Protection of Cultural Heritage Sites on the Moon (Studies in Space Policy, 24) 3030384020, 9783030384029

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Studies in Space Policy

Annette Froehlich   Editor

Protection of Cultural Heritage Sites on the Moon

Studies in Space Policy Volume 24

Series Editor European Space Policy Institute, Vienna, Austria

Edited by: European Space Policy Institute, Vienna, Austria Director: Jean-Jacques Tortora Editorial Advisory Board: Marek Banaszkiewicz Karel Dobeš Genevieve Fioraso Stefania Giannini Gerd Gruppe Max Kowatsch Sergio Marchisio Fritz Merkle Margit Mischkulnig Dominique Tilmans Frits von Meijenfeldt https://espi.or.at/about-us/governing-bodies The use of outer space is of growing strategic and technological relevance. The development of robotic exploration to distant planets and bodies across the solar system, as well as pioneering human space exploration in earth orbit and of the moon, paved the way for ambitious long-term space exploration. Today, space exploration goes far beyond a merely technological endeavour, as its further development will have a tremendous social, cultural and economic impact. Space activities are entering an era in which contributions of the humanities — history, philosophy, anthropology —, the arts, and the social sciences — political science, economics, law — will become crucial for the future of space exploration. Space policy thus will gain in visibility and relevance. The series Studies in Space Policy shall become the European reference compilation edited by the leading institute in the field, the European Space Policy Institute. It will contain both monographs and collections dealing with their subjects in a transdisciplinary way.

More information about this series at http://www.springer.com/series/8167

Annette Froehlich Editor

Protection of Cultural Heritage Sites on the Moon

123

Editor Annette Froehlich European Space Policy Institute Vienna, Austria

ISSN 1868-5307 ISSN 1868-5315 (electronic) Studies in Space Policy ISBN 978-3-030-38402-9 ISBN 978-3-030-38403-6 (eBook) https://doi.org/10.1007/978-3-030-38403-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This publication is the culmination of a worldwide space law essay invitation to students and young professionals on the protection of cultural heritage sites on the Moon. Together, the European Space Policy Institute (ESPI), the European Centre for Space Law (ECSL) and the German Aerospace Center (DLR) sought contributions exploring a wide range of topics from various fields, with the goal of addressing potential new aspects that consider the needs and interests of the entire international community. The topic of cultural heritage sites on the Moon is timely and relevant, given recent debates about the status of sites visited by humans in the context of increasing lunar activities and interest in returning to the Moon. Several states, including China, India and Israel (together with SpaceIL), have recently launched Moon missions. They have joined the European Space Agency, Russia and the USA, as well as private space actors such as SpaceX, in formulating further plans to return to the Moon in the near future. Given this interest, there is mounting concern about the protection of existing sites on the Moon (such as the Apollo landing sites). Even if, as many hope, humans will go on towards Mars and other celestial bodies from the Moon, the question will remain the same—what is the status of those sites visited for the first time by humans and the objects that remain behind? Should they be protected as a sign of human culture in outer space? If so, how? Generally, it is advocated that these sites should be protected. However, so far, no special rules are in place relating to this issue. Various calls have been made to apply international regulations and conventions, such as the UNESCO World Heritage Convention, to the Moon and other celestial bodies. However, all efforts to protect sites in outer space must adhere to the body of international space regulations and laws, as encapsulated primarily in the Outer Space Treaty of 1967, which has enjoyed widespread support. Accordingly, while states maintain their ownership of their space objects, they may not claim sovereignty of outer space or any celestial body or resource, or part thereof. Outer space is freely accessible to all states without discrimination. As such, states must not

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cause potentially harmful interference with activities in the peaceful exploration and use of outer space. The 1979 Moon Treaty further clarifies that areas of the Moon having a special scientific interest may, without prejudice to the rights of other states parties, be given consideration to be designated as international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations. However, this treaty enjoys far less support than the Outer Space Treaty, and these protective arrangements are still to be determined. As such, it is clear that creative solutions and innovative ideas are urgently needed that would meet the needs of selecting and protecting relevant sites on the Moon within the context of existing regulations, with the prospect and scope to add new sites on other celestial bodies such as Mars as the need arises. Accordingly, new rules and approaches are explored by the various analyses contained in this publication. Despite the importance and urgency of this topic, there is a dearth of publications exploring fresh perspectives. By inviting young professionals from around the world to consider this issue, we stand the best chance of strengthening and encouraging solutions in the debate on protecting sites represent the culmination of the human dream to peacefully explore space and the Moon. In doing so, we may lay the groundwork for the future exploration and preservation of sites on the Moon, Mars and beyond, in a way, that benefits all of the international community. Vienna, Austria November 2019

Dr. Annette Froehlich European Space Policy Institute (ESPI) Seconded by German Aerospace Center (DLR)

Contents

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The Legal Framework Protecting Cultural Heritage Sites on the Moon and In Situ Preservation . . . . . . . . . . . . . . . . . . . . . . Giuliana Rotola

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Could the Moon’s Cultural Heritage Be Inscribed on UNESCO’s World Heritage List? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Diane Zajackowski

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Does the Outer Space Treaty Permit the Protection and Preservation of Cultural Heritage Sites on the Moon? . . . . . . . Le Bao Ngoc Pham

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One Small Step to Protect Human Heritage in Space Act as One Small Step Towards U.S. Space Dominance? The Case for a Multilateral Treaty Protection Regime . . . . . . . . . . Giulia Persoz The ‘Outstanding Universal Value’ Concept of the UNESCO World Heritage Convention: Food for Thought to Preserve Lunar Artifacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anne-Sophie Martin Necessity of Special Regulation for Protection of Cultural Heritage Sites on the Moon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Darya Bohdan

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How to Preserve Humanity’s Lunar Heritage . . . . . . . . . . . . . . . . . Alexandros Eleftherios Farsaris

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Protection of Lunar Heritage Sites: A Customary Law Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parthabi Kanungo

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Lunar Seismic Experiments: A Legacy Which Deserves to Be Remembered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Christoffel Kotze

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10 The Moon that Owns Itself: Exploring New Legal Avenues to Protect Cultural and Natural Heritage in Space . . . . . . . . . . . . . 109 André Siebrits 11 The Protection of Cultural Heritage Sites on the Moon: The Poo Bags Paradox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Hugo Lopez

Chapter 1

The Legal Framework Protecting Cultural Heritage Sites on the Moon and In Situ Preservation Giuliana Rotola

Abstract Nowadays, on the Moon, there is over 170,000 kg of cultural material, which has the potential to be worthy of preservation for future generations, for its scientific, technical and social significance in the realm of space exploration. However, there are still no legally binding sources capable of protecting these archaeological sites, nor concrete ways of preserving these assets. In this article, we will analyze the critical elements of the UNESCO and Underwater Convention that could be taken up in a future document for the preservation of cultural heritage on the Moon and the existing limitation in international space law. Finally will be investigated the advantages of preserving these archaeological sites in situ, to safeguard both the cultural, technological and scientific essence of cultural heritage on the lunar surface.

1.1 Introduction It has been now 50 years from the first human landing in the magnificent and desolate landscape of the Moon, and today numerous governments and commercial entities plan ambitious expeditions into outer space and celestial bodies. Many objects sent into space (and left there, or abandoned to destruction on reentry) are not very significant and become garbage, obstacles, even dangers for the present and the future. Still, some can be seen as critical evidence of the development of humanity, and, indeed, as a part of our heritage. Nowadays, on the Moon, there is over 170,000 kg of cultural material,1 which has the potential to be worthy of preservation for future generations, for its scientific, technical and social significance in the realm of space exploration. Moreover, the Moon possesses unique geological and topographic features that are unlike anything found on Earth. 1 Alice

Gorman, “Culture on the Moon: Bodies in Time and Space” (2016) 12(1) Archaeologies: Journal of the World Archaeological Congress 110. G. Rotola (B) International Space University, Strasbourg, France e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_1

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It has been confirmed that our Moon does have an atmosphere consisting of some unusual gases, (including sodium and potassium, which are not present in the atmospheres of Earth, Mars or Venus)2 though it is a negligible amount of air when compared to Earth’s atmosphere. This feature represents the uniqueness of the sites on the Moon, which are entirely preserved, thus providing a record of the pioneering phases of human exploration. Nevertheless today no enforceable law exists to protect this heritage, nor legal definitions of preservation and protection applicable to lunar sites. So it is necessary to have a balanced approach to the preservation of the Moon, that promotes exploration while protecting its significant features.

1.2 Space Archaeology Before analyzing the international legal frameworks that underlie space law and the protection of cultural heritage, it is necessary to define what is space archaeology. It is the study of “the material culture relevant to space exploration that is found on Earth and in outer space, that is, exoatmospheric material that is clearly the result of human behaviour”.3 The cornerstone of archaeology is that it involves any area where humans have left their traces. It does not have any temporal or spatial limit, to such an extent that both the most remote and contemporary times are worthy of being studied, as is every place where humans have reached. Space archaeology is not the first example of non-terrestrial archaeology. In the 1930s began the early investigations on underwater archaeology, when Carl Ekman, a Swedish national officer, excavated the Swedish warship elephant, for reasons of research and heritage protection.4 In 1999, the archaeologist William Rathje coined the term “exoarchaeology”, from the greek žξ ω (éx¯o, “outer; external”),5 to define the study of artefacts in outer space.6 Space archaeology has the purpose of understanding the relationship between human performance and technology and its evolution. Furthermore, it aims at

2 NASA, Is there an Atmosphere on the Moon? (12 April 2013) https://www.nasa.gov/mission_ pages/LADEE/news/lunar-atmosphere.html. Accessed 27 September 2019. 3 A Garrison Darrin and B L O’Leary, Handbook of Space Engineering, Archaeology and Heritage (1st edn, CRC Press 2009). 4 Jonathan Adams, A Maritime Archaeology of Ships: Innovation and Social Change in Medieval and Early Modern Europe (Oxbow Books 2013). 5 “exo-”, etymology on wiktionary. https://en.wiktionary.org/wiki/exo. Accessed 16 September 2019. 6 Darrin, O’Leary (n 4) 32.

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ensuring intergenerational equity, by preventing damages generated by future space activities, such as planetary exploration, space tourism and debris removal.7 The first example of archaeological study in space is recognizable in the Apollo 12 mission of November 1969, when the astronauts Charles Conrad and Alan Bean had to retrieve portions of the Surveyor III spacecraft, which had soft-landed on the Moon April 20, 1967.8 They conducted photographic investigations on the conditions of the Moon and collected pieces of the spacecraft and some rocks, to be taken back to Earth for further analysis. It is so conceivably correct to affirm that this mission was archaeological in nature.9 Taking into account the space era, one of the most impressive period to be analyzed from an anthropological and archaeological point of view is the Cold War. Between 1957 and 1975, USA and URSS challenged each other in the run-up to space successes and the conquest of the Moon. A research conducted on the American and Soviet lunar architecture revealed, for example, that the different visions on the relationship between man and machine in the capitalist and communist ideology, could also be reflected in the approaches with space technologies.10 First American astronauts strongly wanted to pilot the spacecraft, as they see in the manual control of it the exaltation of their masculinity. On the other side, Soviet cosmonauts were well trained in following orders from the ground, to be part of the Bolshevik machine. This ideological characterization had evidence also regarding the role of women in space. Because of the lack of command control, in the US beliefs, was assimilated to a lack of masculinity, some experts in the American space industry argued that Valentina Tereshkova’s mission in 1963 was a success only because of the massive automatization of the Vostok spacecraft.11

1.3 Legal Framework Currently, there is no international legal document protecting objects of cultural significance in space. The treaties protecting terrestrial and maritime heritage, namely the Convention concerning the protection of world cultural and natural heritage, 197212 (“World 7 A. C. Gorman and B. L. O’Leary “The Archaeology of Space Exploration” (2013) 29 The Oxford

Handbook of the Archaeology of the Contemporary World 409. Apollo 12 (8 July 2009) https://www.nasa.gov/mission_pages/apollo/missions/apollo12. html. Accessed 16 September 2019. 9 Gorman, O’Leary (n 8) 414. 10 Alice Gorman “Culture on the Moon: Bodies in Time and Space” (2016) 12(1) Archaeologies: Journal of the World Archaeological Congress 110–128. 11 Ibid. 12 Convention concerning the protection of world cultural and natural heritage (adopted 16 November 1972) 15511 UNTS. 8 NASA,

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Heritage Convention”) and the Convention on the Protection of Underwater Cultural Heritage, 200113 (“Underwater Heritage Convention”), could provide a framework upon which the international community can construct a future model for the preservation of cultural heritage in outer space.

1.3.1 The World Heritage Convention The World Heritage Convention was adopted during the General Conference of the United Nations Educational, Scientific and Cultural Organization meeting in Paris from 17 October to 21 November 1972. Its preamble considers that “parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole”, thus providing a good model for the protection of heritage sites in space, that should not be limited to the nationalist interests, but should be considered a value of the province of mankind.14 The Convention provides two distinct definitions of “cultural” and “natural” heritage. Cultural heritage includes monuments, groups of buildings and sites which are of outstanding universal value for history, art or science. Natural heritage instead includes natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation of natural beauty. The Convention obliges State Parties to identify and delineate the different properties15 and ensure the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage.16 According to the Convention each State Party have to submit a list of all sites within their territorial jurisdiction that meet certain criteria and the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (the “World Heritage Committee” or “Committee”) then select which sites can be included on the World Heritage List. 13 Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001) UNTS. 14 The

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, at article 1, includes the postulate that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind. 15 Convention concerning the protection of world cultural and natural heritage (adopted 16 November 1972) 15511 UNTS art 3. 16 Ibid. art 4.

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Furthermore, at article 6, the Convention recognized that whilst heritage sites remain under the sovereignty of the State Party on whose territory the cultural and natural heritage is situated, such heritage constitutes a world heritage for whose protection the international community as a whole has to cooperate.17 The subsequent article states that international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international cooperation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage.18 Such a system of international cooperation should be the basis on which to fund a new global agreement to protect cultural heritage in space, providing the principles that regulate the exploration and use of outer space. What makes the UNESCO World Heritage Convention inapplicable to lunar areas is that it requires sites to be under the jurisdiction of a State and that State is responsible for maintaining and protecting the site. As provided by article 11 “The inclusion of a property in the World Heritage List requires the consent of the State concerned. The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute.” In 2013 the US Congress with the Apollo Lunar Landing Legacy Act19 mandated that Tranquillity Base become a national park, also proposing to nominate it for listing on UNESCO’s World Heritage List of sites of outstanding universal value. The bill did not pass because the World Heritage Convention applies only to properties on Earth and those sites are not contained within any sovereign nation since the OST at art. 2 explicit prohibits national appropriation of outer space, the Moon or any other celestial bodies. As a symbolic act, three states—California, New Mexico and Hawaii—have added the artefacts on the Moon to their state registers of cultural properties.20 Some components of the Convention could be nevertheless useful for the creation of a treaty structure that protects the cultural heritage in space. In particular, the definition of sites as works of man or the combined actions 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, could also apply to man-made objects sent into space. Thought the most critical element that could be re-elaborated for outer space archaeological sites is international cooperation.

17 Ibid.

art 6. art 7. 19 Apollo Lunar Landing Legacy Act 2013. 20 Clara Moskovitz, Should the Apollo Lunar landing sites be protected? (Scientific American, 19 July 2014) https://www.scientificamerican.com/article/apollo-lunar-landing-sites-preservationprotection/. Accessed 17 September 2019. 18 Ibid.

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1.3.2 The Underwater Heritage Convention The Underwater Heritage Convention was adopted on 2 November 2001 by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO). It is evident from the preamble that the scopes of this Convention could be assimilated to the purpose of protecting cultural heritage in space. It acknowledges “the public’s right to enjoy the educational and recreational benefits of responsible non-intrusive access to in situ underwater cultural heritage, and of the value of public education to contribute to awareness, appreciation and protection of that heritage”, further recognizes “the need to respond appropriately to the possible negative impact on underwater cultural heritage of legitimate activities that may incidentally affect it” and it is “aware of the availability of advanced technology that enhances discovery of and access to underwater cultural heritage”. The first provision is conductible to underwater heritage tourism, and the right of people to access those sites of a particular historical and cultural value; soon also the space environment will probably be accessible for the public, and it will be necessary to regulate the access in both responsible and non-intrusive way. The second provision recognizes the possibility that some activities could incidentally affect cultural heritage sites, as it could happen to spacecraft approaching cultural sites or objects in space. Finally, the reference to the advanced technology finds strong parallelism with the progress of operations in space, that shortly will guarantee easier access for public and private entities to outer space. The Convention could also provide a good model for a future document related to the protection of cultural heritage in outer space. It provides at art. 1. A definition of underwater cultural heritage as “all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.” It, therefore, excludes natural heritage and also establishes the arbitrary age threshold of 100 years as a criterion to identify the cultural component. Also, this Convention cannot be applied to heritage in outer space since it explicitly addresses sites that are partially or totally underwater. There are two relevant points anyway in this convention that could be useful for protecting lunar (and extra-terrestrial) heritage. It emphasizes in situ preservation rather than removal of cultural material, as the first option before allowing or engaging in any activities directed at the heritage object,21 and it obligates State Parties and any party under its jurisdiction to avoid direct or indirect damage to protected sites.22 Moreover, the Underwater Heritage Convention includes obligations to protect underwater heritage beyond the jurisdiction of any state, in the international seabed area (“Area”). More precisely, it requires nationals o vessels flying the flag of a State party, when discovers or intends to engage in activities directed at underwater cultural 21 Underwater 22 Ibid.

art 5.

Heritage Convention (n 14) art 2.5.

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heritage located in the Area, to report such discovery or activity.23 The Convention, therefore, provides a mechanism according to which any State Party may declare its interest in being consulted on how to ensure the adequate protection of underwater cultural heritage.

1.3.3 International Law Governing Outer Space Currently, there are five treaties specifically pertaining to the exploration and use of outer space: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies; the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space; the Convention on the Registration of Objects Launched into Outer Space; the Convention on Liability for Damage Caused by Space Objects; and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. As discussed earlier, space objects of outstanding cultural value could fit in the definition provided by the treaties mentioned above, protecting heritage on Earth. Still, those provisions are connected exclusively with the national territory of the State Party, so that cannot apply to artefacts located in space. The Outer Space Treaty, at article 8, establishes that the State of registry retains jurisdiction and control over the space object while in outer space or on celestial bodies. Furthermore, the ownership of such space objects is not affected by being in outer space or on celestial bodies. This provision could create trouble especially if referred to immovable “objects”, as the boot prints of Armstrong, because the will to maintain control over these objects could be seen as a kind of appropriation of the territory on which they stand. It would go in opposition to the provision of Article 2 of the OST, according to which “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”. Another relevant provision is the article 7, further elaborated in the Liability Convention, which provides: “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.” This provision could be useful as a deterrent against any possible damage caused to space heritage. Still, as those objects are of outstanding value and irreplaceable in the historic value, it is necessary to have comprehensive and preliminary protection of the cultural material. 23 Ibid.

art 11.1.

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A helpful provision in international law for the protection of space heritage and environment can be found in Article 9 of the Outer Space Treaty, which mandates that States conduct their space activities with due regard for other States. Art. 9 embody the principle of cooperation and mutual assistance, but the provision is too broad to be regarded as an executable obligation. The due regard principle limits the space freedoms and obliges State Parties to conduct space activities without unreasonably interfering with or otherwise negatively affecting each other. Furthermore, article 9 calls for environmental protection of the space environment and Earth by avoiding their harmful contamination, but it does not provide clear guidance of what environmental protection consists of or how it ought to be achieved. This prediction has particular relevance regarding the protection of cultural heritage. A State that maintains jurisdiction over objects of a marked cultural value located in outer space could declare it to consider direct interaction or a close approach to such objects as potentially dangerous. In this case, states parties should necessarily undertake consultations before proceeding with their activity. Thus, it would be possible to make an international assessment of the actual cultural value of the objects taken into consideration and the method of protecting them. An example of a unilateral act of this type is the guidelines provided by NASA for possible approaches to some archaeological sites on the Moon. Failure to comply with these guidelines could be considered as a violation of Article 9 and the principle of “due regard”. The Moon Agreement calls for more stringent protection of the celestial body and extends the due regard principle to cover the interests of present and future generations, providing also an appeal for intergenerational equity, as stated in Article 4: The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Due regard shall be paid to the interests of present and future generations.

Moreover, article 7 establishes that State Parties shall take measures not to disrupt the existing balance of the environment of the Moon. The Moon Agreement also provides the possibility for State Party to request that the UN General Secretary designate certain areas of the Moon of particular interest for which exclusive protective agreement are to be agreed upon in consultation with the component bodies of the United Nations. However, this treaty has received a limited number of ratifications and none of the main space-faring nations is a Party to it, presumably because of the controversial nature of some provisions, in particular the one introducing the concept of “common heritage of mankind”, and secondly because of the requirement of binding obligations governing the exploration and use of outer space.24 24 Fabio Tronchetti, Fundamentals of Space Law and Policy (SpringerBriefs in Space Development

2013) 13.

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So, it still suffers many shortcomings that have prevented its words from having much effect.

1.4 NASA Recommendations to Space-Faring Entities Perhaps the most significant step taken by any governmental institution for the protection of heritage in space came in July 2011 when were released the “NASA recommendations to space-faring entities: how to protect and preserve the historic and scientific value of US government lunar artefact.” In this document are identified a variety of ways of generating damage by a visiting vehicle approaching a historic site: • landing on top of or too close to the site. • sandblasting effects from rocket thrusters as propellant gases dislodge and properly lunar soil at high speeds in the local area. • disrupting the local area with dust lofting or biological contamination. The Recommendations establish a keep-out zone around lunar heritage sites, defined as “the recommended boundary areas into which visiting spacecraft should not enter”, ranging from 0.5 to 2.0 km in radial distance.25 Furthermore, guidelines assert that NASA seeks coordination in advance of lunar activities that would impact NASA artefacts of historical and scientific importance to ensure that all appropriate interests are recognized and protected. The NASA approach, providing recommended parameters for those entities engaging in space activities near their lunar artefacts, could create a duty to consult under Article 9 of the Outer Space Treaty in the protection of cultural heritage.

