Today marks the 50th anniversary of Apollo 11 landing on the Moon, and what better way to celebrate than a look at the space law involved in the landing![1]
Background
The space law situation in July 1969 was slightly more truncated than it is today. The Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (hereinafter the Declaration of Legal Principles)[2] which was adopted by the UN General Assembly in 1963 laid the foundations for the space law regime that we have today. Many of its provisions would reappear in the Outer Space Treaty (OST) in 1967 but unlike the OST the General Assembly Resolution is not binding. However, it is part of the development of customary international law and indicates that certain key principles such as freedom of use and exploration of outer space and the non-appropriation principle were already widely agreed on and accepted if not yet considered binding international law (though more than one contemporary space law scholar argued that it had become binding.)[3] Also enacted in 1963 was the Partial Test Ban Treaty[4], which among other things prohibited nuclear explosions in outer space. Satellites, such as the UK’s first satellite Ariel-1 had been damaged by nuclear testing in the upper atmosphere and outer space.[5] Although, the PTBT was first and foremost an arms control treaty and is generally not considered a ‘space law’ treaty as it didn’t emanate from the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS). The first ‘space law treaty’ was the Outer Space Treaty 1967 which largely codified the provisions of the Declaration of Legal Principles. The second treaty crated by UNCOPUOS was the Rescue Agreement, ratified in 1968.
Preliminaries
Article I of the Outer Space Treaty (and the Declaration of Legal Principles) stipulate that the exploration and use of outer space, including the Moon and other celestial bodies “shall be carried out for the benefit and in the interest of all countries.” Furthermore, space is free for exploration and use by all States and there is freedom of scientific investigation of outer space and States shall facilitate and encourage international cooperation in such investigations. This means there’s a clear difference between space exploration and the efforts of Europeans during the ‘Age of Exploration’ no matter how often Neil Armstrong is compared to Columbus.[6] While Apollo was a political project waged as part of the Cold War and a excellent example of the best of the United States, it was also conducted for humanity. We came in peace for all humanity were not mere words, but genuine sentiment that had been enshrined into international law.
Liftoff!
Launch
As Apollo was a government space mission there was no need to obtain a launch licence, but presumably the FAA did still have to clear the airspace around the launch facility to ensure there were no incidents. Furthermore as the Saturn V would be flying through US airspace and then over international waters there was no need to obtain permission from foreign governments to fly through their airspace as by the time Apollo 11 would be flying over other countries they would be in ‘outer space’ (although where outer space begins has never been formally defined in international law[7]). Airspace is subject to full sovereign control of the State under it and is effectively territory, you need permission to fly through airspace. However, once you are in outer space you are free to fly wherever you wish as per Article I of the Outer Space Treaty. It is an open question as to whether there is a right of ‘innocent passage’ through airspace in order to exercise the freedom of access laid out in Article I OST. ‘Innocent passage’ exists for territorial waters and indeed landlocked States even have rights to access the sea (though not unrestricted). It hasn’t really come up for space launch, those States that have conduced space launches generally have launched for facilities that avoid flying through others airspace or have enacted bilateral agreements avoiding creating precedent in international law (the US and USSR came to an agreement regarding the Shuttle return that did transit through Soviet airspace and stipulated that it does not create precedent.)[8] Furthermore, it is understandable that States would be unwilling to concede a right of ‘innocent passage’ through airspace especially as bilateral arrangements for civil access to airspace exist and can conceivably be easily modified to include civil spaceflight.
