Who Owns the Moon? by A. C. Grayling

Author:A. C. Grayling [Grayling, A. C.]
Language: eng
Format: epub
ISBN: 9780861547265
Publisher: Oneworld Publications
Published: 2024-02-05T00:00:00+00:00

Although penetration of the aerial spaces above human heads first happened long ago – in the form of tall buildings such as pyramids, ziggurats, and towers (the tower unearthed archaeologically within the walls of Jericho is dated to 8000 bce), followed after about nine millennia by Chinese-invented rockets for warfare and entertainment (believed to have originated in the Sung Dynasty 960–1279 ce), followed by hot-air balloons in the eighteenth century – it was not until the first decade of the twentieth century that thoughts of a need for a ‘Law of Space’ were mooted. The prompt was realisation that heavier-than-air flight, and radio transmission, raises questions about whether the airspaces above states are commons like the high seas, or are national territory; and if the latter, how far up into the air national sovereignty extends.

It was a Belgian lawyer, Emile Laude, who asked this question in connection with radio waves, since these travel through the sky above all and any national territory. He observed that ‘the problem of the ownership and use’ of radio waves (he called them ‘Hertzian waves’) would one day prompt the need for a ‘Law of Space’.2 In the years after the First World War the more practical matter of sovereignty over the altitudes accessible to aircraft was a focus of international debate; at a conference on the question in Moscow in 1926 it was taken as read that states have ‘complete sovereignty’ over their airspace, though the question of ‘defining the altitude at which the international zone begins’ above that airspace was, as the senior Soviet official V. A. Zarzar noted, left unresolved.3 As this shows, it was already recognised that a distinction is needed between airspace and outer space, and the first thorough examination of the implications of that distinction was made by the remarkable lawyer and inventor Dr Vladimir Mandl in a short monograph published in 1932.4

Mandl was both interested in and prescient about the development of rocketry (he himself patented a design for a high-altitude rocket). He saw that a legal regime for space had to be different from both airspace and maritime law, asserting that beyond territorial airspace ‘there begins an area which has no relation to our globe and therefore to any individual part of the Earth’s surface, which is no longer Earth appurtenant and is therefore free of any terrestrial State power, coelum liberum. In this area, the traffic of spaceships is completely free.’5 The reference to Grotius’ concept of mare liberum is direct, and Mandl’s iteration of it underlies the UN’s Resolution 1721 of 1961 stating that ‘Outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation’.6

It is easy to make airy and even idealistic generalisations about subject-matters which are in no danger of being imminent realities, but Mandl saw that space was indeed coming within human reach, and with much insight discussed ‘the nationality of spaceships, the construction of ports in

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