1.5 In Situ Preservation As previously highlighted, archaeology aims to understand the role of a specific human artefact in the social and technological evolution of humankind. Every object that can have an intrinsic cultural value represents the particular historical phase in which it was produced, as well as having specific relationships with the environment where it is located. Various reasons lead us to believe that the preservation of cultural heritage “in situ” is the most valid both from a cultural and scientific point of view. As previously seen, the Sea Convention places a strong emphasis on the need for protection of cultural assets in the place where they are located. In archaeology, and in particular in space, this solution could be the best for many reasons. 25 NASA, NASA sets guidelines for Apollo Moon landing sites (NASA 22 October 2011) https:// sservi.nasa.gov/articles/nasa-sets-guidelines-apollo-moon-landing-sites/. Accessed 20 September 2019.

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One first important aspect is the cultural and historical one: part of the intrinsic value of an object is given by the place where it was found and the relation of that object with the surrounding environment. An example of this could be made taking into account the Vanguard 1, considered the oldest satellite in orbit: if it were brought back to the Earth’s surface, it would maintain the state of an archaeological find. But it could no longer be considered the oldest object in space, having been moved from its original location.26 Furthermore, there are scientific and technological reasons that highlight two different advantages deriving from the in situ preservation of materials. The first series of reasons can be found in the peculiarity of the lunar environment. The lack of atmosphere and weather phenomena allows better protection of the locations to be preserved: there are no climatic disturbances or, for the moment, living beings capable of damaging the archaeological site. The second aspect, equally important, is related to the more comprehensive possibilities of research on the artefacts in question. The constant exposition to intense radiation and the lunar conditions makes them unique because it allows us to understand which materials are more resistant and less susceptible to damage due to that type of environment. Initially, none of these space objects had been designed to resist long-term missions. The prolonged exposure, therefore, allows an excellent possibility of research to be preserved, not only for our generation but above all for future generations which could be able to conduct even more in-depth studies. One last element to consider is the economic factor. Dismantling and recovering objects currently on the lunar surface or in orbit require substantial funding as well as advanced technologies.27 On the contrary, in situ preservation of archaeological sites could be more easily supported with international cooperation, following the example of the UNESCO Convention. The idea of creating archaeological areas around the sites of cultural interest on the Moon, such as the one proposed by NASA, could be considered as an illegitimate form of national appropriation. This problem could be overcome through agreements that, while maintaining national ownership on the sites, recognize their universal value, and that lead to forms of collaboration for the creation of structures capable of preserving them from future activities on the Moon. A model of protection could be, for example, the creation of domes that allow the protection the sites while maintaining optimal conditions for their conservation, though at the same time including patches that can be traversed by future space tourists interested in visiting those areas.28

26 A

Garrison Darrin and B L O’Leary (n 4) 680.

27 Ibid. 28 Ibid.

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1.6 Conclusions The proliferation of public and private projects aimed at exploration and establishment on lunar soil, as well as the growing number of space debris, make it necessary to classify objects that can be linked to the list of artefacts of considerable historical and cultural value, and the creation of a binding legal document that is able to protect them. To the first problem, as regards in particular the archaeological sites present on the Moon, is trying to answer the non-profit organization “For all Moonkind”, which recently announced the creation and future publication of the first digital register containing an exhaustive list of all the objects present today on the lunar soil, its mission, function, composition, location and cultural value.29 Some private entities that are preparing to carry out commercial activities on the Moon have already announced their collaboration with this organization, to guarantee that future landings and operations on the celestial body have regard to the sites to be protected, preventing careful control manoeuvres and respect of certain safety distances.30 The second problem, namely the creation of a binding legal instrument, will surely find more difficulty and slower progress in reaching a solution. We have seen how some already existing legal instruments deal with protecting the cultural heritage on the Earth’s surface and under the seas, and various elements of these treaties could be used for the protection of cultural heritage in the outer space. The preambles of both conventions provide a good starting point for the purposes of creating a legally binding instrument, as we have seen in the Underwater Heritage Convention with regard to maritime and space tourism or the reference to advances in technology, as well as the concept, developed in the UNESCO convention, of cultural heritage as an element of value for “mankind as a whole”. In particular, the definitions provided by both Treaties of objects worthy of protection, the reference present in the World Heritage Convention to “natural heritage”, the emphasis on “in situ” preservation in the UHC can be taken up again. The appeal to international cooperation and the creation of an ad hoc body that monitors the application of the article is then fundamental. Even the unilateral act created by NASA can be considered useful as regards the practical and technical aspects in the landing operations in the vicinity of protected sites and carrying out activities. However, it is necessary to create an ad hoc tool that can provide for comprehensive protection of unique objects and sites, from their identification to their preservation.

29 For

all Moonkind “Project volunteers” (2019) https://www.forallmoonkind.org/about/volunteerspotlight/. Accessed 20 September 2019. 30 Nadia Drake “ Should Neil Armstrong’s Bootprints Be on the Moon Forever?” (New York Times, 11 July 2019) https://www.nytimes.com/2019/07/11/science/moon-apollo-11-archaeologypreservation.html. Accessed 21 September 2019.

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Giuliana Rotola holds a joint bachelor and master’s degree from the University of Trento in Comparative, European and Transnational Law. During her studies, she was a research intern at the European Centre for Space Law (ECSL), and she conducted independent research in the Institut du Droit de l’Espace et des Télécommunications (IDEST) for her final dissertation on militarization, weaponization and the prevention of an arms race in outer space. In September 2018 Giuliana attended the 27th Summer Course in Space Law and Policy organized by ECSL and in February 2019 she joined the Leuven Centre for Global Governance Studies as a research intern. From September 2019 Giuliana is taking a Master in Space Studies at the International Space University.

Chapter 2

Could the Moon’s Cultural Heritage Be Inscribed on UNESCO’s World Heritage List? Diane Zajackowski

Abstract Half a century after man’s first step on the Moon, the landscape of space activities has considerably changed. At a time when access to outer space is widening, commercial activities are developing (suborbital tourism, resources exploitation, etc.) and Moon related projects are multiplying, our satellite becomes increasingly vulnerable. In the near future, human activities could durably affect lunar physical properties and also damage what is now considered as the “cultural heritage of the Moon”, i.e. the artifacts and tracks that people had left behind during their different space missions, especially those of the first stages of space exploration. To preserve the traces of this major period, some experts have committed themselves to raising awareness among national authorities and the general public about the protection of these sites. Bringing their ideas to the attention, the media sometimes refer to UNESCO’s World Heritage List, questioning the role that this organisation could play in this issue. This article has been written to answer this question through a fictional case which will enable the reader to know, once and for all, whether UNESCO could best guarantee the preservation of the cultural heritage of the Moon or not.

Half a century ago, two major events occurred a year apart: the completion of the international campaign dedicated to the rescue of the Abu Simbel temples (1968) and the “completion” of the race for space through the man’s first step on the Moon (1969). The first one is the symbol of a major wake-up call, the need for international cooperation to protect human common heritage—whose significance goes beyond time and space considerations—from both natural and human threats. The rescue of the Abu Simbel temples, endangered by the construction of the Aswan Dam, is at the origin of the future 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (hereinafter the World Heritage Convention) and its

D. Zajackowski (B) Master 2 of Space Law and Telecommunications at Paris Saclay University, Sceaux, France e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_2

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famous World Heritage List which both embody the application of the multilateralist system to what seemed to be a least suitable for multilateralism: heritage.1 The second event represents one of the greatest human achievement. By reaching an environment it was not designed to inhabit, humankind had, for the first time, overstepped the limits of the Earth and thus the limits of its own condition. This feat, this improbable encounter between two worlds is materialised by the famous footprint of astronaut Buzz Aldrin on Tranquility Base (the landing site of Apollo 11) and by some other sites located on the Moon’s surface.2 Nowadays, at a time when outer space is subjected to growing attention from the greatest political and economic powers because of its strategic and economic interests, some people consider that the vestiges of the space conquest constitute a common heritage of humanity that must be protected from the development of activities in outer space, on the Moon and other celestial bodies. Such is the opinion shared by Michelle L. D. Hanlon, Professor of Air and Space Law at the University of Mississippi and Co-founder of the association For All Moonkind that pleads for the “recognition and protection of the Apollo 11 landing site and other historic landing sites together with all the human effort and innovation the sites represent.”3 In a article written on 15 February 2019,4 Michelle L. D. Hanlon pointed out that while terrestrial sites have benefited from international protection since the creation of the World Heritage Convention, the same was not true for outer space, raising the question of the consideration of space heritage at the international level. If article 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter the Moon Agreement) states that: “The moon and its natural resources are the common heritage of mankind”, assuming that the Moon as a celestial object is a common asset that should be preserved, there is currently no provision mentioning the cultural heritage previously described. The objective of this article thus will be to question the potential preservation of cultural heritage on the Moon by international bodies, and more particularly, by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and its famous World Heritage List. For the purpose of this study, it must be firstly recalled that several on-ground astronomical sites have already been integrated to the World Heritage List thanks to the “Astronomy and World Heritage Thematic Initiative”5 created by UNESCO in 2013. But this does not concern off-earth sites, which are at the core of this 1 The

word “heritage” derives from old French and refers to what may be inherited. Noting that the French translation is patrimoine, which comes from the Latin patrimonium that literally means the father’s inheritance. 2 The landing site of Lunokhod 1—the first rover launched by USSR—can at least be mentioned. 3 For All Moonkind, «One Small Step Act» (2019) https://www.forallmoonkind.org/wp-content/ uploads/2019/05/One-Small-Step-Act-bill-text.pdf (accessed 23 August 2019). 4 Michelle L. D. Hanlon, “Protecting human heritage on the moon: Don’t let ‘one small step’ become one giant mistake”, The Conversation, 15 February 2019. https://theconversation.com/ protecting-human-heritage-on-the-moon-dont-let-one-small-step-become-one-giant-mistake111020 (accessed 18 September 2019). 5 Concerning UNESCO “Astronomy and World Heritage Thematic Initiative” refer to https://whc. unesco.org/en/astronomy/ (accessed 23 August 2019).

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study. Indeed, this article will only focus on the preservation of outer space heritage through analysing the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter Outer Space Treaty or OST),6 the World Heritage Convention, and other UNESCO conventions. To reach this objective, this article will rely on a fictional case. The hypothesis is that State X proposes to inscribe the Apollo landing site, Tranquility Base, as a cultural heritage site on the UNESCO’s World Heritage List at the World Heritage Committee.7 This fictitious case will not intend to consider the inscription of Tranquility Base as a natural site, but as a cultural site or at least a mixed one. It will offer the reader an opportunity to analyse the two main admission criteria to the List, i.e. the notion of exceptional cultural heritage (2.1) and the territorial competence (2.2), and their implications on a potential nomination of the Tranquility Base. In consideration of the difficulties that State X may encounter in its undertaking, the last part of this article will focus on possible alternative solutions that could be imagined at the international level to preserve the cultural heritage of the Moon (2.3).

2.1 Does the Tranquility Base Correspond to UNESCO’s Conception of Cultural Heritage? A matter of definition (Article 1 of the World Heritage Convention) Any cultural property cannot be considered as cultural heritage as outlined by UNESCO. To be so, it must: satisfy one of the Article 1 definitions of “cultural heritage” (2.1.1) and have an outstanding universal value (2.1.2)

2.1.1 Determination of the Nature of Moon’s Heritage First of all, and as mentioned above, any site competing for inscription must comply with one of the different categories of “cultural heritage” identified by Article 1 of the World Heritage Convention: – monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of Outstanding Universal Value from the point of view of history, art or science;

6 The

Moon Agreement will not be mentioned because of its low degree of ratification by the main space-faring nations. 7 Composed of representatives from 21 State parties, the World Heritage Committee the Committee is, among other things, responsible for the selection of the different sites to be inscribed on the World Heritage List.

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In view of this definition, it can be firstly noticed that only immovable heritage can be included on the World Heritage List. This does not affect the ambitions of State X, which aside from artifacts themselves, wish inscribe the entire Tranquility Base which stands as the Apollo 11 landing site. That being said, the category of immovable heritage to which Tranquility Base most closely corresponds is the definition of “sites”. Tranquility Base and more particularly the numerous footprints it contains constitute a perfect illustration of the “combined works of nature and of man” abovementioned through the encounter between the beauty of the Moon and the genius of humankind which achieved, through scientific and technical exploits, to tread the dusty ground of the moon. Another example of a marriage between nature and culture can also be found on Earth, within the Mining Area of the Great Copper Mountain in Falun (Sweden) that was inscribed on UNESCO’s World Heritage List in 2001. This area, which was dedicated to copper production from the 9th to the end of the 20th century, is considered by UNESCO as “one of the world’s most important mining areas”.8 The site is particularly well known for its typical habitat and technological equipment which remind everyone how deeply the copper industry has marked the economic, social and natural landscape of the region. Indeed, Falun’s landscape bears the testimony of 10 centuries of copper extraction and technological progress. In this respect, the Falun’s Nomination Document noted that: “The history of the mining industry can be seen in the abundant industrial and domestic remains characteristic of this industry that still survive in the natural landscape around Falun which has been moulded and transformed by human ingenuity and resourcefulness.”,9 a feature that it seems to share with Tranquility Base… As mentioned in the introduction, State X could also try to inscribe Tranquility Base as a mixed site with both cultural and natural features. To date, 39 sites have been included on the World Heritage List through this classification. Nevertheless, this option is not ideal since most of them have been selected insofar as they record the memory of traditional and mostly ancient ways of life and beliefs in an exceptional natural environment, which is not completely the case with Tranquility Base.

8 WHC

Nomination Documentation of the Mining Area of the Great Copper Mountain in Falun https://whc.unesco.org/uploads/nominations/1027.pdf (accessed 23 August 2019). 9 Ibid.

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2.1.2 Reflection About Tranquility Base Outstanding Universal Value In consideration of the broad definition given by UNESCO to cultural sites, a lot of properties—Tranquility Base included—could pretend to be integrated in its World Heritage List. However, it is easy to understand that “not everything can, or should, be preserved”,10 especially within the framework of this List. This is the reason why another criterion was required by UNESCO to make a selection: the necessity for any site to be of “Outstanding Universal Value”. In the spirit of UNESCO, this principle is underpinned by the necessity to distinguish cultural and natural heritage with value transcending territorial borders and illustrating the genius deployed by humankind over the course of its history. In order to help State parties to prove the universal and exceptional nature of their sites, the Operational Guidelines for the Implementation of the World Heritage Convention (hereinafter the Operational Guidelines) have identified ten non-cumulative criteria of which at least one must be met. UNESCO recognised six criteria for cultural heritage.11 According to Ms. Anna Sidorenko, who is responsible for the thematic initiative “Astronomy and World Heritage” for the World Heritage Convention, the Tranquility Base could satisfy criterion (vi) because Buzz Aldrin’s footprint may be considered as archeological evidence of the ideas and beliefs that underpinned the space race.12 But in her opinion, this would not be sufficient to inscribe Tranquility Base on the List since the World Heritage Committee required that criterion (vi) be coupled with another one, which she does not think is possible. Nevertheless, one might disagree and judge that Tranquility Base could also be in conformity with criterion (iv) which takes into consideration “technological ensemble” that enabled man to progress and take the history of humanity further. Without going into detail, one could legitimately consider that Tranquility Base illustrates both the “small” and the “great” history of humankind since it embodies 10 Lyndel V. Prott & Patrick J. O’Keefe, “‘Cultural Heritage’ or ‘Cultural Property’?” (1992), quoted by Andrea J. DiPaolo in “Space law and the protection of cultural heritage: The uncertain fate of humanity’s heritage in space” (Thesis, McGill University, 2013), p. 27. 11 “(i) represent a masterpiece of human creative genius; (ii) exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design; (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (iv) be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history; (v) be an outstanding example of a traditional human settlement, land-use, or sea-use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change; (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. (The Committee considers that this criterion should preferably be used in conjunction with other criteria).” 12 Statement from an interview with Anna Sidorenko, UNESCO Headquarters, Paris, 19 August 2019.

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the rivalry between the United States and the USSR that had marked international order during the Cold War and the fulfillment of an immemorial dream. This idea seems all the more justified when considering the criteria used for the admission of the Bikini Atoll Nuclear Test Site on the List in 2010. At that time, the Word Heritage Committee judged that the site met criteria (iv) and (vi) insofar as it illustrated the entry of humanity into the “nuclear era”, the “escalation of military power which characterized the Cold War”13 and the disarmament movements and images that emerged to combat it. Following the same reasoning, and considering the close links between space and nuclear technologies, State X could legitimately think that the Moon’s sites are of outstanding and universal value since they embody a major scientific and technical achievement and illustrate the entry of humanity into the “space era” and the confrontation of two economic and ideological models. Assuming that the Tranquility Base has complied with the definition of cultural heritage site described in Article 1 of the World Heritage Convention, it should also comply with other requirements, among which the conditions related to authenticity, integrity and territory. The first two won’t be analysed since they are less decisive in this case.14 On the contrary, a long analysis will now be dedicated to the last one since territorial issues might jeopardise the inscription of any Moon’s site on the List.

2.2 Can Tranquility Base Candidacy Be Duly Submitted by One State Party? A matter of national appropriation (Articles 3 to 5 of the WH Convention) To be validated, each site candidacy may be submitted by one State party to the World Heritage Convention. This condition seems to prevent any consideration of the Moon’s heritage on the World Heritage List since it contradicts the fundamental principles of space law (2.2.1), even if some people have imagined that they could have recourse to the notions of jurisdiction and control to inscribe space heritage on the List (2.2.2).

2.2.1 The Impasse of National Ownership Even if Tranquility Base seems to comply with the definition required by UNESCO, State X would have to deal with a fundamental incompatibility between the OST 13 Concerning Bikini Atoll Nuclear Test Site outstanding universal value, refer to https://whc.unesco.

org/en/list/1339/ (accessed 19 September 2019). 14 Authenticity and integrity conditions, which are required to make sure that the outstanding universal value is objectively (authenticity) and durably (integrity) expressed, are met since the site is perfectly intact thanks to the lack of atmosphere on the Moon.

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and the World Heritage Convention: the question of territorial appropriation. While Article II of the OST is firm on the fact that “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”, Article 3 of the World Heritage Convention requires “each State Party to this Convention to identify and delineate the different properties situated on its territory”. Applied to our case, this means that State X should claim ownership over a land on the lunar surface, which is absolutely incompatible with Article II of the OST. The latter is also incompatible with Title II of the World Heritage Convention that requires any State party to adopt its own protection and management plan to preserve the site it proposed, which conflicts with the principle of non-appropriation. This is all the more true since the protection and management measures recommended by Article 5 of Title II15 all come within the competency of State, especially the ability to enact legal, regulatory and administrative standards. Although the rest of Title II provides for the possibility of “international assistance and co-operation”, the text remains very cautious with regard to international assistance insofar as Article 6 specifies that it “fully [respects] the sovereignty of the States” and “property right provided by national legislation”. As such, and as the law stands, no solution seems to override the incompatibility between the two conventions. Nevertheless, State X could ultimately rely on a precedent referred to by Joseph Reynolds, a graduate in Historic Preservation from Clemson University/College of Charleston, in his article entitled “Legal Implications of Protecting Historic Sites in Space”16 : the nomination of the Old City of Jerusalem and its Walls by Jordan in 1981. This nomination constitutes an exception since it seems to contradict the 181 Resolution of the General Assembly of United Nations which established the city “as a corpus separatum under 15 Article 5 of the Convention Concerning the Protection of the World Cultural and Natural Heritage: “To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country: (a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; (b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; (c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; (d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and (e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.” 16 Joseph Reynolds, “Legal Implications of Protecting Historic Sites in Space”, in Beth Laura O’Leary and P. J. Capelotti (eds), Archaeology and Heritage of the Human Movement into Space (Springer 2015), p. 123–124.

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a special international regime” that “shall be administered by the United Nations”,17 i.e. an international territory on which no country was allowed to claim sovereignty. However, according to Joseph Reynolds, the Hashemite Kingdom of Jordan achieved to inscribe the City of Jerusalem on the World Heritage List by highlighting the “religious significance” of the Old City of Jerusalem, “the deterioration of its heritage” and by recalling that its proposal “was in no way a claim of sovereignty”.18 Even if some delegations judged this situation as incompatible with the UNGA Resolution 181, Jordan convinced the majority of the World Heritage Committee of its “competence in administering preservation to the city”19 and thus fulfilled to nominate the site. In view of this success, State X could try to wave a parallel between the city of Jerusalem and the Apollo 11 landing site and to convince the World Heritage Committee as Jordan did 38 years ago.

