Stephen Gorove, a pioneer in space law, raised interesting questions about the Outer Space Treaty’s ban on national appropriation. In INTERPRETING ARTICLE II OF THE OUTER SPACE TREATY he noted that private appropriation appears acceptable under the treaty.
…the Treaty in its present form appears to contain no prohibition regarding individual appropriation or acquisition by a private association or an international organization, even if other than the United Nations. Thus, at present, an individual acting on his own behalf or on behalf of another individual or a private association or an international organization could lawfully appropriate any part of outer space, including the moon and other celestial bodies.
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A further question in relation to “national” appropriation is whether or not political subdivisions of a state, such as the states of a federal state, cities or municipalities may appropriate? Under a strict interpretation, the answers to these questions would likely be in the negative even though an occasional court decision in other areas of the law may support an affirmative position
I’m getting ready for a talk in November at ASCEND, and I share this in the spirit of taking notes in public.
While trying to interpret laws a literal interpretation sometimes may not achieve the intended justice. The English language is not an instrument of mathematical precision Per Lord Denning LJ as he then was in Seaford Court Estates Ltd v Asher, thus to understand the intentions of the drafters of the outer space treaty, we must look at the mischief the drafters were trying to remedy. And from the wordings of Article 1 which states that the outer space is a common heritage of mankind if read in conjunction with article II, one would agree that the drafters intended to prevent any form of appropriation of outer space by any party whether state, private party or other smaller fractions.