The Non-Appropriation Principle under Attack: Using Article II of the Outer Space Treaty in its Defence

Paper number

IAC-07-E6.5.13

Author

Dr. Fabio Tronchetti, Leiden University, The Netherlands

Year

2007

Abstract

Since the beginning of the space era, States agreed to consider outer space, including the Moon and other celestial bodies as a res communis omnium, therefore as an area open for free exploration and use by all States and not subject to national appropriation. The non-appropriative nature of outer space, formerly declared in the UN General Assembly Resolution 1721 (XVI) and 1962 (XVIII), was formally laid down in Article II of the 1967 Outer Space Treaty.
Since then, the non-appropriation principle has provided guidance and direction for all activities in the space beyond the earth’s atmosphere.
Nowadays, however, the non-appropriation principle is under attack. Some proposals, arguing the need of abolishing it in order to promote commercial use of outer space or claiming private ownership rights over the Moon and other celestial bodies, are undermining its importance and questioning its role of guiding principle for present and future space activities. 
In order to counter such proposals and to demonstrate their fallacy, this paper stresses the binding legal value of the non-appropriation principle contained in Article II of OST by arguing that such principle should be considered a rule of customary law holding a special character. Indeed, not only the principle prohibiting national appropriation of outer space is affirmed in the main space law treaties and declarations, but also it represents the basis of approach followed by States in elaborating and setting up the international space law itself.
Therefore, following this interpretation, neither States nor private entities are allowed to act in contrast with the non-appropriation principle and any amendments or modification of such principle should be carried out only by all States acting collectively.

Abstract document

IAC-07-E6.5.13.pdf

Manuscript document

IAC-07-E6.5.13.pdf (🔒 authorized access only).

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