non-appropriation principle, those regimes grant parties the right to extract resources from land they do not own, transfer that right, and limit wasteful use. Each system similarly vests an entity with the authority to regulate and enforce those rules. The widely accepted (albeit not universal) opinion amongst commentators seems to be that the "free use" of celestial bodies includes resource extraction, as long as it does not prevent other entities from performing the same activity. 170 It is therefore argued that the extraction of resources (i.e. "use") does not equate to a sovereign claim over the celestial body. 171 However, as was mentioned earlier, the terms "use" and "expropriation" suggest at least some form of appropriation, especially when resources such as water are extracted from a celestial body. 172 As Wrench notes, " [o]ne looming issue is that some attempts at resource extraction are bound to straddle the line between use and sovereign claims over land". 173 It is self-evident that space-mining projects will be long-term in nature, potentially excluding others from accessing the same resource. This raises the question whether the long-term use of a celestial body could be regarded as "appropriation", as prohibited by the Outer Space Treaty. 174 Lyall and Larsen point out that according to international law "occupation" involves both the occupation of a location (in the sense of "being there") and the intention to act as sovereign in relation to the occupied location. 175 According to them, Article II excludes the latter. Therefore, Equatorial countries adopted the Bogotá Declaration in which the Geostationary Orbit (GSO) is considered a scarce natural resource. The Declaration states that because of the increasing importance and value of the GSO, coupled with the development of space technology and the growing need for communication, the Equatorial countries have decided to proclaim and defend, on behalf of their peoples, their sovereignty over this natural resource. The Bogotá Declaration has been criticised widely for contravening Article II of the Outer Space Treaty, which clearly states that "outer space is not subject to national appropriation by claim of sovereignty", and which (according to critics) also includes the GSO. Thus, the Declaration did not receive much support from non-Equatorial states, other developing states and the space powers, and was largely abandoned. The Equatorial states, however, continue to press for special treatment of the GSO. The view has been expressed in the Legal Subcommittee of the UN Committee on the A FERREIRA-SNYMAN PER / PELJ 2021 (24)  26 is not amenable to or open for a claim of sovereignty to be made. 177 Reinstein submits that "long-term use and permanent occupation to the exclusion of all others" constitute de facto appropriation. 178 He therefore suggests that comprehensive property rights be given to developers who would "best develop land in outer space". 179 In a similar vein, Erlank suggests 180 that someone would have de facto ownership of a space object "if that person was able to exert control over the object and exclude others from it." 181 He submits that [f]rom a sovereignty perspective, this means that one would follow the property theory that the ownership of objects in space would be a pre-societal or pre-political construct that would exist without the cooperation of government or other players in society due to the fact that one is able to exclude others from the property. … It would mean that someone would have de facto ownership of an object in space if that person was able to exert control over the object and exclude others from it.
The role of the state in the establishment of private property rights in space cannot be ignored, however. Article VI of the Outer Space Treaty determines that states parties to the Treaty shall bear international responsibility for national activities in outer space including when such activities are carried on by non-governmental entities. The activities of nongovernmental entities in outer space, including on the moon and other celestial bodies, must also be authorised and continuously supervised by the appropriate state. Both the American and Luxembourg legislation on space resource extraction confirm this role of the state. Thus, since the state exerts control over the private company, the latter's activities may be Peaceful Uses of Outer Space that there is a need to establish a sui generis legal regime with regard to the GSO as a limited natural resource, in order to provide for the equitable use of the orbit by all states, while taking into account the special needs of developing and Equatorial countries as a result of their geographical position. See further Schmidt "International Space Law and Developing Countries" 704; Ferreira-Snyman 2013 CILSA 159-161. 177 Lyall and Larsen Space Law 55. In a similar vein, Freeland and Jakhu "Article II" 53-54 argue that no amount of use or occupation of outer space can constitute appropriation, as this would be incompatible with the res communis nature of outer space. 178 Lyall and Larsen Space Law 70. 179 Reinstein 1999 NWJILB 74-75. 180 Erlank 2015 PELJ 2515.

