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.