Beyond the era of Armstrong: preserving Tranquility Base and other historic sites on the Moonby Michael Listner
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| An attempt to designate the Apollo 11 landing site as National Historic Landmark could run afoul of some of the basic norms of international space law. |
Aside from the historic value of the artifacts at Tranquility Base, there is also the very real significance of the presence of the Apollo 11 astronauts left in the lunar regolith, which remain as a permanent reminder of that great accomplishment barring future human interference. Surely, disturbing the very first footprints by a human being on the surface would be an affront to that great accomplishment.2 However, protecting Tranquility Base or other sites on the Moon presents a unique problem that the current regulatory and legal framework, including the National Historic Landmark Program, does not address.
National Historic Landmark Program
The National Historic Landmark Program is codified in United States’ Code of Federal Regulation Title 36 § 65.4. Under this regulation, properties that would be designated National Historic Landmarks are done so only if they are considered significant. To that end, professionals, including historians, architectural historians, archeologists, and anthropologists familiar with the broad range of the nation’s resources and historical themes, determine whether a property is significant.
The criteria applied by these specialists to potential landmarks establish a qualitative framework in which a comparative professional analysis of national significance can occur. The Secretary of the Interior makes the final decision on whether a property possesses national significance is made based on documentation, including the comments and recommendations of the public who participate in the designation process.3
It is noteworthy that properties designated under the National Historic Landmark Program are administered by the Department of the Interior and consist of real property either under the direct control or within the jurisdiction of the sovereignty of the United States government. Since 36 CFR § 65.4 deals with real property, an attempt to designate the Apollo 11 landing site as National Historic Landmark could run afoul of some of the basic norms of international space law.
Conflicts with international space law
Two different property interests are at stake when considering the lunar landing sites, including Tranquility Base. First, there is a real property interest consisting of the actual lunar territory that encompasses the sites. The second property interest is the tangible property left on the surface, including the decent module, flag, instruments, and various other artifacts. Just as there are two different property interests there are also two different legal principles within international space law that addresses these interests.
| Another approach is for the United States to declare the Apollo site, including Tranquility Base, national treasures. |
Article II of the Outer Space Treaty sets forth the international legal principle that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. This means that no nation can claim territory on the Moon or other celestial bodies as its national territory.
The second property interest is addressed in Article VIII of the Outer Space Treaty in that a state party to the Treaty, on whose registry an object launched into outer space is carried, shall retain jurisdiction and control over such object. The means that unless the nation who launched an object expressly abandons that object, it retains ownership and control. In the case of the equipment and artifacts left behind at the Apollo 11 site at Tranquility Base, the United States maintains ownership, unless it expressly abandons them.4
However, the continued ownership of the equipment and artifacts at Tranquility Base are not sufficient to establish a National Historic Landmark under 36 CFR § 65.4 because, as mentioned earlier, the regulation relates to real property over which the United States government has jurisdiction, and not ownership of tangible property such as the equipment and artifacts remaining at Tranquility Base. Hence, the government faces a dilemma: in order for the site at Tranquility Base to be recognized as a National Historic Landmark under 36 CFR § 65.4, is would have to exercise jurisdiction and sovereignty over the physical lunar surface that encompasses Tranquility Base.
While there has yet to be a permanent human presence on the Moon that could be construed as a physical occupation, it is the “other means” mentioned in Article II that could prove troublesome to establishing the Apollo 11 site as a National Historic Landmark under 36 CFR § 65.4. If the Department of the Interior approved the site as a National Historic Landmark, the United States would arguably be employing “other means” and effectively be saying to the rest of the signatories of the Outer Space Treaty and the world in general that it is not only exercising continuing jurisdiction over the artifacts on the lunar surface encompassing Tranquility Base under Article VIII of the Outer Space Treaty, but it is also exercising its authority over the lunar surface itself, which would essentially be making a sovereign claim to the lunar surface in that area.5
Such an action by the United States would very likely raise the ire of the other signatories of the Outer Space Treaty and the resulting political fallout would be substantial. However, another scenario, albeit an unlikely one, exists where the United States makes such a declaration and no objection is made, arguably establishing a customary practice of exercising limited national sovereignty over historical sites on the Moon and other celestial bodies.
