MarIus

2.3.1 Defining ‘national’ in Article II

What is the meaning of ‘national’ as it appears in OST Article II? Initially, the term's deliberate placement before 'appropriation’' in the treaty text seems to target governmental entities, or States, suggesting a focused regulatory scope. If so, this specific usage of 'national' raises an important question with regards to, for example, private entities: Does its explicit mention – and the corresponding absence of any direct reference to non-governmental entities – imply their exclusion from this provision? The question is not insignificant given the growing presence of non-governmental entities in the space industry; particularly private enterprises operating on commercial models without direct government support.^{(5) The most prominent being the U.S-based company SpaceX. Non-Governmental Organizations would followingly also fall under the term non-governmental entity.} Yet, Article II is notably silent on what defines ‘national’. Consequently, interpreting 'national' within the context of Article II necessitates a thorough consideration of whether non-governmental actors such as private companies, organizations, or individuals are implicitly included under this term. This will be a central focus in the ongoing discussion.

Once more, we will commence by determining the ordinary meaning of ‘national’. One dictionary characterizes the term as "relating to a nation," while another similarly describes it as "relating to countries or one particular country."^{(6)https://www.merriam-webster.com/dictionary/national; https://dictionary.cambridge.org/dictionary/english/national last accessed January 17, 2024.} It seems reasonable, then, to consider 'nation' and 'country' as synonymous in this context. Therefore, based on its conventional definition, 'national' apparently implies some form of governing entity. At first glance, this indeed implies that 'national appropriation' primarily concerns actions undertaken by States. That is the ordinary meaning of the term, on its own. However, the ordinary meaning should be considered in light of other provisions in the OST.^{(7) VCLT Article 31 (1).} Bearing this approach in mind, a closer look reveals that 'national' is mentioned in other parts of the treaty, notably in the aforementioned Article VI, which states the following:

“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.” ^{(8) The OST (n. 21) Article VI.}

The provision mandates that States Parties bear international responsibility for national activities in outer space. A crucial detail of this responsibility is that ‘national’ also explicitly covers the activities of non-governmental activities.^{(9) Ibid. First sentence, second part.} This is substantiated in the second sentence of the provision: “The activities of non-governmental activities in outer space […] shall require authorization and continuing supervision by the appropriate State Party to the Treaty”. Therefore, the use of 'national' in Article VI may shed light on its interpretation in Article II.

Nevertheless, it is sensible to approach the contextual interpretation of ‘national’ with caution due to the distinct purposes of Articles II and VI of the Outer Space Treaty. Article II is specifically concerned with prohibiting 'national appropriation' of space, while Article VI establishes a regime of responsibility. The different focus of these provisions begs the question: Should the interpretation of 'national' remain consistent throughout the treaty, or does contextual nuances demand different interpretations? Differentiating the term's meaning across the OST may at first seem unnecessary, but a simplistic harmonization could obscure the intentions of the treaty drafters, and subsequently lead to an incorrect interpretation. Such considerations of intention must be made, as reflected in previous judgments of the ICJ.^{(10)Case Concerning the land, island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intevening) September 11 1992, General List No. 75., paragraphs 373-374: “The question must be why, if delimitation of the maritime spaces was intended, the Special Agreement used the wording "to delimit the boundary line (…) regarding the land frontier, while confining the task of the Chamber as it relates to the islands and maritime spaces to determine [their] legal situation..."(...)."} The Court has, in this sense, used treaty provisions of different purposes to implicate a certain meaning to the provision in question.^{(11) Dörr (2018), 583.} For instance, in Dispute Regarding Navigational and Related Rights, the Court utilized other treaty clauses to deduce a right to navigation that was not explicitly outlined in the contested provision.^{(12) Ibid. Reference to Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 213.} The Court found it necessary to “draw certain necessary implications” from the provisions of the treaty as a whole – considering its objectives, purpose, and historical context – to faithfully reflect the intentions of its authors.^{(13) Ibid. Paragraphs 77-79.} This suggests that ‘national’ in Article II may be affected by what can be read from Article VI.

