Author: Yashashvini Singh Jodha
The concept of heritage is not explicitly addressed in most space treaties, including the Outer Space Treaty. This article will attempt to understand the legality of space heritage, including objects on the Moon, through heritage laws on Earth; it will attempt to fill in the gaps in current space law.
The article provides an overview of the need for a concept of space heritage, and the problems in the current relevant Conventions and Treaties; such as the difference between Space Objects and Space Debris. Lastly, it will attempt to understand which law could apply in order to define heritage and protect it by introducing liability clauses that balance the Priniciple of Non-Appropriation and Principle of Freedom of Access. The article will look at the Underwater Heritage Convention for solutions to these issues.
The relevance of Space Culture and Heritage
The significance of space exploration is, without a doubt, monumental for humankind. This is supported by the fact that the National Air and Space Museum in Washington is the second most visited museum, after the Louvre. Reaching out to a place beyond our planet implies that humans have carried humanity all the way to the celestial. The human footprint has literally reached the Moon. A historic event like this comes with an imprint necessary to preserve. Specifically, as a species we must be able to protect sites such as the Tranquility Base, prevent the illicit trade of rare space rocks and objects from the first space rockets. We must be able to protect evidence of human history on the Moon by preventing threats from schemes like the GoogleX competition, possible tourism, and accidents.
The Russian Lunokhod lunar rover has already been sold at auction to a private party despite still being on the Moon.[1] Before we allow privatisation and property rights, we must make sure we do not repeat colonisation of a commonly shared resource. This can only be done by legally protecting the evidence of our united legacy.
The Laws of Earthly Heritage and their limited applicability in Space
The UNESCO website defines heritage as “our legacy from the past, what we live with today, and what we pass on the future generations” and states that cultural heritage is an “irreplaceable source” of inspiration.[2] The Illicit Transfer Convention defines cultural property as “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories…” included in these categories “property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance[.]”[3]
The World Heritage Convention designates both monuments “works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view” as cultural heritage.[4]
At first glance, artefacts of space exploration could be fit within these definitions despite being outside the actual territory of a State, but within “province of mankind.”[5]
Therefore, unfortunately, most provisions of Earth-based cultural treaties would not be directly applicable, since the territorial limit plays a significant role. This is the first problem in attaching Earthly culture laws to space. The law in its purpose and intent does not mean to apply to outer space. The second problem comes with defining the extent of human culture and heritage in space. While it is easy to define artefacts and heritage sites on Earth, it is difficult to do the same for outer space, owing to the novelty of everything to do with space exploartion. Any findings are as significant as the first human paintings, or tools. The inaccessibility of space adds to the wonder of the exploration. Further, trying to decide which objects constitute space heritage would require resolving the larger question- is it space debris?
What to Protect:
- Defining Space Heritage Objects
Heritage objects are said to be durable. They “are deemed to have a permanent existence and constantly increasing value” – this characteristic distinguishes heritage from objects which instead decrease in value and thus are reduced to “rubbish.”[8]
For example, objects from the Apollo 11 mission, and Mars rovers should be preserved since they are the first of countable missions.
The term “object launched into outer space” or “space object” is used by the Outer Space Treaty to refer to articles that may be launched into space, and Article XII specifies the terms “stations, installations, equipment and space vehicles”. The Moon Agreement, is more specific when it uses ”personnel, vehicles, equipment, facilities, stations and installations” other than “space object”. These terms are general, broad limits compared to the array of smaller objects in space.
The question remains as to “whether the various items enumerated there are ‘space objects’ and, if so, whether they are separate and independent space objects distinct in legal identity from the space object that brought these items to the Moon.”[9]
These vague nature of these definitions makes it difficult to identify space heritage and separating it from space debris, carriers and space artefacts. A good way of understanding this dilemma is by questioning the status of items which are considered to be lunar artefacts. For example, would the the urine pouches left by the Apollo astronauts at Tranquility Base[10] be classified as space debris or space objects?
Therefore, when it comes to the Moon it is more difficult to define what could and could not count as space objects. If we do not know what a space object is under law we cannot proceed to classify it as a heritage object worthy of protection.
