Can the U.S. Create a National Park on the Moon?

The Hill is reporting the rather startling news that Reps. Donna Edwards (D-MD) and Eddie Bernice Johnson (D-TX) have introduced legislation to create a National Historic Park at the Apollo landing sites on the moon. "As commercial enterprises and foreign nations acquire the ability to land on the Moon, it is necessary to protect the Apollo lunar landing sites for posterity," the bill reads.

On first reading, you might wonder — as I did — how the United States can establish a national historical park outside of its borders. Neil Armstrong may have planted a flag on the moon, but that doesn’t mean we own the place. 

This is probably why the "park" established by the bill would consist only of the "artifacts left on the surface of the moon" as part the Apollo 11 through 17 missions, including the lunar modules and various other equipment. This makes more sense: U.S. ships are generally considered part of American territory, so why not spacecraft? The bill also specifies that the U.S. must ask UNESCO to designate the Apollo 11 site as a World Heritage site. 

But what’s to stop some rogue state from mining for Helium-3 right next to Apollo 11, ruining the Sea of Tranquility’s atmosphere of … tranquility? Would it be possible to simply annex a little enclave of the moon to protect it from rapacious space traders?

Not at the moment. The 1967 Outer Space Treaty, to which the United States is a party,  specifies that "Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." But in a 2012 FP article speculating on what would happen if China ever attempted to annex lunar territory, political scientist John Hickman argued that it wouldn’t be too hard to get around this: 

Although the 1967 space treaty asserts common ownership of the entire universe beyond Earth’s atmosphere, it also permits signatory states to withdraw from its terms with only a year’s notice. And there’s no law governing whether you can fly a rocket to the moon and land a ship there.

After renouncing the treaty, Beijing could annex regions of the moon and justify its actions with two arguments: First, in allowing states to withdraw, the treaty implicitly recognizes the possibility of claiming sovereign extraterrestrial territory. Second, after withdrawing from the treaty, China could declare any annexed lunar land terra nullius — territory belonging to no one and therefore subject to national claims; Article 70 of the 1969 Vienna Convention on the Law of Treaties says that states renouncing or withdrawing from multilateral treaties are released "from any obligation further to perform" the terms of the treaty. Besides, most international law on the question of sovereignty claims defers to self-determination — the wishes of the inhabitants. Since, as far as we know, there are no inhabitants on the moon, this doesn’t apply.

The bill in question here obviously doesn’t go nearly that far, but if we really want to establish a lunar Yellowstone, a little bit of aggressive unilateralism might be required. I can think of one GOP heavy-hitter who might want to take this project on.