American Flags and Sovereignty on the Moon

Q:
I am listening to the podcast of your interview on The Space Show on 5 Oct 09 and have a question that has always bugged me about the Moon Landing. We see pictures of American flags on the Moon planted by the astronauts at the Apollo landing sites. Because the American flag is used to denote American sovereignty over a US embassy or a ship on the high seas (remember when we re-flagged oil tankers during the Iran-Iraq war in the late 1980s?) doesn't the planting of the American flag at the Apollo sites convey an intent for the US Government to claim (or perceive to have claimed) American sovereignty over those sites, in conflict with the Outer Space Treaty?

A:
It's a good question. There are several things to consider.

First of all, there are a lot of nationally-owned and operated bases in Antarctica, and a lot of national flags flying over them. These are merely symbolic, as claims of national sovereignty over territory are counter to the Antarctic Treaty of 1959.

When the Soviet Union's Luna 2 spacecraft became the first spacecraft to reach the Moon in 1959, It carried a number of medallions depicting the Soviet Union's Coat of Arms, which was analogous to the Great Seal of the United States of America. The international law of outer space being very underdeveloped at the time, there was nothing to prevent the Soviet Union from claiming the Moon on that basis, yet it chose not to make any such claim. It would have been a very weak claim at best. Read the Wikipedia article of the 1932 Island of Palmas case:

http://en.wikipedia.org/wiki/Island_of_Palmas_Case

It is not enough to see a place, or land there for a time, claim it, and move on. The claim is inchoate. If someone else comes along later, continuously occupies, and makes productive use of the resources of that place, that later person develops the better claim.

According to Article 2 of the 1967 Outer Space Treaty, national appropriation is prohibited, whether by claim of sovereignty, use and occupation, or by any other means. The United States never intended to use its flag to denote a claim of sovereignty for national sovereignty on the Moon. At best, the American flags at the Apollo sites are symbols of the functional sovereignty that the United States exercised in the immediate area of the sites for the periods that those sites were occupied. By functional sovereignty, I mean that the United States had jurisdiction over its astronauts and was responsible for their activities, and the United States was entitled to be free of interference during the operation of the Apollo missions, which might imply a right to an undefined area of exclusion, but only for the duration of the surface operations at each site. The United States and Russia (the Soviet Union's primary successor state) own the equipment left on the Moon, but they have no claim to the territories on which they are located. The Antarctic bases have similar status.

Technoeconomy vs. Technocracy dichotomies is the nugget in Gangale's Book

Saturday, October 31, 2009

From: Spaceports

BOOK REVIEW: Thomas Gangale's recent 2009 book entitled The Development of Outer Space: Sovereignty and Property Rights in International Space Law is a unique niche interest work worth the read for those who are fascinated by the prospects of multiple nations settling human outposts on celestial bodies' off-Earth.

Gangale provides critical yet constructive analysis of other international legal commentators on property rights in space. The primary thesis is focused on the premise that technology development is the barrier to outer space development, not the current state of international space law and treaties.

The book writer reviews the Moon Treaty at length discussing various aspects of property rights and the theory of "the common heritage of mankind." He takes a critical look of the writings of others in this legal niche and enables the reader to consider an alternative view to other commentators. Gangale is specifically critical of The Space Settlement Prize which seeks to propose American federal legislation requiring the recognition of extraterrestrial real property claims as flawed.

Gangale advocates inclusion of China in international space regimes so as to further embed the nation into current space operational legal regimes. He advocates an interplanetary political economy based upon market forces and advocates the adoption of the so-called Regency of United Societies in Space. The author notes that "we have yet to become a true spacefaring civilization; we are merely a space-capable civilization."

There is an acceptance of the technocratic model for initial development of outer space. He notes the need for balance between the "technoeconomy-technocracy" dichotomies associated with a push-pull relationship of space development that this reader found an extremely interesting insight on the rapidly growing national space program efforts around the world and within the American civil and commercial space sectors.

While this book is not for everyone, it certainly is worth the read for anyone having a strong interest in space law and the economic development regimes of the nascent space economy coming rapidly in the 21st Century. To those with the niche interest, I say buy this book. It will make you think.

Posted by JackKennedy at 12:12 PM

Dinerman

Forty days and forty nights have passed, and still The Space Review refuses to publish my rebuttal to Taylor Dinerman's witless rant against my most recent book. Although patience is a virtue, perhaps not all things come to he who waits....