In addition, since there is no clear, consistent definition of cultural heritage and cultural property, especially one that is not specific to its treaty[11], attaching such criteria on space objects would become even more cumbersome than it is on Earth; both from a liability as well as an ownership perspective.
For these reasons, it is feasible to limit space heritage to objects on the Moon only.
- Defining Space Heritages Sites on the Moon
In order to constitute space heritage on the Moon, we must also be able to constitute a heritage site. A multitude of valuable space objects at one place could define a heritage site, and there is no better example than the Apollo 11 landing site. It left behind television, camera equipment, sampling equipment, food packs, footsteps, rovers, flags, and even human waste.“ Since “it makes no sense to protect artefacts without protecting the site of their location”, it only means that the site must be protected as the common heritage of humankind. However, this implies that someone takes responsibility for that protection. This responsibility requires balancing the freedom to access space without giving ownership.
Rules embodied in Articles I and II of the Outer Space Treaty, require that there be “free access to all areas of celestial bodies” and that outer space “is not subject to national appropriation by any…means.” The clash between this principle of non-appropriation (which is now binding as a part of customary international law,[6] thus reinforcing it on countries not part of the treaty as well[7] ) and preservation of space heritage would arise if, and when, a site is classified as a heritage site. Closing the site for protection purposes would defeat the right to free access.
However, while the OST explicitly denies appropriation of space it also gives responsibility of the space objects to the launching state, even if such object was abandoned. This is the closest thing to a rule for the protection of space heritage.
“In sum, the in situ preservation of space heritage should not run afoul of the space law principle of non-appropriation. Even if a space object itself can be abandoned, effectively abandoning jurisdiction and control, the responsibility for space objects rest[s] with the launching State and could not be abandoned.”[13]
In a similalry dualistic manner, Article 12 of the Moon Agreement denies appropriation but allows occupation. It says that the placement of stations or facilities does not create a right of ownership on the surface of the Moon; therefore, extended or indefinite occupation of an area of the surface is explicitly permissible and would not constitute an appropriation.[12] Despite the Moon Agreement not being ratified by multiple nations, the safeguard against ownership on the Moon is in the OST itself.
The eventual goal is to preserve heritage to the maximum extent possible, without crossing the non-appropriation rule of the OST. Since it is also very unlikely that a State would choose to abandon their claim over property they sent to space, the Articles in both treaties are one way to ensure the property on the Moon is protected.
Underwater Cultural Heritage as a Solution for the Moon
For the purposes of answering the dilemma of territory, jurisdiction, and thus responsibility of preservation, this article will now look into legal examples of heritage sites on Earth that match the nature of territory on the Moon (the prime example for this will be the most popular lunar-the Tranquility Base.) i.e. territory compliant with non-appropriation.
The sea is perhaps the only jurisdiction that can be contextually and legally compared with space. The lack of territorial sovereignty and common accessibility make it similar to the No Man’s Land that outer space is as well. The Underwater Heritage Convention and the UNCLOS are treaties that address cultural heritage, underwater.
Article 149 of the UNCLOS states that objects of cultural relevance found in the ‘Area’ would belong to mankind, and the country of origin would be given preferential rights. The definition of Area in the UNCLOS matches the UHC.
Article 303 of the UNCLOS provides that States must cooperate to protect heritage objects found at sea, and removal of objects from the seabed without approval may be considered an infringement of the coastal state’s territory/territorial sea. It also says that the Article is without prejudice to other international law regarding heritage objects. This rule can be relevant if the objects found fall to an ownership dispute between two nations.
The significant difference here is that underwater laws clearly recognize the protection of heritage, while the OST does not. Further, the Preamble of the UHC is drafted in a manner that implies its intent to protect the ‘Common Heritage’ of ‘Mankind’ and not one State’s national interest. The Preamble also recognizes underwater tourism, something that is an approaching possibility for the Moon as well. It also warns for consciousness and awareness in the ways we choose to access this heritage. A similar parallel for the Moon would help solve the issue of affixing responsibility arising from the lack of territorial jurisdiction in space.
