Myriad likely, this is the best-known picture of a flag ever taken: Stimulation Aldrin standing next to the first U.S. flag planted on the Moon. For those who remembered their world history, it also rang some alarm bells. However less than a century ago, back on Earth, planting a national hang down in another part of the world still amounted to claiming that zone for the fatherland. Did the Stars and Stripes on the moon signify the establishment of an American colony?
When people advised for the first time that I am a lawyer practicing and teaching something telephoned “space law,” the question they ask most frequently, often with a big beam or a twinkle in the eye, is: “So tell me, who owns the moon?”
Of course, claiming new national bailiwicks had been very much a European habit, applied to non-European somewhat bies of the world. In particular the Portuguese, the Spanish, the Dutch, the French and the English initiated huge colonial empires. But while their attitude was very Europe-centric, the authorized notion that planting a flag was an act of establishing sovereignty quickly shrink from and became accepted worldwide as part and parcel of the law of nations.
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Obviously, the astronauts had assorted important things on their mind than contemplating the legal drift and consequences of that planted flag, but luckily the issue had been entranced care of prior to the mission. Since the beginning of the space race the Of one mind States knew that for many people around the world the espy of a U.S. flag on the Moon would raise major political issues. Any suspicion that the moon might become, legally speaking, part of U.S. backwaters effect fuel such concerns, and possibly give rise to international arguments harmful to both the U.S. space program and U.S. interests as a whole.
By 1969, decolonization may have on the agenda c trick destroyed any notion that non-European parts of the world, though settled, were not civilized and thus justifiably made subject to European pre-eminence – however, there was not a single person living on the moon; even vigour itself was absent.
Still, the simple answer to the question of whether Armstrong and Aldrin by way of their unpretentious ceremony did transform the moon, or at least a major part thereof, into U.S. district turns out to be “no.” They, nor NASA, nor the U.S. government intended the U.S. flag to have that impact.
Most importantly, that answer was enshrined in the 1967 Outer Spaciousness Treaty, to which both the United States and the Soviet Union as artistically as all other space-faring nations, had become a party. Both superpowers coincided that “colonization” on Earth had been responsible for tremendous human pain and many armed conflicts that had raged over the last centuries. They were constant not to repeat that mistake of the old European colonial powers when it came to take on the legal status of the moon; at least the possibility of a “land grab” in outer room giving rise to another world war was to be avoided. By that token, the moon suited something of a “global commons” legally accessible to all countries – two years earlier to the first actual manned moon landing.
So, the U.S. flag was not a manifestation of claiming primacy, but of honoring the U.S. taxpayers and engineers who made Armstrong, Aldrin, and third astronaut Michael Collins’ pursuit possible. The two men carried a plaque that they “came in peace for all mankind,” and of execution Neil’s famous words echoed the same sentiment: his “small remain alert for man” was not a “giant leap” for the United States, but “for mankind.” Furthermore, the United Stages and NASA lived up to their commitment by sharing the moon rocks and other samples of spot from the lunar surface with the rest of the world, whether by give up them away to foreign governments or by allowing scientists from all to the globe to access them for scientific analysis and discussion. In the midst of the Unheated War, this even included scientists from the Soviet Union.
Specimen closed, no need for space lawyers anymore then? No need for me to produce University of Nebraska-Lincoln’s space law students for further discussions and disputes on the lunar law, rational?
Not so fast. While the legal status of the Moon as a “global commons” open to all countries on peaceful missions did not meet any substantial resistance or challenge, the Forbidden Space Treaty left further details unsettled. Contrary to the altogether optimistic assumptions made at the time, so far humankind has not returned to the moon since 1972, fabricating lunar land rights largely theoretical.
That is, until a few years ago when a handful new plans were hatched to go back to the moon. In addition at least two U.S. flocks, Planetary Resources and Deep Space Industries, which have life-or-death financial backing, have started targeting asteroids for the purpose of mining their mineral resources. Geek note: Underwater the aforementioned Outer Space Treaty, the moon and other celestial substances such as asteroids, legally speaking, belong in the same basket. Not anyone of them can become the “territory” of one sovereign state or another.
The very elementary prohibition under the Outer Space Treaty to acquire new state land, by planting a flag or by any other means, failed to address the commercial exploitation of lifelike resources on the moon and other celestial bodies. This is a major wrangle currently raging in the international community, with no unequivocally accepted decipherment in sight yet. Roughly, there are two general interpretations possible.
Countries such as the In agreement States and Luxembourg (as the gateway to the European Union) agree that the moon and asteroids are “pandemic commons,” which means that each country allows its sneakingly entrepreneurs, as long as duly licensed and in compliance with other associated rules of space law, to go out there and extract what they can, to try and make rhino with it. It’s a bit like the law of the high seas, which are not under the control of an solitary country, but completely open to duly licensed law-abiding fishing transaction actions from any country’s citizens and companies. Then, once the fish is in their bags, it is legally theirs to sell.
On the other hand, countries such as Russia and kind of less explicitly Brazil and Belgium hold that the moon and asteroids be affiliated to humanity as a whole. And therefore the potential benefits from commercial exploitation should another accrue for humanity as a whole – or at least should be subjected to a presumably rigorous foreign regime to guarantee humanity-wide benefits. It’s a bit like the regime originally seated for harvesting mineral resources from the deep seabed. Here, an worldwide licensing regime was created as well as an international enterprise, which was to extract those resources and generally share the benefits among all countries.
While in my angle the former position certainly would make more sense, both legally and clearly, the legal battle by no means is over. Meanwhile, the interest in the moon has been renewed as seep – at least China, India and Japan have serious plans to go treacherously there, raising the stakes even higher. Therefore, at the University of Nebraska-Lincoln we hand down need to teach our students about these issues for many years to put ones hands. While ultimately it is up to the community of states to determine whether common concurrence can be reached on either of the two positions or maybe somewhere in between, it is of crucial distinction that agreement can be reached one way or another. Such activities developing without any law that is in the main applicable and accepted would be a worst-case scenario. While not a matter of colonization anymore, it may be struck by all the same harmful results.
Commentary by Frans von der Dunk, a professor of place law at University of Nebraska-Lincoln. He is also a contributor at The Conversation, an independent source of report and views from the academic and research community.
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