181
See further Erlank "Property and Ownership in Outer Space" 79-82. Erlank 2015 PELJ 2517 concludes that a space object would be classified as "inside commerce" if it is "impersonal (not part of man), tangible (one can touch it if one gets there), independent (it is not part of man or another substantive object), susceptible to control by man, and of use and value to man." Also see Leib 2015 Astropolitics 12, who notes that "effective ownership" requires "a physical presence", which may be either human or robotic.
A FERREIRA-SNYMAN PER / PELJ 2021 (24)  27 attributed to the state. 182 In this sense, the lines between private ownership and state sovereignty become blurred, as both require control over the space object to the exclusion of others. Therefore, de facto appropriation by private companies could arguably become legal once states start to recognise such rights, 183 as already illustrated by the American and Luxembourg laws' recognition of at least private appropriation of space resources. In this regard, Pershing submits that the acceptance of resource appropriation may lay the foundation for a "second shift" 184 in customary international law's interpretation of the non-appropriation principle: 185 Should States buckle to private commercial pressure or independently recognize the economic benefits of domestic companies obtaining private property in celestial territory, States would have a newfound interest in recognizing and protecting in situ rights. The legal justifications for de jure or de facto cooperation in non-recognition would likely become subordinate to economic incentivesspurring the adoption of new legal arguments to support shifting State interests.
It therefore seems inevitable that once a private company has de facto control over a space object such as the moon or an asteroid, such control may become legal once the majority of states recognises or at least does not object to such appropriation. Arguably, this may open the door for a state to assert sovereignty (at least over time) over the space objects occupied by the private companies that are authorised and supervised 186 by the particular state. In other words, the state could thus achieve "extraterrestrial sovereignty through its citizen's actions." 187 In this regard Durkee 188 argues that "private companies are themselves developing the international law of outer space." She explains this "attributed lawmaking" as follows: When a corporation whose activity is attributed to the state publically asserts a legal rule and acts on it and a nation does nothing, the nation implicitly accepts the corporate rule. In the absence of direct evidence if a nation's acts and assertions in support of a customary rule, the actions of private companieswhich are attributed to the nationbecome the best evidence of a nation's embrace of a particular interpretation of the Outer Space Treaty. The result … is that private companies may be forcing development of an international legal rule that is permissive to appropriation of space resources.
It has been suggested by some that the rule of first possession would inevitably be applied in outer space, analogous to the "first in time, first in right" property principle that was applied on Earth for centuries. 190 In this regard Gruner even submits 191 that the existing outer space treaty regime lacks legal certainty pertaining to property issues since it "overturns centuries of international law by rejecting the longstanding principle of national sovereignty." 192 He therefore proposes applying the first possession rule in outer space by implementing a new concept of property where the discovering nation declares the particular space object res nullius humanitatus meaning that it is a place where people can still have individual property rights and be rewarded for their labor based on first possession, but where settlers will act on behalf of the interests of humanity rather than a single terrestrial nation. In this manner, res nullius humanitatus would guarantee all humans equal access to the rewards offered by outer space, rather than a de facto equal share in the rewards reaped from such exploration and exploitation simply because they are human. 193 The above suggestion thus still adheres to the principle of the common heritage of humankind, but argues for a wider interpretation of the principle, allowing for individual property rights. 194 It remains to be seen, however, whether the major space-faring nations would be willing to consider such a suggestion, especially since the United States' executive order on space resources specifically states that the USA does not consider outer space to be a global commons. Although the rule of first possession have been criticised for promoting a space race, colonialism and the possibility of an "unmitigated land rush ", 195 it is agreed with arguments that this principle, if properly regulated, might provide the basis for establishing a property rights regime in outer space. As MacWhorter proposes: 196 To avoid the conflicts inherent between rivalrous nations, though, acknowledging only limited rights in property through first possession is the appropriate first step. By ensuring that private property will be enforced once a mining venture has brought space material back to Earth, many of the practical consequences of total first possession incorporation may be avoided.
