This is most likely the most famous photo of a flag ever taken: Buzz Aldrin next to the first American flag planted on the moon.
For those who knew their world history, it also rang alarm bells. Only less than a century ago, returning to Earth, planting a national flag in another part of the world always amounted to claiming that territory for the homeland.
Did the stars and the stripes on the moon signify the establishment of an American colony?
When people learn for the first time that I am a lawyer who practices and teaches what is called "space law", the question they ask most often, often with a big smile or a blink of an eye. 'eye, is:' So, tell me, to whom the moon? '
Of course, claiming new national territories was a European habit, applied to non-European regions of the world. The Portuguese, Spanish, Dutch, French and British have created immense colonial empires. But while their attitude was very much centered on Europe, the legal notion that planting a flag was an act of sovereignty was quickly taking place and was now accepted around the world as an integral part of the law of nations.
Clearly, astronauts were more important than thinking about the legal significance and consequences of the planted flag, but fortunately the issue had been settled before the mission.
Since the beginning of the space race, the United States knew that for many people around the world, the sight of an American flag on the moon would pose significant political problems. Any suggestion that the moon could become, legally speaking, a part of the US backwaters could fuel such concerns and possibly give rise to international disputes prejudicial to the US space program and to US interests as a whole.
In 1969, decolonization might have destroyed any idea that parts of the non-European world, even populated ones, would not be civilized and would therefore be legitimately subject to European sovereignty. However, no one lived on the moon; even life was absent.
Still, the simple answer to the question of whether Armstrong and Aldrin, through their small ceremony, has actually turned the moon, or at least a significant part of it, into US territory turns out to be "no" .
Neither they nor NASA nor the US government wanted the American flag to have that effect.
The first treaty on space
Most importantly, this response was embodied in the 1967 Outer Space Treaty, to which the United States and the Soviet Union, as well as all other countries with space systems, became parties. . The two superpowers agreed that "colonization" on Earth had been the source of terrible human suffering and many armed conflicts that had plagued the past centuries.
They were determined not to repeat this mistake of the old European colonial powers when it came to deciding the legal status of the moon; at least the possibility of "land grabbing" into outer space giving rise to another world war should be avoided. As a result, the moon has become a sort of "global commons" legally accessible to all countries – two years before the first real landed landing.
The American flag was therefore not a manifestation of sovereignty claim, but of the respect of American taxpayers and engineers who made possible the mission of Neil Armstrong, Aldrin and third astronaut Michael Collins.
The two men wore a plaque that they "came in peace for all humanity" and, of course, Neil's famous words echoed the same sentiment: his "little step for the man" It was not a "giant leap" for the United States, but "for humanity."
In addition, the United States and NASA have kept their commitment by sharing the moon's rocks and other lunar surface soil samples with the rest of the world, either by handing them over to foreign governments or by allowing scientists from around the world. access for scientific analyzes and discussions. In the middle of the Cold War, this included even scientists from the Soviet Union.
Case closed, no need for lawyers specialized in space? It is not necessary for me to prepare Nebraska-Lincoln space law students for further discussions and disputes about the lunar right, right?
Not so fast. While the legal status of the Moon as a "global commune" accessible to all peace-making countries has not met with any resistance or significant challenge, the Outer Space Treaty has left new details unresolved . Contrary to the very optimistic assumptions that prevailed at the time, humanity has not returned to the moon since 1972, making lunar land rights largely theoretical.
That is to say until a few years ago, when several new plans were developed to return to the moon. In addition, at least two US companies, Planetary Resources and Deep Space Industries, which have significant financial support, have begun targeting asteroids for the purpose of mining their mineral resources.
Note Geek: Under the above-mentioned Outer Space Treaty, the Moon and other celestial bodies such as asteroids, from a legal point of view, belong to the same basket. None of them can become the "territory" of one sovereign state or another.
The very fundamental prohibition under the Outer Space Treaty of acquiring a new national territory, by planting a flag or by any other means, did not make it possible to combat the commercial exploitation of natural resources on land. the moon and other celestial bodies.
This is a major debate that is currently raging in the international community and has not yet found an accepted solution unequivocally. Basically, two general interpretations are possible.
So you want to exploit an asteroid?
Countries such as the United States and Luxembourg (as the gateway to the European Union) agree that the moon and asteroids are "global commons", which means that each country authorizes its private contractors, provided they are duly licensed and in accordance with other rules of space law, go out and extract what they can, try to make money with.
This is a bit like the High Seas Act, which is not under the control of any particular country, but is fully open to law-abiding fishing operations duly authorized by citizens and fishing companies. any country.
Then, once the fish is in their nets, it is up to them to sell it legally.
On the other hand, countries such as Russia and a little less explicitly Brazil and Belgium consider that the moon and asteroids belong to humanity as a whole. And therefore, the potential benefits of commercial exploitation should somehow benefit all humankind – or at least should be subject to a presumptively rigorous international regime in order to ensure benefits for the whole of the world. humanity.
It's a bit like the regime originally put in place to exploit the mineral resources of the deep seabed. Here, an international licensing system was created, as well as an international company that was to exploit these resources and share the benefits between all countries.
Although, in my opinion, the previous position would certainly make more sense, both legally and practically, the legal battle is far from over.
Meanwhile, interest in the moon has also been renewed – at least China, India and Japan have serious plans to return, further increasing the stakes.
Therefore, at the University of Nebraska-Lincoln, we will have to teach these students these issues for many years. Although it is ultimately up to the community of states to determine whether it is possible to reach a common agreement on one or other of the positions, or even between the two, it is essential to reach an agreement on one way or another.
The development of such activities without generally applicable and accepted law would be the worst case scenario. Although this is no longer a question of colonization, it can have the same negative consequences.
Dr. Frans von der Dunk is Harvey & Susan Perlman's graduate and Othmer Profesor of Space Law at the University of Nebraska – Lincoln. In 2004, he received the Distinguished Service Award from the International Space Law Institute of the International Astronautical Federation, the Social Sciences Prize of the International Academy of Astronautics and the International Astronautical Federation. Award of the 2015 Social Science Book of the International Academy of Astronautics for the Law of Space Law. In 2008, he was appointed for the first time a member of the European Space Committee of the European Space Foundation. In addition, he was the sole advocate of the group of experts on reducing the threat of asteroids established by the Association of Space Explorers in 2007.