Californian historians have voted to slap protected status on 100 bits of Apollo mission debris strewn on the Moon’s surface… because they were made by companies in the Sunshine State:

And while some of the garbage might seem like, well, garbage, California is just one of several states seeking protection for the items in the face of possible lunar missions by other nations as well as a budding space tourism industry.

In New Mexico, home to early Apollo test sites like the White Sands Missile Range, a similar measure is expected to be considered by the state’s cultural properties review committee in April.

Beth O’Leary, an assistant professor of anthropology at New Mexico State University and an expert in “lunar archeology,” said she had screamed with delight when she heard the news from California. But she admitted that persuading people to safeguard Apollo’s space junk was often a challenge, if only because it is on — you know — the moon.

“I don’t think anyone argues with it being a major event in the history for humanity, right up there with the invention of fire,” Ms. O’Leary said. “But people don’t tend to think of it as something we need to be protecting.”

I sense this is mostly about nudging UNESCO towards making the Apollo landing zones into a World Heritage Site. Or at least I hope so. Because I’m fairly sure California’s claim constitutes a violation by the United States of Article II of the Outer Space Treaty 1967. Which provides:

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.

According to this LAT piece, Ms. O’Leary aims to get round the Outer Space Treaty by extending the historical preservation order only to the items of detritus, not the site where they are found. Hmm. Somehow I don’t see the International Court of Justice falling for it. You pass a preservation order because you have the intent to do some preserving in the future – that would need access to the site. I don’t think you can split the two.

Interestingly, Article VI of the Treaty provides for the United States’ international responsibility in this kind of situation, and also requires it to regulate private actors (space tourists, enterprising lunar Indiana Joneses, etc.). The United States is also responsible for the actions of the California State Historical Resources Commission under the LaGrand principle.

So it’s odd, to say the least, that the NYT reporter gave the story a flippant write-up. The nature of acquisition is not really important under the law of territorial sovereignty. More depends on whether other potential claimants respond with contesting or stronger claims. There is now a little bit more incentive than before for emerging lunar powers – China, say, or India – to defect from the Treaty regime and press on with economic exploitation or manned settlement of the Moon, as competing claims. I doubt we’ll all be laughing when Indian vyamonauts are graphite-bombing Chinese Helium-3 facilities off the Tycho crater, will we?

Other space-faring states would certainly be ill-advised to acquiesce to the United States’ assertion of lunar sovereignty by virtue of a few Californian historians. The Preah Vihear judgement provides a warning against inaction.

And that case, of course, showed the dangers of allowing even the most well-meaning cultural claim to collide with international law.