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The Non-Appropriation Principle: The Grundnorm of International Space Law

Published online by Cambridge University Press:  24 January 2014

ZACHOS A. PALIOURAS
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Abstract

This article discusses the normative essence of the principle of non-appropriation in outer space as envisaged in Article II of the Outer Space Treaty, as well as its standing under customary international law. The analysis is structured with reference to the general public international law framework that governs the acquisition of territory by states, following the territorially based paradigm still prevalent in international law theory in stressing that the non-appropriation principle is indeed a norm of most increased significance within the corpus juris spatialis, i.e. the Grundnorm of international space law.

Keywords

outer spacenon-appropriation principleterritory
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 27 , Issue 1 , March 2014 , pp. 37 - 54
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 Y. Kolosov and G. Zhukov, International Space Law (1984), 5.

2 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 UNTS 205 (1967).

3 Shaw, M. N., ‘Territory in International Law’, (1982) 13 Netherlands Yearbook of International Law 61, at 72CrossRefGoogle Scholar.

4 For a thorough analysis in this respect, see F. Tronchetti, ‘The Non-Appropriation Principle under Attack: Using Article II of the Outer Space Treaty in Its Defense’, in Proceedings of the 50th Colloquium on the Law of Outer Space (2007), 526. According to H. Kelsen, the validity of any legal system depends on a hypothetical norm of increased significance (Grundnorm), see Rigeaux, F., ‘Hans Kelsen on International Law’, (1998) EJIL 9, at 329Google Scholar.

5 Vershchetin, V. S., ‘The Law of Outer Space in the General Legal Field (Commonality and Particularities)’, (2010) Revista Brasileira de Direito Aeronáutico e Espacial 93, at 43Google Scholar. See also Malanczuk, P., ‘Space Law as a Branch of International Law’, (1994) 225 NYIL 143, at 178CrossRefGoogle Scholar.

6 No legal vacuum existed in outer space, even before the emergence of the corpus juris spatialis. In support of this position see, inter alia, V. S. Vereshchetin, Space, Cooperation, Law (1974), 13 (translated into English by the National Aeronautics and Space Administration). According to M. Lachs,

[t]he reaffirmation of this principle and its judicial formulation, albeit in declaratory form, is important because it has imparted greater clarity and precision to the principle. It was intended to rule out any ambiguities, and prevent wrong conclusions or arbitrary interpretations.

See Kolosov and Zhukov, supra note 1, at 50.

7 According to the Arbitrator in the Las Palmas case,

[t]he development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.

See Island of Palmas Case (Netherlands v. USA), The Hague, April 4, 1928, 2 Report of International Arbitral Awards 821, at 838. According to R. Y. Jennings, The Acquisition of Territory in International Law (1963), 2, ‘the primary raison d’être of international law has been the delimitation of the exercise of sovereign power on a territorial basis’.

8 For the purposes of this article, outer space lato sensu encompasses both the void space between the celestial bodies and the latter themselves, whereas the term ‘outer space’ stricto sensu refers solely to the former.

9 M. N. Shaw, International Law (2009), 490.

10 Ibid., at 495. It must be borne in mind that no acquisition of territory by means of conquest may lawfully take place ever since the renunciation of the use of force as an instrument of foreign policy, by virtue of the Kellogg-Briand Pact of 1928 (ex injuria jus non oritur). This observation is also valid with respect to titles acquired by cession, if the latter has been concluded under the threat of use of force. However, titles acquired by both means at a time before the establishment of the aforementioned rule retain their value as a matter of intertemporal law. For a detailed analysis on the subject, see J. Dugard, International Law: A South African Perspective (2004), 132–43.

11 Scholars, however, have not managed to agree on this matter. For a presentation of both relevant approaches, see L. Oppenheim, International Law: A Treatise (2005), 375.

12 According to the eloquent formulation of M. Huber, Arbitrator in the Las Palmas case, see supra note 7, at 838.

13 Western Sahara, Advisory Opinion, [1975] ICJ Rep. 10, at 39.

14 Akehurst, M., Modern Introduction to International Law (ed. Malanczuk, P.) (1997)Google Scholar, at 149.

15 Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), 22 RIAA 209, at 268.

16 According to the Permanent Court of International Justice, ‘in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries’. See Judgment on the Legal Status of Eastern Greenland (Denmark v. Norway), 1933, PCIJ Rep. Series A/B No. 53, at 46. See also Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, [1991] ICJ Rep. 2001, at 64.

