Protecting Apollo artifacts on the Moon
by Matthew J. Kleiman
|Can the United States legally protect the Apollo artifacts from irresponsible lunar vehicle operators?|
The Apollo astronauts left behind a substantial amount of equipment on the Moon. The New Mexico State University Lunar Legacy Project has catalogued more than 100 objects left at Tranquility Base alone. This extensive inventory includes both notable artifacts, such as the Apollo 11 Lunar Module Descent Stage and the US flag, and more mundane items, such as empty food bags and Neil Armstrong’s and Buzz Aldrin’s space boots. NASA is concerned that teams competing for the bonus prize might unintentionally damage or contaminate the artifacts left at the Apollo sites. In addition to their historic value, keeping the sites pristine until they can be methodically studied is important to NASA because the agency would like to understand how these artifacts have been affected by remaining undisturbed on the lunar surface for over 40 years. Accordingly, on July 20, 2011, NASA released recommended operating procedures for private spacecraft operating near historic lunar artifacts (the “NASA Recommendations”), covering everything from landing trajectories to rover speed limits.
NASA is careful to point out that the “recommendations are not legal requirements”; rather, they are guidelines “offered to inform lunar spacecraft mission planners interested in helping preserve and protect lunar historic artifacts and potential science opportunities for future missions.” Although complying with the NASA Recommendations will make mission planning more difficult and expensive, GLXP teams have non-legal incentives to operate responsibly near the Apollo sites, including public scrutiny of their missions and a desire to protect their reputations. Other private or state-sponsored visitors, however, might not be so careful. This begs the question: Can the United States legally protect the Apollo artifacts from irresponsible lunar vehicle operators? This article will show that while NASA cannot impose the NASA Recommendations as legal requirements on all lunar operators, international space law and traditional property and tort laws do provide limited mechanisms that the United States can use to protect the Apollo artifacts.
The 1967 Outer Space Treaty (OST) is the foundational instrument of international space law. Article II of the OST prohibits the parties to the treaty from asserting sovereignty over outer space or any celestial body, including the Moon. Consequently, the United States cannot unilaterally enact regulations restricting all spacecraft operating near the Apollo landing sites. There have been numerous efforts to designate the Apollo sites as internationally protected heritage sites (see, for example, the New Mexico State University Lunar Legacy Project), but additional international agreements would be required to overcome the OST prohibition. Several states, including California and New Mexico, have designated Tranquility Base and associated Apollo artifacts as state cultural or historic resources, but these efforts are generally seen as symbolic measures with limited legal enforceability.
Nevertheless, Article VI of the OST provides that countries retain legal jurisdiction over their registered spacecraft in outer space and requires parties to supervise the conduct of their non-governmental spacecraft. Under this authority the United States has required that all non-governmental US spacecraft obtain launch and reentry licenses from the Federal Aviation Administration (FAA). The United States has also extended the reach of certain terrestrial laws, such as criminal and patent laws, to US spacecraft. No US government agency, however, currently has jurisdiction to regulate the conduct of non-governmental spacecraft on the lunar surface. NASA can establish requirements for its own missions, but not for those conducted by a private entity. The FAA, which regulates the launch and reentry of private spacecraft, has no authority in Earth orbit or beyond. Any new Congressional legislation requiring all spacecraft operating on the Moon to comply with the NASA Recommendations would apply only to US-registered spacecraft.
Even so, the US government does have some space law tools at its disposal with respect to non-U.S. entities. Under the 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”), a space object’s “launching state” is liable for damage to another country’s property in outer space “if the damage is due to its fault or the fault of persons for whom it is responsible.” Parties to the OST “bear international responsibility for national activities in outer space,” including the activities of their non-governmental entities. The United States would therefore be able to invoke the Liability Convention to recover damages from the launching state of a non-US entity that damages Apollo artifacts through the negligent operation of its lunar vehicle.
|Unlike terrestrial law, current space law does not contain any mechanism by which property left in outer space can be deemed abandoned or subject to salvage.|
In addition to retrospectively seeking damages under the Liability Convention, the United States could rely on other provisions of the OST to prospectively protect its interests. All parties to the OST are obligated to supervise the activities of their governmental and non-governmental entities, conduct their activities with “due regard to the corresponding interests” of all other parties, and consult with one another before engaging in an activity that “would cause potentially harmful interference with activities of other [parties] in the peaceful exploration and use of outer space.” If the United States believes that the lunar operations of a foreign entity might damage or contaminate an Apollo site, the United States could invoke these provisions to attempt to compel the entity’s home country to cause it to operate responsibly. Indeed, to this end, the NASA Recommendations state that “NASA seeks coordination in advance of lunar activities that would impact NASA artifacts of historic and scientific interest to ensure that all appropriate interests are recognized and protected” and NASA “welcomes the opportunity to work with foreign space agencies and other entities planning robotic lunar missions.”
