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SOVEREIGNTY AND OWNERSHIP IN RELATION TO OUTER SPACE …
private persons in space acted contrary to the Space Treaty, responsibility would be
attributed to the state party whose nationals they are. State parties can ensure that
their nationals acted in accordance with the Space Treaty by adopting the necessary
legislation measures, i.e. laws, and introduces also measures in administration which
would lead to observation of these laws. These laws should result in performance
and observance of the Space Treaty, possibly other conventional instruments. It is
questionable to what extent the domestic statutes enacted so far about activities in
space fulfil this requirement.
The prohibition of appropriation
in relation to outer space and celestial bodies
could also be interpreted on the basis of
teleological interpretation.
The inadmissibility
of appropriation
by a state can be understood as the prohibition of appropriation
according
to
private law. Otherwise it would be possible that any state or a state
controlled legal person could acquire exclusive private rights,
23
i.e. property. That
would have a similar consequence as occupation by a state.
4. Legal basis for asserting property rights in outer space
States are forbidden to
claim their sovereignty
in relation to outer space and
celestial bodies in the sense of their appropriation.
Sovereignty, however, is the basis
of private property. Private property arises from and is protected by the framework
of sovereignty of a particular state. However, space objects are launched into outer
space. The International space station is being built, and future construction of space
stations on celestial bodies is expected. Article VIII of the Space Treaty states that
ownership of objects launched into outer space, including objects landed or constructed
on a celestial body, and of their component parts, is not affected by their presence in outer
space.
What the legal basis of this ownership, however, is not mentioned. Similarly
a question may arise of what the legal basis for ownership of natural resources
excavated on celestial bodies will be, or the question of intellectual property rights.
State sovereignty cannot be the basis of ownership in outer space. The provision
in the second sentence of Article VIII of the Space Treaty is anteceded by the
provision about jurisdiction and control. According to this provision, “A State Party
to the Treaty on whose
registry
an object launched into outer space is carried
shall
retain jurisdiction and control
over such object, and over any personnel thereof, while
in outer space or on a celestial body”.
The
jurisdiction
of the state on whose registry an object launched into outer space
is carried can be considered the basis on which to ascertain
property
. White
24
also
deduces that
property rights
in outer space, including the ownership of real estate, are
rather based on
jurisdiction
than territorial sovereignty, which is in
accordance
with
the provisions of the Space Treaty (Art. VIII).
23
See Bockstiegel, K.H. Kramer, D.M, Polley, I. Patent Protection for the Operation of Telecommunication
Satelite Systeme in Outer Space?
Zeitschrift fur Luft und Weltraumrecht
, 1998, No. 2, p. 167.
24
See White, W. Proposal for a Multilateral Treaty Regarding Jurisdiction and Real Property Rights in
Outer Space. 43rd Colloquium on the Law of Outer Space. Rio de Janeiro, 2000, p. 245.