17 See Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen), supra note 15, at 313.

18 Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island, (1932) 26 American Journal of International Law, 390, at 393–4. The Arbitrator, Vittorio Emmanuelle III, noted that

[i]t is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected. But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed.

19 See Shaw, supra note 9, at 512.

20 Case Concerning Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. Malaysia), [2001] ICJ Rep. 2002, at 683.

21 See Western Sahara, Advisory Opinion, supra note 13, at 39.

22 See Oppenheim, supra note 11, at 383–4. See also Judgment on the Legal Status of Eastern Greenland (Denmark v. Norway), 1933, PCIJ Rep. Series A/B No 53.

23 Grotius was the first to assert that the high seas were unsusceptible to effective control and thus to appropriation because of their very nature. For an outline of Grotius’s positions in this respect, see Goedhuis, D., ‘The Changing Legal Regime of Air and Outer Space’, (1978) 27 ICLQ 3CrossRefGoogle Scholar, at 577. See also Jenks, C. W., ‘International Law and Activities in Space’, (1956) 5 ICLQ 1, at 104CrossRefGoogle Scholar. See also Williams, S., ‘The Law of Outer Space and Natural Resources’, (1987) 36 ICLQ 1, at 146CrossRefGoogle Scholar.

24 See Las Palmas Case, supra note 7, at 838. The arbitrator recognized a distinction between areas ‘that cannot’ and areas that ‘do not yet form the territory of a State’.

25 For an analysis of the distinction between the two notions, see Weaver, J. H., ‘Illusion or Reality? State Sovereignty in Outer Space’, (1992) 10 Boston University International Law Journal 203, at 215–16Google Scholar.

26 K. Baslar, The Concept of the Common Heritage of Mankind in International Law (1998), at 42.

27 See Jenks, supra note 23, at 104. See also Cheng, B., ‘The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use’, (1983) 11 Journal of Space Law 89, at 91Google Scholar. See also Williams, supra note 23, at 146.

28 See, inter alia, Cepelka, C. and Gilmour, J. H. C., ‘The Application of General International Law in Outer Space’, (1970) 36 Journal of Air Law and Commerce 30, at 32Google Scholar.

29 See, inter alia, Cheng, supra note 27, at 91, and Cheng, B., ‘The Extra-Terrestrial Application of International Law’, (1965) 18 Current Legal ProblemsCrossRefGoogle Scholar, at 311.

30 In support of this position see Kolosov and Zhukov supra note 1, at 45–6.

31 For an analysis leading to a similar conclusion, see Weaver, supra note 25, at 208–9. See also the Resolution of the ILA, Report of the 49th Conference (1960), at 267–8. See also Goedhuis, supra note 23, at 590. See also Korovin, E., ‘Space Exploration and Certain Problems of International Relations’, (1959) 1 International Affairs, at 188Google Scholar (in Russian).

32 See infra at 9.

33 See infra at 5–6.

34 It should be also taken into account that the ‘minimum threshold’ required for the establishment of effective control rises constantly over time. Therefore, by the time the technological means available allow the performance of more intense sovereign activities, the threshold will have risen as well. In this respect see Akehurst, supra note 14, at 149.

35 1363 UNTS 3 (1984).

36 The provision applies equally to the Moon and to the other celestial bodies within the solar system, since Art. 1(1) MA stipulates that ‘[t]he provisions of this Agreement relating to the Moon shall also apply to other celestial bodies within the solar system … except insofar as specific legal norms enter into force with respect to any of these celestial bodies’.

37 1969, Vienna Convention on the Law of Treaties, 1135 UNTS 331 (1980). Even though the Outer Space Treaty was concluded prior to the entry into force of the Vienna Convention, the rules of interpretation laid down in Arts. 31–3 thereof govern the interpretation of the OST since they reflect pre-existing customary law binding on the state parties at the time of the expression of their will to be bound by the OST. In this respect see Case on Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, [2006] ICJ Rep. 2008, at 222. See also Shaw, supra note 9, at 903.

38 Gorove, S., ‘Sovereignty and the Law of Outer Space Re-Examined’, (1977) 2 Annals of Air and Space Law, at 314Google Scholar.