Abort Tower
However, this did raise an issue regarding what would happen in the event of an accident or an abort. While discussions for a ‘Rescue Agreement’ preceded the Apollo 1 and Soyuz 1 accidents the deaths of four astronauts did give a sense of urgency to bringing it about. There was Article V of the Outer Space Treaty which stipulates that astronauts are to be regarded as ‘envoys of all mankind’ and rendered all possible assistance in the event of an accident or emergency. If they make such a landing they are to be returned promptly and safely. There was concern that astronauts would be ‘held hostage’ given the tensions of the Cold War and the fact that many of the astronauts and cosmonauts were serving military officers. The Rescue Agreement fleshed out the provisions of Article V OST. The provisions regarding assistance to astronauts have never been used, not that there have been many incidents where they would have been of much use.[9]
Lunar Landing
The Soviets had launched a robotic spacecraft, Luna 15 in an attempt to ‘beat’ Apollo 11 to the Moon. There was concern about the potential for this mission (specifically the radio communications) to ‘harmfully interfere’ with the Apollo 11 mission. Article IX of the Outer Space Treaty stipulates that in the event of potentially harmful interference with the activities of another State there should be ‘appropriate’ international consultations. The Soviets did advice the US of the flight plan of Luna 15, clarifying that it wouldn’t pose any hazards.[10]
A symbolic act
The Flag
The planting of the US flag on the Moon is one of the iconic images of the space programme but was certainly not without controversy. There were discussions about whether to plant the flag, whether to plant the UN flag, and whether to plant the US flag and play the national anthem. The concern about planting the US flag was that this could be seen as laying claim to the Moon in violation of Article II of the Outer Space Treaty. There was even debate in Congress. Ultimately it was decided that the US could plant a flag and that people would accept it for the expression of patriotic pride in one of the United States’ greatest accomplishments without it being seen as an attempt to ‘annex’ the Moon.[11] Furthermore, for what it is worth, planting a flag is generally regarded as being ineffective to establish sovereignty, occupation and the ‘intention to act as sovereign’ has traditionally been the standard, even in the time of Columbus.[12] Though, of course, in outer space, use and occupation don’t give rise to sovereignty, as per Article II OST.
‘Harmful Contamination’
Article IX of the Outer Space Treaty stipulates that States should conduct their activities so as to avoid the harmful contamination of outer space, the Moon and other celestial bodies. States should also avoid “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter…” Harmful contamination and adverse changes are not clearly defined. Generally, they refer to ‘biological contamination’ and are why we attempt to sterilise spacecraft so as to avoid introducing Earth based organisms to celestial bodies. This is to maintain a pristine ‘scientific’ environment so if we discover life on Mars we don’t have to wonder whether it was something we accidentally introduced. The effectiveness of these efforts is an open question but that’s the purpose behind the provision in the treaty. Adverse changes in the environment of Earth was to address concerns about introducing an ‘alien virus’ to Earth that would cause problems, this is why the astronauts had to undergo quarantine to avoid releasing any ‘Moon germs.’ Whether these concerns were overblown or not is a valid question.
Moon Rock at the UN Office in Vienna, home of the UN Office of Outer Space Affairs
Final Thoughts
The Apollo missions and the other ventures of this era were what the space law regime was designed for. But that regime is a generalist, foundation of principles that continue to serve us well in the 21st century, providing a bedrock for the development of the space law of the future. We do need new space law, it is true, but the Outer Space Treaty is not outdated, nor does it need replacing, it needs expanding and developing. Space law is not often thought of as a legacy of Apollo but it is. So as we take time to celebrate the men and women who made the Apollo landings a reality also consider the legal framework that provides order in outer space which has allowed the proliferation of activities in that ‘new frontier.’
[1]Maybe steak and beer…
[2]UN General Assembly Resolution 1962 – http://www.unoosa.org/pdf/gares/ARES_18_1962E.pdf
[3]UN Doc A/AC.105/C2/SR.29-37; Bin Cheng, Studies In International Space Law (Clarendon Press, 1997), 85-86; Maxwell Cohen, eds., Law and Politics in Space: Specific and Urgent Problems in the Law of Outer Space (Leicester University Press, 1964), 13; C. Wilfred Jenks, Space Law (Stevens and Sons 1965), 186
[7]Though there is a strong case to be made that there is a customary definition of the lowest orbit of a satellite as surely over 60 years of practice has established
[8]Andrei D. Terekhov, ‘Passage of Space Objects Through Foreign Airspace: International Custom?’ Journal of Space Law Vol 21, No 1, pgs 1-16
[9]Irmgard Marboe, Julia Neumann, Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.” in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl and Peter Stubbe eds., Cologne Commentary on Space Law, vol 2 (1st edn, Carl Heymanns Verlag, 2013)
[10]John M. Logsdon After Apollo? Richard Nixon and the American Space Program (Palgrave Macmillan 2015), 17
[11]Robert H. Ferrell ‘Presidential Leadership and International Aspects of the Space Program’ in Roger D. Launius and Howard E. McCurdy eds., Spaceflight and the Myth of Presidential Leadership (University of Illinois Press, 1997), 178-180; John M. Logsdon After Apollo? Richard Nixon and the American Space Program (Palgrave Macmillan 2015), 18
[12]Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (Cambridge University Press 2010), 22-23 Julius Goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History (London: Yale University Press, 1927), 77-114