The legal mechanisms described above are derived primarily from national and international space law. The United States could also use traditional property and tort laws to directly enforce its rights against US and non-US lunar operators. Although no country may assert sovereignty over the surface of the Moon, under Article VIII of the OST, the US government still retains ownership of the equipment that it left there during the Apollo program. The United States could therefore sue to recover damages from any private entity, US or foreign, that damages this hardware, just as the owner of a car can recover damages from the driver who damages the car in an accident. However, for the United States to succeed against a foreign entity, that entity must either be subject to US jurisdiction, such as by having business operations in the United States, or located in a country that would recognize and enforce the US claim.
As with the Liability Convention, a property or tort claim would only become available retrospectively, after damage has already been done. The United States may be able to obtain an injunction against a lunar operator that is about to cause imminent, irreparable harm to Apollo artifacts, but only in some circumstances. An injunction against foreign entities would be subject to the same jurisdictional and enforcement limitations as a damages claim.
Under traditional property law, property is deemed to be abandoned when it is vacated with the intention of not returning. Future lunar operators might claim that the United States has effectively abandoned its Apollo property because the United States does not have any concrete plans to return to the Apollo sites. If the United States is deemed to have abandoned the sites, it would have relinquished any ownership claim to the Apollo artifacts and left the Apollo sites open for exploration and salvage similar to abandoned shipwrecks.
However, unlike terrestrial law, current space law does not contain any mechanism by which property left in outer space can be deemed abandoned or subject to salvage. In fact, this is a significant impediment to space debris cleanup efforts: if space objects are never abandoned, even when they are no longer functional, then space debris may not be legally removed from orbit without the consent of the original owner.
In this way, space objects are similar to shipwrecks of government vessels. Under maritime law, the shipwreck of a privately-owned vessel may eventually be deemed to have been abandoned by its owner. Conversely, a sovereign government is never deemed to have abandoned a sunken government vessel unless it does so by an express act. This distinction has led to legal disputes that one court described as “more suited to an epic poem than a legal opinion.” For example, in 1992, a US court required that a New Jersey antiques dealer return to the US government a ship’s bell that was recovered by a British diver in 1936 from the wreck of the C.S.S. Alabama, a Confederate commerce raider that was sunk off the coast of France by the US Navy during the Civil War. The wreck of the Alabama was deemed US property because the United States succeeded to all Confederate property after the Civil War ended and the United States had not expressly abandoned the wreck.
|Comprehensive protection for the Apollo sites will only come through an international agreement designating those sites as protected areas.|
Similarly, in 2000, another US court enforced the property rights of the Spanish government over the wrecks of two Spanish naval frigates, the La Gala de Andalucia and the Juno, which sank off the coast of Virginia in 1750 and 1802, respectively. In this case, the Commonwealth of Virginia asserted ownership over the wrecks pursuant to the Abandoned Shipwreck Act of 1987, which gives states title to shipwrecks that are abandoned and submerged in state territorial waters. After claiming ownership, the Virginia Marine Resources Commission granted salvage permits to Sea Hunt, a commercial salvage operator that subsequently located the wrecks and sought a salvage award under admiralty law. In upholding the Spanish claim, the court noted that the Spanish government had never expressly abandoned the wrecks and that the mere passage of time did not constitute abandonment, particularly when the technology to recover the vessels only recently became available.
The United States has not taken any action that indicates intent to abandon the Apollo artifacts. To the contrary, NASA asserts in the NASA Recommendations that the US government “continues to maintain ownership of NASA hardware and other property on the surface of the moon, including the Apollo artifacts.” Hence, just as the US and Spanish governments were able to enforce their property rights over their respective shipwrecks, NASA would be entitled to seek legal protection for the Apollo artifacts on the Moon.
Comprehensive protection for the Apollo sites will only come through an international agreement designating those sites as protected areas. Nevertheless, international space law and traditional property and tort laws currently provide limited mechanisms for protecting the Apollo artifacts should a future private or state-sponsored lunar operator damage, contaminate, or attempt to salvage this equipment.