The res communis concept in Space Law

The res communis and res nullius maxims are the two legal concepts which have a great significance in the legal world, especially in the laws related to highs seas, outer space, and Antarctica. In the development of Space Law, the question of outer space’s legal status (and its resources) was raised: was outer space a res communis or a res nullius? Who owned outer space? Who owned the Moon?

Since the inception of the Outer Space Treaty of 1967, international law regarding the use of outer space by States and individuals has been dominated by the res communis doctrine, the concept that outer space belongs to mankind and not to one individual or country; the non-appropriation principle prevails and reference to the State sovereignty is absent. Outer space is a res communis omnium (a thing of the entire community). Accordingly, the 1967 Outer Space Treaty, which sets out the rules governing the interactions between States in outer space, establishes that its use and exploration are “province of all mankind” (Article I). Therefore, the OST in essence sets outer space aside as an extra-jurisdictional territory and no State can exercise any sovereign rights over it.

Space Law and res communis

A res communis could be defined as a “common thing”. It is a Latin phrase used in ius publicum (Latin for public law): by the past, public law regulated the relationships of the government to its citizens, including taxation, while ius privatum (Latin for private law), based upon property and contract, concerned relations between individuals. The “public/private law dichotomy” is a structural core of Roman law and all modern western legal systems.

Ius publicum was used also to describe obligatory legal regulations, such as ius cogens, which is now a term used in public international law meaning basic rules which cannot (or should not) be broken, or contracted out of. Regulations that can be changed are called today ius dispositivum, and they are used when party shares something and are not in opposition.

Res communis preceded today’s concepts of the commons and common heritage of mankind. It has relevance in public international law and common law (also known as judge-made law and case law, is that body of law derived from judicial decisions of courts and similar tribunals).

In the sixth century C.E., the Institutes of Justinian restated the Roman rule as follows: “By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea”. The public acquired certain usufructuary rights (a limited real right, or in rem right, found in civil law and mixed jurisdictions that unites the two property interests of usus, the right to use or enjoy a thing possessed, directly and without altering it, and fructus, the right to derive profit from a thing possessed: for instance, by selling crops) in these resources by virtue of its common property interest in them. For example, all rivers and ports were public such that everyone had a right to fish in them.

Everyone also had the right to approach the seashore provided that habitations, monuments, and buildings were respected; to build a cottage on the seashore; to haul nets to the shore from the sea; and to dry them there. Finally, everyone had a right to navigate rivers, to bring vessels to their banks and to tie them to trees growing there, and to deposit the vessels’ cargo on the banks, even though the banks and trees were the property of the riparian landowners. The state apparently protected the uses to which the res communis concept applied, although there is no evidence that the Roman public could enforce its right against the state to these uses.

Biological examples of res communis include fish and mammals in high seas. Rules for use of the continent Antarctica were based on res communis as was development of Space Law. The term can be contrasted with res nullius, the concept of ownerless property, associated for example with terra nullius, the concept of unowned territory.

Res nullius

A res nullius could be defined as “nobody’s thing”. It is a Latin phrase used in ius privatum (Latin for private law), based upon property and contract, concerned relations between individuals. It means “something without a master”, that is to say which has no owner but which is nevertheless appropriable.

Res” (an object in the legal sense, anything that can be owned) is not yet the object of rights of any specific subject. Such items are considered ownerless property and are free to be acquired by means of “occupatio”. In Roman law, occupatio was an original method of acquiring ownership of un-owned property (res nullius) by occupying with intent to own. According to the Roman jurist Gaius, any previously unowned thing becomes the just property of the first occupant able to “capture” it: “Another title of natural reason, besides Tradition, is Occupation – occupatio, whereby things previously the property of no one become the property of the first occupant, as the wild inhabitants of Earth, air, and water, as soon as they are captured. For wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power; after breaking from his custody and recovering their natural liberty, they may become the property of the next occupant; for the ownership of the first captor is terminated. Their natural liberty is deemed to be recovered when they have escaped from his sight, or, though they continue in his sight, when they are difficult to recapture”.

Examples of res nullius in the socio-economic sphere are wild animals (ferae naturae) or abandoned property (res derelictae). Finding can also be a means of occupation, since a thing completely lost or abandoned is res nullius, and therefore belonged to the first taker.