The answer to what – or more specifically, who – is encompassed by the non-appropriation principle is therefore reliant on several contemplations on the purpose of the provision.^{(14) VCLT Article 31 (1).} Firstly, the need for such a prohibition in outer space – to preserve it as a common realm for all humanity and to prevent conflicts – is clear.^{(15) The consensus on this is made evident by e.g the binding force and number of ratifications of the OST.} After all, this understanding underpinned the codification of the non-appropriation principle through Article II.^{(16) As introduced earlier.} Given the goal to protect space from national appropriation, one can consider whether the treaty's framers intended to include private or even personal forms of appropriation. Is 'private appropriation' of space comparable to 'national appropriation'? The distinction between a private entity and a State is significant, suggesting it might be reasonable to infer that private appropriation does not fall under the term 'national'. Supporting this view, the operations of private entities in space are likely on a much smaller scale than those of nations. Furthermore, the capability of a private entity to enforce any form of appropriation in space is considerably less than that of a nation, reflecting the potential consequences of space activities. When considering the implications of conflict and war, the impact of national entities differs significantly from that of private entities, reinforcing the idea that private entities were not intended to be included under a provision that solely mentions 'national' entities. Moreover, the absence of any mention of non-governmental entities in Article II – unlike in Article VI, where they are explicitly referenced – may suggest that Article II was specifically designed to address actions by States only.

The reason for the omission of any mention of private entities is discussed by scholars when contemplating the genesis of the OST. Some argue that there are historical reasons for why private entities are not mentioned in the wording of Article II. When the negotiations of the OST were ongoing, the only operators in space – both at the time and the foreseeable future – were States. Arguably, the drafters did not predict the need for addressing private entities when establishing the provision in Article II.^{(17) F. Tronchetti, “The Non-Appropriation Principle as a Structural Norm of International Law: A New Way of Interpreting Article II of the Outer Space Treaty”. In Air & Space Law, 2008-06, Vol.33 (3), 282. HeinOnline Kluwer Law International Journal Library.} Furthermore, another reason for the omission of any mention of private entities is that Article II was the result of a compromise between those opposed to private enterprise in space [the Soviet Union] and those in favor [the U.S].^{(18) Ibid.} This compromise was allegedly the reason why Article VI – regulating non-governmental entities – was introduced.^{(19) Ibid.}

Hence, it may appear that the drafters of the OST never meant to intentionally exclude private entities from the scope of the provision, but rather that there was no imagined need for legal subjects other than States being addressed in the wording of the provision.^{(20) Abigail D. Pershing, “Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today”, in Yale Journal of International Law, vol. 44, no. 1, Winter 2019 p. 155. HeinOnline. Downloaded 21st of December, 2023.} The official records of the OST-drafting history are shown to as support for this view. Key arguments build upon an assumption: Had there been a reality of private entities engaging in space activities, the wording of the draft[s] would have been broader.^{(21) Ibid.} This is arguably noticeable when examining the proposed draft language submitted by the UN representative of the U.S.^{(22) Ibid. Pershing references to a letter from the Permanent Representative of the United States of America addressed to the Chairman of the Committee on the Peaceful Uses of Outer Space, dated June 16th 1966. See it online: https://www.unoosa.org/pdf/limited/c2/AC105_C2_L012E.pdf.}

This assumption has not gone unchallenged, however. A notable dissent stems from Stephen Gorove, an early space law pioneer, who contended that the lack of explicit prohibition against appropriation by entities other than national governments suggests that private entities are not included in Article II's prohibition.^{(23) S. Gorove, “Interpreting Article II of the Outer Space Treaty” in Fordham Law Review, vol 37; Issue 3 (1969), p. 351. Available online: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1966&context=flr, last accessed January 27, 2024.} Gorove's argument seemingly hinges on the legal maxim "expressio unius est exclusio alterius," which means that the explicit mention of one is the exclusion of another.^{(24) Fellmeth and Horwitz, (2022). Available online: https://www.oxfordreference.com/display/10.1093/acref/9780197583104.001.0001/acref-9780197583104-e-757. Last accessed May 20, 2024.} This reasoning posits that if the law does not specifically forbid an action, it may, by implication, be considered permissible or at least not expressly illegal.^{(25) Ibid.} Space law scholar Wian Erlank presents a similar viewpoint to this perspective. He argues that the specific wording suggests the prohibition is strictly applicable to State actions and does not extend to private individuals or entities.^{(26)Wian Erlank, “Property and ownership in outer space”. In Outer Space Law: Legal Policy and Practice, 2nd ed. Edited by Yanal Abul Failat and Anél Ferreira-Snyman Snyman (Surrey, UK: Globe Law and Business Ltd., 2022), 141.} Erlank's argument also hinges on the absence of explicit mention of private entities within the treaty's language, interpreting this as an indication that “personal appropriation” fall outside the scope of the non-appropriation principle outlined in Article II.^{(27) Ibid.} This interpretation notably mirrors the rationale used by Gorove in the early days of space law, advocating for a literal understanding of 'national appropriation' that excludes private entities from its purview.^{(28) And so, it seems that these scholars may appear very careful with contextual interpretation.}

