Outer space is simply the physical universe above the Earth’s atmosphere. The question then becomes where the Earth’s atmosphere ends so that one can know that they are dealing with outer space. This question really depends on who you ask. But generally, most writers agree with the Karman line as a fair delimitation of where the outer space starts from.
The Karman line is named after Theodore von Karman, a Hungarian-American physicist and aerospace engineer who in the 1900s determined the starting boundary of outer space at approximately 80 km (50 miles) above sea level. Today, though, due to the increased commercial uses of outer space, the Karman line is widely regarded to be at approximately 100 km above sea level. However, some agencies such as NASA still use the 80 km mark as the starting point of outer space.
What is important to note at this point is that determination of the starting point of outer space is subjective and depends on the State or entity that one is dealing with. For purposes of this article, the writer will stick to Karman’s original 80km mark.
Conversely, anything below the 80 km mark is national airspace and one may not use it without the permission of the territorial State save for the passage of commercial aircrafts. It should be noted that commercial aircrafts on average do not fly beyond approximately 12 km (40,000 ft) above sea level.Military aircrafts however, can fly at up to 37.6 km (123,520 ft) above sea level. Flying at such a height, military aircrafts would be in violation of territorial sovereignty if they flew over the territorial State’s airspace without its consent. That is why it is important to distinguish between airspace and outer space.
Celestial bodies on the other hand simply refer to objects in the outer space such as the Moon, Sun, Planets and the Stars.This article primarily focuses on the Moon since it is the most explored celestial body.
The idea of outer space being the common heritage of mankind connotes the principle that underscores the non-appropriative nature of outer space and establishes it as free for exploration and use by all States of the world without laying any claims of sovereignty over it. Celebrated space law scholar Frans von der Dunk argues that the non-appropriativenature of outer space represents a common strand that runs throughout the entire space law regime and is one of the foundational and non-derogable principles governing the exploration and use of outer space by States and supranational or private entities.
To appreciate this, we will consider some space law governing treaties and what they say on the non-appropriation of outer space and other celestial bodies.
Article I of the Outer Space Treaty (OST hereinafter), which is the principle governing instrument for the exploration and use of the Moon and other celestial bodies declares that;
“The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.” (Underlined for emphasis)
The above provisions set out three fundamental rights. That is, the right of free access, free exploration and the right of free use which altogether constitute the notion that outer space is the common heritage of mankind.
The non-appropriative nature of outer space is perhaps most emphasized by Article II of the OST which provides that:
“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.” (Emphasis added)
Similarly, the Moon Agreement, which establishes conditions under which the free exploration or use of the Moon in conformity with the OST may be conducted, reaffirms thenon-appropriative nature of the Moon and other celestial bodies. Article 11 of the Moon Agreement which is somewhat identical to Article II of the OST, among other things proclaims that:
“1. The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.
2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.
3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article. (We will deal with the paragraph 5 international regime in another article)
4. States Parties have the right to exploration and use of the Moon without discrimination of any kind, on the basis of equality and in accordance with international law and the terms of this Agreement.” (Underlined for emphasis)
The import of Article 11 of the Moon Agreement is that even if a State or any other entity is successful in placing personnel, space vehicles, facilities, et cetera on or below the surface of the Moon, this does not create any right of ownership over the surface or the subsurface of the Moon.
Resultantly, the provisions of Articles I and II of the OST, together with the provisions of Article 11 of the Moon Agreement, determine the legal nature of the space beyond the Earth’s atmosphere and underscore the res communis omniumcharacter of outer space. The term res communis omniumbasically refers to objects or things that are available to all and cannot be owned by anyone, not even a State (such as the outer space, deep sea bed and the high seas). Space scholars use the term res communis omnium to underscore the fact that no State can legally exercise sovereignty over the outer space, because it represents the common province of all mankind.
According to this view then, the outer space, comprising the Moon and other celestial bodies, is not subject to appropriation by any State, and is consequently open for exploration, use and exploitation by all States on a basis of equality. Professor Daniel Goedhuis buttresses this proposition by stating thus:
“The idea that States which succeed in landing vehicles on the Moon or other celestial bodies would be able, under existing international law, to establish a claim of sovereignty is a fallacious one, such a claim would be inapt even if the analogous terrestrial law were assumed to apply without modification in the celestial sphere.”
Emphasizing the non-appropriative nature of outer space, Professor Wilfred Jenks wrote that:
“By reason of the basic astronomical facts, space beyond the atmosphere of the Earth is and must always be res extra commercium incapable of appropriation by the projection into such space of any particular sovereignty based on a fraction of the Earth’s surface.”
The non-appropriation principle represents one of the first principles on which States agreed upon during the process aimed at establishing the legal status of outer space. The UN General Assembly, under Resolution 1721, recommended to States “for their guidance in the exploration and use of outerspace the following principles, in particular…that outer space and celestial bodies be free for exploration and use by all States in conformity with international law and that they should not be subject to national appropriation.”
Fabio Tronchetti notes that the general consensus on the binding value of the non-appropriation principle makes the non-appropriative nature of outer space a customary rule of space law. Customary law is applicable to space activities owing to Article III of the OST which provides that States Parties shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, inaccordance with international law including the Charter of the United Nations…” This provision in effect allows for the applicability of not only the UN Charter but also international custom as evidence of general practice accepted as law.
Professor Vladimir Kopal, in the same vein, avers that the res communis omnium character of outer space has been accepted by the international community as a whole and thus carries the force of imperative norms of general international law. As such, pursuant to Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT), no derogation is permitted from such a norm and it can be modified only by a subsequent norm of general International law having the same character.
Whereas the non-appropriation principle has the force of a peremptory norm of general international law, it does not follow that States have religiously obeyed this principle. The most notable challenge to the non-appropriation principle was in 1976 when eight developing States through the Bogota Declaration, claimed territorial sovereignty over the portions of the geostationary orbit directly over their territory. But since this claim did not succeed, it served to strengthen the force and significance of the non-appropriation principle in the space law regime. To date, there have been severalattempts to lay claim to the outer space but these have thankfully always been resisted by the general community of nations.
Conclusively, it is submitted that States should jealously continue guarding the non-appropriation of outer space since a decision by States recognising property claims over the Moon or other celestial bodies would constitute a de facto exclusion of other States and their nationals, and thereby constitute a form of appropriation of the common heritage of mankind. This would run counter to the letter and spirit of the sacrosanct space law provisions discussed above.