Lee Foley, Space Law LLM Student, Northumbria University

https://www.linkedin.com/in/lee-p-foley/ 

In 1959, the Union of Soviet Socialist Republics (U.S.S.R.) Luna 2 spacecraft impacted the lunar surface, marking one of the greatest moments in human exploration history. Leaving Earth and arriving on another celestial body defined the following decade (commonly known as the space race), culminating in the first human steps on an alien world. We all know the American astronaut Neil Armstrong’s iconic words, “One small step for man, one giant leap for mankind”, highlighting the importance of these achievements and their impact on our evolutionary history. It is less known that everything they left behind is still there, preserved by the vacuum of space – and we know even less about how we might protect those historic sites under existing law.

The United Nations’ (UN) Outer Space Treaty (OST) is the Magna Carta of international space law. Drafted two years before the first men walked on the Moon, the OST established broad principles for space exploration, including free access to all celestial bodies and prohibiting claims of sovereignty over any area of outer space. Although the treaty did not provide any protection for the first human traces on the Moon, this was unproblematic for decades, given the limited levels of lunar activity (1972 being the last human Moon landing).

Recently, however, there has been a renewed interest in the Moon, driven not only by national governments but also by scores of private companies. Currently there are no laws or obligations to prevent the destruction of the first traces of humanity on the lunar surface (accidental or otherwise). Undoubtedly, the first traces of mankind on another celestial body represent some of humanity’s greatest accomplishments, yet no legal framework exists for preserving this indispensable part of humanity’s heritage. Despite some efforts to bring heritage sites under the “national spectrum of protection”, they are generally incompatible with international law. It seems that there is a need for a legally binding solution to protect lunar heritage sites.

Determining What Needs Protection

Up to now, there have been forty-three touchdowns on the Moon and over 170,000kg of equipment left behind. Unlike the landing location and activity sites around them, these objects have been granted protection. Article 9 of the OST states that objects launched will remain under the jurisdiction and protection of the State that launched them. Indeed, ownership of these objects is not affected by their presence in space or on a celestial body, thus expanding the property law regime to lunar objects and granting them protection. 

The sites where these objects are left, however, are not included in said ownership in the OST under the Article 2 principle of non-appropriation. Although states retain ownership of space objects, the treaty stipulates that the Moon and other celestial bodies cannot be subjected to national appropriation and are free for exploration by all nations. Thus, the fact that no State can make territorial claims on the Moon (and the area around landed objects), even for protective measures, creates a legal vacuum. For example, currently no law prevents someone from stepping on Neil Armstrong’s footprints, thereby destroying the first traces of humans on the Moon. 

Yet, it would not be sensible to declare all sites of human contact on the Moon as cultural heritage. NASA’s Recommendations, published in 2011, proposed 2-kilometre boundary zones around heritage sites. It is unlikely that 2km would be enough given the blast radius of landing craft, especially as they increase in size like with SpaceX’s Heavy Launch System. Thus, granting protection to all current sites would impede future missions. Heritage protection should not stall progress. We need to strike a balance by granting protection for the most significant heritage sites on the Moon without disrupting future exploration. Which, of course, begs the question what we mean by “significant”? How might we determine significant sites from insignificant sites? Let us consider Andre Siebrits “outstanding universal value” prioritisation chart, proposing an importance metric that distinguishes between space “firsts”, “general” activities, and “human landers” across three categories of exploration: impactors (crash landings [deliberate – like the Luna 2 probe – and/or accidental]); landers (rovers); and crewed landers. Challenges arise when we consider the relationship between humanity, national accomplishment, and a particular activity. For instance, it is likely that a country would consider its own activities more significant than others. Without a vigorous identification system, heritage could go too far. Thus, we should establish an international database: Essentially, ranking humanity’s lunar achievements according to an internationally established metric. Who gets to decide this? That question remains unanswered. 

Difficulties Under Current Legislation 

Under the current legal frameworks, it is impossible to recognise and protect cultural heritage sites on the Moon – or anywhere in space for that matter. Earthbound heritage sites can be recognised through the World Heritage Convention (WHC) of UNESCO when the States in which the sites are located include them in the list submitted to the World Heritage Committee. For transboundary heritage sites, those spanning across neighbouring jurisdictions, they are cooperatively managed by the countries involved. However, this jurisdictional process is not applicable to the Moon as it would infringe upon the OST. For example, Article 1 of the OST states that “there shall be free access to all areas of celestial bodies”. Additionally, no State(s) can “manage” an area of outer space for any purpose according to Article 2 which stipulates that outer space cannot be “subject to national appropriation by claim of sovereignty, by means of use of occupation, or by any other means”. Moreover, Article 12 asserts that equipment or installations on the Moon shall be open for other States to visit. Thus, there is no room in the OST for specific management arrangements to protect heritage sites. In terms of recognition, as it stands, cultural heritage can only be recognised under the sovereignty of a State. However, since no State can claim sovereignty in outer space, it is impossible to protect lunar sites. 