39 See Art. 31(1) VCLT.

40 According to Black's Law Dictionary (abridged, 2005), at 84, appropriation means, inter alia, ‘[t]he exercise of control over property; a taking of possession’.

41 See, inter alia, Vereshchetin, V. S., ‘On the Principle of State Sovereignty in International Space Law’, (1977) 2 AASL, at 430Google Scholar.

42 M. Lachs, The Law of Outer Space: An Experience in Contemporary Law Making (1972), at 43.

43 See Vereshchetin, supra note 41, at 433. See also S. Gorove, Studies in Space Law: Its Challenges and Prospects (1977), at 45.

44 For the application of the principle by the International Court of Justice, see Gordon, E., ‘The World Court and the Interpretation of Constitutive Treaties’, (1965) 59 AJIL 794, at 805CrossRefGoogle Scholar.

45 See Cheng, supra note 27, at 90.

46 See supra, at 10. See also Shaw, supra note 9, at 544. See also F. Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies: A Proposal for a Legal Regime (2009), at 27. Many commentators, however, argue that Art. 2 OST reaffirmed pre-existing customary law only as regards outer space stricto sensu whereas with respect to celestial bodies it essentially ‘converted their status from that of res nullius to that of res extra commercium’. In support of this position see, inter alia, Cheng, supra note 27, at 92.

47 See, inter alia, Vereshchetin, V. S. and Danilenko, G., ‘Custom as a Source of International Law of Outer Space’, (1985) 13 JSL 22, at 25Google Scholar.

48 See Baslar, supra note 26, at 41–2.

49 See Art. 9 OST.

50 See Baslar, supra note 26, at 41–2.

51 Ibid.

52 See Danilenko, G., ‘The Concept of the Common Heritage of Mankind in International Law’, (1988) 13 AASL, at 249Google Scholar.

53 On that matter, albeit with some terminological differentiations, see Hoffstadt, B. M., ‘Moving the Heavens: Lunar Mining and the “Common Heritage of Mankind” in the Moon Treaty’, (1994) 42 UCLA Law Review 575, at 590Google Scholar. See also Williams, supra note 23, at 146.

54 Art. 34 VCLT stipulates that ‘[a] treaty does not create either obligations or rights for a third State without its consent’.

55 The example of the International Seabed Authority suggests that the establishment of an international authority that would manage and equitably distribute the benefits of the exploitation of spatial resources would be the obvious choice.

56 See Kolosov and Zhukov, supra note 1, at 185.

57 See Vereshchetin and Danilenko, supra note 47, at 259.

58 E. Papadopoulou, ‘The Celestial Bodies as Res Communes Humanitatis: An Analysis in the Light of the Moon’, (LLM thesis submitted to the School of Law of the University of Leiden, 2011), at 26.

59 See infra, at 19.

60 See Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep., at 29–30.

61 Ibid.

62 See Case Concerning Aegean Sea Continental Shelf (Greece v. Turkey), [1978] Judgment, ICJ Rep., at 32.

63 See, inter alia, Kolosov and Zhukov, supra note 1, at 178.

64 See Goedhuis, supra note 23, at 583.

65 See Gorove, D., ‘Interpreting Article II of the Outer Space Treaty’, (1968–69) 37 Fordham Law Review 349, at 350Google Scholar.

66 According to H. Grotius, ‘the sea cannot be attached to the possessions of any nation’ and

in the case of the sea the same primitive right of nations regarding fishing and navigation which existed in the earliest times, still today exists undiminished and always will, and because that right was never separated from the community right of all mankind, and attached to any person or group of persons.

See H. Grotius, Mare Liberum (2000), at 31, 42.

67 See Cocca, A., ‘Some Comments on a True Step toward International Co-Operation: The Treaty of January 27, 1969’, (1971) 20 DePaul Law Review 581, at 585Google Scholar.

68 See ILA, Report of the 54th Conference (1970), at 434.

69 See Goedhuis, D., ‘Legal Aspects of the Utilization of Outer Space’, (1970) 17 Netherlands International Law Review 25, at 35CrossRefGoogle Scholar.

70 See Kolosov and Zhukov, supra note 1, at 64.

71 See Goedhuis, supra note 9, at 35

72 Ibid., at 36.

73 Art. 31, paras. 1–2, VCLT.

74 See Masson-Zwaan, T., Lunar Exploration and Exploitation as a Special Case of Planetary Exploration: Legal Issues, in Kapustin, A. and Zhukov, G. (eds.), The Contemporary Problems of International Space Law (2008), at 160Google Scholar.