2.2.2 The Hope Around the Notions of Jurisdiction and Control Given the incompatibility between the OST and the World Heritage Convention and the uncertainty linked to the last proposal, State X could decide to look for another way to protect Tranquility Base. By reading the OST and more specifically its Article VIII, State X could take advantage of the rights guaranteed by Article VIII and the notions of jurisdiction and control. According to Article VIII of the OST, “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth”. This seems to create an interesting breach for State X to claim property rights over Tranquility Base. Indeed, by claiming jurisdiction and control over its own space objects, State X could imagine having a chance to counterbalance the obstacle contained in Article II of the OST. This idea is, in fact, Andrea J. DiPaolo’s, a specialist of space law from the Institute of Air and Space Law of McGill University. In her thesis dated 2013,20 she proposed, among other possible solutions for integrating a lunar site into the World Heritage List, to modify Article 3 of the 1972 Convention (and other related) by making reference to the notion of jurisdiction: “It is for each State Party to this Convention to identify and 17 United Nations General Assembly (1947) Future Government of Palestine, 29 November 1947, A/RES/181(II). 18 Reynolds (n 16) p. 124. 19 Ibid. 20 Andrea J. DiPaolo, “Space law and the protection of cultural heritage: The uncertain fate of humanity’s heritage in space” (Thesis, McGill University, 2013). http://digitool.library.mcgill.ca/ webclient/StreamGate?folder_id=0&dvs=1568977778609~109 (accessed 20 September 2019).

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delineate the different properties situated on its territory, or in outer space and under its jurisdiction, mentioned in Articles 1 and 2 above.”21 Nonetheless, this proposal does not seem appropriate knowing that the notion of jurisdiction contained in the OST only applies to space objects and that the World Heritage List does not include movable heritage, i.e. objects. From this perspective, it appears that notions of ownership and jurisdiction are both inappropriate and ineffective, and that an alternative solution to protect Moon cultural heritage should be found beyond the 1972 Convention and therefore beyond the World Heritage List. This opinion is shared by the Director of the World Heritage Centre, Mechtild Rössler, who asserted to France 2422 that UNESCO’s framework is not relevant to protect space cultural heritage and that space-faring nations should design a new agreement by drawing inspiration from other global commons like Antarctica…

2.3 What Other Options Could Be Devised to Protect the Tranquility Base? A matter of international cooperation Even if unilateral measures could be envisaged—as California and New Mexico did in 2010 when they decided to protect Tranquility Base artefacts on the grounds of their own protection regime23 —, the specific nature of global commons requires studying other multilateral options. To do so, an insight on other global commons protection regime could be useful, like the one adopted by UNESCO for underwater cultural heritage (2.3.1). Then, it would be necessary to consider the nature of any new instrument in order to guarantee its adoption by space-faring nations (2.3.2).

2.3.1 The Example of Underwater Heritage: Learning from Other Global Commons Regime Mechtild Rössler’s view is shared by many specialists. Among them, Justin St. P. Walsh, Professor of Archeology at Chapman University, considers that studying the 21 DiPaolo

(n 20) p. 113–114.

22 Sébastian Seibt, «L’empreinte de botte de Neil Armstrong a-t-elle sa place au patrimoine mondial

de l’Humanité?», France 24, 21 February 2019. https://www.france24.com/fr/20190221-lune-neilarmstrong-alunissage-patrimoine-mondial-humanite-unesco-protection (accessed 18 September 2019). 23 Beth Laura O’Leary, “To Boldly Go Where No Man [sic] Has Gone Before: Approaches in Space Archaeology and Heritage” in Beth Laura O’Leary and P. J. Capelotti (eds), Archaeology and Heritage of the Human Movement into Space (Springer 2015), p. 8.

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regimes applicable to global commons such as Antarctica and the high seas could be useful to design a new instrument dedicated to the protection of space heritage.24 Indeed, given the similarities shared by these three different environments—he points out that outer space as well as Antarctica and high seas are all international territories to which access is still difficult but whose exploitation is currently growing—such a comparison could be a fruitful exercise to design an appropriate framework for space heritage. As this article mainly focuses on UNESCO, it was agreed to deal only with the Convention on the Protection of the Underwater Cultural Heritage (hereinafter the Underwater Heritage Convention). The Underwater Heritage Convention was adopted by UNESCO in 2001 to complete the premises laid down by the 1982 United Nations Convention on the Law of the Sea also known as Montego Bay Convention. Even if the Montego Bay Convention already stated in 1982 that “States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.”,25 some specialists such as Thijs J. Maarleveld, Professor of Maritime Archaeology at University of Southern Denmark, consider that the content of this “duty” has been poorly developed and that these gaps were only filled with the adoption of the Underwater Heritage Convention.26 In consonance with Montego Bay Convention, the Underwater Heritage Convention incites State parties to “preserve underwater cultural heritage for the benefit of humanity”27 while making sure that “No act or activity undertaken on the basis of this Convention shall constitute grounds for claiming, contending or disputing any claim to national sovereignty or jurisdiction”28 —a vocabulary that it shares with the Outer Space Treaty. To reach these objectives, the Convention and its Preamble contain several interesting provisions that could be adapted to outer space heritage. For instance, Justin St. P. Walsh mentions Article 5 which states that “Each State Party shall use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting underwater cultural heritage”, a provision that could be used as a basis considering the growing development of exploration and resources exploitation activities in outer space. The author also mentions Articles 2.7 which prohibits commercial exploitation of underwater cultural heritage.29 Nevertheless,

24 Justin St. P. Walsh, “Protection of humanity’s cultural and historic heritage in space”, Space Policy,

2012, p.18. https://digitalcommons.chapman.edu/cgi/viewcontent.cgi?article=1000&context=art_ articles (accessed 19 September 2019). 25 Article 303 (1) of the United Nations Convention on the Law of the Sea III. 26 Thijs J. Maarleveld. The 2001 UNESCO-Convention on the Protection of the Underwater Cultural Heritage: Origin and Consequences, 2012, p. 19–20. https://www.researchgate.net/publication/257141448_The_2001_UNESCO-Convention_on_ the_Protection_of_the_Underwater_Cultural_Heritage_Origin_and_Consequences (accessed 17 September 2019). 27 Article 2.3. of the Convention on the Protection of the Underwater Cultural Heritage. 28 Article 2.11. of the Convention on the Protection of the Underwater Cultural Heritage. 29 Article 2.7. of the Convention on the Protection of the Underwater Cultural Heritage: “Underwater cultural heritage shall not be commercially exploited.”

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and as recalled by Andrea J. DiPaolo in her analysis,30 such prohibition only applies to “trade”, “speculation” or “irretrievable dispersal”31 of underwater cultural heritage, and not to “responsible and non-intrusive” tourism mentioned in Article 2.10. This article states that “Responsible non-intrusive access to observe or document in situ underwater cultural heritage shall be encouraged to create public awareness, appreciation, and protection of the heritage except where such access is incompatible with its protection and management”, a provision that could be transposed to the space environment in order to foster the development of space tourism while legally preventing its potential drifts. In her thesis, Andrea J. DiPaolo mentions many other dispositions that could be a basis for the design of a new instrument for space heritage, such as Article 2.8 related to “vessels and aircrafts”.32 Nonetheless, she also emphasises the “relative lack of success of the Underwater Heritage Convention”33 —i.e. its lack of ratification—thus questioning the relevance of the design of a new biding treaty.

2.3.2 From Content to Format: A Question of Adhesion This last observation is crucial as it raises the tricky question of the form that this new instrument should adopt. At the international scale, content is inseparable from form since the latter can have an impact on the adoption of any legal instrument by the international community. Anna Sidorenko has perfectly noted this matter of fact. In her PhD research,34 in which she raises the question of the “patrimonialisation” of space cultural heritage, she asserts that “Le choix d’une catégorie d’instruments doit être longuement réfléchi, afin de prévenir toute possibilité de la non-ratification de la Convention par les Etats les plus concernés par cette problématique”.35 Concerning UNESCO, she reminds that three different instruments can be used: conventions, recommendations and declarations. This distinction is also highlighted and detailed on UNESCO’s website: 30 DiPaolo

(n 20), p. 92–93.

31 Annex, Rules concerning activities directed at underwater cultural heritage, Rule 2: “The commer-

cial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.” 32 Article 2.8 of the Convention on the Protection of the Underwater Cultural Heritage: 8. “Consistent with State practice and international law, including the United Nations Convention on the Law of the Sea, nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State’s rights with respect to its State vessels and aircraft.” 33 Ibid DiPaolo, p.13. 34 Anna Sidorenko, «Les sites technologiques liés à l’exploration spatiale: les enjeux de leur patrimonialisation» (PhD, École doctorale Abbé Grégoire, 2019). 35 “The choice of a category of instruments must be carefully considered in order to prevent any possibility of non-ratification of the Convention by the States most concerned by this issue”.

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– Declaration: a purely moral or political commitment, linking States on the basis of good faith. – Recommendation: Addressed to one or more States, a Recommendation is intended to encourage them to adopt a particular approach or to act in a given manner in a specific cultural sphere. In principle, a Recommendation does not create a legally binding obligation on Member States. – Convention: Synonymous with treaty, this term refers to any agreement concluded by two or more States. Such an accord implies the joint will of the parties upon whom the convention imposes binding legal commitments.36 In her research, Anna Sidorenko considers that “Il serait probablement plus prudent d’avancer avec le développement d’un texte de Recommandations proposant les principes directeurs et les normes destinés à réglementer internationalement la protection du patrimoine de l’Espace”.37 Nevertheless, given the time that has been dedicated by the UNCOPUOS to the elaboration of its last non-binding instrument (the Guidelines for the long-term sustainability of outer space activities that were adopted in June 2019 after almost 10 years of negotiation), one might be legitimately tempted to think that such a long period of time should have been used to draft a real binding convention. In this regard, and coming back to the preservation of space cultural heritage, Dr. Mario Hernandez Valdes, an expert in remote sensing who has worked for UNESCO to promote the recourse of space technologies to monitor World Heritage sites, suggests38 to design a new binding instrument dedicated to the “sustainable development” of space activities that would contain some provisions relating to the preservation of cultural heritage on the Moon. Following the same idea, one could take into account the 21 Sustainable Guidelines drafted by the UNCOPUOS, as well as the work carried out by The Hague International Space Resources Governance Working Group, which is currently working on the “Identification and formulation of building blocks for the governance of space resource activities as a basis for negotiations on an international agreement or non-legally binding instrument”.39 The aim of this Group is to think about the creation of a framework both reasonable and favourable to the development of one particular space activity, the exploitation of space resources. Nevertheless, the advices they give to the international space community have the advantage of being broad and adaptable to other kind of activities. On space cultural heritage, their “draft building blocks for the development of an international framework on space resource activities” contain an interesting provision which states that: “Taking into account the current state of technology, the international framework should provide 36 Concerning UNESCO’s normative action, refer to http://www.unesco.org/new/en/culture/themes/ normative-action/ (accessed 17 September 2019). 37 “It might be more prudent to start with the development of Recommendations proposing guiding principles and standards to regulate internationally the protection of outer space heritage”. 38 Statement from an interview with Mario Hernandez Valdes, Paris, 9 August 2019. 39 Concerning The Hague International Space Resources Governance Working Group, refer to https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/thehague-space-resources-governance-working-group.

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that States and intergovernmental organizations authorizing space resource activities shall adopt a precautionary approach with the aim of avoiding harmful impacts, including: […] g) Changes to designated and internationally endorsed outer space natural or cultural heritage sites”.40 The expression “internationally endorsed outer space natural and cultural heritage sites” is interesting since it calls for an international recognition and registration of cultural sites in outer space without giving the exact terms of such recognition. In line with this idea, the hypothetical convention related to the sustainable development of space activities could, among other things, designate a list of cultural sites—that could be contained in an annex—before detailing the main features of their preservation. From this perspective, one of the main challenges would be to define the exact areas that would be protected in order to find a proper balance between preservation and development, which is always a big issue when it comes to dealing with sustainable development. But once more, most of the multilateral solutions that can be imagined rely on their adoption and application by all stakeholders. More than for any other subject, the regulation of global commons such as outer space is based upon the obtention of a wide consensus coupled with a high degree of ambitions. Practice has amply demonstrated that these two elements are difficult to reconcile, considering the preeminence given to national interests in an international system still largely dominated by a Westphalian logic. One of the best examples of this situation is the failure of the draft treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects (hereinafter the PPWT) jointly proposed by Russia and China in 2008 within the framework of the Conference on Disarmament. Although the subject is radically different, it sheds light on the internal contradictions and international antagonisms that challenge negotiations about global commons regulation. Contradictions were identified in the fact that the text did not take into account ground-based anti-satellite weapon system (ASATs), which was all the more questionable since China had carried it out and had destroyed one of its own satellites only one year before the publication of the draft… Those wellknown difficulties have led some to favor non-binding solutions. This is the choice that has been made by the European Union which had developed, outside the UN forum and in parallel to the PPWT, a “Code of Conduct for Outer Space Activities” in order to “develop a comprehensive set of non-legally binding norms to encourage responsible use of outer space”.41 Unfortunately, this initiative was not successful either. According to Tanja Masson-Zwaan and Mahulena Hofmann in Introduction

40 Paragraph 9 (“Avoidance of harmful impacts resulting from space resource activities”) of the Draft building blocks for the development of an international framework on space resource activities https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituutvoor-publiekrecht/lucht--en-ruimterecht/space-resources/draft-building-blocks.pdf (accessed 17 September 2019). 41 Frank A. Rose, “Safeguarding the heavens: the united states and the future of norms of behavior in outer space”, Foreign Policy at Brooking, 2018, p. 5. https://booktransdoc.com/download/antisatellite-weapons-and-us-military-space-policy.html(Accessed 25 September 2019).

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to Space Law,42 the failure mainly resulted from the opposition of China, Russia and several other countries, which considered that: (1) only binding instruments should be considered; (2) negotiations should have been led into the UN framework; (3) European Union has only sought the support of the United States by admitting the possibility of recourse to self-defense.43 By raising these examples, the objective is to recall that the regulation of shared spaces remains very complex because many interests are at stake, whatever the nature of the instrument envisaged, binding or not. Therefore, blockages are to be expected between the major space-faring nations when the question of the preservation of outer space cultural heritage is addressed (other nations would certainly not consider this subject as a priority), considering the symbolic importance of the notion of heritage and the problems that this may raise in terms of freedom of access to the Moon surface…

Diane Zajackowski is a French student in Space Law and Telecommunications at Paris Saclay University. Prior to her admission to this curriculum, she graduated with a master’s degree in International Relations at Paris 1 Panthéon-Sorbonne University, which was followed by an internship at UNESCO, within the Secretariat of the 1970 Convention related to the fight against illicit trafficking of cultural property.

42 Tanja

Masson-Zwaan and Mahulena Hofmann, Introduction to Space Law (Wolters Kluwer, 2019). 43 Ibid., Chapter 5, §5.02 [B].

Chapter 3

Does the Outer Space Treaty Permit the Protection and Preservation of Cultural Heritage Sites on the Moon? Le Bao Ngoc Pham

Abstract The twenty-first century is marked by the second race back to the lunar surface by various State actors. This time they are joined also by profit-seeking corporations with their own agenda. Humanity’s lunar cultural heritage sites are at a greater risk than ever before from the increasing number of expeditions and visitors from different sectors. Recognizing the significant cultural, historical and scientific value of these heritage sites, many entities from state and private sectors call for their protection and preservation. This article examines whether such activities are permitted under the Outer Space Treaty through analyzing their conformity with the fundamental principles enshrined in the first two articles of the Treaty. The article then concludes that the protection and preservation of cultural heritage sites on the lunar surface are not prohibited by the Outer Space Treaty. However, the Treaty’s lack of specific provisions on the protection and preservation of the cultural heritage sites on the Moon creates many challenges for the actual implementation in future scenarios.

3.1 Introduction Breaking free of Earth’s clutches, humans not only landed the first man-made object on the moon on 14 September 1959, but orbited the Moon on 24 December 1968 and eventually personally traversed the ‘magnificent desolation’ of the lunar surface on 20 July 1969, leading to significant insights for understanding the moon and other celestial bodies. Indeed, ‘[w]e’re very very small. But we’re profoundly capable of very very big things.’1 In celebrating the 50th anniversary of mankind’s first step on a celestial body off the Earth, the people of today’s world eagerly looked back at all of 1 Quote

from Stephen Hawking.

This article is dedicated to my late grandmother, Do Thi Ngan, for her unwavering love and support. L. B. N. Pham (B) University of Helsinki, Helsinki, Finland e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_3

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humanity’s greatest achievements on the Moon that were made possible through the valuable contribution of thousands of individuals. All that is left of these events on the Moon are more than 100 historical sites, from the crash site of Luna 2 to the landing site of Apollo 11 mission.2 They are accompanied by over 70 spacecraft, including rovers, modules, and crashed orbiters; 05 American flags; a small silicon disk bearing goodwill messages from 73 world leaders; various tools, pieces of equipment and personal items; and multiple footprints and tracks.3 Governments, NGOs, scientists, archeologists, and curators have been campaigning to provide protection and preservation to these ‘cultural heritage sites’.4 Most notably, in 2011, NASA published voluntary guidelines entitled ‘Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’ to protect the Apollos landing sites, listing them as off-limits to protect their heritage value.5 On 23 May 2019, US Senators Gary Peters and Ted Cruz introduced a bill dubbed ‘The One Small Step to Protect Human Heritage in Space Act’ that seeks to preserve and protect the historic Apollo 11 landing site. This Bill directs any Federal agency that issues licenses for lunar activities to add a requirement that the applicant must agree to abide by NASA’s published recommendations for preserving the Apollo 11 landing site, similar human heritage sites and lunar artifacts.6 While all these efforts are indeed remarkable, they are only of significance if the protection and preservation of cultural heritage sites on the Moon are allowed by international space law since unfortunately, the protection afforded by the UNESCO treaties does not apply to outer space. International space law comprises of four conventions, including the Outer Space Treaty (1967), the Liability Convention (1972), the Registration Convention (1975), the Moon Agreement (1979); and a number of resolutions adopted by States under the auspices of the UN. Among them, the Outer Space Treaty remains the first international space law agreement to be adopted and the most ratified out of the four core conventions. Many of its provisions are considered to reflect principles of customary international law which bind even States that are not a party to the Treaty. Thus, this article shall deal with the question of whether the Outer Space Treaty 2 Karl

Tate, ‘The Moon: Space Programs’ Dumping Ground (Infographic)’ (14 December 2012) https://www.space.com/18905-moon-spacecraft-dumping-ground-infographic.html. Accessed 02 September 2019. 3 Megan Garber, ‘The Trash We’ve Left on the Moon’ (19 Decmber 2012) https://www.theatlantic. com/technology/archive/2012/12/the-trash-weve-left-on-the-moon/266465/. Accessed 02 September 2019. 4 See Justin St. P. Walsh, ‘Protection of humanity’s cultural and historic heritage in space’ (2012) 28(4) Space Policy; For All Moonkind, ‘Legal research and strategy’. https://www.forallmoonkind. org/moonkind-press-room/legal/. Accessed 02 September 2019; P.J. Capelotti, ‘Space: The final [archaeological] frontier’, 57(6) Archaeology 46; Dirk H. R. Spennemann, ‘Out of this World: Issues of Managing Tourism and Humanity’s Heritage on the Moon’ (2006) 12 (4) International Journal of Heritage Studies 356. 5 NASA, ‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’ (20 July 2011) https://www. nasa.gov/directorates/heo/library/reports/lunar-artifacts.html. Accessed 02 September 2019. 6 One Small Step to Protect Human Heritage in Space Act. https://www.govtrack.us/congress/bills/ 116/s1694/text. Accessed 02 September 2019.

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permits the protection and preservation of cultural heritage sites on the Moon. This omission does not indicate that the other instruments may not have any considerable indication on the authorization, permissibility or regulation of the protection and preservation of lunar heritage sites; rather, they deserve a separate analysis that could not be covered within the limited scope of this article.

3.2 The Right to Protect and Preserve Cultural Heritage Sites on the Moon in the Outer Space Treaty The provisions of the Outer Space Treaty have significant implications on the permissibility of the protection and preservation of cultural heritage sites on the Moon. In particular, the fundamental principles encompassed in the first two articles of the Treaty establishes important criteria to determine whether the activities are permitted or prohibited. They are the freedoms of exploration and use of outer space, the freedom of access to all areas of celestial bodies, and the requirement that space activities are to be conducted for the benefit and in the interest of all States provided by Article I; and the principle of non-appropriation under Article II.

3.2.1 Freedom of Exploration and Use Article I of the Outer Space Treaty provides for the fundamental legal principle of freedom of exploration and use of outer space by all States. The wording of Article I, however, is too broad to pinpoint what exactly is covered by the scope of the freedom of exploration and use. Thus, nothing in the Outer Space Treaty expressively suggests that the protection and preservation of the sites can be included within the ambit of the freedom of exploration and use. Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) states that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose.’ Looking at the ordinary meaning of ‘exploration and use’, it is plausible to argue that the phrase should be viewed widely as any activity in space, one way or another would belong to the categories of ‘exploration’ or ‘use’.7 This broad interpretation receives additional support from the interpretative criterium listed in Article 31(4) of the VCLT which stipulates that ‘a special meaning shall be given to a term if it is established that the parties so intended.’ The Parties to the Outer Space Treaties did not expressively elaborate any specific use. Such omission may have been 7 Horst

Bittlinger, ‘Private Space Activities: Questions of International Responsibility’ (1987) 30 Proc. on L. Outer Space 191, 194; Stephan Hobe, ‘Article I’, in Stephan Hobe, Bernhard SchmidtTedd & Kai-Uwe Schrogl, Cologne Commentary on Space Law Volume I (Wolters Kluwer 2009) 35.