To circumvent the non-appropriation principle, a number of other alternatives to create some kind of sui generis right of ownership have been suggested 197 that could make the commercial development of outer space possible and viable for developers. These suggestions include certain "property-like rights" not constituting ownership, such as "concessions, mining licences, prospecting rights, and certain contractual rights"; 198 a "credit-swap" system; 199 the leasing of outer space to nations and private companies; 200 the creation of a public trust to manage property in outer space; 201 a hybrid property regime; 202 stewardship' 203 lotteries; tradable credits; 204 and tenders. 205 None of these proposals is without criticism and all of them require some involvement of the state, opening the door once again for the establishment of sovereignty through the activities of private entities under the control of the state. Nevertheless, suggestions like these are at least indicative of the dire need to start re-evaluating property rights in outer space law. Whether the United States interpretation of Art. II of the Outer Space Treaty is followed by other states will be central to the future understanding and development of the non-appropriation principle. It can be a starting point for the development of international rules to be evaluated by means of an international dialogue in order to coordinate the free exploitation and use of outer space, including resource extraction, for the benefit and in the interest of all countries.
Different suggestions have been made by commentators on the way international legal rules pertaining to the use and development of outer space should be developed. These vary from adapting or amending the current Outer Space Treaty 207 and/or Moon Agreement 208 to developing a completely new legal framework 209 to address specific issues.
The urgency of the need to clarify and develop legal rules relating to the exploitation of outer space, including the establishment of property rights, is vividly illustrated by the USA's recent unilateral release of the Artemis Accords. 210 The Accordsnamed after NASA's Artemis programme, which aims to send the first women and the next man to the moon by 2024 -is a set of standards for the exploration of the moon 211 and is intended to create a framework agreed on by the United States and its partners 212 in the Artemis programme by clarifying some of the lacunae in the Outer Space Treaty. 213  Grush 2020 https://www.newsbreak.com/news/0P47w8S2/nasa-announcesinternational-artemis-accords-to-standardize-how-to-explore-the-moon. 212 It has been reported that the USA intends to negotiate accords with space partners such as Australia, Canada, Japan, some European countries and the United Arab Emirates. Russia will, however, not be a partner (for now at least) since the Pentagon increasingly views Russia as hostile for making certain "threatening" satellite manoeuvres. See Roulette 2020 https://www.reuters.com/article/us-spaceexploration-moon-mining-exclusi/exclusive-trump-administration-drafting-artemisaccords-pact-for-moon-mining-sources-idUSKBN22H2SB; Whitfield-Jones 2020 https://www.lexology.com/library/detail.aspx?g=9204c3a8-d7f8-49d7-a745-d90362c503d9. 213 Grush 2020 https://www.newsbreak.com/news/0P47w8S2/nasa-announcesinternational-artemis-accords-to-standardize-how-to-explore-the-moon. cumbersome and long treaty-making process in the United Nations. 214 Instead, the USA aims to reach agreement with "like-minded" nations since, according to American officials, working with non-space faring states would be unproductive. 215 The unilateral creation of the Artemis Accords, however, has already been sharply criticised by Russia as an attempt by the United States to side-line the United Nations and to invade the moon in a manner similar to that in which it invaded Iraq and Afghanistan. 216 It is also to be expected that China will not react favourably to the Accords, 217 which are perceived by some academic commentators as expressing an "ambition for space hegemony" 218 by the United States. In addition, the deliberate exclusion of non-space-faring states from the creation of the legal framework is another clear confirmation of the United States' stance that outer space is not a global commons.
A FERREIRA-SNYMAN PER / PELJ 2021 (24) 32 and use of space resources 219 and the intended establishment of so-called "safety zones" 220 around lunar landing sites.