Res derelictae

What was abandoned (res derelictae) was also res nullius and subject to acquirement through occupatio. In Roman law, res derelictae referred to property voluntarily abandoned by the owner. It was necessary to establish that it had been voluntarily abandoned. The opposite was “res mancipi” or owned property.

Terra nullius

Terra nullius” (plural terrae nullius) is a Latin expression meaning “nobody’s land” and is a principle sometimes used in public international law to describe territory that may be acquired by a State’s occupation of it. Terra nullius stems from the Roman law term res nullius, meaning nobody’s thing. According to the Roman law res nullius, or things without an owner, such as wild animals (ferae beastiae), lost slaves and abandoned buildings could be taken as property by anyone by seizure. A part of the debate over the history of terra nullius is when the term itself was first used. According to some historians, the term terra nullius was first introduced at the beginning of the 20th century during legal disputes over the Polar Regions. There is considerable debate among historians about how and when the terra nullius concept was first used.

However, we know today that the expression finds its origin and its use in public international law in papal bull Terra Nullius of Pope Urban II, rushed in 1095, which authorized the European Christian States to appropriate territories occupied by non-Christians. At a time when the Church was the reference for the international order of the Christian West, it was the legal framework in which the Latin States of the East were erected during the Crusades, starting in 1096.

The concept of the Common Heritage of Mankind in public international law

The concept of the common heritage of mankind is one of the most extraordinary developments in recent intellectual history and one of the most revolutionary and radical legal concepts to have emerged in recent decades. The year 2017 marked the fiftieth anniversary of the advent of the concept in the domain of public international law (Outer Space Treaty, 1967). Ever since its emergence, it has become evident that no other concept, notion, principle or doctrine has brought as much intensive debate, controversy, confrontation and speculation as the common heritage phenomenon did. This is because it is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. In other words, the application and enforcement of the common heritage of mankind require a critical re-examination of many well-established principles and doctrines of classical international law, such as acquisition of territory, consent-based sources of international law, sovereignty, equality, resource allocation and international personality.

Space legal issues concerning Space Law and res communis

Outer space, extraordinary in many respects, is, in addition, unique from the legal point of view. It is only recently that human activities and international interaction in outer space have become realities and that beginnings have been made in the formulation of international rules to facilitate international relations in outer space. As is appropriate to an environment whose nature is so extraordinary, the extension of international law to outer space has been gradual and evolutionary – commencing with the study of questions relating to legal aspects, proceeding to the formulation of principles of a legal nature and, then, incorporating such principles in general multilateral treaties.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) could be viewed as furnishing a general legal basis for the peaceful uses of outer space and providing a framework for the developing law of outer space. Its preamble states that it recognises “the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes” and believes “that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development”.

Article I enounces 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”. The words “for the benefit and in the interests of all countries”, “free for exploration and use”, “free access to all areas of celestial bodies” are important. They underline the res communis aspect of outer space and its resources.

Article II affirms 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 mean”. This statement is as important as the words used in Article I. It reinforces the res communis aspect of outer space and its resources and excludes the concept of terra nullius. It is important to recall that activities in outer space began in the late 1950s and truly developed in the 1960s, a time influenced by the decolonisation of Africa (in the mid-to-late 1950s and 1960s), where discussions had been held on the status of Antarctica (the Antarctic Treaty was signed on December 1, 1959). This Article II is at the foundation of the res communis aspect of outer space.

Let’s also recall that Article 2 of the Convention on the High Seas (Geneva, April 29, 1958) states that “The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas”.

Some believe today that the underlying premise of res communis effectively limits expansion and innovation in the realm of outer space. Two areas in particular: national security and property rights and commercialization.

Property rights and commercialisation – Space Law and res communis

When speaking about Space Law and res communis, the res communis doctrine resounds most prominently when dealing with property ownership rights in outer space. The Outer Space Treaty (1967) not only forbids claiming of territory by nations, but its child, the Moon Treaty (1979), attempts to extend that prohibition to private legal entities also. Although the United States of America is not a signatory to the Moon Treaty, it has not taken open actions to actually refute its legal viability. The result is that the Moon Treaty and its res communis doctrine has slowly crept into the realm of accepted international law.

Some believe that the Outer Space Treaty and its res communis doctrine should be rethought. That is what we can say about Space Law and res communis.