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done in consideration of the constant and rapid development of space technology, which may result in various types of uses that the drafters of the Treaty cannot envision at the time of its drafting. ‘Any enumeration bears the danger of limiting the freedom.’8 Nevertheless, the Parties were able to envisage certain activities to be excluded from the scope of the freedom of exploration and use in other provisions of the Outer Space Treaty. For example, Article III, by referring to the UN Charter, condemns any use of force by using outer space and celestial bodies as incompatible with the spirit embodied in Article 2(4) of the UN Charter; and Article IV prohibits the installment and carrying of nuclear weapons or any other kinds of weapons of mass destruction in outer space. As the drafters had had ample opportunities to discuss the exact categories of uses within the scope of freedom of exploration and use, the fact that they opted not to enclose them in the final treaty could be viewed as intentional. It must also be noted that according to Stephan Hobe, ‘exploration’ is differentiated from ‘use’ in that it requires the deliberate study or observation of things that are yet to be explored.9 Protecting and preserving cultural heritage sites on the Moon thus fit more into the use of outer space, as the sites have to have been probed and examined to be established as cultural heritage. For the above reasons, it can be concluded that the ‘freedom of use’ in Article I of the Outer Space Treaty would be interpreted broadly to include the freedom to protect and preserve cultural heritage sites on the Moon.

3.2.2 Use for the Benefit and Interest of All Countries Article I of the Outer Space Treaty provides that space activities are to be carried out for the benefit and in the interest of all States. Specifically, it states: The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Thus, activities in outer space and celestial bodies are permissible to the extent to which they are ‘for the benefit and in the interest of all countries.’ The provision, however, is formulated vaguely and therefore lacks any clearly defined content. Pursuant to Article 31 of the VCLT, Article I shall be interpreted in consideration of the ordinary meaning of its terms in light of their context, object, and purpose which may be derived from, in addition to the text, preamble, annexes, agreements relating to the conclusion of the treaty, subsequent agreements. It is accepted that the provision is visioned as a compromise between the interests of big 8 International Institute of Space Law, Does international space law either permit or prohibit the taking of resources in outer space and on celestial bodies, and how is this relevant for national actors? What is the context, and what are the contours and limits of this permission or prohibition? (2016) 30. See also Hobe (n 8) 35. 9 Hobe (n 8) 34–35.

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powers which have the technological capability to explore and utilize outer space and non-space-faring countries with little or no means and capabilities to undertake the activities. The phrase ‘all countries irrespective of their degree of economic scientific development’ signifies that any activity carried out in outer space and on celestial bodies may not be in favor of specific countries without regard to the needs and interests of other nations. The wording suggests that outer space and celestial bodies are available not just to the space-faring countries that have the ability to access the area and exploit the resource, but to all, including the non-state parties to the Treaty to partake in the benefits of space exploration and use.10 ‘The fact that all countries shall profit is regarded as the final goal of the provision.’11 The mention of ‘the province of mankind’ implies the interest of all generations both now and in the future in the use and exploration of outer space and celestial bodies.12 Thus, the use and exploration of outer space and the celestial bodies need to take into account the ability of the following generations to enjoys the freedom and benefits. It is, however, uncertain whether Article I means that the activity itself must be for the common benefit of all States, or that the results and outcomes derived thereof have to be in the interest and for the benefit of all countries. If the requirement imposes a specific duty on the activity itself, then protecting and preserving cultural heritage sites on the Moon would not have much difficulty fulfilling it since one can hardly deny that such activities are for the benefit and interest of all countries and their subsequent generations. First, cultural heritage is ‘our legacy from the past, what we live with today, and what we pass on to future generations.’13 The lunar landing sites along with the commemorative artifacts and features such as footprints, rover tracks, etc. bear witness to one of the greatest defining milestones in human evolution14 and mortalize the work of many men and women who have invested or lost their lives in the dedication to space exploration. Previously, the idea of traveling to the stars had only been the theme of science fiction. But, mankind had enabled the sophisticated technologies that turned the impossible into reality. Previous space exploration events had set the foundation for future space exploration. Since the first manned mission to land on the Moon 50 years ago, humanity has ventured even further into space. Engineers and scientists continued to be inspired to study space travel and develop more modern and advanced technologies that took humanity to explore the outer solar system and touch the interstellar space, intercept comets and asteroids, launch and operate orbital space stations, etc.15 It 10 Stephen Gorove, ‘Freedom of Exploration and Use in the Outer Space Treaty: A Textual Analysis and Interpretation’ (1971) 1 Denv J Int’l L & Pol’y 93, 104–106. 11 Hobe (n 8) 39. 12 Ibid. 13 UNESCO, ‘World Heritage Sites’. http://www.unesco.org/archives/multimedia/subject/44/world + heritage. Accessed 02 September 2019. 14 Sophie Fessl, ‘Should the Moon Landing Site Be a National Historic Landmark?’ (10 July 2019). https://daily.jstor.org/should-the-moon-landing-site-be-a-national-historic-landmark/. Accessed 02 September 2019. 15 See Dave Mosher and Peter Kotecki, ‘Humanity’s coolest achievements in spaceflight since Apollo 8, from walking on the moon to touching interstellar space’ (21 December

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was indeed ‘a giant leap for mankind’ as Neil Armstrong famously remarked. The sites with satellites, spacecraft, landing and roving hardware, experiments left on the lunar surface, tools, equipment, etc. are rich with intangible knowledge of past technological development. They are among the most important pieces of evidence and indisputable proof of mankind’s existence and activities in outer space, ones that future generations might one day survey, excavate, analyze to learn more about past technological advancements and humanity’s endeavor beyond Earth, ‘a base from which progress in cultural achievement becomes possible.’16 They also contain significant scientific value.17 Unlike Earth, the moon does not have an atmosphere capable of blocking out the fierce sunlight. Scientists previously thought that prolonged exposure to the intense ultraviolet light would cause the American flags brought by NASA astronauts to disintegrate, but the NASA’s Lunar Reconnaissance Orbiter photos suggest that the fabric has withstood the harsh conditions. The dye was broken down causing fading, but the nylon flags remain ‘a […] black smudge […] faded from the glow of the sun, and its shadow.’18 Scientists also observed that the electrically-charged levitated lunar dust that forms part of the exosphere can get into spacesuits, computers, and equipment. It affects visibility, deteriorates the parts quickly, reduces the traction, congests the seals and obstructs their functionality, clogs the joints of spacesuits and strips them threadbare.19 The mobilized dust caused the Apollo 11 Passive Seismometer to fail within 21 Earth days due to overheating and immobilized the Chang’e-3 lunar rover Yutu in 2014.20 The man-made objects, hardware, tools, equipment left at the landing sites, having been bombard with the dust particles, and remaining flags under extended exposure to high-energy ultraviolet would be excellent study subjects to examine the effects of lunar dust and ultraviolet light essential for less costly, safer future robotic and human expeditions to the Moon and design of more durable spacesuits and lunar hardware and equipment. Even defecation-collection devices and bags of human waste left behind by the astronauts have great implications for the understanding of life and survival on stars and planetary systems. Each piece of feces contains an ecosystem of more than 1000 species of microbes. If the microbial life on Earth can resist the hostile conditions on the Moon with fluctuating temperatures and intense 2018) https://www.businessinsider.com/space-history-achievements-since-apollo-8-moon-flight2018-12?r = US&IR = T. Accessed 02 September 2019. 16 John Henry Merryman, ‘The Public Interest in Cultural Property’ (1989) 77 Calif L Rev 339, 354; Capelotti (n 5) 50; Leonard David, ‘NASA sets guidelines for Apollo moon landing sites’. https:// sservi.nasa.gov/articles/nasa-sets-guidelines-apollo-moon-landing-sites/. Accessed 02 September 2019. 17 Capelotti (n 5) 50. 18 Marina Koren, ‘What Is the Apollo 11 Landing Site Like Now?’ (19 July 2019) https://www. theatlantic.com/science/archive/2019/07/apollo-moon-landing-site-today/594364/. Accessed 02 September 2019. 19 Soil Science Society of America, ‘NASA’s Dirty Secret: Moon Dust’ ScienceDaily (29 September 2008) www.sciencedaily.com/releases/2008/09/080924191552.htm. Accessed 02 September 2019. 20 Brian J. O’Brien, ‘Paradigm shifts about dust on the Moon: From Apollo 11 to Chang’e-4’ (2018) 156 Planetary and Space Science 47, 47.

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solar radiation, it may also survive travel between planetary bodies, making them capable of thriving across the universe. Experiment with these microbes could result in evidence that single-celled organism exists on Mars and other planets and moons, or that life on Earth may have started by microbes from another world.21 The first archaeological endeavor to study the long-term effect of lunar environment on the artifacts had previously been done by Pete Conrad and Alan Bean in 1969. Following the difficult manual landing of the Apolo XII Lunar Module, the two astronauts visited the landing site of the Surveyor 3 craft that landed on the lunar surface in April 1967. They observed and took photographs of the spacecraft and its surroundings, and retrieved television camera, remote sampling arm, pieces of tubing, nuts, bolts, and screws for later analysis on Earth. Two-year examination of these artifacts revealed the result of micrometeorite bombardment, sand-blasting effect from dust and effects of solar radiation on the craft, and evidence of the bacteria Streptococcus mitis that was able to survive two and a half years in space.22 Therefore, protecting and preserving the cultural heritage sites on the moon also means protecting the immense scientific value that scientists can return for.23 That being said, preservation and protection of cultural heritage sites on the Moon ultimately forestall ‘the eternal silence created by the destruction of culture’,24 preventing irreparable loss to science and history. Conversely, if states are not allowed to protect and preserve cultural heritage sites on the Moon, it is difficult to see how they actually maintain the aforementioned ‘form of inheritance to be kept in safekeeping and handed down to future generations.’25 In the context that cultural heritage is a nonrenewable resource,26 the features and artifacts at the lunar landing sites should not be permanently removed, broken down, traded or sold since these acts would result in irretrievable dispersal of the cultural heritage objects and irreversible alteration to the sites. Such would be detrimental to the needs and interests of other countries and the future generations since the damaged features and artifacts sold into private collections are no longer accessible and their historical and scientific values have been disrupted. Nevertheless, the sale and purchase of public tour tickets and of films or photographs of the sites could 21 Brian Resnick, ‘Apollo astronauts left their poop on the moon. We gotta go back for that shit.’ (12 July 2019) https://www.vox.com/science-and-health/2019/3/22/18236125/apollo-moon-poopmars-science. Accessed 02 September 2019. See also Michael Irving, ‘Microbes survive in space outside the ISS, raising hopes for life on Mars’ (27 March 2019) https://newatlas.com/space-stationmicrobes-survive-mars/59054/. Accessed 02 September 2019; ‘Bacteria can Survive Space Travel, ISS Research Shows’ (03 May 2014) https://www.natureworldnews.com/articles/6877/20140503/ bacteria-survive-space-travel-iss-research-shows.html. Accessed 02 September 2019. 22 Lunar and Planetary Institute, ‘Science Experiments—Surveyor III Analysis’. https://www.lpi. usra.edu/lunar/missions/apollo/apollo_12/experiments/surveyor/. Accessed 02 September 2019; Capelotti (n 5) 50–51. 23 Capelotti (n 5) 49–51. 24 Malfred Lachs, ‘The Defenses of Culture’ (1985) 37 Museum Int’l 167, 168. 25 Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49 INT’L & COMP LQ 61, 83–84. 26 Blake (n 26) 69; Sarah Dromgoole, Underwater Cultural Heritage and International Law (Cambridge University Press 2013) 1; M Z Mohd Nor and A Zahid, ‘Competing Interests in the Underwater Cultural Heritage: A Question of Balance’ (2016) 9 J E ASIA & INT’L L 121, 128.

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be regarded as being in conformity with the objective of protecting and preserving cultural heritage sites as such fees would help cover the costs of protecting and caring for these sites, and encourage and increase public awareness and appreciation of the sites as testimony to past human activities.27 If the meaning of Article I involves the results or ends derived from such activities, then it must be noted that the Outer Space Treaty does not envisage the sharing or distribution of resulting financial and other economic benefits from the exploration and use of outer space and celestial bodies. There is no mechanism for sharing the above monetary benefits derived from the cultural heritage sites on the Moon. The benefits from the heritage sites also extent to non-economic such as scientific research. Article XI provides for the disclosure to the greatest extent feasible and practicable, of the nature, conduct, locations, and results of activities conducted in outer space, including the Moon and other celestial bodies to the Secretary-General of the United Nations as well as the public and the international scientific community. The wording of the provision is very broad and thus, can encompass all types of information28 including the result of scientific studies done at the sites. However, the Treaty gives no guidance on when the disclosure of information can be considered ‘feasible’ or ‘practicable’, thereby leaving room for States to decide whether or not disseminating certain information is actually feasible or practicable.29 Public visits for recreational and educational purposes is another non-economic benefit that must be recognized. The Outer Space Treaty only provides visitation of stations, installations, equipment, and space vehicles on the Moon for representatives of States Parties to the Treaty on a basis of reciprocity.30 The public should have the right to enjoy the cultural heritage sites since they cannot become a form of inheritance for the future and the most reliable testimony of achievements of the past if inaccessible to anyone but government representatives.31 The Treaty makes no specific provision for public visits. In any case, Stephen Gorove posits that Article I entails ‘a general statement of policy’ and ‘expression of hope’ rather than a legal requirement.32 This idea is shared also by other commentators. N. Jasentuliyana, for example, observed that ‘it was meant to lay down only a general principle with no legally binding force.’33 As the requirement of ‘benefits and interests of all countries’ is to be considered as a generalized mission statement for space activities rather than the imposition of a positive and specific duty, protection and preservation of cultural heritage sites on 27 Sarah Dromgoole, ‘2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage’ (2003) 18 INT’L J MARINE & COASTAL L 59, 66; M Z Mohd Nor and A Zahid, ‘Competing Interests in the Underwater Cultural Heritage: A Question of Balance’ (2016) 9 J E ASIA & INT’L L 121, 131. 28 Jean-Francois Mayence and Thomas Reuter, ‘Article XI’, in Stephan Hobe, Bernhard SchmidtTedd & Kai-Uwe Schrogl, Cologne Commentary on Space Law Volume I (Wolters Kluwer 2009) 196–197. 29 Mayence and Reuter (n 29) 196–197. 30 Article XII of the Outer Space Treaty. 31 Spennemann (n 5) 365. 32 Gorove (n 11) 105. 33 N Jasentuliyana, ‘Article I of the Outer Space Treaty Revisited’ (1989) 17 J Space L 129, 140.

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the Moon may be regarded as a progressive development regardless of the absence of sharing of economic or tangible benefits to other States.

3.2.3 Freedom of Access and Prohibition of Appropriation In order to protect the cultural heritage sites on the Moon, specific indicators of human-robotic lunar presence, including footprints and rover tracks must undoubtedly be preserved in situ. Meanwhile, it might be argued that the tools, equipment and commemorative objects that are small enough may be retrieved, and the space probes, robotic landers, descent and ascent stages, booster rockets that are too large may be dismantled for recovery by a space shuttle. Nevertheless, it must be noted that most of these large objects crash-landed onto the lunar surface, having scattered small fragments over a wide area or ceased working, and all suffered from decades-long exposure to extreme temperatures, radiation, wind, and dust, causing damage and degradation. If they are to be removed or taken apart, they may sustain further deterioration due to their size or fragility. Furthermore, the costs of dismantling and retrieving by a space shuttle are expensive and the procedure requires the most sophisticated technologies.34 On the other hand, regardless of whether or not it would be practical to return the cultural heritage objects to Earth, in situ preservation would uphold their context and associated environment.35 Under Article 2(5) of the Convention on the Protection of the Underwater Cultural Heritage, in case of underwater cultural heritage located in the Area, priority is given to in situ preservation of the heritage in their original location, the ocean floor. Excavation should only be done when the cultural heritage is at risk or for research purposes.36 Arguably, the historical and scientific value of the artifacts is greater if they remain in situ where their context and associated environment i.e. ‘changes in soil colour, the traces of ancient floors and fires, the imprint of vanished textiles and foodstuffs, the relation between one object and another’37 are intact: [A]rchaeologists rely on context as their most important interpretative tool. Accurate recording of the position of artifacts (depth in the soil, location within a particular soil stratum, etc.) is critical for our understanding of the relationship of finds to one another and to architecture, activity areas, or the surrounding landscape.38

The same yardstick may also apply to cultural heritage sites on the Moon to allow the most accurate study of how the artifacts and features change over time under the 34 Robert Barclay and Randall Brooks, ‘In Situ Preservation of Historic Spacecraft’ (2002) 55 Journal of the British Interplanetary Society 173, 177. 35 Ibid. 36 Dromgoole (n 27) 134. 37 C. Coggins, ‘Archaeologyand the Art Market’ (1972) 175 Science 263, 263. See also Alice Gorman, ‘Saving Space Junk’ (2007) 60(6) Archaeology, 16. 38 Walsh (n 5) 14.

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effects of the lunar environment which cannot be reliably simulated in laboratories due to the complex forces on the daylight lunar dust.39 The fundamental principle embodied in Article I of the Outer Space Treaty requires that there be ‘free access to all areas of celestial bodies.’ Protecting and preserving a cultural heritage site on the Moon in situ would have the effect of denying free access to the area required for safeguarding the site. Nevertheless, it must be noted that free access is to be exercised under the limitations imposed by the Treaty40 such as to safeguard the benefit and in the interests of all countries. In this regard, Manfred Lachs remarks: [The Outer Space Treaty] agreed purpose was to ensure that no State would arrogate exclusive rights to itself or use them at the expense of others. There can be no doubt that the freedom of action of States in outer space or on celestial bodies is neither unlimited, absolute or unqualified, but is determined by the right and interest of other States.41

The twenty-first century is marked by the second wave of lunar expeditions by State actors. The United States announced the planned returning of American astronauts to the moon for the first time since 1972, for long-term exploration and use.42 NASA is building a gargantuan rocket known as the Space Launch System to return humans back to the Moon by 2024.43 China landed the Chang’e 4 spacecraft on the far side of the moon on 3 January 2019. Yutu-2, the lunar rover for China’s Chang’e-4 mission been heading west of the landing site in the Von Kármán crater. Upcoming missions have been scheduled for the 2020s.44 India successfully launched the Chandrayaan-2 mission on 22 July 2019. Its lander, Vikram, was scheduled to touch down on the moon’s south pole on 6 September.45 The European Space Agency sets its sight on a Moon village.46 Aerospace corporations with capabilities to build satellites and spacecraft like Boeing and SpaceX are also eager to be a part of the

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(n 21) 48. Institute of Space Law, Does international space law either permit or prohibit the taking of resources in outer space and on celestial bodies, and how is this relevant for national actors? What is the context, and what are the contours and limits of this permission or prohibition? (2016) 41–42. 41 Manfred Lachs, The Law of Outer Space (A. W. Sijthoff 1972) 117. 42 Kenneth Chang, Trump Announces That the Moon Is Astronauts’ Next Destination (11 December 2017) https://www.nytimes.com/2017/12/11/science/trump-moon-space-directive.html. Accessed 02 September 2019. 43 NASA, ‘NASA explores with Space Launch System’ https://www.nasa.gov/exploration/systems/ sls/index.html. Accessed 02 September 2019. 44 The Planetary Society, ‘Chang’e-4 First lander and rover on the Moon’s far side’. http://www. planetary.org/explore/space-topics/space-missions/change-4.html. Accessed 02 September 2019. 45 ‘India to Attempt Moon Landing at the Lunar South Pole Today’ (06 September 2019) https:// www.space.com/india-chandrayaan-2-moon-landing-webcast.html. Accessed 02 September 2019. 46 Jan Woerner, ‘Moon Village: A vision for global cooperation and Space 4.0’. https://www.esa. int/About_Us/Ministerial_Council_2016/Moon_Village. Accessed 02 September 2019. 40 International

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global space enterprise.47 Additionally, space tourism has become a reality. Feepaying passengers have since flown as part of space exploration missions initiated both by governments and private ventures. Christa McAuliffe, a civilian teacher who perished aboard the ill-fated Challenger orbiter in 1986, was one of the first people chosen, invited and trained by NASA to fly into space as an observer.48 American businessman Dennis Tito, through an arrangement with MirCorp and Space Adventures, became the first paying space tourist to visit the International Space Station in April 2001.49 Nowadays, commercial spaceflight companies are working to bring more humans into space. Blue Origin plans to use the New Shepard rocket to launch paying passengers on a space ride.50 Virgin Galactic also aims to ferry tourists to space aboard its craft.51 It must be noted that the unique environmental conditions on the lunar surface mean that one careless brush would sweep away the fragile traces at the sites, while any new physical impairment to the landscapes will remain there for centuries due to Moon’s lack of atmosphere. As the number of visits and visitors increases, so does the level of impact on the lunar cultural heritage sites. They are becoming more vulnerable than ever to crash-landing with great velocity, significant dust degradation from rocket exhausts of ascent stage and other incidental damage and disturbance from different missions; wear and tear on the environment by masstourism, the unmonitored taking of artifacts as souvenirs and outrageous treasure hunting by unethical tourists and profit-seeking corporations. Therefore, limitation on access to the cultural heritage sites is vital for the protection and preservation of their historic and scientific value which are to the benefit and in the interests of all countries. Furthermore, the State of registration retains jurisdiction and control of its space objects and ‘there is no general international law rule giving the right of free access to those areas under the quasiterritorial jurisdiction of states such as any space objects in outer space, including celestial bodies.’52 Nonetheless, such limitation is subject to the prohibition of discrimination in Article I, the requirement that space activities shall be carried out in accordance with international law provided by Article III, the principles of due regard and of cooperation and mutual assistance prescribed in Article IX. As such, it is the responsibility of all States to prevent intrusive access 47 Chelsea

Gohd, ‘2019 could be huge for private spaceflight’ (04 December 2018) http://www. astronomy.com/news/2018/12/2019-could-be-a-big-year-for-private-spaceflight. Accessed 02 September 2019. 48 ‘Special Report: Space Shuttle Challenger Disaster—25 Years Later’ (28 January 2011) https:// www.space.com/10711-challenger-shuttle-disaster-25-years.html. Accessed 02 September 2019. 49 Bob Granath, ‘Commercial Flight Opens Unlimited Opportunities’ (01 December 2015) https:// www.nasa.gov/feature/commercial-flight-opens-unlimited-opportunities. Accessed 02 September 2019. 50 Steven Levy, ‘Jeff Bezos Wants Us All to Leave Earth—for Good’ (15 October 2018) https:// www.wired.com/story/jeff-bezos-blue-origin/. Accessed 02 September 2019. 51 Jackie Wattles, ‘Richard Branson says Virgin Galactic will take people to space before Christmas’ (30 November 2018) https://edition.cnn.com/2018/11/30/tech/richard-branson-virgingalactic-first-flight-to-space/index.html. Accessed 02 September 2019. 52 Cestmir Cepelka and Jamie Gilmour, ‘The Application of General International Law in Outer Space’ (1970) 36 J Air L & Com 32, 35.

