Lunar Outpost Legal Implications, 1959

Been reading through the Horizon report, and found this neat little section on hypothetical US responses to Soviet political moves on the Moon. This is in 1959, so eight years before the Outer Space Treaty made things less testy...

(in parts, as the OCR text needs cleaning up)

The following specific problems have been submitted by members of the committee on the Army Study for Establishment of a Lunar Outpost for legal analysis:

Problem 1:
What affect would the following Russian claims have on a U.S. program to put man on the moon:
(a) The Russians hard-land a vehicle on the moon containing the USSR flag, document, or monument and, based on that, claim the entire lunar surface for the USSR?
(b) The Russians soft-land a vehicle containing the USSR flag, monument, radio transmitter or light and, based on that, claim the entire lunar surface for the USSR?
(c) Same as "(b)" above except the vehicle contained men?
(d) Same as "(c)" above except the USSR states that the Russians on the moon have the capability to destroy any aggressor and will do so?

Opinion:
The hard or soft landing of men or flags or even a ship bearing a flag would have no affect upon territorial claims to the lunar surface as a matter of law. Symbolic occupation has never been recognized in international law.

Based upon our experience in the Antarctic which has been described above, it is believed that we would not claim or recognize the claim of another based only upon any of the events set forth. Our position would seem to be that as a matter of law, nothing short of actual settlement or actual occupation would be cognizable and only to the extent that a particular surface was in fact held and actually settled.

We could, of course, in the face of the threat described in "(d)", do nothing at our peril, for then a new principle of lunar law might be postulated based on that experience, Whether the principle would be one which we would find so harsh as to feel that we would want to fight to establish its unacceptability would be a political decision leading to resolution of the issue by the ultimate arbiter, force.

www.history.army.mil/faq/horizon/Horizon_V1.pdf
 
Continuing:

Problem 2:

Assuming the Russians land men on the moon prior to the U.S., and they claim a section of the lunar surface, would we be obligated to respect their claim assuming it was a reasonable area (approximately 2000 square miles)?

Opinion :

The answer to this question is the same as that to Problem 1. The reasonableness of the area sought to be controlled would not be the determinant. Rather, effective occupation which includes effective possession or actual settlement would seem to be required. Settlement on a fringe of an area would probably also not be accepted as vesting rights beyond the area actually occupied.

At all events, the determination of a dispute concerning areas of control is recognized to be a political question for resolution by the political agencies of government rather than the judiciary. In such matters, of course, national strength and even resort to war may be required for its determination.
 
Continuing:

Problems 3 and 4:

3 . Assuming we arrive on the moon, before or after the Russians, and find a concentration (the only known concentration) of a very valuable resources:
(a) Do we have a right to claim the subject area?
(b) If we rightfully claim the resources and the Russians trespass, what action would, or should be taken?

4. Same assumption as 3 only reversed (the Russians find and claim resources), would we ignore their claim and make them forcefully keep us out of the area?

Opinion:

The fact that valuable resources were present in an area, it is believed, would not alter the fundamental position of the United States that an act of discovery coupled with the taking of possession would have no significance once effective or actual occupation or settlement of the particular area was broken off or terminated. This is the position which the United States had adhered to with respect to Antarctica and while, as has been indicated, that is not necessarily binding in lunar activities it is cited as suggesting what may be regarded as the basic position of the United States in the premises.

As to part "(b)" of the question, it is believed that the power in actual possession of a particular area should be respected in its claimed position, Thus, if American forces are in possession of an area having resources of great and significant value, it is reasonable to anticipate that her peaceful occupancy or holding would be respected. So, too, with respect to a like holding by the USSR.

Trespass connotes an injury to possession as by simply entering upon another's land or by invading forcefully. Our hypothesis is of something more than peaceful entry. Trespass, as Anglo-American jurisprudence understands it, presupposes the right to enjoy what one possesses, and a right is either what a court, backed up with the necessary executive or compelling power, will enforce or ultimately what men will fight for.

Obviously, recourse to the courts in the solution of this problem is apocryphal. It must be recognized that there will probably be no tribunal to which the conduct of the alleged intruder could be submitted for judicial resolution. It is doubtful if even the facts of the case could be developed as a basis for judicial determination. It appears from this that, at best, the case would be one for diplomatic or political negotiation; more likely, and for the worst , it would be for resolution by the more violent form of political action known as war.
 
Here's where it starts to get complicated:

Problem 5:

Assuming both the U.S. and USSR occupy separate locations on the moon, and do so on a cold-war type basis:

(a) If a U.S. manned vehicle accidentally lands in the Russian Sector, and they refuse to release the personnel or give any information as to the subject landing, what would we do?

