Christos Kyritsis (University of Mississippi – School of Law) has posted The Non-Appropriation Paradox: The Modern “For Me, but Not for Thee” on SSRN. Here is the abstract:
The Outer Space Treaty prohibits national appropriation of outer space and celestial bodies, making non-appropriation one of the central principles of modern space law. But the rule raises a question that space-law scholarship has largely sidestepped: by what authority do territorial states declare that territorial sovereignty governs Earth but not the first domain beyond it?
This article argues that the real issue is not the interpretation of Article II, but the legitimacy of the legal order that produced it. The Outer Space Treaty refers repeatedly to outer space without defining it or establishing a precise boundary between terrestrial and extraterrestrial domains. That omission is not merely technical. It exposes a deeper jurisprudential problem: if states have no sovereignty over outer space, on what basis do they claim the power to impose permanent rules governing its political future?
Drawing on Stephen Gorove’s analysis of the undefined character of outer space, classical theories of sovereignty, and questions of legal legitimacy, the article contends that non-appropriation is not simply a neutral rule of space governance. It reflects a structural tension in international law itself: a system that treats territorial sovereignty as the foundation of political authority on Earth while denying its future extension beyond Earth. The resulting asymmetry is usually treated as self-evident. It is not.
The article therefore asks whether non-appropriation is truly a universal norm or instead a historically contingent limit imposed by states whose own authority depends on territorial sovereignty. The issue is not whether territorial sovereignty should extend into outer space. The issue is whether the first legal regime for outer space rests on principles that have never been adequately justified.
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