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to the cultural heritage sites and prevent activities directly or incidentally affecting them, and cooperate to protect the sites, while facilitating non-intrusive visits without causing adverse effect to such sites for scientific, educational and recreational purpose. Article II of the Outer Space Treaty stipulates that outer space ‘is not subject to national appropriation by […] occupation.’ The non-appropriation principle has crystallized into a rule of customary international law and become binding even on States that are not a party to the Outer Space Treaty.53 This is due to the nature of the activity itself that establishing cultural heritage sites to preserve artifacts and features in situ would no doubt constitute the perpetual occupation of the whole or part of the lunar surface and the ground underneath. Occupation is one of the traditional international law modes by which States can acquire terra nullius. In order for an occupation to constitute a claim to territorial sovereignty, it is mandatory that the occupation must be effective.54 The effectiveness of occupation is determined by continuous and peaceful display of State sovereignty. As demonstrated in the Islands of Palmas case, the requirement of “continuous and peaceful display of territorial sovereignty” is favoured in international law as a good source of title to territorial sovereignty.55 Peaceful and continuous display of territorial sovereignty involves two elements that must be shown to exist: the intention and will to act as sovereign and some actual and public exercise or display of such authority.56 The first element is not met in the context of outer space. The States that have ratified the Outer Space Treaty are clearly bound by its terms, including the provision of Article II on the prohibition of appropriation of outer space, including the Moon and other celestial bodies. The States that have not ratified the Treaty would be bound by the customary norm of international law that found expression in Articles II. Thereby, States renounced any potential claims of sovereignty over the whole or part of the Moon. What is more, States are barred by the principle of estoppel from taking a position contrary to its original stance, and therefore, estopped from claiming sovereignty over the surface and subsurface of the lunar heritage sites in the future. Thus, since ‘no amount of ‘occupation’ of (a part of) outer space can constitute an appropriation’,57 establishing cultural heritage sites on the Moon would not constitute an appropriation. As a matter of fact, a parallel in international law may be found in the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage, which establishes a regime to preserve in situ all traces of human existence having a cultural, historical or archaeological character, including wreckage found in the Area which, like outer space, cannot be claimed, 53 Francis Lyall and Paul B. Larsen, Space Law: A Treatise (Ashgate 2013) 70–80; Steven Freeland and Ram Jakhu, ‘Article II’, in Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrogl, Cologne Commentary on Space Law Volume I (Wolters Kluwer 2009) 55. 54 Island of Palmas case (United States of America v. The Netherlands) (1928) 2 RIAA 829, 844. 55 Ibid., 838. 56 Case concerning sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Joint Dissenting Opinion of Judges Simma and Abraham 122. 57 Freeland and Jakhu (n 54) 54.

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appropriated, or owned by any state or person.58 The protection and preservation afforded to the ancient shipwrecks on the seabed would have the effect of occupying not only a particular part of the Area’s surface to the exclusion of other States but also the subsoil and resources thereof. Nevertheless, States do not object to this type of occupation as evidenced in international cooperation to protect the Titanic wreck.

3.3 Final Remark Under the Outer Space Treaty, the protection and preservation of cultural heritage sites on the Moon, while are not explicitly mentioned in the Treaty, are not prohibited. However, the freedom to protect and preserve the sites is not absolute and thus can be exercised only within the limitations set out in the Outer Space Treaty. As such prior to and during the process of protection and preservation, States must ensure that such activities are to be exercised without discrimination of any kind, on a basis of equality, and in accordance with international law while taking into account the principles of cooperation and mutual assistance, and environmental protection of outer space that encourages States to avoid harmful contamination of the space environment.59 It must be noted that the Treaty lacks defined regulation for the protection and preservation of the cultural heritage sites on the Moon, which poses a challenge for the actual implementation. The activities incur various issues that must be adequately addressed, including which would be the coordinating State to implement consultations, conduct preliminary research of the sites and take measures of protection on behalf of all countries? What are the rights of identifiable owners to whom the artifacts belong? and how would sharing of the benefit derived from the cultural heritage sites be done and organized? etc. Francis Lyall observes that Article IX is insufficient to deal with the protection of cultural heritage in outer space.60 In order to successfully safeguard the cultural heritage sites that lie in the province of mankind, a negotiation of a specific framework for extraterrestrial heritage to cope with these issues may ensue.61

Le Bao Ngoc Pham holds a bachelor’s degree in law from the Hanoi Law University (Vietnam) and a master’s degree in international and comparative law from the University of Helsinki (Finland).

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137 of the UN Convention on the Law of the Sea. I and IX of the Outer Space Treaty. 60 Jordi Sandalinas, The 5th Eilene M. Galloway Symposium on Critical Issues in Space Law—Art IX of the Outer Space Treaty and Peaceful Purposes: Issues and Implementation (Report) (2010). 61 Ibid. 59 Articles

Chapter 4

One Small Step to Protect Human Heritage in Space Act as One Small Step Towards U.S. Space Dominance? The Case for a Multilateral Treaty Protection Regime Giulia Persoz Abstract The present contribution does not question the legitimacy of cultural heritage protection on the Moon. It focuses on the recently proposed U.S. bill One Small Step to Protect Human Heritage in Space Act, questioning how it fits U.S. space policy, in particular the space dominance component, adopting a realist approach. Concluding that the Act must be understood as a soft tool for furthering U.S. space dominance policy, it underlines the indirect undermining effect the One Small Step Act has on international space law basic principles and ideals. The contribution concludes by making the case for a U.N. based Space Heritage Treaty as a way to ensure continuous respect and protection of international space law.

4.1 Introduction 2019 was a busy year for the Moon. It saw the first touch down on the Moon’s far side in January by the chinese Chang’e-4.1 In April, the lunar lander Beresheet, the first non-governmental lunar probe, crashed on the Moon’s near side.2 In September, India tried to enter the elitist club of States having landed on the Moon—so far composed of the US, Russia and China—but lost communication with its Chandrayaan-2 Moon lander.3 The United States National Aeronautics and Space Agency (NASA) 1 ‘China

Moon Mission Lands Chang’e-4 Spacecraft on Far Side’ (BBC, 3 January 2019). https:// www.bbc.com/news/science-environment-46724727. Accessed 29 September 2019. 2 L. Grush, ‘Why Stowaway Creatures on the Moon Counfound International Space Law’ (The Verge, 16 August 2019). https://www.theverge.com/2019/8/16/20804219/moon-tardigrades-lunarlander-spaceil-arch-mission-foundation-outer-space-treaty-law. Accessed 29 September 2019. 3 J. Gettlemann et al., ‘India Loses Contact with Chandrayaan-2 Moon Lander During Its Descent’ (The New York Times, 6 September, 2019). https://www.nytimes.com/2019/09/06/science/indiamoon-landing-chandrayaan-2.html. Accessed 29 September 2019. G. Persoz (B) University of Lausanne, Lausanne, Switzerland e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_4

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officially launched the Artemis Program this year.4 The Artemis Program is the direct concretisation of President Trump first Space Policy Directive (hereinafter SPD), which announced the manned return of the U.S. on the Moon “for long-term exploration and utilization.”5 Indeed, the Moon is of critical importance for the renewed U.S. Vision of Space Exploration as learning theatre for future farther human exploration; for the use of its material and energy resources, such as water, helium 3, oxygen and solar wind, notably for the processing of rocket fuel; thus for future refuelling in orbit capacity (which will significantly decrease vulnerability of cis-lunar space assets); and for future long-lasting transportation infrastructure.6 NASA thus considers lunar surface exploration as necessary to understand “how to use in situ resources for fuel and life”.7

4.2 One Small Step to Protect Human Heritage in Space Act While the discussions on the 2020 fiscal year budget announce a seemingly bleak prospect for the $1.6 billions extra-funding of NASA requested by the Trump Administration,8 the U.S. Senate demonstrated its interest for outer space and took a step towards the protection of cultural heritage sites on the Moon. The One Small Step to Protect Human Heritage in Space Act (S. 1694, hereinafter One Small Step Act) was introduced in the U.S. Senate by Senators Gary Peters (D-MI) and Ted Cruz (R-TX) in May 2019. A revised version was approved without debate nor vote by the Senate Commerce, Science, and Transportation Committee on July 10th.9 The House companion of the One Small Step Act was introduced to the House of Representatives Committee on Science, Space and Technology on July 16th, where it must undergo a

4 ‘Artemis Moon Program Advances’ (NASA, 31 May 2019). https://www.nasa.gov/artemis-moonprogram-advances/. Accessed 29 September 2019. 5 U.S. Space Policy Directive-1, 2017, section 1. 6 C.D. Lutes and P.L. Hays (eds), Toward a Theory of Spacepower (National Defense University Press 2011), 241–251; I.A. Crawford, ‘Lunar resources: A review’ (2015) Progress in Physical Geography 39(2), 156. 7 ‘Forward to the Moon: NASA’s Strategic Plan for Human Exploration’ (NASA, 2019), 18. https:// www.nasa.gov/sites/default/files/atoms/files/america_to_the_moon_2024_artemis_20190523.pdf. Accessed 29 September 2019. 8 J. Foust, ‘House stopgap funding Bill Includes no Extra NASA Funding’ (Spacenews, 18 September 2019). https://spacenews.com/house-stopgap-funding-bill-includes-no-extra-nasafunding/. Accessed 29 September 2019. 9 One Small Step to Protect Human Heritage in Space Act 2019, S. 1694. https://www.govinfo.gov/ content/pkg/BILLS-116s1694is/pdf/BILLS-116s1694is.pdf. Accessed 29 September 2019. The amendment is accessible here: https://www.commerce.senate.gov/services/files/dc90fce6-54de41ef-8e75-bc68c6cb9bf9. Accessed 29 September 2019.

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similar procedure of debate and adoption.10 If both houses of Congress agree to adopt the same text, the bill will then go to the President, and might become law. According to Smith, “[i]t is difficult to assess the likelihood of the bill becoming law.”11 Indeed, while the fiftieth anniversary of the Apollo lunar landing might be used to build sufficient political momentum for the bill to pass, the current tendency is to minimise industry regulations to encourage the development of NewSpace industry.12 Yet, the bipartisan sponsorship of the bill in both houses of Congress and, more importantly, the Senate unanimous consent to the text suggest that it is not a controversial issue.13

4.2.1 Content of the Bill Considering “the lunar landing sites of the Apollo 11 spacecraft, the robotic spacecraft that preceded the Apollo 11 mission, and the crewed and robotic spacecraft that followed […] of outstanding universal value to humanity”,14 the bill requires that any space actor under the obligation to obtain a license from the U.S. Government to conduct lunar activities must agree to observe “NASA’s Recommendations to SpaceFaring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Artifacts”,15 and any subsequent updates to it.16 If consent to abide by NASA’s recommendations is not given, the license can be withhold by the federal agency competent to deliver it. The bill foresees an exemption “if such bona fide activities are determined to have legitimate and significant historical, archeological, anthropological, scientific, or engineering value.”17 In case of violation, the federal

10 One Small Step to Protect Human Heritage in Space Act 2019, H.R. 3766, introduced by Chairwoman Eddie Bernice Johnson (D-TX), alongside with Ranking Member Frank Lucas (R-OK), Subcommittee on Space and Aeronautics’ Chairwoman Kendra Horn (D-OK) and Subcommittee Ranking Member Brian Babin (R-TX). 11 M. Smith, ‘Legislation to Protect Lunar Heritage Sites Clears Senate Committee’ (SpacePolicyOnline, 10 July 2019). https://spacepolicyonline.com/news/legislation-to-protect-lunar-heritagesites-clears-senate-committee/. Accessed 29 September 2019. 12 U.S. Space Policy Directive-2, 2018, sections 1 and 2. Yet NASA Administrator expressed support for the bill. NASA Administrator Jim Bridenstine statement, U.S. Senate Hearings, The Emerging Space Environment: Operational, Technical, and Policy Challenges, May 14th, 2019. https://www.commerce.senate.gov/2019/5/the-emerging-space-environmentoperational-technical-and-policy-challenges. Accessed 29 September 2019. 13 B. Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (5th ed. Sage CQ Press 2016), 64. 14 Footnote 9, section 2, (6). 15 NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts 2011. https://www.nasa.gov/sites/default/files/ 617743main_NASA-USG_LUNAR_HISTORIC_SITES_RevA-508.pdf. Accessed 29 September 2019. 16 Footnote 9, section 3, (a) and (b). 17 Footnote 9, section 3, (c).

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licensing authority may deliver a penalty fee, commensurate to the violation, as well as “sufficient to deter future violations.”18 The NASA document mentioned is a set of twenty-two precise recommendations. Yet, the legal framework provided by the bill leaves room for extensions. Indeed, the scope of the bill is quite large, and unclear on certain key definitional aspects. Ratione materiae, the revised version adopted by the Senate clarified the scope of application to all activities “intended to be lunar in nature, including lunar orbit, landing, and impact” or having “a greater likelihood than not of becoming lunar in nature, including unintentional lunar orbit and impact.”19 The exemption clause wording does not provide for any criterion or element in the assessment of what could constitute activities having legitimate and significant historical, archeological, anthropological, scientific, or engineering value, therefore opening the possibility of an arbitrary assessment by the U.S. Federal licensing authority and giving de facto the possibility to deny licensing for all concerned lunar activities. Ratione loci, while it seems quite evident from the centrality of the Apollo 11 landing site and traces in the text and surroundings discussions, the text does not literally specify that it applies only to the Earth’s Moon. Moreover, the bill intends to protect robotic and human landing sites on the Moon of “outstanding universal value to humanity”, without offering either an exhaustive protected sites list nor criterion to define them. Ratione temporis, two considerations must be taken into account. First the bill does not precise a clear time limit as to which landing sites might be protected: “the crewed and robotic spacecraft that followed [Apollo 11]” might be understood as future landing sites deemed of outstanding universal value. Moreover, the bill already recognises future updates of NASA’s recommendations and “any other successor heritage preservation recommendations, guidelines, or principles”, without limiting the scope of the future guidelines. If this provision is understandable for technical updates according to new understanding of the Moon’s environment or other technical evolutions of lunar activities, it opens the door for extensive protection of the Moon’s soil bypassing congressional procedure. At the moment, NASA’s recommendations only protect the U.S. Government’s space assets on the lunar surface, which are constituted of: “Apollo lunar surface landing and roving hardware”; “unmanned lunar surface landing sites”; “impact sites”; “[United States Government] experiments left on the lunar surface, tools, equipment, miscellaneous EVA hardware”; and “specific indicators of U.S. human, human-robotic lunar presence, including footprints, rover tracks, etc.”20 As in the Small Step Act, the lack of timeframe for protection in the recommendations allows for the protection of any future U.S. space assets on the Moon. As of now however, the set of recommendations recognises a hierarchy between the protected sites.21 It 18 Footnote

9, section 3, (d). 9, section 3, (e). 20 Footnote 15, section 1, 5. 21 “While all the Apollo sites represent significant historical/heritage value in material culture, the Apollo 11 and 17 landing sites carry special historical and cultural significance. It is recommended that the sites for Apollo 11 and 17 be treated as unique by prohibiting visits to any part of the site 19 Footnote

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also distinguishes between lander sites and impact sites, establishing respectively a 2.0 and 0.5 km exclusion radius to the descent/approach path of the visiting vehicle.22 Other recommendations apply to rovers, with exclusion zone set for Apollos landing sites, with a maximum of 225 m radius for Apollo 17.23 A final section deals with contamination of the sites.24

4.2.2 Rationale Behind the One Small Step Act The official purpose of the One Small Step Act is to answer to the necessity “to ensure the recognition and protection of the Apollo landing site and other historic landing sites” from risks posited by the development of lunar activities.25 According to the U.S. Office of Science and Technology Policy: “[t]he primary risk […] is associated with potential future lunar missions. A visiting vehicle approaching a historic site can generate a significant amount of damage to the site in a variety of ways”. Damages can occur by the: “[l]anding on top of or too close to the site. A crash or off-nominal landing near a heritage site may produce an enormous amount of debris, dust, and chemical contamination”; by the “[s]andblasting effects from rocket thrusters as propellant gases dislodge and propel lunar soil (regolith) at high speeds in the local area (e.g., erasing footprints and treads, damaging nearby hardware). Due to a lack of atmosphere and low gravity, the regolith can travel many miles and at speeds exceeding two kilometers per second for the smaller particles”; and by “[d]isrupting the local area with dust lofting or biological contamination.”26 The bill, despite its unchallenged support in Senate, goes against the previous SPD-2 of the Trump Administration, which goal is “to minimize [existing U.S. Government requirements, standards, and policies associated with commercial space flight launch and re entry operations from Federal launch ranges] requirements, except those necessary to protect public safety and national security.”27 As a matter of fact, the One Small Step Act will create a certain amounts of restriction for any potentially lunar activities. Its aim of preservation of cultural heritage of universal and that all visiting vehicles remain beyond the artifact boundaries (AB) of the entire site.” Footnote 15, section 3, A3-1, 17. 22 These exclusion radius are “to address three main concerns during descent: (1) Overflight— possibility of creating high velocity particles from the descent where there could exist direct plume impingement on the heritage site; (2) Near overflight—exhaust-blown dust onto the site; (3) System failure during descent—collision potential/dust creation”. Footnote 15, section 2, A2-1, 10. 23 Footnote 15, section 3. 24 Footnote 15, section 4. 25 Footnote 9, section 2, (8). 26 U.S. Office of Science and Technology Policy, “Protecting & Preserving Apollo Program Lunar Landing Sites & Artifacts”, March 2018, 3. https://www.whitehouse.gov/wp-content/uploads/2018/ 03/Protecting-and-Preserving-Apollo-Program-Lunar-Landing-Sites-and-Artifacts.pdf. Accessed 29 September 2019. 27 Footnote 12, section 2, (d).

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value does not, prima facie, enter the scope of the two exceptions set in SPD-2, namely public safety and national security. A closer look at the U.S. policy in space might prove otherwise. The protection of the cultural heritage on the Moon might not be the only reason for the (as of now) smooth introduction of the One Small Step Act, explaining this contradiction. During the Senate’s hearings on adoption of Small step Act, Senators Ted Cruz declared himself “proud of the broad and bipartisan support we continue to see for American leadership in space.” He continued by stating that in times were other countries including China and Israel undertake robotic probes on the lunar surface, the legislation will not only protect the cultural heritage on the Moon, but “will help set standards for the explorations activities around the world”.28 In the same fashion, Hanlon, founder of the organisation For All Moonkind, involved in the drafting of the bill, declared that through the One Small Step Act: “We are once again showing U.S. leadership in space.”29

4.2.3 U.S. Leadership in Space: Space Dominance Policy The notion of U.S. leadership in space a direct consequence of its spacepower policy. From the end of the space race until the beginning of the decade, the U.S. has been world leader in outer space,30 “exercising “spacepower” or control of outer space. US space policies […] reflect this leadership role.”31 Spacepower, as Hertzfeld stresses, might be exercised in both the military and economic domain.32 On the military side, the U.S. follows a doctrine of full spectrum dominance in space, sea, land, air, and information, as set out in the Joint Vision 2020.33 Space control—which encompasses freedom of access to space and the ability to deny access to other actors should the need arise—,34 space force enhancement, space support, and force application are the major pillars of full spectrum dominance in 28 U.S. Senator Ted Cruz Statement, Senate Hearings, Executive Session of July 10th, 2019. https://www.commerce.senate.gov/public/index.cfm/hearings?ID=EDADDC66-237E-4DE6B112-E5118CA9190B. 29 C. Engel, ‘We Need That Boot Print’ (Time, 18 July 2019). https://time.com/5627640/moonhistoric-sites/. Accessed 29 September 2019. 30 Allowing Posen to assert in 2003 that “[t]he U.S. military currently possesses command of the global commons”. B.R. Posen, ‘Command of the Commons: the Military Foundation of U.S. Hegemony’ (2003) International Security 28(1). 8. 31 H.R. Hertzfeld, ‘Globalization, Commercial Space and Spacepower in the USA’ (2007) Space Policy 23, 210. 32 Ibid. 33 U.S. Department of Defense, Joint Vision 2020, June 2000, 6. https://www.hsdl.org/?view&did= 446826. Accessed 29 September 2019. 34 See the definition provided in: Joint Chiefs of Staff, Joint Doctrine for Space Operations, Joint Publication 3–14, August 9, 2002. ix–x. www.dtic.mil/doctrine/new_pubs/jp3_14.pdf. Accessed 29 September 2019.

