[Sameer Gupta]
Mankind’s exploration of Outer Space has opened up huge possibilities in the final frontier. Subsequent to Sputnik I and Apollo Mission, the human thought and intent has been hovering around acquiring extraterrestrial real estate. The ownership claims to Outer Space dates back to 1937 by A. Dean Lindsay and quite recently by Sylvio Langvein in 2012. However, these claims have been either thwarted by a court of law or ridiculed by notions of sheer logic. In these circumstances, Dennis Hopes has been the forerunner in claiming ownership over celestial bodies in Outer Space. In 1980, he brought a claim before the US Governmental Office for claim registries for the entire lunar surface and all the other planets (except the earth) of the solar system. He also wrote a letter to the General Assembly of the United Nations, and the Russian Government expressing his claim and intention to sell extraterrestrial properties. He wrote; “I sent the United Nations a declaration of ownership detailing my intent to subdivide and sell the moon and have never heard back,” he says. “There is a loophole in the treaty—it does not apply to individuals.”
Mr. Hopes’ claims were so unconscionable that they remained uncontested by the United Nations and Russian Government. This allowed him to register his work with the US Copyright registry office. Since then he has sold more than 611 million acres of land on the moon as well as properties on other planets. However, it is equally true that the bare text of the international conventions on outer space prohibit ownership claims only by sovereign entities. Mr. Hopes used these textual limitations to make erroneous claims over Outer Space property. He maintains his ownership claims over celestial bodies on the ground that no one ever contested or denied his claim.
In this regard, it becomes extremely important for us to understand the meaning of the terms ‘national appropriation’ within the purview of Article II of the Outer Space Treaty. Pertinently, Dr. Stephen Gorove, one of the notable pioneers of international space law, in his article titled ‘Interpreting Article II of the Outer Space Treaty’ observed that one of the queries regarding interpretation of the Outer Space Treaty involves the meaning of ‘national’ appropriation in contradistinction to ‘non-national,’ such as, individual or international appropriation. In the very same article (1969), Dr. Gorove noted that space law may eventually prohibit territorial acquisitions in Outer Space; the Outer Space Treaty does not prohibit individual appropriation. This interpretation concerning territorial acquisition finds its logical conformity if we read the text of the Outer Space Treaty within its strictest confines. Since the Treaty has provided a scope for differential interpretation, opinion of scholars is divided when it comes to the legality of private spatial appropriation.
It is the fundamental principle of property law that property rights are defined, not against an object which is the subject of property law, but against the rest of the world to the exclusion of others. However, the exclusion of others is a principle which is countered in several provisions of the Outer Space Treaty specifically Article I. Additionally, the Outer Space has been considered a regime res communis i.e. the Outer Space in all its manifestations belongs to the mankind and not to one individual or country. The non-appropriation principle ensures that state sovereignty cannot be exercised in Outer Space which is considered to be a global common. Several scholars argue that the Outer Space Treaty impliedly prohibits private appropriation. Dr. Cheng observed that Outer Space belongs to no sovereign and is not appropriable by States or their nationals. [Bin Cheng, 'The Commercial Development of Space: The Need for New Treaties' (1991) 19(1) Journal of Space Law 17, 22]. The Outer Space Treaty deserves a contextual approach while we interpret article II of the Treaty. Article II should be read in the context of res communis principle to ensure that the object and purpose of the Treaty is preserved.
The question of individual appropriation in Outer Space is not solely a national concern; rather the establishment of space law and subsequent developments has led scholars to consider property rights as a global issue. Mr. Hopes appears to be a man who has voluntarily assumed ownership over extraterrestrial real estate. This assumption and manifestation of ownership is not solely attributable to Mr. Hopes, rather it is also attributable to blatant ignorance by space faring nations specifically the United States of America (USA), when we peruse the adventurous pursuits of Mr. Dennis Hope within USA’s jurisdiction. If we were to consider the question of private spatial appropriation, we must understand that Man's operating environment changes as he leaves the atmosphere of Earth and consequentially the Outer Space regime should be considered as a differential regime of lex specialis where community interests outweigh the individual interests.
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