The only international legal instrument that speaks to heritage protection is the 1979 Moon Agreement (MA). Building upon the OST’s broad principles, it emphasises the adoption of “special protective agreements” to safeguard “international scientific preserves” through international cooperation. However, since only seventeen countries have ratified the MA – and none of the major spacefaring nations – it lacks the necessary influence to establish binding legal obligations. Instead, therefore, nations have sought to establish protective mechanisms through national legislation.

Without a legal precedent, however, any unilateral attempt to recognise a heritage site on the Moon could be interpreted as an indirect claim on the area. Of the 115 nations that have ratified the OST, only five have had activity on the lunar surface, with the U.S. being the only nation to land humans. Thus, to some, the U.S. claiming heritage status for its landing sites is a claim of sovereignty. Although the importance of these sites is universally acknowledged, if the efforts to protect cultural heritage “retain a national pretext”, the danger of hidden political motives is ever-present. Indeed, considering the current international climate, heritage protection risks running afoul to geopolitical tensions. Therefore, protecting outer space cultural heritage must be a matter of multilateral collaboration.

Possible Solutions

As discussed, there have been several American efforts to protect lunar heritage sites, including the NASA Recommendations, which list best practices for U.S. sites, suggesting keep-out zones for future landers, rovers, and persons. However, these guidelines only cover U.S. artefacts and do not pertain to those of other spacefaring nations. Moreover, the guidelines are only “recommendations”: They are not legally binding domestically or internationally. While many spacefaring entities have agreed to abide by the guidelines since the 2020 U.S. Space Heritage Act stated that compliance with the NASA Recommendations was to be a prerequisite of collaboration with future American lunar activities, there are no guarantees that all space actors in the future will accede to U.S. regulation.

On the international stage, the World Monuments Fund have recently added the Moon to its watchlist and For All Moonkind, a nonprofit organisation, is working with the UN COPUOS and the international community to implement universal heritage protocols and guidelines that might lead to a new treaty.

However, the convoluted and slow process of negotiating and constructing a new international treaty is prohibitive for a positive outcome anytime soon. The success of that process would depend on numerous states joining the agreement, which is uncertain since other spacefaring nations might interpret a new treaty on lunar heritage as a threat to their legal protections under the OST. Eventually, a new treaty will be needed. But any effort to create a new treaty right now would delay the protection of lunar heritage sites until nations and private companies are already very active on the Moon. 

Nonetheless, since only a handful of States have lunar heritage sites, it may be more feasible, as Alexandros Eleftherios Farsaris suggests, to pursue bilateral or multilateral agreements between the leading spacefaring nations. In contrast to a new treaty, an international agreement between States with artefacts on the Moon would be politically sustainable and achieve a faster solution. Initially, we might envision agreements between the major spacefaring nations – the United States, Russia, China, Japan, the European Space Agency, and India – before being expanded to integrate interested parties. Here, too, we must not forget Mars, Saturn’s Moon Titan, and the Comet 67P/Churyumov, which have all been encountered by human-made probes. Avoiding the complicated steps of a UN treaty, focusing instead on direct agreements, and avoiding sensitive issues could result in a solution that benefits the international relations between those nations. Separate from the Artemis Accords and the ILRS agreement, which seek only to validate competing visions for space exploration, and based on the OST, it would avoid declarations of sovereignty or other claims, instead respecting ownership rights and promoting international cooperation.

Marking some of the most significant moments in human history, lunar heritage sites are unquestionably valuable. Protecting what represents the first steps (literally) into a new era of human evolutionary history is a shared responsibility. Cultural heritage preservation does not mean creating exclusion zones with political interests or restricting the free exploration of outer space. Instead, it means ensuring that sites of enormous value to humanity are protected in a cooperative environment, building bonds between nations, and safeguarding the cultural value of lunar artefacts without creating a barrier for future explorers. As we spread deeper into space, how do we prevent our past from getting trampled by our future?