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outer space.35 Nowadays, space dominance is endangered by emerging new players in the field,36 and by the lack of capability to enforce control in outer space.37 Despite the challenges, the Trump administration made explicit that space dominance was still a U.S. goal, with the plan to establish a space force “to ensure unfettered access to, and freedom to operate in, space, and to provide vital capabilities to joint and coalition forces in peacetime and across the spectrum of conflict.”38 The economic side of spacepower can be seen as “encouragement of US commercial space ventures to be dominant in the world marketplace, either through creation of a monopoly or by sheer market dominance. The latter often makes competitors follow the leader’s standards and practices, which in turn, virtually assures that others will adopt systems compatible with those of the market leader.”39 In turn, this allows for an economic advantage through the encouragement to buy from the market leader, and a military advantage, as the market leader will gain an understanding of others systems.40 Increased dependence on the market leader might also be cited. Previous presidential administrations took steps in that regard, by attracting business ventures and fostering U.S. private sector in space technology,41 and more recently, by alleviating procedural constraints on the licensing procedures for private actors.42 Both prongs of the dominance policy followed by the U.S. went through significant setbacks in the past years. Aggressive behaviour in outer space comes at a price with the creation of space debris in case of destructive acts, legal and diplomatic consequences, and might create the incentive for an arms race in space. As “[s]pace stability is a fundamental U.S. National security interest”,43 the price might be too

35 J. Johnson-Freese, Space Warfare in the 21st century (Routledge 2017), 8. The doctrine of space control was first theorized in: D. E. Lupton, On Space Warfare: A Space Power Doctrine (Air University Press 1988). 36 F. Ramel, ‘Access to the global commons and grand strategies: A shift in global interplay’ (2014) Etude de l’IRSEM 30, 6; M. E. Redden and M. P. Hughes, ‘Global Commons and Domain Interrelationships: Time for a New Conceptual Framework?’ (2010) Strategic forum 259, 3. 37 R.G. Harrison, ‘Unpacking the Three C’s: Congested, Competitive, and Contested Space’ (2013) Astropolitics 11(3), 128. 38 U.S. Space Policy Directive-4, 2019, section 1. 39 Footnote 31, 210. 40 Ibid. 41 See for instance, U.S. Commercial Space Launch Competitiveness Act 2015. The Act notably recognizes the commercial property rights on the results of space mining. NASA’s role in fostering the U.S. private sector in space started with in 1991, through the NASA Authorization Act 1991. The last—contented—discussions were on the cutting of the funding of the International Space Station, which paved the way for the opening of the ISS “for commercial business so U.S. industry innovation and ingenuity can accelerate a thriving commercial economy in low-Earth orbit.” https://www.nasa.gov/press-release/nasa-opens-international-space-station-tonew-commercial-opportunities-private. Accessed 29 September 2019. 42 Footnote 12. 43 F.E. Morgan, Deterrence and First-Strike Stability in Space (Rand 2010), ix. This view is reflected in the 2010 National Space policy, which posits that “the United States considers the sustainability, stability, and free access to, and use of, space vital to its national interests”. National Space

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high. In addition, the adoption of the space dominance discourse in a frontal manner can backfire and deserve U.S. interest by appealing other countries to develop independent abilities.44 The need for independence is well recognised, for instance in Europe, with the choice to pursue an independent geo-positioning system.45 The recent announcement of France about the creation of a space force and the weaponisation of its space assets might be an answer to the U.S. current discussions on the creation of a space force.46 Past tries to create U.S. monopoly in the space market similarly backfired. The development of a European independent launch capacity, Ariane, is the direct consequence of a long American refusal to launch the European satellite Symphonie in the seventies.47 Export controls, if too harsh, might create occasions for other to get the leadership in the field and become an incentive for independent development of capacities.48 If assertive space dominance acts and discourse might draw counterproductive answers, law might be used in more subtle way to ensure space dominance. Bowen recalls that “destroying specific satellites is no guarantee of securing the command of space […].”49 Thus “[t]he command of space can manifest in unpredictable and diverse ways owing to the situation at hand.”50 For Scheinmann and Cohen as well, “securing the global commons does not mean patrolling every square inch of open water, eying every iota of airspace, or monitoring every megabyte of the internet.”51 Rather, it takes the form of “soft power”,52 to “legitimize [U.S.] power in the eyes of others.”53

Policy 2010, 3. https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf. Accessed 29 September 2019. 44 Footnote 37, 126–128; Footnote 31, 218; C. Allen, ‘Command of the Commons Boasts: An Invitation to Lawfare?’ (2007) 83 Int’l L. Stud. 21, 35 and ff. 45 On this issue, see also: J. Wouters and R. Hansen R., “Strategic Autonomy in EU Space Policy: A Conceptual and Practical Exploration” in C. Al-Ekabi (ed), European Autonomy in Space. (Springer 2015), 49–61. 46 H. Weitering, ‘France Is Launching a ‘Space Force’ with Weaponized Satellites’ (Space.com, 2 August 2019). https://www.space.com/france-military-space-force.html. Accessed 29 September 2019. 47 M. Bigner and J. Vanderkerckhove, ‘The Ariane Programme’ (1984) Philos Trans R Soc London. Series A, Math Phys Sci 312(1519), 83–88. 48 Footnote 31, 218. 49 B. Bowen, ‘From the sea to outer space: The command of space as the foundation of spacepower theory’ (2019) Journal of Strategic Studies 42(3), 550. 50 Ibid., 552. 51 G.M. Scheinmann and R.S. Cohen, ‘The Myth of “Securing the Commons”’ (2012) the Washington Quarterly 35(1), 116. 52 Ibid. 53 J.S. Nye Jr., ‘The American National Interest and Global Public Goods’ (2002) International Affairs 78(2), 241.

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4.3 Consequences on International Space Law: Undermining Without Violation? The doctrine of space dominance, be it economical or military, does not fit well within the traditional framework of international space law. Key principles of space law, such as the freedom of use and exploration only for peaceful purposes, in the benefit of all, on the basis of equality, as well as the lack of sovereignty and appropriation of outer space, including celestial bodies, seem irreconcilable with an outward policy of space dominance.54 Furthermore, as seen above, aggressive space dominance entails significant difficulties. Steps to ensure U.S. soft power must thus take a more dilute form in order to be successful, and not directly contravene space law. Can the One Small Step Act be used for this purpose, thus entering the exemptions of public safety and security interest of SPD-2? NASA’s recommendations posit their respect of international law, with special mention of the Outer Space Treaty (OST).55 While in-depth analysis might prove otherwise, this assertion seems a priori correct. Indeed, the One Small Step Act has a limited scope of application as it only concern lunar activities that need licensing under U.S. federal regulations. According to the Act, “the licensing requirements under this Act are applicable only to United States-based activities in outer space.”56 The bill thus does not impose any legal right or obligation on third States. This ensures that, at the moment, any damage to the cultural heritage on the Moon by any other States, or any other private entities not based in the U.S. has no legal consequences. Despite the lack of extraterritoriality, setting standards might have a spillover effect on the industry worldwide.57 This spillover effect might be enhanced due to the U.S. current approach in undertaking space activities, as a cooperative venture with private sector—which might work with other State actors due to the globalised nature of the space industry—and other governments alike. As such, the U.S. will probably impose the One Small Step Act requirement in future space cooperation agreement. The enactment of the bill might lead to its extraterritorial application due to the spillover effect. This situation would de facto undermine the following key provisions of international space law.

54 As Allen states, due to the lack of sovereignty, “command of the commons” is an oxymoron.” Footnote 44, 34. 55 Footnote 15, 6. 56 Footnote 9, section 2, (a) (13). 57 The realism school recognizes the power element of setting standards. W. Mattli and T. Büthe, ‘Setting International Standards—Technological Rationality or Primacy of Power?’ (2003) World Politics 56, 15–18; the importance of spillover effects of national regulations in globalized affairs are discussed notably in trade and cyber domains, see for instance: B. Hoekman and P. C. Mavroidis, ‘Regulatory Spillovers and the Trading System: From Coherence to Cooperation’ (2015) E15Initiative, International Centre for Trade and Sustainable Development and World Economic Forum; J. Daskal, ‘International Spillover Effects—The U.S. Encryption Debate’ (2016) Aegis article Series no. 1611; S. R. Salbu, ‘Regulation of Borderless High-Technology Economies: Managing Spillover Effects’ (2002) Chicago Journal of International Law 3:1.

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4.3.1 Freedom of Use Art. I OST states that there shall be freedom of use and exploration in outer space and that “there shall be free access to all areas of celestial bodies”. Freedom implies that activities can occur without needing permissions from other government.58 By creating a national standard for lunar activities, the U.S. dictates the conditions according to which they can be conducted, and creates a competence for the American government to monitor them. While the Act does not violate Art. I OST as it does not apply to entities outside of the U.S. territory, and does not (yet) create any legal consequence for third States which damage Apollo’s landing sites either—“free access” is legally speaking still guaranteed—, its spillover effect might de facto create a form of indirect permission to be granted by the U.S. for lunar activities. The Act, without constituting a violation of Art. I OST, would thus go against the purpose of the norm, which is to “impede any State monopolisation of space activities”.59

4.3.2 No Appropriation A similar analysis can be done in regard to Art. II of the OST, which states that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” The key element in the provision is the notion of “appropriation”. It is usually admitted that appropriation involves both sovereignty and ownership rights.60 The One Small Step Act does not claim U.S. sovereignty nor create ownership rights on the protected sites. As such, it does not constitute a violation of the norm. While it might be argued that the exclusion of use of a zone amounts to an appropriation, the lack of extraterritorial application of the Act guarantees that it is not in violation with Art. II OST. But, keeping in mind the spillover effect of the bill, it undermines the non-appropriation as admitting a de facto form of control of one country over some parts of the moon.

58 S.

Hobe, ‘Article 1’, in S. Hobe, T. Schmidt-Tedd, K.U. Schrogle (eds.), Cologne Commentary on Space Law (Carl Heymanns Verlag 2009), 34. 59 Ibid., 41. 60 M. Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (T. MassonZwaan and S. Hobe (eds.) Martinus Nijhoff 2010), 42–43. Current discussions on the question focus on private claims of ownership of space resources. For a history of interpretation of Art. II, see: A.D. Pershing, ‘Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today’ (2019) Yale Journal of International Law 44 (1).

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4.3.3 Equality Art. I OST further provides that use and exploration of outer space shall be exercised on a “basis of equality”. By framing the protection of the Apollo’s landing sites as of universal cultural value, and posing the U.S. as benevolent protector of humankind’s lunar cultural heritage, the One Small Step Act contributes to legitimise a form U.S. indirect control of the Moon in the eyes of the world. Indeed, the protection of lunar cultural heritage might prove a less closely watched topic, with less directly perceived States interests, than, for instance, the appropriation of resources extracted from celestial bodies. Moreover, the timing must be underlined. As of 2019, the club of States which achieved a Moon landing is quite restrictive. By aiming to enact a legislation now, and by potentially initiating discussions on an international agreement on the issue,61 the U.S. ensures that it has a stronger voice in the debate as one of the few most affected State, with pre-existing standards of protection. Again, while the Act does not prima facie violate the basic principle of equality of Art. I OST, its application might lead to a situation that creates a de facto inequality.

4.4 Conclusion: Protecting Space Law, the Case for a U.N. Based Space Heritage Treaty? By creating a situation that can de facto bypass important norms of space law, the One Small Step Act inscribes itself in the long history of stretching and undermining international law protecting international peace and security by curbing it in favour of U.S. security interests.62 The Act indeed undermines the extent of protection of space law, by going indirectly against its principles, in order to create a situation that allows for a strengthened U.S. space leadership. This does not however mean that the protection to human cultural heritage on the Moon should not happen. However to ensure that efforts in that regard do not defeat the main purposes of international space law, all States should get involved in the process of the creation of norms and procedure to define what should be protected 61 The Act gives the mandate to the President to initiate international negotiations. Footnote 9, section 2, (b). 62 Two of the most recent doctrines in regard to the use of force can be mentioned in that regard, respectively the Bush pre-emptive self-defence doctrine, and the harboring standard of attribution. On these issues, see C. Henderson, The Persistent Advocate and the Use of Force (Ashgate 2010). In the field of space law, previous actions of the U.S. which undermined basic principles of international space law are privatisation which was used to strive further away of the common heritage of mankind principle and benefit for all ideal; as well as to undermine the non-appropriation principle, and the adoption of the definition of non-aggressive as “peaceful” uses of outer space which led to a semantic shift of the meaning of “peaceful”. On these issues see: E.C. Henry, ‘The United States of Sol: Privatization as a Tool of American Hegemony in the Solar System’ (2018) Graduate Masters Theses 510; S. Hobe, ‘The Meaning of Peaceful Purposes in Article IV of the Outer Space Treaty’ (2015) Annals of Air and Space Law 40.

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and which form this protection should take.63 The result might take the form of a “Space Heritage Treaty”, as already advocated by Freeland, to ensure protection from space tourism.64 The United Nations Committee for Peaceful Uses of Outer Space might be the adequate forum for future negotiations in that regard.65 A future “Space Heritage Treaty” might build on the 2001 Convention on the Protection of the Underwater Cultural Heritage, especially on the regime set out for the Area.66 Key in that regard would be the establishment of a body similar to the International Seabed Authority, to avoid that any State benefit from upper hand in the management of the Moon, as a result from its status of especially concerned State as well as its leadership position in outer space.

Giulia Persoz is a Ph.D. candidate in international law at the University of Lausanne (CH), benefitting from an excellency scholarship from the Swiss National Funds. Her areas of research notably include the legality of the military use of outer space, legal and political questions pertaining to the use of force, and neutrality law and policy. Before undertaking her Ph.D., Ms. Persoz worked for the Federal Department of Foreign Affairs of Switzerland, and was awarded a Master of Law, with specialisation in both international and public law, from the University of Lausanne (summa cum laude).

63 International cooperation is a recognized form of mitigation of regulatory spillover effects, see for instance: B. Hoekman and P. C. Mavroidis, ‘Regulatory Spillovers and the Trading System: From Coherence to Cooperation’ (2015) E15Initiative, International Centre for Trade and Sustainable Development and World Economic Forum. 64 S. Freeland, ‘Up, Up and … Back: The Emergence of Space Tourism and Its Impact on the International Law of Outer Space’ (2005) Chicago Journal of International Law 6(1), 21. 65 Gorove claimed that only the U.N. Was entitled to “appropriate”. S. Gorove, ‘Interpreting Article II of the Outer Space Treaty’ (1969) 37 Fordham L. Rev. 349, 351. 66 Convention on the Protection of the Underwater Cultural Heritage 2001, Art. 11 and ff.

Chapter 5

The ‘Outstanding Universal Value’ Concept of the UNESCO World Heritage Convention: Food for Thought to Preserve Lunar Artifacts Anne-Sophie Martin Abstract With the fiftieth anniversary of the first Moon landing, the protection of the past while fostering the future of space exploration is put in the spotlight. Nowadays, new missions of exploration are being developed by States in order to return on the Moon, or to go beyond, for instance towards the red planet, Mars. In this context, there is a risk to obliterate the historical areas as Armstrong’s footprints just by sending a robot and drive over them, or a lander to the lunar surface near Apollo sites. At the moment, there are no international binding instruments that obligate to preserve them. Moreover, another important element to highlight is that there is no State of jurisdiction on these sites. Thus, the article seeks to analyze the application of the UNESCO World Heritage Convention of 1972, and in particular the ‘Outstanding Universal Value’ concept, as a core component of the Convention, to preserve lunar artifacts even though they represent sites beyond national jurisdiction. Finally, the article proposes some legal scenarios in order to protect sites on the Moon and on other celestial bodies.

5.1 Introduction On 20 July 1969, Apollo 11 landed at Tranquility Base and Neil Armstrong went down in history by becoming the first man to walk on the Moon. The fiftieth anniversary of the first Moon landing has drawn attention to new challenges in space exploration: on the one hand, the necessity to protect the past that is the historical lunar sites; on the other hand, fostering the future of space exploration. Indeed, new missions on the Moon and beyond are being developed by States. Our natural satellite is becoming a very busy place. NASA wants to make a return trip,1 as the American 1 TheVerge, NASA’s Daunting To-Do List for Sending People Back to the Moon, July 18, 2019: https:// www.theverge.com/2019/7/18/18629403/nasa-artemis-moon-program-funds-hardware-apollo-11anniversary; SpaceNews, Australia to Cooperate with NASA on Lunar Exploration, September 23, 2019: https://spacenews.com/australia-to-cooperate-with-nasa-on-lunar-exploration/.

A.-S. Martin (B) Department of Political Sciences, Sapienza University of Rome, Rome, Italy e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_5

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space companies SpaceX.2 China has a rover exploring the far side of the moon,3 while Russia is planning lunar mission of its own.4 Other countries have tried this exploit not without difficulty.5 All these activities are making experts worried about what might happen to the Moon’s historic sites6 such as the NASA ‘Moon buggies’ that astronauts left behind or the Neil Armstrong’s footprints at Tranquility Base. Indeed, the development of these new activities might deteriorate and alter the Moon’s surface and so, these artifacts might be harmed by a careless visitor, a rover for example. Furthermore, when discussing human heritage in outer space there is a trend to focus on the U.S. Apollo landings sites on the Moon conducted between 1969 and 1972. However, it is estimated that there are more than 110 potential spots on the Moon.7 Additionally, it should also be taken into account Mars, Venus and Saturn’s moon Titan as well as other celestial bodies where robots and probes have landed or crashed.8 Although these sites are far from the Earth, they are not safe from threats in case of mining activities, exploration and human settlement. In this context, the United Nations Educational, Scientific and Cultural Organization (UNESCO) might play an important role in the protection of these sites. It is a specialized organization of the United Nations which has been created the 16 November 19459 with the aim to build peace through international cooperation in education, the sciences and culture. In particular, the article focuses on the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage (WHC) adopted the 16 November 1972 by the General Conference at its 17th session in Paris.10 As of January 2017, it 2 CNET, Elon Musk Says his SpaceX Starship could go to the Moon by 2021, July 18, 2019: https:// www.cnet.com/news/elon-musk-says-his-spacex-starship-could-go-to-the-moon-by-2021/; TheVerge, NASA to Help SpaceX, Blue Origin and more Develop Technologies for Moon and Mars Travel, July 30, 2019: https://www.theverge.com/2019/7/30/20747530/nasa-artemis-moon-marsmissions-spacex-blue-origin-starship-aco. 3 The Guardian, Far Side of the Moon: China’s Chang’e 4 Probe Makes Historic Touchdown, January 3, 2019: https://www.theguardian.com/science/2019/jan/03/china-probe-change-4-land-farside-moon-basin-crater. 4 TASS, Roscosmos Promises to Send Manned Mission to the Moon “soon by space standards”, March 19, 2019: https://tass.com/science/1049317. 5 National Geographic, India’s First Lunar Lander Falls Silent Just Before Touchdown, September 6, 2019: https://www.nationalgeographic.com/science/2019/09/india-chandrayaan-2-landingattempt-moon-lunar-south-pole/; The Guardian, Spacewatch: Israel’s private moon mission crash-lands, April 18, 2019: https://www.theguardian.com/science/2019/apr/18/spacewatch-israelprivate-moon-mission-crash-lands. 6 Time, ‘We Need That Boot Print’. Inside the Fight to Save the Moon’s Historic Sites Before It’s Too Late, July 18, 2019: https://time.com/5627640/moon-historic-sites/. 7 For All Moonkind: https://www.forallmoonkind.org/moonkind-mission/other-landing-sites/. 8 P. J. Capelotti, ‘Mobile Artifacts in the Solar System and Beyond’ in Beth Laura O’Leary, P.J. Capelotti (eds), Archaeology and Heritage of the Human Movement into Space (Springer 2015) 49. 9 UNESCO website: https://en.unesco.org/about-us/introducing-unesco. 10 Convention concerning the Protection of the World Cultural and Natural Heritage, 16 Nov 1972, 1037 UNTS 151.

