Vol. 40 Associate Editor
There is a problem on the moon, which concerns humanity’s very identity. These high stakes will force us to answer an important question: which parts of humanity do we wish to eternalize? I’m talking about the problem of preserving mankind’s history on the moon. Right now, our international laws governing outer space, such as the Outer Space Treaty (“OST”) and the “Moon Treaty,” fail to guide us in solving this issue and worse may even be obstructing us from doing so. Unfortunately, there does not appear to be one clear answer; however, how we choose to preserve the origins of humanity as a space-faring species is something we must consider now, before it’s too late. This blog is intended to briefly survey relevant considerations to help start that conversation.
Here’s the issue: space, especially the moon, is getting busier. In addition to sovereign states, the moon has become appealing to private and commercial entities, increasing the concern that historical sites on the moon could be disrupted. This is not to suggest that any state or entity would intentionally do harm to these sites, but rather that mistakes happen. The more actors there are on the moon, the greater the risk for a blunder. When considering, for example, NASA’s lengthy recommendations on how to “Protect and Preserve” certain sites and objects on the moon, it’s clear that scientists and the American government are already concerned about this issue. The question then becomes – what steps can humanity take through our collective international laws to prevent such a tragedy?
Preservation Through the Outer Space Treaty?
One option is to reconsider the space treaties themselves. Article II of the Outer Space Treaty prohibits any national appropriation of the moon “by claim of sovereignty, by means of use or occupation, or by any other means.” In other words, as it stands now, creating a “U.S. [historical] site is just illegal, period.” However, Article VIII of the same treaty expresses that states maintain ownership over objects they place into space. Peculiarly, the United States has thus always owned the objects its Apollo missions placed on the moon; however, it cannot use restricted access as a means of protecting them or the site itself. Of course, debates over what “national appropriation” and “claim of sovereignty” actually mean can certainly be had, but such debates necessarily create and involve opposing parties. Flooding the world stage with opposing interpretations would do violence to the OST and undermine one of the greatest examples of human cooperation. Any preservation of space heritage will have to be built upon cooperation and taking an adversarial posture will not help its cultivation.
Does the Antarctic Hold the Answer?
Because cooperation is required, U.S. ownership or U.S.-dominated preservation is probably off the table. However, placing preservation in international hands could pave the way forward. Specifically, we might consider an addition to the OST similar to the 1991 Environmental Protection Protocol (EPP) to the Antarctic Treaty, which lays out various prophylactic measures, including those used to preserve Protected Areas in the Antarctic. Annex V of the EPP contemplates that “any area” may be protected via prohibited or restricted access on the basis of the area’s inherent value, including for historic reasons. Such restrictions must be in accordance with a detailed management plan that may be proposed by a number of scientific and research oriented entities.
However, extrapolating the EPP’s committee-like approach to designate areas on the moon for protection may prove more difficult. In contrast with scientific bodies with common goals in mind, the committee would likely be composed of states themselves, concerned with their own freedom in an increasingly accessible and strategically important realm. Interests in preserving certain areas may not always align. Additionally, designating restricted areas in the image of the EPP may run afoul of the OST itself. Indeed, the very first article of the OST states that celestial bodies “shall be free for exploration and use by all States” and that “there shall be free access to all areas of celestial bodies.” So while designation for protection may help solve the issue of national appropriation, it could also be seen as contravening a fundamental principle – the free exploration of space.
However, the Antarctic Treaty can still serve as a model for balancing freedom with preservation, as well as provide insight into the potential reaction from the world’s states. Like the OST, the Antarctic Treaty also restricts claims of national sovereignty, expressly providing for the “complete freedom of access at any time to any or all areas of Antarctica.” Yet, as discussed above, the EPP also allows for the possibility of restricted access. Moreover, such “complete freedom of access” described by the Antarctic Treaty is qualified and exists only for certain national representatives in order to carry out inspections. Similarly, any regime governing preservation on the moon should not require an absolute prohibition of access (as the moon sees an increase in traffic), but instead, only what is needed to ensure its protection. Although it cannot be known for certain how states would react, hopefully there would be a similar recognition for, and accession to, necessary efforts for preservation.
Is Faith in Cooperation Enough?