Methods of protecting the Apollo sites
Even though the Apollo landing sites cannot be protected under 36 CFR § 65.4, current international space law does afford the sites some protection. For example, Article VI of the Outer Space Treaty obligates state parties to the Treaty to bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, regardless of whether those activities are carried on by governmental agencies or by non-governmental entities. Furthermore, Article IX stipulates that a when a signatory has reason to believe that an activity or experiment planned by another signatory in outer space would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.
| Perhaps a more palatable approach would be to consult with spacefaring nations and devise a set of protocols for approaching the Apollo sites, whether remotely or with astronauts. |
In the event that a space activity of a foreign nation, whether through a government sponsored mission or a non-governmental mission, could potentially implicate the Apollo artifacts on the lunar surface, the United States could invoke these provisions to consult in advance with a foreign government prior to its mission to ensure that any activities within the area of the Apollo sites do not interfere with or otherwise damage the artifacts contained within. However, this does not address the issue of protection of the footprints and other signs of human activity within the sites themselves.
Another approach is for the United States to declare the Apollo site, including Tranquility Base, national treasures. Arguably, taking this measure could be considered an exercise of sovereignty similar to recognizing the sites under the National Historic Landmark Program and would invoke criticism from the signatories of the Outer Space Treaty (and the Moon Treaty). In spite of this, the United States could use as instance its exercise of sovereignty and ownership over the lunar samples returned by the Apollo missions. The Apollo lunar samples have been declared national treasures, and the United States could use this precedent to calm objections, noting the continued historic and scientific value of preserving the Apollo sites over which the United States would act as curator.
Perhaps a more palatable approach would be to consult with spacefaring nations and devise a set of protocols for approaching the Apollo sites, whether remotely or with astronauts, both to prevent damage to the artifacts within and the record of human activity within the regolith (see “Tiptoeing back to the Moon”, The Space Review, May 21, 2012). More so, transparency and confidence-building measures (TCBMs) could be used to approach the delicate topic of conduct near and within the Apollo sites, and could incorporate these protocols as part of the measure. Given the recent emphasis of using TCBMs to address matters in outer space security, such an approach is practical and may provide a strong foundation for future TCBMs dealing with more difficult and controversial issues.
Conclusion
As we mourn the loss of Neil Armstrong and as he takes his place in history, we come to the realization that those men who travelled to the Moon and walked on its surface will not be with us forever. However, a permanent record of their visit has been left on the Moon in the form of the equipment they used and the evidence of their activities etched in the soil, which can remain beyond their lives as a sign of their accomplishments. Whether the evidence of these travelers’ historic missions remains undisturbed depends if we take steps now to preserve this record for future generations.
Endnotes
1 Leonard David, “Neil Armstrong’s Death May Spur Apollo 11 Landing Site Preservation”, SPACE.com, August 28, 2012.
2 It is very possible that the original footprints around the LEM were degraded by the blast from the ascent module when Armstrong and Collins departed.
3 See generally 36 CFR § 65.4 for an explanation of the process and criteria for designating a National Historical Landmark.
4 There is no legal mechanism in the current body of international space law where property such as the Apollo equipment left behind is subject to salvage or considered abandoned. It is analogous to the customary rule of maritime law where the wrecks of federal warships are not considered abandoned unless the nation that owns them expressly does so.
5 The Department of Interior lacks the authority to exercise jurisdiction over extraterrestrial property and to do so would require Congress to grant it that power and provide funding or otherwise authorize the expenditure of funds to do so. Therefore, the scenario in this essay is used only to illustrate the implications of the United States exercising jurisdiction.