One afternoon during my current sojourn through the American Southwest, I was at a truck stop on Route 66 in the middle of New Mexico, and I became aware of a trickster playing a flute. There was also the spirit of someone who had rolled down that same road long ago. "If you can't join them, Beat them." A North Beach coffee house came to mind, but also drifting in was a four-chord Velvet voice from the Village.

Diner-man. Diner-man.
I don't know, some say that's not his real name
Diner-man, Diner-man
As a nom de plume just seems kind of lame
Diner-man, Diner-man
Maybe he was a low rent food critic
Diner-man, Diner-man
On a mission from Wantaugh to Bushwick
Diner-man, Diner-man
To write reviews of every greasy spoon
Diner-man, Diner-man
Knew every blue plate from there to the moon

Which decided him to reach for the sky
And give the far right Space Review a try

Diner-man, Diner-man
Tries to write like a libertarian
Diner-man, Diner-man
Comes off like a baby barbarian
Diner-man, Diner-man
Quick to criticize what he doesn't know
Diner-man, Diner-man
His ravings, not his reason, boldly go
Diner-man, Diner-man
English literature is not his thing
Diner-man, Diner-man
He doesn't know Coleridge from Kipling

The White Man's Burden is still on his back
Thinks knocking it is a racial attack

Diner-man, Diner-man
Though he fancies himself a journalist
Diner-man, Diner-man
You won't see him on the New York Times list
Diner-man, Diner-man
No, all he's got is a beef and a blog
Diner-man, Diner-man
But it isn't like falling off a log
Diner-man, Diner-man
It's a real tough job, yeah, and he's the man
Diner-man, Diner-man
He writes two words together when he can

Go back to the blue plate meals you once bought
Where your words might have been some food for thought

National Sovereignty Over the Geostationary Orbit

A recent comment on my article, "Who Owns the Geostationary Orbit?" in the Annals of Air and Space Law, Vol. XXXI:

This is an excellent article and a very convincing argument – I’m definitely going to cite it in my upcoming works. I guess what’s particularly interesting to me is something you also point out in the article – although the reasoning behind the Bogota Declaration is clearly spurious (as your article shows so well) it seems to me that there is, however, something peculiar about the geostationary orbit. The GSO seems unlike other orbits to me in the sense that it seems to be much more of a kind of ‘fixed territory’ in the sense that there’s a limited amount of “space” (forgive the pun) there. Countries who’ve placed payloads into that orbit, it seems to me, “occupy” it in a de facto sense. I haven’t done any historical research into this whatsoever, but I imagine the Bogota Declaration was probably a poorly reasoned way of developing nations to stake a future “claim” on space in that orbit, despite the fact that they were/remain unable to utilize it. I imagine the equatorial states worry that by the time their countries have the economic means to deploy their own payloads into GSO, there will be no room left (I’ve read that GSO ‘slots’ will probably fill up in the next few decades). I think you’re right in pointing out that the closest land analogy to the orbit is Antarctica, but there’s a key difference: Antarctica isn’t going to be ‘filled up’ anytime in the foreseeable future, has little commercial potential, and has little military value. The GSO has all. This is certainly not a criticism of your article – I’m trying to get at a different question than the one you’ve raised. I’m interested in trying to think about the GSO as a kind of “territory” in precisely the way your article seems to suggest we should think about it.

Let's address some technical concerns first. A small equatorial state such as Ecuador could just as easily be served by a geostationary satellite positioned above a point in the Pacific Ocean a degree or two to the west of its territory: just point the ground antennas a few degrees to the west. The interests of Ecuador wouldn't be harmed or diminished in any substantive way. On the other hand, a large equatorial state such as Brazil has so large an arc of the GSO above its territory that it ought to be fairly easy to share that arc with other users. Of course, given more users, GSO slots will tend to fill up, all other things being equal. However, all other things are not equal. Using 1960s technology, the GSO slots would have filled up many years ago, but as satellite communications systems have become more capable, more utility has been extracted from each GSO slot.

Now to the legal issues. The "fixed territory" character of the geostationary orbit is an illusion, and therefore so is any claim over a segment of the GSO based on national territory. Imagine two automobiles traveling along a road side by side in adjacent lanes at the same speed. From the point of view of one, the other is stationary, yet neither one is stationary. One car has no claim over the space in the adjacent lane. The other auto has the right to pass through that adjacent space, or to remain in that space for some unspecified time.

The geostationary orbit is a consequence of the Earth's rotation; if the Earth did not rotate, there would be no GSO. Suppose there were a nation on the Moon centered at zero degrees latitude, zero degrees longitude, and extending for several degrees from this point north, south, east and west. There would be an object constantly occupying the arc of selenostationary orbit directly above this lunar state's national territory, and according to the reasoning of the Bogota Declaration, the object permanently occupying this selenostationary slot would be the national territory of this lunar state. That object is Earth.