However, this line of reasoning seemingly diverges from established principles of international law, which – even though caution is wise – advocate for interpreting terms within the broader context and objectives of the treaty.^{(29) VCLT Article 31 (1).} Consequently, 'national' in Article II should indeed be understood in light of the entire OST, which includes its context, object, and purpose.^{(30) Ibid.} Acknowledging the requirements imposed by Article VI on States Parties to oversee their nationals' space activities, it poses a nuanced inquiry: If the Treaty prohibits States from appropriation in space, can the same States allow activities by private entities that constitute appropriation? Given the prohibition against States themselves engaging in appropriation, there is an implied expectation that they must similarly discourage such practices among private entities within their jurisdiction. After all, Article VI obligates States to assure that national activities are carried out in conformity with the OST.^{(31) First sentence (n. 171), supra.} Thus, the legal effect may be summarized like this: Given that States are prohibited from appropriation, they must logically extend this prohibition to private enterprises under their jurisdiction. This implies a straightforward duty: States Parties must actively assure that private entities do not engage in any form of appropriation, as to allow such activities would directly contradict the treaty's principles. Thus, assuring compliance with the OST not only requires States to abstain from appropriation but also to rigorously monitor and regulate the activities of their nationals to prevent any actions that might undermine the treaty's objectives.

Another important provision to recall is the OST Article III and its obligation upon States Parties to conduct their activities in accordance with international law.^{(32) Notice that Article III uses ‘shall’ to underscore the binding nature it imposes on the States Parties to the OST (n. 21).} States Parties are thus not only bound by the rules of space law, but could also be bound by obligations in general international law.^{(33) Ribbelink (2009), 67.} For instance, the res communis status of outer space suggests that use cannot involve appropriation, either by States or private entities. As such, a State cannot allow private appropriation under its jurisdiction or obligated supervision regime because States have an obligation to assure that national activities are conducted in accordance with international law.^{(34) S. Freeland and R. Jakhu, "Article II". In Cologne Commentary on Space Law, Vol.1, ed. Hobe, Stephan, Schmidt-Tedd, Bernhard and Kai-Uwe Schrogl (Köln: Carl Heymanns Verlag, 2009), 52; P. De Man, "The exploitation of natural resources in outer space". In Outer Space Law: Legal Policy and Practice, 2nd ed. Edited by Yanal Abul Failat and Anél Ferreira-Snyman (Surrey, UK: Globe Law and Business Ltd., 2022), 204.}