75 It is common ground that ever since its conception, the res communis omnium regime has been envisaging the principles of an international legal order that reflects the values of capitalism. In this respect, see Nifterik, G. Van and Nijman, J. E., ‘Mare Liberum Revisited (1609–2009)’, (2009) 30 Grotiana 3CrossRefGoogle Scholar, at 3 et seq.

76 According to Baslar, supra note 26, at 322, ‘denying the right of mankind to the common heritage is to let billions wallow in poverty, malnutrition, disease, despair, lack of food and purchasing power. This is tantamount to denial of the right to life of peoples’.

77 Baslar, supra note 26, at 185–6, notes that the res communis humanitatis doctrine is deeply rooted in Marxist legal thought.

78 Art. 11(3) of the Moon Agreement.

79 Bedjaoui, M., ‘Unorthodox Reflections on “Rights to Development”’, in Snyder, F. and Slinn, P. (eds.), International Law of Development (1987), at 111Google Scholar.

80 Matte, N. M., ‘The Common Heritage of Mankind and Outer Space: Toward a New International Order for Survival’, (1987) 12 AASL, at 323Google Scholar.

81 See Papadopoulou, supra note 58, at 30.

82 Papastavridis, E., ‘Right of Visit on the High Seas in a Theoretical Perspective’, (2011) 24 LJIL, at 53CrossRefGoogle Scholar.

83 See Tronchetti, supra note 46, at 200.

84 See Gorove supra note 65, at 351. See also Cooper, N., ‘Circumventing Non-Appropriation: Law and Development of United States Space Commerce’, (2008–9) 36 Hastings Constitutional Law Quarterly 457, at 457 et seqGoogle Scholar.

85 See infra at 19.

86 See Report of the 54th Conference, supra note 68, at 429.

87 According to E. de Vattel, ‘[i]t is evident, that, by the very act of the civil or political association, every citizen subjects himself to the authority of the entire body, in everything that relates to the common welfare’. See E. de Vattel, The Law of Nations or the Principles of Natural Law, Book I (1758), ch. 1, para. 2.

88 Cheng, B., ‘The 1967 Space Treaty’, (1968) 95 Journal du droit international 532, at 574Google Scholar. See also Tronchetti, supra note 46, at 200.

89 See supra at 7.

90 Tronchetti, supra note 46, at 200, submits a similar assertion.

91 The text of the Declaration has been published in (1978) 6 JSL, at 193–6. See also UN Doc. A/AC.105/C.2/L.147 (1985).

92 Geostationary orbit is defined as

a circular orbit on the Equatorial plane in which the period of sidereal revolution of the satellite is equal to the period of sidereal rotation of the Earth and the satellite moves in the same direction of the Earth's rotation. When a satellite describes this particular orbit, it is said to be geostationary; such a satellite appears to be stationary in the sky, when viewed from the earth, and is fixed on the zenith of a given point of the Equator, whose longitude is by definition that of the satellite. This orbit is located at an approximate distance of 35,871 km over the Earth's Equator.

93 The fact, however, that GEO is indeed a finite natural resource is irrelevant to the territorial status of the segments of territory where a body can follow a geostationary orbit. The latter is decided solely and ipso facto by the scientific assumption that these segments form part of outer space. As such, this territory is a res communis omnium.

94 I. H. Ph. Diedericks-Verschoor and V. Kopal, An Introduction to Space Law (2008), at 15.

95 E. Kamenetskaya, E. Vasilevskaya, and V. S. Vereshchetin, Outer Space: Politics and Law (1987), at 69. See also Kolosov and Zhukov, supra note 1, at 163. Contra Malanczuk, supra note 5, at 179.

96 Vereshchetin and Danilenko, supra note 47 at 47.

97 See ILA, Report of the 59th Conference (1980), at 197.

98 Anglo-Norwegian Fisheries Case, Judgment of December 18 1951, [1951] ICJ Rep. 1951, at 138–9.

99 See Colombian–Peruvian Asylum Case, Judgment of November 20 1950, [1950] ICJ Rep. 1950, at 277–8.

100 See Kamenetskaya, Vasilwvskaya, and Vereshchetin supra note 95, at 68–9.

101 See Diedericks-Verschoor and Kopal, supra note 94, at 21.