New Technologies in International Law / Tymofeyeva, Crhák et al.

3.3 C an I H ave I t or N ot ?

T he non - appropriation P rinciple in A rticle 2 of the O uter S pace T reaty

By Charles Ross Bird (Charles University)

Introduction Often times there is criticism of the law that it cannot keep up with technology and that law makers must create law in order to control new technology or the situations that stem from them. This frustrating sentiment was expressed by a senior member of the Government Communications Headquarters, an intelligence and security organization that oversees information of the government and armed forces of the UK, when an unauthorized usage of the their data base by an employee was discovered and could not be exposed due to the current law “I have arrived at the point at which I either make my concerns public, which means breaking the Official Secrets Act, or I fail to discharge my responsibilities to account for actions which I believe would be considered unacceptable by the general public were it aware of them.” 301 Today, the frenzy over Generative AI and how to control it stands out most in my mind. 302 Technology in space law, specifically in relation to space resources, is in my opinion the inverse. There is a massive amount of capital waiting to be invested but due to the risks involved the industry is waiting for law makers to react and new technology is pushing them to do so at an ever-increasing rate. There are five space law treaties that comprise the core of existing international space law. The most important for the purposes of this article are the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Those treaties however can be seen as not relevant to today’s era or even not controlling due to the limited number of parties to them. But those treaties were created at time when only states had the ability and funding to operate in space. That has dramatically changed. New technology has both lowered the threshold of entry into this field and some private companies are worth more than some states’ GDP. In place of new multilateral treaties, states have taken it upon themselves to enact their own domestic laws in an effort to keep up with these changes while simultaneously trying to adhere to existing international obligations. The purpose of this article is to examine if new national legislation and non-binding multilateral agreements, specifically in the area of space resources and their appropriation, can be seen as already adhering to or 301 Norton-Taylor R, ‘Britain’s spy agencies: the only watchdog is the workforce; The law cannot keep up with technology Parliamentary scrutiny is still far too weak GCHQ employee sacked’ ( The Gaudian , March 2015). accessed 18 December 2023. 302 Elkins D, ‘Federal Policymakers: Chasing The Runaway AI Train’ ( Mondaq , 16 October 2023) .

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