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has 193 Parties which represents nearly universal ratification.11 Through this Convention, it has been established a World Heritage List.12 According to UNESCO, ‘heritage’ means “our legacy from the past, what we live with today and what we pass on to future generations. Our cultural and natural heritages are both irreplaceable sources of life and inspiration”.13 Moreover, the Preamble of the Convention recalled “that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole” and “in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding value…”.14 The Convention, at its articles 1 and 2, gives the definitions of natural and cultural sites that are properties which represent an outstanding universal value from the point of view of history, art, science, conservation or natural body.15 As well, according to Operational Guidelines for the implementation of the Convention, ‘outstanding universal value’ (OUV) means “cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity”.16 Hence, the article seeks to understand if lunar artifacts have an outstanding universal value. However, under articles 3, 11(1) and 11(3) of the Convention, the insertion of a property in the World Heritage List requires the consent of the State concerned that is the cultural or natural site has to be situated in its territory. Consequently, the World Heritage Convention is currently not applied to areas beyond national jurisdiction (ABNJ). They represent areas for which no nation has sole responsibility for management. They comprise the high seas, the seabed beyond the limits of the continental shelf, and outer space.17 Indeed, outer space and the celestial bodies are common spaces that are not under the jurisdiction of specific States. By addressing the topic of the protection of lunar artifacts, it is interesting to briefly lay out two important principles in the conduct of space activities, namely the freedom of exploration and the non appropriation of outer space, including the Moon 11 UNESCO

website: https://whc.unesco.org/en/statesparties/. website: https://whc.unesco.org/en/list/. 1121 properties inscribed on the World Heritage List. 13 UNESCO website: http://whc.unesco.org/en/about/; See also Robert Uerpman-Wittzack, ‘Introduction: Cultural Heritage Law and the Quest for Human Identities’ in Evelyne Lagrange, Stefan Oeter, Robert Uerpmann-Wittzack, Cultural Heritage and International Law (Springer 2018), 1. 14 Roger O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53 ICL Quartely 189. 15 Articles 1 and 2 of de 1972 Convention. 16 Operational Guidelines for the Implementation of the World Heritage Convention (WHC.17/01), 12 July 2017, para.49. 17 American Society of International Law: https://www.asil.org/topics/signaturetopics/beyondnational-jurisdiction; https://www.asil.org/topics/signaturetopics/BNJ/outerspace; see also Vito de Lucia, Viviana Iavicoli, From Outer Space to Ocean Depths: The ‘Spacecraft Cemetery’ and the Protection of the Marine Environment in Areas Beyond National Jurisdiction (2019) 49 CWILJ 345. 12 UNESCO

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and other celestial bodies. Article I of the Outer Space Treaty18 (OST) provides that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries […] and shall be the province of all mankind. […] Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind […]”, and article 11(1) of the Moon Agreement19 gives that “The Moon and its natural resources are the common heritage of mankind…”. Article I para. 1 of the OST refers to the activities of exploration and use as being the ‘province of all mankind’. This provision seems being precursor of the common heritage of mankind principle20 that can be found in the 1979 Moon Agreement and the 1982 United Nations Convention on the Law of the Sea (UNCLOS)21 which mention their respective area and their resources as the ‘common heritage of mankind’ (CHM).22 Both ideas, the ‘province of all mankind’ and the ‘common heritage of mankind’ refer to the distinctive status of outer space.23 The notion of CHM has been consolidated through the adoption of international legal norms that impose obligations on States and provide for international management mechanisms. Thus, the principle of CHM differs from the concept of res nullius, which does not belong to anyone, is nevertheless appropriable;24 it also goes beyond the concept of res communis omnium which, while prohibiting the appropriation, recognizes the right to use and exploitation common spaces and resources according to the principle of due diligence. The high seas beyond the limits of national jurisdictions and outer space, including the Moon and other celestial bodies, belong to the category of res communes omnium.25

18 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967, 610 UNTS 205. 109 States Parties. 19 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979, 1363 UNTS 3. 18 States Parties. 20 Stephan Hobe, ‘Article I’ in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl (ed), CoCoSL Vol.1 (Carl Heymanns Verlag 2009), 36. 21 United Nations Convention on the Law of the Sea, 1982, 1833 UNTS 3; 21 ILM 1261. 22 Sergio Marchisio, Corso di Diritto Internazionale, 2nd edn, (G. Giappichelli 2017) 219; John E. Noyes, ‘The Common Heritage of Mankind: Past, Present and Future’, (2012) 40 GJILP 447; David Tan, ‘Towards a New Regime for the Protection of Outer Space as the “Province of All Mankind”, (2000) 25 YJIL 146; Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law, (Brill 1998) 170. 23 Joanne Irene Gabrynowicz, ‘The “Province” and “heritage” of Mankind Reconsidered: A New Beginning’ (1992) 2nd Conference on Lunar Bases and Space Activities of the 21st Century, NASA Conference Publication, 691; Harminderpal Singh Rana, ‘The Common Heritage of Mankind and the Final Frontier: A Revaluation of Values Constituting the International Legal Regime for Outer Space’, (1994) 26 Rutgers L. J. 225; George D. Kyriakopoulos, ‘Positive Space Law and Privatization of Outer Space: Fundamental Antinomies’ in George D. Kyriakopoulos, Maria Manoli (eds) The Space Treaties at Crossroads: Considerations de Lege Ferenda (Springer 2019), 5 ss. 24 cf. Marchisio (n 23), 220. 25 Ibid.

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Furthermore, art.11(2) of the Moon Agreement provides that the Moon shall not be subject to national appropriation, and that neither the surface nor the subsurface of the Moon shall become the property of any state or other entity or natural person.26 In addition, article II of the OST outlines that “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”. And so, freedom of outer space activities is granted only under the condition that such activities are undertaken in the interest of all countries,27 with particular attention given to the non space faring nations.28 Hence, the protection of historical lunar sites shall be achieved in the interest and for the benefit of all countries, whilst conciliating the principles of freedom of exploration and of non-appropriation. The article considers how Moon sites might be afforded the same level of recognition and protection that we are currently able to give to natural and cultural sites under the 1972 World Heritage Convention. The time is come to expand our horizons and to underscore the potential ‘outstanding universal value’ of these areas. Nothing in the Convention suggests that natural and cultural heritage of OUV which are situated in ABNJ should be excluded from this protection.29 So, it is time now to think to protect sites beyond the Earth. Thus, the first part analyses the concept of ‘Outstanding Universal Value’ and its possible application in outer space (1). In addition, it envisages some possible scenarios to protect OUV in outer space which open the path towards an international protection (2). Finally, it addresses the system for monitoring the state of conservation of the OUV, which is an important component of the 1972 WHC (3).

5.2 The Concept of ‘Outstanding Universal Value’ and Its Potential Application in Outer Space ‘Outstanding Universal Value’ is a central concept in the World Heritage Convention. OUV defines the place’s significant features to consider so as justifying its recognition and inscription on the UNESCO World Heritage List.30 The concept implies that the characteristics of the proposed site are outstanding globally. This requires a comprehensive comparative analysis, assessing the features of the area with other

26 Article 27 Ram

11 para.2 of the Moon Agreement. Jakhu, ‘Legal Issues Relating to the Global Public Interest in Outer Space’ (2006) 32 JSL

31. 28 cf Hobe (n 21), 39. 29 Dan Laffoley, David Freestone, ‘A World of Difference – Opportunities for Applying the 1972 World Heritage Convention to the High Seas’ (2017) 27 Wiley 78. 30 Michael Petzet, John Ziesemer, Regina Durighello, What is OUV? Defining the Outstanding Universal Value of Cultural World Heritage Properties (ICOMOS 2008).

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sites on a general basis.31 Secondly, an appraisal of existing properties present on the List must be undertaken in order to ensure that the site in question does not present the same features with another area already inscribed.32 Moreover, article 12 of the Convention further elaborates on this notion, providing that “the fact that property belonging to the cultural or natural heritage has not been included in either of the two lists, ‘World Heritage List’ and ‘List of World Heritage in Danger’, mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value […]”. In detail, ‘outstanding’ means that the site should be exceptional. The World Heritage Convention sets out to define the geography of the superlative, the most outstanding natural and cultural places on Earth.33 By ‘universal’, it is intended that the significance of the properties has to be global in order to be protected with a worldwide recognition.34 It is not enough to only consider the national or regional perspective of a site. Finally, the ‘value’ implies to take into consideration the worth of a property, including the recognition and assessment of its integrity.35 Furthermore, the OUV itself is composed by three elements:36 (1) a property has to match with one or more of the World Heritage criteria; (2) a property has to meet the features of integrity and authenticity; (3) protection and management requirements have to be established for a property. All three aspects must be in place in order to recognize a property as of OUV as such becomes eligible for inscription on the UNESCO World Heritage List. The World Heritage criteria are explained in the Operational Guidelines for the Implementation of the World Heritage Convention37 which is an important working instrument on World Heritage. The criteria are regularly revised by the Committee to reflect the evolution of the World Heritage concept itself.38 There are six cultural39 and four natural criteria.40 31 UNESCO Report, World Heritage in the High Seas: An Idea Whose Time Has Come (2016) 44, 25 ss. 32 Ibid. 33 cf Petzet (n 31), 8. 34 Ibid. 35 Ibid. 36 cf UNESCO Report (n 32), 27. 37 cf Operational Guidelines… (n 17), para 77. 38 UNESCO website: https://whc.unesco.org/en/criteria/. 39 Cultural criteria: (i) to represent a masterpiece of human creative genius; (ii) to exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design; (iii) to bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (iv) to be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates a significant state in human history; (v) to be an outstanding example of a traditional human settlement which is representative of a culture or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change. 40 Natural criteria: (vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; (viii) be outstanding examples representing major states of Earth’s history;

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To illustrate this first point, one can argue that the Moon artifacts match with some of the criteria such as the first one “to represent a masterpiece of human creative genius”, the forth “to be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage (s) in human history”, or the sixth “to contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance”. It would also be possible to adapt some of the cultural and natural criteria or to add new ones, for instance in the case of particular scientific interest, in order to ensure the further protection for outer space artifacts. On the second point, it is not enough for a site to meet the World Heritage criteria. Indeed, it has to meet the features of integrity and authenticity which permit to observe the site is undisturbed when an adequate protection and management system guarantee the area’s conservation.41 This is why, as argued by the third point, protection and management requirements have to be established for a property in order to assure that the features for which a site is recognized as World Heritage will be safeguarded.42 This consideration is of particular concern for the sites of potential OUV in outer space considering the lack of an overall protection mechanism currently in place e.g. with Apollo sites. In practice, site managers and national authorities work together to handle, monitor and preserve the World Heritage properties. States Parties to the Convention have an obligation to regularly prepare reports about the state of conservation and the various protection measures put in place at their sites.43 This point is further developed in the third part of the article. Outer space includes areas that fit cleanly into the criteria of the WHC, such as the Neil Armstrong’s footprints on the Moon, the Sea of Tranquility or the landing sites, notwithstanding the fact that there is no system of monitoring and they are outside the territory of any State. This is also pertinent for sites located on other celestial bodies. These sites are exceptional, they have a worldwide recognition and merit a protection due to the importance of the location and the symbol they reflect.

5.3 Legal Scenarios to Protect OUV Sites in Outer Space First of all, the Vienna Convention on the Law of Treaties44 provides guidance regarding to the interpretation of a treaty, and in particular it specifies that a special (ix) be outstanding examples representing significant ongoing ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; (x) contain the most important and significant natural habitats for in situ conservation of biological diversity. 41 cf UNESCO Report (n 32), 28. 42 Ibid. 43 Articles 5, 6, 7 and Part. V and VII of the Convention. 44 Vienna Convention on the Law of Treaties, 1969, 155 UNTS 331, 8 ILM 679.

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meaning shall be given to any term used in a treaty if it is established that the Parties so intended.45 This is particularly relevant to the interpretation of Articles 1 and 2 of the WHC that define natural and cultural heritage respectively. One can argue that it would be possible to extent the notion of cultural and natural areas to sites in outer space. And as previously mentioned, nothing in the Convention suggests that natural or cultural heritage of OUV located in area beyond national jurisdiction should be excluded from this protection. Process for inscription of World Heritage sites under article 11 requires that each States party initially submit an inventory of property ‘situated in its territory and suitable for inclusion in the list’. However, it is important to note that although it provides these procedures,46 nowhere it says that other procedures may not be developed to protect sites. This part considers the mechanisms by which States Parties to the WHC might consider implementing changes to allow the inscription and protection of sites in outer space on the UNESCO World Heritage List as the treaty regime has to evolve over time. Amending the Outer Space Treaty or the WHC could take decades, and there is no other obvious route to an international agreement. In addition, it will require a high level of consensus and political will among a substantial number of the States Parties. Moreover, the modification would only be effective between the States that had agreed to it, causing some potential implementation complexities. A first approach might be an Optional Protocol to the 1972 Convention relating to the inscription of natural and cultural sites in ABNJ and especially in outer space. As a Protocol to the 1972 Convention, it would only be open for signature to States Parties to the 1972 Convention that are interested in such a development, and would be a parallel text which broadens the scope of application of the Convention without deflecting from its current achievements. It would not be an amendment to the Convention, but an addition in order to reflect its preamble and a new reality regarding the protection of natural and cultural sites. Thus, the negotiators could reconsider the nomination and inscription procedures for outer space sites and think to the most appropriate system. A second hypothesis might be to amend the Operational Guidelines for the Implementation of the World Heritage Convention so to add a process for designation of sites in ABNJ. The Operational Guidelines provide the key elements for the implementation of the Convention and are established by the 21 members of the World 45 Article 31(1): “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context in the light of its object and purpose”; article 31(3b): “There shall be taken into account, together with the context any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”; article 31(4): “A special meaning shall be given to a term if it is established that the parties so intended”. 46 Article 3: “It is for each State Party to this Convention to identify and delineate the different properties situated on its territory…”; article 4: “Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Art.1 and 2 and situated on its territory, belongs primarily to that State”.

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Heritage Committee.47 While the guidelines cannot go beyond the Convention, it is for the Parties themselves to decide what the Convention means in a contemporary context in order to reflect new concepts, knowledge and experiences. Hence, the World Heritage Committee might amend the Guidelines so as to contemplate the inscription of Moon sites in the List. However, the negotiation of the new wording of the text and the proposed changes might be a long and complex process. Otherwise, Parties to the World Heritage Convention can agree to minor changes in the way that they interpret or apply the Convention.48 Hence, the World Heritage Committee can insert some changes by its own decision making process and amend the Operational Guidelines as previously described. In light of the above, an international conference on space heritage between the United Nations Office for Outer Space Affaires (UNOOSA) and UNESCO, with experts on heritage and environmental protection, should be held and produce guidance and guidelines on the protection of human heritage in outer space. Furthermore, Working group inside the Committee on the Peaceful Uses of Outer Space (COPUOS)49 should be established in order to study issues relating to the protection of Lunar sites providing some recommendations to the United Nations General Assembly (UNGA) to develop an international legally-binding instrument on the conservation and protection of lunar sites and on celestial bodies by considering a comprehensive monitoring system and an environmental impact assessment (EIAs) for new activities in ABNJ.50 Some national initiatives, such as guidelines and draft bill,51 already exist in the field and they could represent a first step towards an international recognition and protection of natural and cultural sites in outer space. However, these instruments cannot be seen as a national appropriation through a national protection of lunar sites. All countries have an interest to protect these vulnerable sites. So an international

47 cf

Operational Guidelines… (n 17), para 19

48 For instance, the insertion of ‘cultural landscapes’ within the categories of sites in the Operational

Guidelines which represent the ‘combined works of nature and man’. These are not mentioned in the definitions of articles1 and 2 of the Convention. 49 COPUOS website: http://www.unoosa.org/oosa/en/ourwork/copuos/index.html. It composed by 92 Member States (http://www.unoosa.org/oosa/en/members/index.html). 50 Elisabeth Druel, ‘Environmental Impact Assessments in Areas Beyond National Jurisdiction’, Study IDDRI SciencesPo. (2013): https://www.iddri.org/sites/default/files/import/publications/ study0113_ed_environmental-impact-assessments.pdf. 51 One Small Step to Protect Human Heritage in Space Act, 2019, S.1694 which directs any federal agency that issues licenses for lunar activities to require that companies comply with the 2011 NASA guidelines: https://www.govinfo.gov/content/pkg/BILLS-116s1694rfh/pdf/ BILLS-116s1694rfh.pdf; Protecting and Preserving Apollo Program Lunar Landing Sites and Artifacts in accordance with the NASA Transition Authorization Act of 2017: https://www. congress.gov/bill/115th-congress/senate-bill/442/text; 2011 NASA’s Recommendations to Spacefaring Entities which aim at preserving the six Apollo “heritage” sites and their associated artifacts. Prohibition on close visits to the Apollo 11 and 17 sites because they “carry special historical and cultural significance”: https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_ HISTORIC_SITES_RevA-508.pdf.

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recognition of protection and preservation of the Moon sites and on other celestial bodies would be appropriated and judicious.

5.4 Monitoring the State of Conservation of OUV in Outer Space The mechanisms to monitor and to control the state of conservation of OUV sites are pivotal elements in the World Heritage Convention. Indeed, the setting up of such a system for cultural and natural sites in outer space will be of utmost importance in order to ensure their spread to future generation. First, according to article VI of the OST, States exercise jurisdiction over activities of their nationals in outer space, and because State has the legal duties to supervise and control national activities in outer space, they can impose the protection of some sites to its nationals like the ‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’ which “prohibit visits to any part of Apollo 11 and 17 sites and that all visiting vehicles remain beyond the artifact boundaries of the entire site (A3-1)”. In the framework of future mission of exploration and in case of mining activities, States will have to control that the activities of their nationals do not deteriorate the lunar sites or on other celestial bodies. In this context, it should take into account the work achieved by The Hague International Space Resources Governance Working Group52 and the “Building Blocks for the Development of an International Framework on Space Resource Activities” (BB),53 especially the BB 10(h) which provides that “[…] States and international organisations responsible for space activities shall adopt appropriate measure with the aim of avoiding and mitigating potentially harmful impacts, including changes to designated and internationally endorsed outer space natural or cultural heritage sites […]”, and the BB 18(b) which notes that: “The international framework should provide for the establishment and maintenance of an international database, in addition to the international registry, for making publicly available (iii) the list of designated and internationally endorsed outer space natural and cultural heritage sites; and (iv) the list of designated and internationally endorsed sites of scientific interests […] (c) The designation or establishment of an international body or bodies responsible for the listing of designated and internationally endorsed outer space natural and cultural heritage sites and sites of scientific interest […]”. A parallel may be drawn with the

52 The Hague International Space Resources Governance Working Group: https://www. universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-spaceresources-governance-working-group. 53 Building Blocks for the development of an international framework on space resources activities, Nov. 2019: https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/ instituut-voor-publiekrecht/lucht--en-ruimterecht/space-resources/bb-thissrwg--cover.pdf.

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2001 Convention on the Protection of the Underwater Cultural Heritage (UCH)54 which provides that all States parties have a responsibility to protect UCH in the area and also have obligations to ensure that their nationals report to the Director-General of UNESCO and the Secretary-General of the International Seabed Authority (ISA), any discovery of UCH or any intention ‘to engage in activities directed at underwater cultural heritage located in the Area’.55 That is a collaborative regime that might be applicable to outer space. States might report to the Director-General of UNESCO and the Director of the UNOOSA or to the Chief of the Committee, Policy and Legal Affairs Section (CPLA) of the UNOOSA, any discovery made during a space exploration mission. States have to agree among themselves an international regime for monitoring the conservation of future possible OUV sites on the Moon and other celestial bodies. Thus, it is important to think now at which entity will control the state of conservation of these sites in outer space. And it is necessary that States and international organizations collaborate and cooperate by establishing as of now a list of sites to protect. For instance, inside the COPUOS, it might be created a ‘protected sites registry’ but also the figure of a “Coordinating State”, or a Subcommittee composed by States representatives, that will have the duty to monitor and control the conditions of the sites in collaboration with UNESCO World Heritage Committee. In the case of a “coordinating state”, each State will be able to take this responsibility, in an alternative way, and will act for the benefit of humanity as a whole.

5.5 Concluding Observations Outer space includes cultural and natural areas that might represent an ‘outstanding universal value’ permitting their inscription on the World Heritage List. However, this would imply some modifications in the UNESCO system enabling the protection of OUV sites beyond national jurisdiction. Being potentially of an ‘outstanding universal value’, these sites need an international protection in order to preserve the story of humankind in outer space, years of research and exploration, in accordance with international law and the major principles of outer space namely the freedom of exploration and the non-appropriation. Nothing on the Moon can be considered as a simply “national” historic site. All must be considered universal human heritage. To reach this goal, States will have to collaborate with the relevant entities in the field that is UNESCO, UNOOSA and UNCOPUOS in order to elaborate the most appropriate legal instrument for an international protection of World Heritage sites in areas beyond national jurisdiction and for their monitoring. Indeed, an important aspect which needs to be taken into account is the mechanism of control and 54 UNESCO

(2001) Convention on the Protection of the Underwater Cultural Heritage adopted by the General Conference at its 31st session, Paris, 2 November 2001. 55 Articles 11 and 12, 2001 Convention.

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assessment of the conservation’s state of the Moon’s sites, but also on other celestial bodies.

Anne-Sophie Martin is a Doctor of Law specialized in International Law and Space Law. Her doctoral research focused on the legal aspects of dual-use satellites. She received her LL.M in Space Law and Telecommunications Law from the University of Paris-Sud XI (France) and her PhD from Sapienza University of Rome (Italy). On August 2017, she attended the Centre for Studies and Research of The Hague Academy of International Law. Since 2019, she is a visiting researcher within the Centre for a Space faring Civilization and she is part of the For All Moonkind’s Legal Council. She is a member of the International Institute of Space Law, Space Generation Advisory Council, International Institute of Space Commerce, European Centre for Space Law, American Institute of Aeronautics and Astronautics, French Society of Air and Space Law and Institute of Space Law and Telecommunications.

Chapter 6

Necessity of Special Regulation for Protection of Cultural Heritage Sites on the Moon Darya Bohdan

Abstract This essay evaluates possibilities of applying the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Outer Space Treaty as legal basis for protection of cultural heritage sites on the Moon. The author considers the definition of the term “cultural heritage site” and whether it can be extended to sites on the Moon. The essay gives a brief comparison of regulation by “hard” and “soft” law and its respective approaches. In conclusion, the author states options for legal regulation of protection of cultural heritage sites on the Moon: amendment of the Convention or draft of a new international space treaty, protection by “soft law” instruments and fundamental awareness raising for future legal regulation.

Space has always been connected to cultural life of people all over the world. Ancient Greeks have been connecting stars on night sky to form constellations named after their Gods, heroes or characters from myths. People of current Latin America connected their religious beliefs with night sky and movement of celestial bodies. Nowadays, the most credible legal definition of the term “cultural heritage sites” is derived from the Convention Concerning the Protection of the World Cultural and Natural Heritage1 (further—the UNESCO 1972 Convention, the Convention) to which 193 states are parties.2 Article 1 of the Convention defines the term “cultural heritage sites” as “works of man or 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”.

1 Convention

Concerning the Protection of the World Cultural and Natural Heritage [1972].

