CLASSIFYING OBJECTS IN SPACE ACCORDING TO SOUTH AFRICAN PROPERTY LAW

Abstract

Traditionally, objects were classified according to their relation to man or according to their own nature. The classical division according to their relation to man relates to the question of whether something is susceptible to private ownership or not. This aspect is of cardinal importance when it comes to objects in space. This results in the need for a further distinction between things that are classified as being in commerce (res in commercium) and things that are outside of commerce (res extra commercium). After a thorough investigation it is determined that heavenly bodies, such as the Moon, as well as smaller bodies, such as asteroids, can be classified as objects of property law falling within commerce – if the required characteristics are present, and taking into consideration that the current prohibition on appropriation of heavenly bodies will either be discarded in future, or at the very least be interpreted in such a way as to allow for appropriation in certain instances. These characteristics are corporeality, external to persons, independence, appropriability/susceptibility to human control and use and value. Therefore it can be surmised that in terms of property law, it is possible to acquire ownership of heavenly bodies and other objects in space, and that these objects can be classified in terms of South African property law. However, the following (from the conclusions) flows more satisfactorily for the author – one makes the choice: By turning to the foundational aspects of property law as found in South African property law, large celestial bodies, such as the Moon, as well as smaller bodies, such as asteroids, can be classified as objects of property law falling within commerce – if the required characteristics (corporeality, external to persons, independence, appropriability/susceptibility to human control, use and value) are present. When these are present, it would follow that it would be possible to acquire a heavenly body, object in space, or part thereof by means of occupation of a res nullius. Even in cases where certain categories of things have been designated as being unappropriable, or outside of commerce (res extra commercium) due to historical reasons, the possibility exists that by exerting effective control over the object, it can be reclassified as being appropriable and hence inside of commerce (res in commercio). In addition to this classification of celestial bodies as falling inside
of commerce and having the characteristics of objects, the discussion of their division according to their nature, being corporeal or incorporeal, movable or immovable, divisible and indivisible, consumable and non-consumable, fungible and non-fungible, and singular and composite, has revealed that even in terms of this classification, heavenly bodies could in fact fall squarely within the confines of property law, and can therefore be regarded as objects of property law even in cases where they do not fall into the narrow classification of “things”.