Although the Artemis Accords do not mention property rights explicitly, they confirm the United States' interpretation of the Outer Space Treaty as expressed in its domestic legislation and subsequent executive order on the exploitation of space resources by determining that "space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty." 221 Therefore, by signing the Accords partners agree with this interpretation made by the United States. Should this interpretation be generally accepted by space-faring nations through bilateral and multilateral agreements, these rules for space mining and property rights may eventually become customary international law. This remains to be seen, however, since Russia has already indicated that any attempts to privatise space would be unacceptable. 222 To avoid harmful interference with space activities, the Artemis Accords make provision for the establishment of safety zones around lunar bases. Although American officials have indicated that these zones do not technically amount to a territorial claim over the affected areas, 223 it may be argued that such zones at least display some characteristics of territorial sovereignty by exerting control over a particular area on the moon to the exclusion of others. As Weaver points out, "'commercial' appropriation is much more subtle than outright legal appropriation" since the claimant does 219 Under the heading "Space Resources": "The ability to extract and utilize resources on the Moon, Mars, and asteroids will be critical to support safe and sustainable space exploration and development. The Artemis Accords reinforce that space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty, with specific emphasis on Articles II, VI, and XI." 220 Under the heading "Deconfliction of Activities": "Avoiding harmful interference is an important principle of the Outer Space Treaty which is implemented by the Artemis Accords. Specifically, via the Artemis Accords, NASA and partner nations will provide public information regarding the location and general nature of operations which will inform the scale and scope of 'Safety Zones'. Notification and coordination between partner nations to respect such safety zones will prevent harmful interference, implementing Article IX of the Outer Space Treaty and reinforcing the principle of due regard." 221 NASA 2020 https://www.nasa.gov/specials/artemis-accords/index.html. 222 Murdock 2020 https://www.newsweek.com/russia-kremlin-artemis-accords-donaldtrump-draft-space-moon-mining-proposals-1502528. 223 Roulette 2020 https://www.reuters.com/article/us-space-exploration-moon-miningexclusi/exclusive-trump-administration-drafting-artemis-accords-pact-for-moonmining-sources-idUSKBN22H2SB; Whitfield-Jones 2020 https://www.lexology.com/library/detail.aspx?g=9204c3a8-d7f8-49d7-a745-d90362c503d9. Also see Leib 2015 Astropolitics 16-17 who has similarly suggested that states negotiate exclusive zones of operation on the moon. According to him, such claims may be regarded as exclusive but not sovereign.
A FERREIRA-SNYMAN PER / PELJ 2021 (24) 33 not make any (explicit) proclamation of sovereign control to the international community. 224 Nevertheless, the outcome is in essence the same, since the benefits are gathered to the exclusion of others. The establishment of lunar safety zones seems to be similar to the rule of first possession, which strengthens the earlier argument that the principle of "first in time, first in right" might provide the basis for establishing property rights in space. According to American officials, a state nearing another state's operations in a safety zone has to consult the latter state first to prevent damage or interference. 225 Although the Artemis Accords confirm that outer space must be used for peaceful purposes, one might expect that the United States' Space Force 226 would play some role in the protection of American safety zones. This has obvious implications for the prohibition on the (active) militarisation and, even more seriously, weaponisation of outer space. 227 One may also expect that states would want first to stake their claims to those lunar areas that are the richest in resources, a tendency which may create conflict between competing states.
The practical implications of the Artemis Accords remain to be seen. However, in order to prevent that outer space "turns into the Wild West of the twenty-first century", 228 legal rules for the exploitation of outer space bodies have to be developed under the auspices of an international institution and not left to individual states or, for that matter, selected private companies. This would not only result in the fragmentation of outer space governance, which could create more legal uncertainty, 229 but might also encourage "forum-shopping" by commercial operators to find domestic systems with minimum regulation of their activities. 230 Given that time is of the essence, it is suggested that the UNCOPUOUS as an established body that has been specifically created to address issues relating to outer space is best suited to addressing this task. Although it may be argued that the UNCOPUOS's decision-making processes, which are 224 Weaver 1992 Boston Int'l LJ 238. 225 Roulette 2020 https://www.reuters.com/article/us-space-exploration-moon-miningexclusi/exclusive-trump-administration-drafting-artemis-accords-pact-for-moonmining-sources-idUSKBN22H2SB. based on the rule of consensus, are too slow, it is currently the only multilateral forum for the discussion of outer space matters. 231 The creation of a completely new international law-making body to address urgent space issues is simply not realistic and would take even longer. Once the rules have been established, a permanent regulatory body, perhaps similar to the International Seabed Authority, could be created to oversee their implementation, 232 also by means of states' national legislation, and to protect the rights of developing states.
