Realistic Dilemma and Legal Countermeasures against the "Non-Appropriation" Principle in Outer Space Treaty

In 2017, China promoted the construction of a community of human destiny and built an open and inclusive new era that enjoys lasting peace, universal security, and common prosperity. The proposal of constructing a community of human destiny offers a good program for the improvement of the "non-appropriation" principle largely; all countries can, with this opportunity, clarify the applicable scope of the "non-appropriation" principle furthermore, establish a special international institute of management for outer space resources and construct the international development mechanism for outer space resources. Especially, the international community may set about from the following three aspects.

Clarify the scope of application of the "non-appropriation" principle.

The "non-appropriation" principle in Outer Space Treaty provides "sovereign countries are not entitled to the ownership of outer space resources," but domestic private entities and nongovernmental organizations are not included in the scope of the restriction. This vague and uncertain expression has led to the encouragement in free development and commercialization of foreign space resources in the United States, Luxembourg and other countries, which is extremely easy to harm the economic interests of other countries, especially the underdeveloped countries. Based on this, we believe that all parties can clearly define the subject scope of the "non-appropriation" principle by amending the Outer Space Treaty, the Moon Agreement and other international conventions. However, due to the huge gap between countries in the technology of exploiting outer space resources and difficult coordination on the interests of countries, it is difficult for all countries to reach an agreement on whether the "non-appropriation" principle should restrict private entities within a short period of time. Therefore, considering the balance of interests of all mankind and the actual level of development of all countries, the international community should adopt a relatively neutral and relaxed attitude, establish a concept of combining principle with flexibility and generality with the exception, and provide different provisions on the ownership and usufruct of space resources. As far as ownership is concerned, the natural resources in outer space belong to the common heritage of mankind, which is related to the survival of all mankind and the interests of every country. In order to truly make outer space a "resource treasury" for mankind and prevent some scientific and technological powers from infringement of the interests of other countries or regions through abusing their legal rights, all parties shall broadly interpret the Article 6 of the Outer Space Treaty ("all countries shall bear international responsibility for their space activities, no matter such activities are carried out by government departments or non-government departments") (Treaty on Principles, 1967) as follows, the "non-appropriation" principle is not only binding on all parties, but also should strictly regulate the illegal occupation of outer space resources by any private entity or non-governmental organization" (Liao, 2018: 65).

However, suppose a "one-size-fits-all" approach is adopted to absolutely forbidden sovereign countries and citizens from exploiting any kind of outer space resources. In that case, the development subject's enthusiasm for exploring outer space and the exploitation of natural resources by various countries will surely be dampened. Therefore, the international community should, on the basis of the above provisions, attract the state and private entities to actively and continuously develop outer space resources through the provision of exception clauses to promote the leapfrog development of the economy and society. It mainly includes the following three approaches: first, the international community can grant sovereign states and private entities the right to freely explore, develop and utilize outer space resources, with a certain degree of restrictions on the conditions, extent and scope of the exercise of this right; secondly, under the guidance of the concept "the development of outer space resources is in the common interest of all mankind," actual developers are given limited rights of income and benefits from outer space resources. According to the different roles and contributions of various countries during the development, rights and interests are allocated in a targeted way and the development between countries with developed, underdeveloped or even completely non-space capabilities is balanced (Zhao & Jiang, 2018: 90); thirdly, referring to the eligibility conditions of land miners in Jus Privatum, all stakeholders are required to pay appropriate considerations to the owners of outer space resources or specialized international space agency in exchange for the right of exploitation and utilization of outer space natural resources, on the premise of following the "non-appropriation" principle and corresponding management mechanisms (Liao, 2018). Therefore, a win-win model of cooperation between actual and non-actual developing countries is established to fully protect all parties' legitimate rights and interests in outer space.

To sum up, we think it should provide private entities and non-governmental organizations not entitled to the ownership of outer space resources, but are granted the right to develop and utilize them according to the law rationally. The principle of "non-development oriented, supplemented by limited development" is suggested to adopt, thus realizing the balance between the protection of the common heritage of mankind and all countries' interests in the field of outer space development.

Establishment of a special outer space resources agency.

In view of the public nature and transnational nature of the international seabed area and outer space, through learning from the experience and lessons of the international seabed area system construction and the management mechanisms and models of various countries for the international seabed area, the international community can establish an outer space resources agency (internal space agency) similar to the International Sea-Bed Authority to rationally allocate outer space resources and balance the interests of all parties.

