When the US was confronted with this query in the early 1950s, it lobbied for the recognition of outer space as a global commons. The Soviet Union was difficult to infiltrate to gather intelligence, so open access to Soviet air space was crucial for the US during the Cold War. Perceiving outer space as a commons was also another way of preventing national sovereignty in space. But neither the USSR nor the US was keen to fight out the Cold War on yet another front. Geopolitics dictated the decision to treat outer space as being non-appropriable.

This principle can be found back in Article II of the 1967 Outer Space Treaty which clearly forbids “national appropriation by claims of sovereignty, means of use or occupation by any other means”. It has been widely accepted: no one complains the various moon landings or satellites in space have infringed their sovereignty.

However, legal commentators disagree over whether this prohibition is also valid for private appropriation. Some space lawyers have argued for the recognition of real property rights on the basis of jurisdiction rather than territorial sovereignty.

Historical records of the Space Treaty negotiations clearly indicate people were against private appropriations at the time, but an explicit prohibition never made it into Article II. Lessons have been learned from this omission and the ban was far more explicit in the subsequent Moon Agreement of 1979. However only 16 countries signed the agreement, none of which were involved in manned space exploration, leaving it somewhat meaningless as an international standard.

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