A second solution to be drawn from the UHC solves the space objects vs. space debris problem. The UHC excludes pipelines, cables and installations on the seabed from the definition of heritage objects. Similarly, satellites in use, relatively old satellites, and access machinery could be discluded from the definition of space heritage.
A third solution that can be borrowed from the UHC is the differentiation between “activities directed at underwater cultural heritage” and “activities incidentally affecting underwater cultural heritage” in Article 1. Activities like tourism, the GoogleX competition for the Moon, would come under the former while future landings could come under the latter, thus giving different responsibilities to both. Such a distinction clearly seperates liability repercussions and prioritises protection of heritage sites with clarity.
Conclusion
The reason it is so important to define space heritage and have safeguarding laws is that the popular race to space is only a matter of time. With countries such as India, China, Russia, and Australia already planning to set foot on the Moon, the law must be adequately prepared to deal with disputes and human error.
Problematic ventures like the American Apollo Lunar Legacy Act (which is controversial for clashing with the OST), the American flag on the Moon, Lenin medallions and similar paraphernalia, can be discussed as shadows of a colonizer-colonized mindset. On the other hand, we have to protect the legacy we already have, which ironically includes these flags and medals. Our laws to this end fall short; the OST provides a largely reactive protection. It becomes applicable only after space heritage has already been disturbed or, it focuses on protection of the overall environment.
Article IX of the OST provides for limited protection of outer space and celestial bodies as avoidance of “harmful contamination”, and in Article 7, the Moon Agreement provides that States “shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter, or otherwise.”
By drawing inspiration from the UHC, by stretching current heritage laws and by getting maximum states to ratify a space heritage protection treaty, we must provide liability rules and protection laws in line with the common heritage of humankind.
[1] John Catchpole, “In Commemoration of the 25th Anniversary of the Last Apollo Lunar
Mission: Future History” (1997) 39 Spaceflight 416 at 416.
[2] World Heritage, online: United Nations Educational, Scientific and Cultural Organization<http://whc.unesco.org/en/about/>.
[3] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, 14 November 1970 823 UNTS 231, art 1 [Illicit
Transfer Convention].
[4] Convention Concerning the Protection of the World Cultural and Natural Heritage Article
1, 16 November 1972, 1037 UNTS 151. [World Heritage Convention]
14 Outer Space Treaty, art I.
15 World Heritage Convention
[5] Andrea J DiPaolo, Space law and the protection of cultural heritage: The uncertain fate of humanity’s heritage in space(2013), http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs=1554485794193~600 (last visited Apr 5, 2019).
[6] Bin Cheng, Studies in International Space Law (Oxford: Clarendon Press, 1997) [Studies]
at 465; Steven Freeland & Ram Jakhu, “Article II of the Outer Space Treaty” in Hobe,
Schmidt-Tedd, Schrogl eds, Cologne Commentary on Space Law. Volume I: Outer Space
Treaty (Carl Heymanns Verlag, Köln, 2010) at 45-46.
[7] North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), [1969] ICJ Rep 3.
[8] John Carman, Valuing Ancient Things: Archaeology and the Law (London: Leicester
University Press, 1996) at 29.
[9] Bin Cheng, Studies in International Space Law (Oxford: Clarendon Press, 1997)
[10] Convention for the Protection of Cultural Property in the Event of Armed Conflict
with Regulations for the Execution of the Convention, 14 May 1954, 249 UNTS 240 [Hague
Convention 1954]; UNIDROIT Convention On Stolen or Illegally Exported Cultural Objects,
24 June 1995, 34 ILM 1322 [UNIDROIT Convention].
[11] Manlio Frigo, “Cultural Property v. Cultural Heritage: A ‘Battle of Concepts’ in International Law?” (2004) 86 IRRC 367 at 375.
[12] Stephen Gorove. “Property Rights in Outer Space: Focus on the Proposed Moon Treaty” (1974)
[13] Andrea J DiPaolo, Space law and the protection of cultural heritage: The uncertain fate of humanity’s heritage in space(2013), http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs=1554485794193~600 (last visited Apr 5, 2019).
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