As we all know, the Outer Space Treaty repeatedly stresses, the natural resources in outer space belong to the common heritage of mankind, and any subject exploiting them must benefit the development of all parties. Therefore, while establishing the international space agency, the international community should take the lead in developing the concepts of "nonappropriation," common interests, free exploration and utilization, equal development and sustainable development to deal with the coordination and conflicts between the countries with powerful and weak space capabilities. Under the guidance of such principles, space resources agencies should also include as many member states as possible to lay a solid organizational foundation. In general, international space agency can choose the following categories of countries as his member states (Lee, 2009: 588):

1. Countries that are capable of fully exploring and exploiting outer space.

2. Countries with financial investment capability.

3. Any member state of the United Nations.

4. Any independent sovereign country or region.

In this regard, we believe that the first two methods only grant the powerful countries of outer space science and technology and finance the right to exploit natural resources in outer space, which obviously violates the principle of common interests of mankind, deprives developing countries or regions of the qualification for exploration and benefits, and is not in line with the development trend of international space activities. Comparatively speaking, the third method is reasonable in theory. According to the UN Charter, no member state may interfere in the internal affairs of other countries. Specifically, in the field of outer space, this provision is conducive to preserving the exploitation rights and benefits of non-actual developing countries in outer space, but its reasonability still needs further verification in practice. The fourth method takes whether the country enjoys independent sovereignty as a unified standard to measure if the applicant country meets the qualification and conditions for joining the international space agency, thus guaranteeing the rights of all parties to enter the international space agency on an equal basis. It will inevitably develop into the main method generally followed by all countries (Teng, 2016).

In addition to establishing advanced design concepts and attracting more sovereign countries to join space resources agencies, the international space agency should also set up internal organizations with different authorities and responsibilities. Specifically, first, the international space agency may set up a conference of member states, which will be responsible for formulating general policies and regulations, approving the accession or withdrawal of member states, and considering and adopting comprehensive matters such as fiscal budgets; secondly, all major power, weak countries and middle countries in aerospace may consider sending a certain proportion of representatives to form a permanent council, which is responsible for handling the daily administrative examination and approval of the agency and making up for the consequences of delay holding of the conference of member states; thirdly, set up a special finance committee to manage the drafting of financial rules, collection of membership fees and permission fees from member states, etc.; fourthly, establish a dispute settlement institution; fifth, establish related executive institute; sixth, in order to ensure the rational exploitation of outer space resources by various countries and regulate the improper exploitation by development entities, the outer space resources agency should establish an effective internal evaluation and audit institution (Zhao, 2017), mainly including legal, environmental and scientific and technological inspection departments.

In short, the international community should, under the guidance of the Outer Space Treaty and the "non-appropriation" principle, call on sovereign states to actively set up specialized outer space resources agencies and internal departments to create a systematic, complete and comprehensive operational governance mechanism.

Construction of international resource development permission and notification mechanism.

In judicial practice, some states and non-state entities will harm other countries' ownership and usufruct outer space natural resources by abusing their rights. In order to prevent such phenomena and protect the common heritage of all mankind, the international community can consider establishing a space resource development permission and notification mechanism. Specifically, it mainly includes two aspects:

First, in order to ensure countries, organizations and individuals engaged in actual development activities exploit outer space resources rationally, the international community should require development subjects to strictly follow the permission procedures stipulated in relevant international treaties, for example, complete the application and registration procedures with the international space agency in order to obtain the development permission documents. First, formal review. The applicant should prove its qualification for the development of natural resources in outer space by submitting supporting materials such as patent technology, investment certificate and existing development experience, and provide a detailed proposed plan for the Council, which includes the purpose, regional scope, methods, years and expected results at different stages of exploitation, impact on the environment, cooperation programs with other countries, and disputes resolution. After that, the international space agency should conduct a preliminary formal review of such materials. If the materials submitted by the applicant are complete without any apparent defect, the application procedure is accepted and can proceed into the second stage. Otherwise, the international space agency shall return the materials not conforming to the relevant regulations to the applicant timely with an explanation of refusal to enable the corresponding amendments or supplements to the materials by the applicant; secondly, substantive review. International space agencies should further carry out a substantive review for those who have passed the preliminary review, for example, transfer materials to the specific examination institutes by types of supporting documents. Such relevant institutes shall provide the examination results truthfully for the international space agency within 45 days. The international space agency should decide whether the applicant can proceed into the next review stage within 30 days. In addition, for those who failed the substantive review, the international space agency will require them to submit an improved development plan and supplementary supporting materials within 60 days for review again; in the end, the voting shall be organized. International space agencies should hold a conference of member states to vote on the applicant's qualification on the exploitation of outer space resources, and finally issue a permission certificate to those who passed the voting, i.e., eligible subjects.

Second, to enable interested parties to beforehand learn the development of outer space resources in other countries and protect their legitimate rights and interests, the international space agency should require all parties to widely inform other countries of its development plans by establishing an outer space exploitation notification mechanism. The notification mechanism may include the following contents: First, any party is obliged to notify the international space agency and the whole international community of its exploitation activities; secondly, upon acknowledging another country's plan for exploitation which is exactly located in the same area simultaneously engaged by one party itself, this party should immediately notify its exploitation time, plan and other relevant contents to the other so as to protect the interests of the first developers from infringement. Finally, states, non-governmental organizations and private entities should report any phenomena found in outer space that may pose a threat to human life or any other organic life phenomena to the international space agency and the whole international community (Zhang, 2010: 33).

The international space agency should select subjects that meet the conditions of exploitation by establishing an outer space exploitation permission and notification mechanism to ensure the rights of non-actual developing countries to explore and utilize outer space freely.

Conclusions