(b) Same as "(a)" except the payload contained equipment rather than men?

(c) Same as "(a)" or "( b )" except the Russians destroyed the vehicle before landing and we knew that they had destroyed it?

(d) If a Russian or unidentified vehicle approached the U.S. sector, would we attempt to destroy it? If so, who would make this decision ?

(e) What would we do if the Russians started movements, by ground, into the U.S. sector and would not respect our request to "stay on their side of the hill?"

(f) The Russians started intercepting and destroying our supply vehicle to the moon and claimed that it was a hazard or threat to their outpost; what would the U.S. do?

Opinion:

With respect to items 5a through 5e, it may be observed that, as a practical matter, the capture and refusal to release personnel or equipment of another nation is one ultimately for political action and not for judicial determination even in day-to-day dealings between nations on earth . And it may be observed that the outcome of such situations in which the USSR has been involved is not always predictable.

With respect to item 5d, it is a recognized principle of international
law that a state at all times owes a duty to other states to protect them against injurious acts by individuals within or under its jurisdiction. It is to be hoped that this doctrine will find acceptance by nations operating in space or on the lunar surface.

It may also be considered that entry into airspace of a nation under distress conditions is recognized. This had been defined by Professor Lissitzyn of Columbia University in the following terms:

"Despite the unqualified assertions of the sovereignty of the subjacent states over the airspace and the express prohibitions of unauthorized entry of foreign state aircraft which are found in international conventions, there is a right of entry for all foreign aircraft, state or civil, when such entry is due to distress not deliberately caused by persons in control of the aircraft and there is no reasonably safe alternative. In such cases, the entry maybe 'intentional' in the sense that the pilot knows he is entering foreign airspace without express permission, but the probable alternatives, such as crash landing or ditching, expose the aircraft and its occupants to such unreasonably great risk that the entry must be regarded as forced by circumstances beyond the pilot's control (force majeure). Foreign aircraft and their occupants may not be subjected to penalties or to unnecessary
detention by the territorial sovereign for entry under such circumstances or for entry caused by a mistake, at least when the distress or mistake has not been due to negligence chargeable to the persons in control of the aircraft."

Further, speaking generally, the question of the right of a state to destroy the ship or personnel of another state on the lunar surface involves questions of the permissible force which may be employed by a sovereign against another. In general, no more force may be used than is necessary to repel or resist the actual or apparent danger.

In view of these considerations it is believed that we would have no power or right to destroy an unidentified vehicle headed into an are a held by our people. The right to take action against such a vehicle would turn upon establishment of a threat and the fact that the force used was appropriate to and required to deal with the particular threat. Again if the action taken was not in fact appropriate the remedy: would have to be sought in political action with the risks of satisfaction inherent in such proceedings.

With respect to item 5e, as has been indicated, the mere claim to an area would not require recognition by other states of the claim. In the event, however, that a state actually occupying a particular are a felt sufficiently strongly about its needs in the circumstances to resort to destruction of intruding craft and flight personnel to insure its exclusive position, it would probably have to risk the consequences of its violent action taken to exclude those which it regarded as intruders.

It will probably be the position of nations operating in space that there is no governing law and that space is beyond the point at which sovereignty can be exercised by nations on earth. The result is recognition that space is an are a open and common to all nations. In view of this, interference with supply vehicles operating in space, regardless of the basis alleged to justify such action, would have no recognizable legal foundation. The wrong inflicted, notwithstanding the lack of the right to inflict it, would b e a matter for settlement in political or diplomatic channels or possibly by resorting to violent action simply because the nations of the world have provided no appropriate courts or tribunals to deal with such matters judicially. What the United States would do in the situation postulated is at all events a matter for political rather than legal determination.
 
And the last part:

Problem 6:

Assume that a U.S. lunar return vehicle accidentally landed in Russia and the USSR would release no information, or the personnel, what would the U.S. Government do?

Opinion :

This question is closer to reality and is a matter on which principles of international law governing it can be found. The question assumes that the landing was accidental. In such circumstances, the right of innocent passage or transit is recognized. It would seem that principles of international law would require the return of a vehicle which accidentally landed in another state to the state originating the flight. Here again, however, there are no tribunals which can enforce such a holding. Resort would have to be had to political or diplomatic action and in our dealings with the Soviet Union, it is idle to try to predict the outcome of such proceedings.

The review of the practical problems postulated serves further to show the uncertainty of any rights and duties in connection with operation by nations in space or on lunar surfaces. Experience rather than logic must, in the new dimension, as on earth, be recognized as the life of the law. The practical objectives of America, as has been suggested, must therefore be prosecuted to the fullest possible extent and can be without let or hindrance from principles or rules of general or international law.
 
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