After the conclusion of the core UN space treaties in the 1960s and 1970s it became apparent that states were no longer willing to adopt further binding obligations regulating space activities and that international space law could therefore be developed only by adopting "soft law" instruments. 233 Because of their non-mandatory character, these instruments are generally more easily negotiated by states than is the case with treaties. 234 Thus, soft law 235 documents are currently the main instruments for further developing and defining the norms of outer space. 236 It is therefore to be expected that the rules for exploiting outer space bodies would also (initially at least) be in the form of soft law. Nevertheless, soft law guidelines have a legal value 237 as they impact on the international law-making process by providing the premises from which customary international law might develop, and might 231 Neger and Walter "Space Law" 241; Soucek "International Law" 304; Sarang 2019 https://spacegeneration.org/oped-thoughts-on-un-copuos.  233 Tronchetti, "Soft Law" 626. 234 Tronchetti "Soft Law" 625-626. 235 Dugard et al Dugard's International Law 41 describes "soft law" as "imprecise standards, generated by declarations adopted by diplomatic conferences or resolutions of international organizations, that are intended to serve as guidelines to states in their conduct, but which lack the status of 'law'". Tronchetti "Soft Law" 624 summarises the role of soft law in the general system of international law as follows: "1) it can give guidance on how to interpret and implement existing treaty provisions; 2) it may represent the beginning of a process leading to an international treaty; 3) it may contribute to the formation of customary law; [and] 4) it may be declaratory of existing unwritten rules." For a further discussion on standard-setting by international organisations see Klabbers Advanced Introduction to the Law of International Organizations 57-70. 236 Tronchetti "Soft Law" 627. 237 Larsen 2014 J Space L 302 submits that "[i]nternationally agreed standards can be as effective as treaty law".
A FERREIRA-SNYMAN PER / PELJ 2021 (24) 35 eventually lead to the conclusion of a treaty. 238 The work of the Hague International Space Resources Governance Working Group 239 could play an important role in this process. The Working Group reflects a so-called bottom-up approach to norms development 240 by representing the wider outer space community, including industry, states, international organisations, academia and NGOs. On 12 November 2019 the Working Group adopted the "Building Blocks for the Development of an International Framework on Space Resource Activities". 241 The Building Blocks could thus form the basis for multilateral discussions on the development of softlaw rules for the regulation of commercial activities in outer space.
The unregulated exploitation of outer space is not only a catalyst for conflict between states, but could also cause irreparable harm to the outer space environment because of human contamination and the creation of more space debris. 242 The international community will have to act swiftly if the aspirations of using outer space for peaceful purposes and preserving it for future generations are to be fulfilled.

Conclusion
It is trite that the interpretation and application of the concepts of international law have to adapt to contemporary international circumstances and challenges. As Campbell notes: 243 A fundamental underpinning of the ongoing relevance of international law is that of its ability to adapt and change to meet new developments and challenges including new technology, new (or newly developing) threats to both the public and the international order and newly developed practices … . 238 Tronchetti "Soft Law" 621; Welly 2010 J Space L 311. Also see Larsen 2014 J Space L 303-304 for suggestions of the kinds of soft law regulation in the context of asteroid activities.

239
The Working Group was established in 2016 with the aim to assess the need for an international governance framework on space resources and to lay the groundwork for this framework. See Leiden University 2020 https://www.universiteit leiden.nl/en/law/institute-of-public-law/institute-of-air-space-law/the-hague-spaceresources-governance-working-group 19. 240 Christensen and Johnson 2020 https://www.thespacereview.com/article/3932/. 241 Leiden University 2020 https://www.universiteitleiden.nl/en/law/institute-of-publiclaw/institute-of-air-space-law/the-hague-space-resources-governance-workinggroup. A similar crossroads has been reached in outer space. It is clear that international outer space law has not kept up with the technological advancements in the arena of outer space. Specifically, the legal uncertainties pertaining to the legal borderline of outer space, the interpretation of the principle of the common heritage of humankind and the establishment of property rights in outer space are posing challenges to the blanket prohibition on sovereignty in outer space. The increasing involvement of private entities in outer space has only exacerbated these legal uncertainties.
Technologically speaking, the occupation and control of space bodies are possible. Recent state practice, including the adoption of domestic legislation and the formulation of the Artemis Accords, confirms that states no longer regard space mining and the eventual colonisation of outer space as distant dreams. It also seems that the "first in time, first in right" principle would in all probability form the basis of establishing rights in outer space. Once states and private companies commence with activities on celestial bodies, it would be virtually impossible to stop or even sanction such operations. 244 A point of no return has thus been reached, necessitating that the blanket prohibition on sovereignty in outer space be revisited and that clear rules be developed to provide legal certainty to all role players.

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