Proceedings of the Workshop - United Nations Office for Outer ...

who are of the opinion that only national appropriation is prohibited under Article II, but notprivate appropriation 5 .I do not agree with this line of thought. There are several reasons for that.I do not agree with this line of thought. There are several reasons for that. First, the draftingprocess of the OST shows that France and Belgium repeated the concerns that Article II might beinterpreted in a narrower way, but when they signed and ratified, both countries did not attach anyinterpretative declarations 6 . That can be construed that their concerns had been settled by thesigning ceremony in favour of their interpretation, or private appropriation inherently prohibited.Second, Article II has to be interpreted with other provisions in the OST, especially ArticleI that guarantees free access to all areas of celestial bodies to all states without any discriminationof any kind. The interpretation of the provisions would be that no appropriation may besanctioned under the OST regime. Then, third and most importantly, the logical consequence ofownership of real estate in modern states has to be taken note of. With respect to real estateownership, it appears impossible to think that private appropriation is authorized in a certain areawhen national appropriation is prohibited there.I would like to talk here about why private appropriation is prohibited. It is only asovereign State that can allow its national to own land within and outside its territory. Under itsjurisdiction, a sovereign State regulates by its laws how a private person owns real estate.Concerning the outside the sovereign territory of any State, the occupation of a private personover certain land is a mere fact unless it is recognized and endorsed by the sovereign State whosenationality a private person holds. I would like to underline that appropriation is a State act, notachieved only by a private person. Historically, appropriation of land by a private person in terranullia has never existed independently from State appropriation. Appropriation is a State act, itmust be performed in the service of a State, and it must be acknowledged by a State after theperformance of a private person 7 .3. State Responsibility to Assure a Private Person Complies with the OSTArticle VI of the OST provides for State responsibility to assure that the activities of itsnationals shall be in conformity with the OST and that such compliance has to be carried out withauthorization and continuing supervision. Hence, it seems to imply the responsibility of a State tomonitor its nationals with due regard so that they would not be able to act to the contrary, and ifnon-compliance by its national with respect to the OST is found out, a State Party has to act tocorrect it through its authority and continuing supervision power. As a result, if a nongovernmentalentity claims territorial appropriation on the celestial bodies, failure of a State to actto stop it could constitute a violation of the treaty obligation 8 . (Of course, elements of damagecaused by such a private act have to be taken into consideration in practice.)5 Ibid., p.3726 Cheng, supra, note 1, pp.230- 2357 Belgium and France took that view. Cheng, ibid., p.233; Virgiliu Pop, “The Man who Sold the Moon:Science Fiction or Legal Nonsense?”, 17:3 Space Policy (2001), p.199. [hereinafter Pop1.]; See, also,Virgiliu Pop, “Appropriation in Outer Space: the Relationship between Land Ownership and Sovereigntyon the Celestial Bodies”, 16:4 Space Policy (2000), pp.275-2828 Pop1, ibid.