The conversation
Who owns the moon? A space lawyer responds
Edwin E. ‘Buzz’ Aldrin Jr. poses for a photograph next to the US flag flying on the moon during the Apollo 11 mission on July 20, 1969. Neil A. Armstrong / NASA / AP PhotoMore likely, this is the most known of a flag already taken: Buzz Aldrin next to the first US flag planted on the moon. For those who knew its world history, some alarms also sounded. Less than a century ago, back on Earth, planting a national flag in another part of the world still meant claiming that territory for the motherland. Did the United States flag on the moon mean the establishment of an American colony? When people first hear that I am a lawyer practicing and teaching something called “space law”, the question they ask most often, often with a big smile or a twinkle in their eye, is: “So tell me, who is it the owner the moon? ” Of course, claiming new national territories had been a European habit, applied to non-European parts of the world. In particular, the Portuguese, the Spanish, the Dutch, the French and the English created huge colonial empires. But, although his attitude was very centered in Europe, the legal notion that planting a flag was an act of establishing sovereignty quickly became established and was accepted worldwide as an integral part of the law of nations. Obviously, the astronauts had more important things in mind than contemplating the legal significance and consequences of that flag planted, but fortunately the issue had already been resolved before the mission. Since the start of the space race, the United States has known that, for many people around the world, the sight of a US flag on the Moon would raise important political questions. Any suggestion that the moon could legally become part of the backwaters of the United States could fuel such concerns and possibly give rise to international disputes detrimental to both the United States’ space program and the interests of the United States as a whole. In 1969, decolonization may have destroyed any notion that non-European parts of the world, although populated, were not civilized and therefore justifiably subject to European sovereignty – however, there was not a single person living on the moon; even life itself was absent. Still, the simple answer to the question of whether Armstrong and Aldrin through their small ceremony transformed the moon, or at least an important part of it, into US territory turns out to be “no”. They, neither NASA nor the US government intended the US flag to have that effect. NASA’s first space treatise Lunar Sample Return Container with lunar soil on display in a safe at NASA’s Johnson Space Center. OptoMechEngineer, CC BY-SA Most importantly, this response was enshrined in the 1967 Outer Space Treaty, to which the United States and the Soviet Union, as well as all other space navigation nations, became a part. Both superpowers agreed that “colonization” on Earth was responsible for enormous human suffering and many armed conflicts that have occurred in recent centuries. They were determined not to repeat the error of the old European colonial powers when it came to deciding on the moon’s legal status; at least the possibility of “land grabbing” in outer space giving rise to another world war should be avoided. For this reason, the moon has become something of a “global common good” legally accessible to all countries – two years before the first manned landing on the moon. Entrepreneur Rajzeev V. Baagree, who bought five acres of land on the moon for 1,400 rupees (equivalent to the US in 2005) per acre, poses next to supporting documents at his home in Hyderabad, India. It turns out that he was cheated. Mustafa Quraishi / AP Photo Therefore, the US flag was not a manifestation of a claim to sovereignty, but a tribute to the American taxpayers and engineers who made the mission of Armstrong, Aldrin and the third astronaut Michael Collins possible. The two men carried a sign saying that “they came in peace for all mankind” and, of course, Neil’s famous words echoed the same sentiment: his “little step for man” was not a “giant leap” for the United States, but “for humanity.” In addition, the United States and NASA have fulfilled their commitment by sharing lunar rocks and other soil samples from the lunar surface with the rest of the world, whether by giving them to foreign governments or allowing scientists from around the world to access them. for analysis and scientific discussion. In the middle of the Cold War, this even included scientists from the Soviet Union. Case closed, is there no more need for space lawyers, then? There is no need to prepare space law students at the University of Nebraska-Lincoln for further discussions and disputes about lunar law, right? Aren’t space lawyers needed? Not so fast. Although the Moon’s legal status as a “global common good” accessible to all countries on peaceful missions has encountered no substantial resistance or challenge, the Outer Space Treaty has left more details unresolved. Contrary to the very optimistic assumptions made at the time, mankind has not yet returned to the moon since 1972, making the rights to lunar land largely theoretical. This 1964 archival photo of the World’s Fair in Queens, New York, shows a view of a lunar colony at the Futurama 2 attraction assembled by General Motors. AP Photo This is, until a few years ago, when several new plans were drawn up to return to the moon. In addition, at least two American companies, Planetary Resources and Deep Space Industries, which have a great deal of financial support, have started targeting asteroids in order to mine their mineral resources. Geek note: According to the aforementioned Outer Space Treaty, the moon and other celestial bodies, such as asteroids, legally speaking, belong to the same basket. None of them can become the “territory” of one sovereign state or another. The fundamental prohibition of the Outer Space Treaty to acquire new state territory, through the planting of a flag or by any other means, did not address the commercial exploitation of the natural resources of the Moon and other celestial bodies. This is a major debate that is currently taking place in the international community, with no unambiguously accepted solution in sight yet. Roughly speaking, there are two possible general interpretations. So you want to mine an asteroid? Countries like the United States and Luxembourg (as a gateway to the European Union) agree that the moon and asteroids are “global common goods”, which means that each country allows its private entrepreneurs, as long as they are properly licensed and in accordance with others rules of space law, to go there and extract what they can, to try to make money from it. It is a bit like the law of the high seas, which is not under the control of an individual country, but fully open to lawful fishing operations that comply with the law, from citizens and companies of any country. Then, once the fish is in the nets, it is legally yours to sell. OSIRIS-REx will travel to an asteroid close to Earth called Bennu and bring a small sample back to Earth for study. The mission was launched on September 8, 2016, at Cape Canaveral Air Force Station. As planned, the spacecraft will arrive in Bennu in 2018 and return a sample to Earth in 2023. NASA / Goddard Space Flight Center / ASSOCIATED PRESS On the other hand, countries like Russia and somewhat less explicitly Brazil and Belgium claim that the moon and asteroids they belong to humanity as a whole. And, therefore, the potential benefits of commercial exploitation should somehow accrue to humanity as a whole – or at least they should be subjected to a presumably strict international regime to guarantee benefits for all of humanity. It is a bit like the regime originally established for harvesting mineral resources from the seabed. Here, an international licensing regime was created, as well as an international company, which should exploit these resources and generally share the benefits among all countries. Although, in my opinion, the previous position certainly made more sense, both from a legal and a practical point of view, the legal battle has by no means ended. Meanwhile, interest in the moon has also been renewed – at least China, India and Japan have serious plans to return there, further increasing the stakes. Therefore, at the University of Nebraska-Lincoln, we will need to teach our students about these issues for many years. Although it is ultimately up to the community of states to determine whether a common agreement can be reached in either position or perhaps somewhere in between, it is of crucial importance that the agreement can be reached in one way or another. The development of such activities without any generally applicable and accepted law would be the worst case scenario. Although it is no longer a matter of colonization, it can have the same damaging results. This article was republished from The Conversation, a non-profit news site dedicated to sharing ideas from academic experts. Read more: If the Earth falls, will interstellar space travel be our salvation? Exploring the moon for rocket fuel to take us to Mars A new telescope will scan the skies for asteroids on a collision course with Earth. Frans von der Dunk has a consultancy that deals with issues of space and political law.