CYIL Vol. 4, 2013

SOVEREIGNTY AND OWNERSHIP IN RELATION TO OUTER SPACE …

3. Ownership in outer space and the prohibition of appropriation of space and celestial bodies Private property in the sense of civil law can only be understood in the context of system of laws of a state which guaranties its existence. 11 The pre-condition for ownership and its exercise is state sovereignty . In Black’s legal dictionary, property is defined in the narrower legal sense as “set of rights guaranteed and protected by the state”. 12 This means that the existence of property rights is linked to the sovereignty of the state and can only be exercised within the frame of the power of a particular state. This state sets the rules for obtaining property, including its legal protection, within the frame of its power. Claiming property without the corresponding guarantees of the state will be legally irrelevant and therefore legally unenforceable. When defining the issue of property it is necessary first to state that it is forbidden 13 to claim territorial sovereignty in outer space according to Article II of the Space Treaty of 1967. According to this article states cannot claim outer space, including the moon and other celestial bodies, which are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The prohibition of appropriation by a state includes any formal claim on territorial sovereignty over o uter space and celestial bodies. The prohibition of appropriation therefore prevents the foundation of territorial sovereignty in the sense of international civil law, including the right to dispose of these spaces. The prohibition of appropriation “by use” or “by any other means” includes forms of exclusive legal rule which are not covered by the concept of sovereignty. 14 Freedom of the outer space in Article I of the Space Treaty and the prohibition of appropriation of space in Article II are considered customary rules 15 of the international law. Lyall 16 also considers Article II of the Space Treaty an expression of customary international law. These rules are therefore binding even for states that are not state-parties of the Space Treaty. It also means that even a state-party to the Space Treaty that decided to withdraw from the Treaty in the sense of Article XVI of the Space Treaty continues to be bound by it. Considering the prohibition of appropriation of outer space, a question may arise whether the prohibition of appropriation includes, apart from the prohibition of appropriation by a state, also the prohibition of the exercising of private property rights . Considerations about raising private property claims, namely in relation to the 11 See Ondřej, J. Právní režimy mezinárodních prostorů [The Law of International Spaces]. Plzeň : Vydavatelství a nakladatelství Aleš Čeněk, 2004, p. 35. 12 See Black’s Law Dictionary, Victoria Publishing, p. 1131. 13 See Ondřej, J. Právní režimy mezinárodních prostorů [The Law of International Spaces]. Plzeň : Vydavatelství a nakladatelství Aleš Čeněk, 2004, p. 35. 14 See Lachs, M. The Law of Outer Space . Leyden: Sijthoff Leyden, 1972, p. 43. 15 See He. Quizhi, The Outer space treaty in perspective, Journal of Space Law , Vol. 25, No. 2, 1997, pp. 95-97. 16 See Lyall, F. On the Moon. Journal of Space Law , 1998, No. 2, pp. 130-131.