Understanding "Appropriation" - A Textualist look at Article II of the OST

There was a LOT of reaction to my last newsletter addition, particularly with allegations of violations of Article II of the Outer Space Treaty (OST).? Interestingly, while some argued that limiting commercial activities on the Moon violated Article II, others argued that allowing certain commercial activities on the Moon violated Article II.? Why?? Who is right and who is wrong?

The answer to this question is a complicated one because interpreting international law is done through a few different ways:? through international treaty, and through customary international law which is identified using how laws are treated throughout the world and using the opinions of applicable scholars. ?

Some would argue (and have argued) that the last source of international law, or even the only TRUE source of international law, comes from the sword.? What this argument seems to suggest is that military force is the only true source of international law enforcement.? While I disagree with this assessment for reasons we can analyze at another time, this is an often-overlooked aspect of international law that deserves attention.

For the purposes of keeping things simple in this entry, I would like to start off by looking at the OST itself; we could label it the textualist approach.

First, the article itself:

Outer Space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

This simple, and yet perhaps most controversial of articles in the entire OST breaks down to a few key points:

1.?????? “Outer space, including the Moon and other celestial bodies” – we are talking about celestial bodies here.? This is not controversial for the Moon as it is specifically included, nor is it controversial for other major bodies like Mars because their size and prominence in the solar system.? However, what is less clear is whether it applies to something like an asteroid in space.? If it does apply to asteroids, how big of an asteroid does it need to be before it transitions from being a “rock” or a “boulder” to being a “celestial body.”

2.?????? “not subject to national appropriation” – this point is actually two; (A) we are not talking about ANY appropriation, we are talking about “national” appropriation.? And while all activities in space must be licensed by a launching state that can be held responsible for them, commercial or other non-state actors in space have potentially opened an entirely new echelon of potentially legal appropriators. (Although it begs the question, can a company appropriate a celestial body either with a State’s permission and it not be State appropriation, or without State support and thus without any international means of enforcing their claim?) And (B) The word “appropriation” has vexed the international community for a long time.? Meriam-Webster does not offer much help but gives some guidance to support multiple different uses.? It defines “appropriate” to be “to take exclusive possession of; to set apart for or assign to a particular purpose or use; to take or make use of without authority or right.”

3.?????? “by claim of sovereignty” – here we are provided with at least some context as to what the text means when it says “appropriation.”? Again, we turn to our friend the dictionary. “Sovereignty” is defined as the “supreme power especially over a body politic; freedom from external control; controlling influence.”? This seems to suggest that appropriation by means of an assertion of supreme power answering to no other power or control would be an illegal exercise of appropriation by claim of sovereignty.

4.?????? “by means of use or occupation” – here again we are provided with more guidance about how appropriation cannot be accomplished.? It seems clear that a celestial body cannot be possessed exclusively by means of stationing a spacecraft on it or using its surface to such a huge extent that it is completely set apart (see above) for that purpose.

5.?????? “or by any other means.” – lets any of us nasty lawyer types (or the even more elusive armchair lawyer types) imply that the above two points were the only two ways of accomplishing appropriation, this catch all puts the world on notice that no such nit-picking is appropriate.

There are many more tools that are needed to give a full view of what this simple article means.? But for those of us arguing that one interpretation or another is the most appropriate for a given mission, we MUST of necessity be able to couch such arguments within the plain language of the article itself.? That is what I learned today.

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***The thoughts and opinions expressed here are my own and do not necessarily reflect the opinions of any other organization or person regardless of employment or relationship.***