Of course, there is always the backstop of reliance on pure international cooperation. Out of a “sincere desire to protect [the] general scientific and historic aspects of [moon] sites,” NASA has already begun appealing to the goodwill of space-faring entities by producing guidelines for preservation. However, according to some, international cooperation in unclaimed territories generally succumbs to self-interest. Undoubtedly, space preservation currently sits in a legal gray area. As with many issues in international law, there is no objectively right path forward. Nonetheless, humanity and its relationship with space is evolving, and our collective laws should slowly and stably reflect this change in order to preserve some of our most precious cultural treasures. For some, studying and using international law in order to preserve history on the moon has become their life’s calling. Just ask Michelle Hanlon, co-founder of For All Moonkind, a nonprofit that seeks to preserve the moon’s history. Her motivation is simple: “[t]he sites capture the very essence of humanity’s curiosity, its passion, its intellect, its imagination.”
 Formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Dec. 19, 1966, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter “Outer Space Treaty”].
 Formally known as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, July 11, 1984, 18 U.S.T. 2410, 1363 U.N.T.S. 21.
 See Mind the Gap (In Space Law, That Is), For All Moonkind, https://www.forallmoonkind.org/2018/12/09/mind-the-gap/ (providing examples of planned moon activity).
 Cecilia Ballí, We Made History on the Moon. But How Do We Preserve It?, Houston Chronicle (Aug. 1, 2017, 1:24 PM), https://www.houstonchronicle.com/local/gray-matters/article/Moon-Preservation-11402877.php. See also Nell Greenfieldboyce, How Do You Preserve History on the Moon?, NPR (Feb. 21, 2019, 5:02 AM), https://www.npr.org/2019/02/21/696129505/how-do-you-preserve-history-on-the-moon.
 Specifically, I refer to “these sites” as including the Tranquility Base and the astronauts’ footsteps especially. While others may seek to protect numerous other sites, these sites in my opinion most magnificently capture man’s first endeavors to the moon.
 Nat’l Aeronautics and Space Admin., NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts (2011), 5, available at https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_HISTORIC_SITES_RevA-508.pdf
 Outer Space Treaty, supra note 1, art. 2.
 See Greenfieldboyce, supra note 4 (Feb. 21, 2019, 5:02 AM), https://www.npr.org/2019/02/21/696129505/how-do-you-preserve-history-on-the-moon.
 Outer Space Treaty, supra note 1, art. 7.
 In an age of ever-increasing military technology, it is also paramount that the OST’s integrity remains intact. For example, Article IV places strict prohibitions on military activity in space and we would do well to not set a precedent of changing requirements and prohibitions. Outer Space Treaty, supra note 1, art. 4.
 Protocol on Environmental Protection to the Antarctic Treaty, annex 5, opened for signature Oct. 4, 1991, XI ATSCM/2/3/2 (done at Madrid Oct. 3, 1991), reprinted in 30 I.L.M. 1461,
 Id. at art 3.
 For example, the Scientific Committee for Antarctic Research or the Commission for the Conservation of Antarctic Marine Living Resources. Id. at art. 5.
 However, this problem may be mitigated by the preservation interests of other nations. For example, the Soviet Luna 2, the first human-made object ever to each another celestial body, is still sitting on the lunar surface. Greenfieldboyce, supra note 7.
 Outer Space Treaty, supra note 1, art. 1(emphasis added).
 The Antarctic Treaty, supra note 11, art. 7 (emphasis added).
 See Greenfieldboyce, supra note 7(“[C]omputer modeling shows that it’s impossible to have a major landing on the moon without causing some degree of damage from all the dust and rock that gets stirred up.”).
 See James Clay Moltz, Toward Cooperation or Conflict on the Moon?, 3 Strategic Stud. Q. 82, 82 (2009), (“[D]espite frequent hopes for cooperation, most unclaimed territories historically have become sources of international conflict rather than serving as peaceful lebensraum.”).
 Diane Tedeschi, Preserving Historic Sites on the Moon, Air & Space Magazine (Oct. 2017), https://www.airspacemag.com/as-interview/michelle-hanlon-180964762/.
The views expressed in this post represent the views of the post’s author only.