The right to overfly national territory is absolute, regardless of the transit time. This right of overflight became instant customary international law with the launching of Sputnik 1 and the absence of objection by any overflown state. According to Article 2 of the Outer Space treaty, no part of space, including any segment of the GSO, is "subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Certainly, a satellite positioned in the GSO uses and occupies that position, but Article 2 prohibits neither use nor occupation, it only prohibits either of these as a means of national appropriation. The use and occupation of GSO slots is is clearly not national appropriation, since these slots are licensed by an international organization, the International Telecommunications Union.

I am not unsympathetic with the concerns of equatorial states, that they may become launching states in the future, and find that their national interests conflict with the interests of those of other entities who have satellites in the GSO above their national territory. These interests will need to find an equitable balance, which suggests that the rules of the ITU may need some adjustment in the future to accommodate new users of the GSO.

By the way, an unintended consequence, not considered by those who disparage the Article 2 principle and who would like to see successfully asserted claims to territory on the Moon, is that any such successfully asserted claim would jolt the life-force into the Bogota Declaration, setting loose a Frankenstein monster upon the international law regime of outer space.

Response to "Habitat Hermit's" Comment

I thank you for your comment.

I submitted my rebuttal to The Space Review three weeks ago, and so far it has failed to publish my rebuttal. One ought to question why The Space Review would publish a piece that monstrously misrepresents an author's work, while not allowing the author the equal opportunity to correct the record. What is this publication's agenda?

Both the Outer Space Treaty and the Moon Agreement are international law; they are both deposited with the United Nations, they are both open for signature, and they are both binding on the states that have ratified them. The distinction is that the Moon Agreement has few states parties.

While I take appreciative note of your apology for the third paragraph of your post in The Space Review as "scathing" and "entirely misdirected," let me nevertheless address some of the issues you raise.

When you state that my book "seems to base itself on an ultra-extreme statist interpretation of the OST that neither the former Soviet communists, nor the US, nor Russia, nor China, nor the EU, nor Japan would subscribe to," frankly, that doesn't even make any sense to me. And if any of that were true, is it credible that my work would have been approved by a committee that included a professor who teaches international law as well as a career US Foreign Service officer of ambassadorial rank who was on the negotiating team of strategic arms treaties, or that Aerospace Corporation analysts would have briefed my work to senior NASA managers?

Nor is my alleged "ultra-extreme statist interpretation" why "the author of the book thinks the Moon Treaty is a good idea." I think it is a good idea because I reach conclusions that are opposite to yours. You state that "in reality the OST and the Moon Treaty are in deep conflict because the Moon Treaty contradicts the OST on the issue of Earth-government authority over non-Earth assets; the OST argues against such authority while the Moon Treaty takes such authority for granted." Given your premise of "the inherent contradiction between the Outer Space Treaty on one side and the Moon Treaty/Moon Agreement on the other," how can you explain the fact that the same states that ratified the Outer Space Treaty between 1967 and 1979 apparently reversed themselves so completely in negotiating the Moon Agreement between 1972 and 1979? Nowhere in the scholarly literature have I seen anyone else make this assertion; rather, the weight of scholarly opinion is that the Moon Agreement adds specificity to the principles declared in the Outer Space Treaty. Cite chapter and verse if you think otherwise. Exactly where does the Outer Space Treaty argue against such authority? Meanwhile, the Moon Agreement does not take such authority for granted; it merely commits states parties to "undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible." Now, in international law, the word "regime" has special meaning. It does not mean "regime" in the sense of a sovereign government, complete with coercive mechanisms such as police and/or other armed forces. Rather, it means "a set of rules" established to govern specific activities. For instance, the General Agreement of Tariffs and Trade was a regime (a set of rules) without an organization for four decades before the Uruguay Round of GATT established the World Trade Organization. It seems obvious that when the exploitation of the Moon and other celestial bodies is about to become feasible, there will need to be a set of rules to ensure that commercial operations do not interfere with each other, or are not interfered with by other entities. Indeed, a regime of legal certainty is conducive to a favorable investment environment. In my view, this provision of the Moon Agreement was meant to address this need.

Whether or not you agree with my positions on points of international law pertaining to outer space, I hope you will at least recognize that in the long run we want the same thing: the efflorescence of the human species into the cosmos. I believe in international law as a means to this end, and not a barrier to it.