Additionally, if a State is barred from certain actions under the OST, it cannot approve equivalent actions by private parties, because a treaty’s purpose shall be upheld by the interpretation of the provisions in it.^{(35) VCLT Art. 31, nr. 1.} This entails that any interpretation leading to actions that contradict the purpose of the treaty is in violation of international law.^{(36) This violation of international law would reach broadly, as the interpretation principles of VCLT Art. 31 and 32 is considered customary law, thus applicable to older treaties despite the rules of non-retroactivity, see more on this in section 1.4.1.1, supra.} For instance, the principle of effectiveness is a fundamental principle that seeks to guarantee a treaty reaching its purpose.^{(37) As seen in practice by the ICJ: Case Concerning the Territorial Dispute (Libya/Chad), Judgment of February 3rd 1994, General List No. 83, para. 51. Available online: https://www.icj-cij.org/sites/default/files/case-related/83/083-19940203-JUD-01-00-EN.pdf. Last accessed May 20, 2024.} The principle exists to advance the aims of the treaty by protecting it from any interpretation diminishing its practical effects.^{(38) Dörr (2018), 584.} The phrase ‘practical effects’ is important because it is an argument against– or at least counterbalance to – a narrow interpretation based on the semantic meaning alone, or the lack of an explicit term. As highlighted earlier, the non-appropriation principle of the OST Article II exists because the protection of space against exclusive ownership and territorial claims was highly agreed upon by consensus. If the core aim of the treaty was to prohibit appropriation, it seems senseless that it should not apply to non-governmental entities. In the ever-developing human civilization, non-governmental entities may possibly grow to be capable of actions that might amount to appropriation either through occupation or excessive use.^{(39) This hypothetical scenario is elaborated on in later sections, see 2.5 and 2.6, infra.} If so, the practical effects of the provision would indeed be diminished.

Furthermore, an eventual claim of property in outer space by a private individual would require some form of granting of rights through national legislation.^{(40) As pointed out by De Man (2022), 204.} The concept of ownership is, at least in legal terms, dependent on some kind of legal basis that, if granted, can be enforced by the State granting such ownership rights. In this sense, Lyall and Larsen highlight the limitations of individual claims to property rights, emphasizing that such rights cannot be established merely through self-declaration.^{(41) Lyall and Larsen (2018), 170.} Only sovereign States hold the authority to confer property rights upon individuals.^{(42) Ibid.} In other words, a claim of ownership to something by any private entity is not enough to establish enduring rights. And since a State cannot grant a right it does not have itself, ‘personal appropriation’ cannot exist in a legal sense.^{(43) De Man (2022), 208.}

A real example circulating in literature is the case of Nemitz v. United States.^{(44)Nemitz v. U.S., Not Reported in F.Supp.2d, 2004 WL 3167042} Gregory W. Nemitz, an American citizen and space enthusiast, had acquired an online certificate of ownership to the near-Earth asteroid 433 Eros.^{(45) Lyall and Larsen (2018), 171. Elaborated in note 42 on the same page.} When NASA conducted exploration of this asteroid, Nemitz sent parking ticket claims to NASA for the intrusion on his alleged property. Exchanging legal notices, NASA argued Nemitz’ lack of basis for ownership rights, emphasizing the principle of non-appropriation as an obstruction of private claims.^{(46) Ibid.} The case was settled in the Nevada Federal District Court which ruled that Nemitz had no right to appropriation and ownership of the asteroid.^{(47) Freeland and Jakhu (2009), 55-56.} The court’s decision had grounds in the same reasoning given by NASA’s legal counsel; that legal basis for ownership does not exist and cannot exist on the basis of national legislation so long as the non-appropriation principle applies to States.^{(48) Ibid.} The rulings of a federal U.S court in Nevada may not be very relevant for interpreting the terms of the OST Article II. However, the example shows that actual attempts on ownership claims in outer space have been made, unsuccessfully. It thus reflects the functioning status of the non-appropriation principle.

As with many other issues of space law, there is not a lightning clear conclusion on what the meaning of ‘national’ in Article II entails. Nonetheless, it does seem more than reasonable to settle on an interpretation that includes non-governmental entities. Even if the ordinary meaning of terms by itself suggest it applies only to States, the context and purpose of the OST implies that an exclusion of e.g private entities would not make sense. Such an interpretation would go against the purpose of the provision because it could enable a circumventing of the non-appropriation principle by allowing appropriation by other entities than governmental ones. Moreover, even though non-governmental entities may not legally secure appropriation due to the lack of lawful property rights granted by a State, States must prevent any de facto appropriation by these entities, given their ultimate responsibility for regulating their activities.^{(49) The OST Article VI (n. 181), first sentence, second part.}

So far, this suggests that ‘national’ in the context of appropriation as it appears in Article II also extends to non-governmental entities, which includes private companies and individuals. This rather wide interpretation of ‘national’ is a reminder of the fact that to really understand the whole term ‘national appropriation’ we need to examine the actions deemed as attempts to claim it.