2 States Parties, Ratification Status of the World Heritage Convention, UNESCO. http://whc.unesco.

org/en/statesparties/. Accessed 30 September 2019. D. Bohdan (B) Belarusian State University, Minsk, Belarus e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_6

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6.1 General Remarks on Applicability of Cultural Heritage Law to Space Preservation of cultural heritage sites on the Moon or on any other celestial body or territory in space (in the future) is still topical while preamble clauses of the UNESCO 1972 Convention will be the very truth for all times “deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world … parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole”. As shown, the definition of term “cultural heritage sites” and Preamble of the UNESCO 1972 Convention do not state any geographical restrictions, which would obstruct application of named Convention to cultural heritage sites outside the Earth. One more argument for possibility of application of the UNESCO 1972 Convention to cultural heritage sites outside our home planet is Article 31 of the Vienna Convention on the Law of Treaties3 (further—the VCLT) stating that a treaty shall be interpreted in good faith in the light of its object and purpose. Despite, that the object and purpose of the Convention are not literally written in it, that would be right to assume that Convention’s object and purpose are to provide a legal framework for protection of any cultural heritage site in interest of all humankind. Based on the UNESCO 1972 Convention’s scope of application and magnificent number of state parties to it the best solution to protect cultural heritage sites on the Moon is simple application of the Convention, isn’t it? Unfortunately, it is not. The procedure of cultural heritage sites protection under the UNESCO 1972 Convention begins from designation by each state “property forming part of the cultural and natural heritage, situated in its territory”. Then it is evaluated by the World Heritage Committee and, if adopted, is included in the World Heritage List and protected in prescribed manner (Article 11). Taking this into consideration we can not apply the UNESCO 1972 Convention to situated in space and on celestial bodies cultural heritage sites per se as they are not situated on a territory of a state. Provisions of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies4 (further—the OST), to which 109 states are parties,5 are very clear: space and celestial bodies “shall be the province of all mankind” (Article I) and “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” (Article II).

3 Vienna

Convention on the Law of Treaties [1969].

4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,

including the Moon and Other Celestial Bodies [1967]. of International Agreements relating to activities in outer space as at 1 January 20199; Committee on the Peaceful Uses of Outer Space, A/AC.105/C.2/2019/CRP.3. www.unoosa. org/documents/pdf/spacelaw/treatystatus/AC105_C2_2019_CRP03E.pdf. Accessed 20 September 2019.

5 Status

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Of course, there is a point, whether we are eligible to spread our “earth-laws” to the entire Solar system and beyond. “The limitation to the solar system is notable because the area of application of man-made international agreements is thus confined to that part of the universe that humans have “discovered”. It would be impossible to apply human norms to human activities in the entire universe, with its extraordinarily large size of around 70 billion light years”.6 Let us use the presumption that we are eligible to do so at least in the Solar system and that our primary responsibility is to set rules for ourselves in that horizonless area.

6.2 Legal Regulation for Protection of Cultural Heritage Sites on the Moon One of the most important principles governing application of two conflicting laws is lex specialis derogat legi generali, which means that special law overrides the general one. Regarding protection of works of man (7.2.1) and areas (7.2.2) as cultural heritage sites on the Moon the difficulty is that both, cultural heritage law and space law, are lex specialis: the first in respect of protected items and the second in relation to the place, where they are situated.

6.2.1 Preservation of Works of Man as Cultural Heritage Site on the Moon Article VIII of the OST clarifies that states “retain jurisdiction and control” over registered objects “while in outer space or on a celestial body” and that “ownership of objects launched into outer space … is not affected by their presence in outer space or on a celestial body”. Recalling such principles of international law as pacta sunt servanda, sovereign equality of states and non-interference in domestic affairs we can combine them to conclude, that property of other states can not be governed and operated by other states without prior and stated consent of a state-owner. Considering this, preserving works of man as a cultural heritage site on the Moon is done currently according to provisions of the OST. Indeed, that is not special regulation or higher special protective regulation given by the UNESCO 1972 Convention, but still it suits the purpose of preservation—objects are kept untouched and safe.

6 Hobe and Tronchetti, ‘Article 1 (Scope of Application)’ in Stephan Hobe, Bernhard Schmidt-Tedd,

Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume II, Carl Heymanns Verlag, 2013, p. 353.

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6.2.2 Preservation of Areas as Cultural Heritage Site on the Moon Do jurisdiction and control under Article VIII of the OST cover only physical objects or areas, where they are situated, as well? Does it imply that traces of such objects and personnel are also under jurisdiction and control of states, who registered respective objects? Referring back to Article 31 of the VCTL, we see that rules for interpretation of treaties obstruct such broad understanding of items under jurisdiction and control: objects (including their parts) and personnel per se—yes, areas around and traces of their activities—no. “Control” means the exclusive right and the actual possibility to supervise the activities of a space object and, if applicable, the personnel thereof. … “Control” must be based on legitimate jurisdiction and not on factual control capabilities.”7 Based on these definitions, which can be also used for interpretation of Article VIII of the OST, we also see that currently areas of work of space objects fall outside the scope of legal regulation. Consequently, we have an interesting situation regarding protection of areas of human activities on the Moon: • cultural heritage law, precisely, the UNESCO 1972 Convention, is inapplicable due to procedural aspects: while areas of the Moon do not constitute a territory of a state, these areas can not be included in the World Heritage List and therefore protected as cultural heritage sites under the Convention; • space law does not provide guarantees for preservation and safety of areas of work of space objects. What shall be done in this legal vacuum? As we see from state practice, an interested state tries to enact national regulation to preserve areas of work of its space objects. For example, National Aeronautics and Space Administration in the United States of America (further—NASA) issued NASA’s Recommendation to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts8 (further—NASA’s Recommendation) to protect traces of Apollo’s missions. Interestingly, NASA’s Recommendation goes further than the UNESCO 1972 Convention in depicting areas under protection: according to the Recommendation artifacts under protection include, among other, unmanned lunar surface sites, indicators of human and human-robotic lunar presence, including footprints, rover tracks.9 7 Schmidt-Tedd/Mick

‘Article VIII’ in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl (eds.), Cologne Commentary on Space Law, Volume I Outer Space Treaty, Carl Heymanns Verlag, 2009, p. 157. 8 NASA’s Recommendation to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts. https://www.nasa.gov/pdf/617743main_ NASA-USG_LUNAR_HISTORIC_SITES_RevA-508.pdf. Accessed 20 September 2019. 9 Ibid., p. 5.

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Even if we take for granted that human footprints on the Moon can easily be recognized as “archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view” under Article 1 of the UNESCO 1972 Convention (as they are the first evidence of human curiosity and ability to move beyond home planet Earth), still, the evaluation of unmanned lunar surface sites as cultural heritage sites demands special clarification. Another pending clarification issue is status of NASA’s Recommendation and its applicability to United States actors and actors from other states. Firstly, the Recommendation is not obligatory for United States actors as it is not legally binding. Secondly, it does not create obligations for foreign states and entities registered in them since NASA’s Recommendation is not an international treaty or a customary rule of international law. NASA itself recognizes the need to conclude special agreements on preservation of Apollo’s areas on the Moon in close cooperation with other states and “has begun engaging in dialogue with foreign space agencies, as appropriate”.10 Nevertheless, we see examples of voluntary commitments of United States and Germany’s companies to follow NASA’s lunar protection guidelines.11 This evidences that cultural aspects of human space exploration go beyond strict calculations of the best suitable places of space operations. On the other side we see that non-universal cultural issues may be sacrificed in favor of more global interests. We saw how Mauna Kea dispute around building of the telescope at the top of spiritual mountain was sought from completely different points of view by Native Hawaiians and representatives of other peoples. Local culture versus global scientific interest of space research; cultural importance of somebody’s footprints versus the possibility to gain resources at most suitable position for their extraction/exploration/utilization; isn’t that similar? In many cases, culture, despite it has material form, depicts intangible value, which is easy to ruin, but impossible to restore. The only key for preservation of anything having outstanding value for everyone is an understanding by everyone that this item/object/site/place/area shall be protected.

6.3 Ways Forwards What will be the next step to solve this legal casus of preservation of cultural heritage sites on the Moon? Option #1 is to amend the UNESCO 1972 Convention and procedure of inclusion sites in space and on celestial bodies into the World Heritage List. For instance, a state, which registered specific space object, may be eligible to propose inclusion

10 Ibid.,

p. 5.

11 Protecting

& Preserving Apollo Program Lunar Landing Sites & Artifacts. https://www. whitehouse.gov/wp-content/uploads/2018/03/Protecting-and-Preserving-Apollo-Program-LunarLanding-Sites-and-Artifacts.pdf. Accessed 20 September 2019, p. 4.

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of areas of its work as cultural heritage site in the List. In this case the link and requirement of territory will be changed by criterion of registration. As that is an amendment to the Convention, that can be done either by amendment of Article 11 or by conclusion of additional protocol to the Convention. Taking into consideration that there are 193 state parties to the Convention, indeed, this process will be difficult. But it seems to be easier to negotiate wills of states in a small matter in addition to what they have earlier agreed upon. In this regard that shall be mentioned that in usual procedure under the UNESCO 1972 Convention the presumption is that a state on which territory the site is situated shall be responsible for preservation and protection of relevant site, and that such state has all resources to do so. Consequently, single amendment of the procedure will not solve the problem. That is also necessary to add a clause stating an obligation of all state parties to the Convention to preserve and protect any cultural heritage site in space or on celestial body (included by any state in the World Heritage List). Option #2 is to elaborate special space law regulation on protection of cultural heritage sites in space and on celestial bodies, or at least on the Moon (which has a special status being the only natural satellite of our planet). Difficulties, which we might face here are that a) it is extremely hard to make a new legally binding treaty in space sphere and b) “soft law” instruments, which are easier to draft in comparison with “hard law” instruments, are not as powerful as we want them to be. A little bit more than 60 years after the first satellite, Sputnik 1, was launched into space, space law is represented by five “hard law” treaties in space sphere.12 After 1980s there was no space treaty, regulating crucial aspect of space activities. We all live and work in space sphere in circumstances of guiding our activities “soft law”, rather then regulating them. But when we speak about obligations, we speak about responsibility for their breach. What will be the sanction if a state (or company registered in it) lands its space craft in Apollo’s area? Or if it lands at the “8-shape” area made by Lunokhod 1? The legal answer is “nothing will happen”. If an actor is not bound by obligation, there is no responsibility for its breach. “Soft law” regulation does not solve the problem of establishment of obligation per se and consequently does not provide for a mechanism of compliance with obligation and instruments to enforce such compliance. Are we helpless in our efforts to protect cultural heritage sites on the Moon? As long as we have Option #3, we are not. The root of every legal norm is a moral principle. We believe that people shall leave with peace with one another and do not steal and kill, for this we have a Criminal Code. We believe that words, given by merchants, shall be preserved and fulfilled 12 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies [1967]; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects, Launched into Outer Space [1968]; Convention on International Liability for Damage Caused by Space Objects [1972]; Convention on Registration of Objects Launched into Outer Space [1975]; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies [1979].

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and for this we have a Civil Code. We believe that we shall restrain ourselves in our usage of the environment to preserve it for our children and grandchildren and for this we introduce laws on protection of atmospheric air, river waters, oceans, flora and fauna, etc. When we believe that our culture is spread everywhere, where we are or we were, we begin to protect it. Awareness raising is not a legal instrument. Nevertheless, that is the tool, which step by step prepares us for further actions and gives us strength not to give up. The circle must be closed.

Darya Bohdan graduated from Belarusian State University, the Faculty of International Relations, Bachelor Degree in International Law (Major International Public Law). In 2019 she obtained the Master Degree in Jurisprudence at Belarusian State University, at the Faculty of International Relations and entered a PhD programme. Since 2016 she is the Space Generation Advisory Council National Point of Contact for Belarus.

Chapter 7

How to Preserve Humanity’s Lunar Heritage Alexandros Eleftherios Farsaris

Abstract After decades of inaction, several states and private companies are returning to the moon. The first traces marked on the lunar surface, witness one of humanity’s greatest accomplishments, the start of the space era. Lacking legal protection, the increased lunar activity may put those sites in danger. Indeed, the efforts made up to now to grant protection to the heritage sites, fall short of granting sufficient protection. The only way to guarantee immediate protection and preservation, given the urgency of the issue, is through a multilateral international agreement. Different political implications though (such as the danger of sovereignty claims and economic interests), complicate the conclusion of a binding agreement. For the states to arrive to a consensus, an agreement shall exclude any national pretexts in the protection of the lunar artifacts, as well as decide which sites are worthy of protection. The first human traces outside our home planet, are rich of cultural and scientific significance. Preserving them is a duty towards mankind, not a way to expand sovereignty.

7.1 Introduction It was more than fifty years ago when the first space missions left their trace on the moon, marking one of the greatest moments in human exploration history; Leaving earth’s atmosphere and landing on another celestial body. The first attempts of exploring a different world, outside earth. ‘One small step for man, one giant leap for mankind’. The iconic words said by Neil Armstrong, highlight the importance of these achievements, their impact on our evolution history. Everything they left behind is still there; unmodified, preserved by the vacuum of space. Two years before the first men walked on the moon, the United Nations Outer

A. E. Farsaris (B) University of Macerata, Macerata, Italy e-mail: [email protected]

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_7

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Space Treaty was drafted (‘OST’ or ‘Outer Space Treaty’).1 The treaty emphasizes the importance of guaranteeing to the States free access to all celestial bodies, without discrimination, and forbids states to make claims of sovereignty in outer space. The fact that the treaty did not provide any sort of protection for the first landing sites, did not trigger problems for many decades to come, mainly because of the lack of lunar activity (Apollo 17 being the last moon landing in 1972). The last years though, a renewed interest in the moon is observed. A proper modern ‘space race’ has begun not only between governments, but between many private companies as well. Right now, there is no law impeding the willful or accidental destruction of the first traces of mankind on the moon. ‘There’s no rule, there’s no U.S. domestic law, or no international treaty obligation to preserve them’.2 Without a doubt, the first traces of mankind on the moon make part of humanity’s greatest historical moments. Still, there is no legal framework granting protection to what, by a vast consensus, is an indispensable part of humanity’s heritage. Even if there have been a few attempts to classify the Apollo landing sites as human heritage sites, they either fail to comply to existing international law, either lack the capacity to grant sufficient protection. In order to protect those sites on the moon, there is need of a legal binding solution, a sort of international cooperation.

7.2 Defining What Needs Protection 7.2.1 Sites and Objects on the Moon The numerous space missions that landed on the moon have left behind a vast number of objects. In contrast with the landing and activity sites around them, these objects have been granted protection. Article 9 of the Outer Space Treaty, declares that objects launched into space belonging to states parties to the treaty, will remain under the jurisdiction and protection of the state that launched them. As the article further specifies, ownership of objects launched into space, is not affected by the fact that they are present in outer space, on a celestial body or even returned to earth. This disposition expands the property law regime to the objects present on the moon, granting them protection. The sites in which these objects are left, on the other hand, haven’t been included in the Outer Space Treaty. The treaty declares that the moon and all the celestial

1 ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,

including the Moon and Other Celestial Bodies’, opened for signature 27 January 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967), thereafter ‘Outer Space Treaty’. 2 Steve Mirmina, professor of space law at Georgetown University: Nadia Blake ‘Should Neil Armstrong’s Bootprints Be on the Moon Forever?’ (2019) The New York Times. www.nytimes. com/2019/07/11/science/moon-apollo-11-archaeology-preservation.html. Accessed 21 September 2019.

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bodies cannot be subject to national appropriation,3 they are free for exploration to all the states, without any kind of discrimination.4 However, all the objects left behind are still owned by the governments that launched them. Ownership has the associated right of protecting those objects by using the necessary means.5 Nonetheless, since no state can make territorial claims on the moon (and by consequence to the area under and around the equipment), protecting them remains an open issue. Currently, there is no law stopping someone from stepping on Neil Armstrong’s footprints, thereby altering the state of the first traces left by man on the moon.

7.2.2 Deciding Which Sites Form Cultural Heritage Declaring all sites of human contact on the moon as cultural heritage could become a problematic endeavor. Heritage, indeed, can go ‘too far’.6 Up to now, there have been twenty-one touch downs on the moon. In 2011 NASA published a series of recommendations on how the future missions should go forward without damaging the heritage sites.7 They settled on a boundary to keep future landings at least two kilometers away from the heritage lander sites.8 This boundary though, has nothing to do with real science.9 Future missions can cause damage even by landing as far as 100 km away from the heritage sites.10 Granting protection to all the sites on the moon would limit greatly the activity of the future lunar missions. Heritage should not become ‘the brake for the future’.11 Hence, a balance shall be achieved by granting protection to the most important, for their heritage value, sites on the moon.12

3 See

Outer Space Treaty (n 2) art 2. art 1. 5 Henry R. Hertzfeld and Scott N. Pace, ‘International Cooperation on Human Lunar Heritage’ (November 28, 2013), Science Vol 342 (6162) www.sciencemag.org. Accessed August 2019. 6 Interview with Jan Wörner, director general of the European Space Agency (The Guardian, 19 July 2019). www.theguardian.com/science/2019/jul/19/apollo-11-site-heritage-status-spaceagency-moon. 7 NASA’s Recommendations to Space-Faring Entities: ‘How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’, released 20 July 2011. 8 Ibid., s A1-3. 9 Philip Metzger, professor at the University of Central Florida and former NASA employee studying the blast effects from the Apollo lunar landings, at the National Public Radio: Nell Greenfieldboyce, ‘How do you preserve history on the moon’ 21 February 2019. www.npr.org/2019/02/21/ 696129505/how-do-you-preserve-history-on-the-moon, accessed 21 September 2019. 10 Ibid. 11 See n 7. 12 Matthew Rosendahl, ‘Galactic Preservation and beyond: A Framework for Protecting Cultural, Natural, and Scientific Heritage in Space’ (2019) 43 Wm & Mary Envtl L & Pol’y Rev 839, s I. A. 4 Ibid.

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7.3 Difficulties of Attributing the Heritage Status to the Lunar Sites The matter of granting protection to the first steps of humanity in space exploration is a rather recent concern. Mainly because lunar activity had been ceased for many decades. The interest for the moon though, is rising during the last decade. With several upcoming missions to explore and even mine the lunar resources, the concern for the protection of the lunar landing sites is becoming more and more of a topical issue.13 However, granting heritage protection to lunar sites faces several difficulties.

7.3.1 Impossibility Under Current Legislation 7.3.1.1

Contrast of the World Heritage Convention with the Outer Space Treaty

Under the current legal framework, it is impossible to recognize and protect as heritage the sites on the moon. Cultural heritage sites on earth can be recognized through the World Heritage Convention (‘WHC’) of the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’).14 Heritage sites can be protected under the WHC, when the state in whose territory the sites are situated, includes them in the list submitted to the World Heritage Committee.15 Recognition under this disposition though, cannot be granted to the lunar sites since that would be a direct infringement of the OST. Article 1 of the OST, states that ‘outer space including the moon and all the celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies’. Article 2 comes to add that outer space cannot be ‘subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’. The OST concedes no room for heritage protection in outer space. Furthermore, in article 12 it is specified that equipment and installations left on the moon or other celestial bodies, shall be open for representatives of other states parties to the treaty upon reasonable advance notice of projected visit. Right now, cultural heritage can only be recognized under the sovereignty of a state. When no state can make claims of sovereignty in outer space, it is impossible to protect the first traces of mankind on the moon.

13 Michelle

L. D. Hanlon, University of Mississippi, ‘The case for protecting the Apollo Landing areas as heritage sites’ (2019) Astronomy.com, www.astronomy.com/news/2019/02/the-case-forprotecting-the-apollo-landing-areas-as-heritage-sites. Accessed 28 September 2019. 14 United Nations Educational, Scientific and Cultural Organization (UNESCO), ‘Convention Concerning the Protection of the World Cultural and Natural Heritage’, 16 November 1972. 15 Ibid., s 3, Art 11.

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Convention on the Protection of the Underwater Cultural Heritage

In 2001, the Convention on the Protection of the Underwater Cultural Heritage (‘Underwater Heritage Convention’ or ‘UHC’) was developed, as a response to the inadequate protection of the cultural heritage at sea. The UHC grants protection to cultural heritage sites ‘which have been partially or totally under water, periodically or continuously, for at least 100 years’.16 It also extends the protection to heritage sites located outside any national jurisdiction, in a region the convention calls the ‘Area’.17 Even if the UHC recognizes as heritage, sites that do not belong under any state’s sovereignty, it cannot be expanded to include cultural heritage on the moon. As previously written, it only addresses those sites ‘partially or totally underwater’ hence, it does not include sites outside Earth’s oceans.

7.3.2 Danger of Political Appropriation When there is no legal basis nor precedent, unilaterally declaring a site on the moon as an artifact, will be interpreted as indirect territorial claim on the area. Out of the 109 countries that ratified the OST, only a handful have had activity on the moon, with the United States being the only state that has landed manned missions. A claim for protection of the areas around the artifacts will be a claim of sovereignty. The president of the French National Institute for Preventive Archaeological Research (INRAP), Dominique Garcia, finds the United States’ efforts on protecting the Apollo landing sites containing a ‘political element’, being a way of appropriating outer space.18 Garcia states that these efforts are not based on clear scientific interests, instead they appeal to sensibility and emotion19 in order to arrive to their scope. Being based on scarce scientific backup, they use “cultural heritage” as a way to expand their territory.20 The critics, though, are mainly based on the one-sided attempts of recognizing lunar heritage under the national spectrum of protection.21 The first traces of man on the moon do have both scientific and heritage value. Firstly, three of the Apollo and one of the soviet Luna missions, have left behind sensitive retroflectors used to 16 UNESCO, ‘Convention on the Protection of the Underwater Cultural Heritage’, 2 November 2001, art 1. 17 Ibid. 18 Interview with Dominique Garcia to Océane Sinicropi (2020minutes.fr) 12 July 2019. www.20minutes.fr/planete/2562019-20190712-centaines-objets-lune-fait-nouveau-face-strategieconquete-planetes-espace. 19 Ibid., “Mais encore une fois ça appelle l’imaginaire, la sensibilité, plus que l’intérêt scientifique.” 20 See n 19. 21 ‘Apollo Lunar Landing Legacy Act’ H.R.2617, introduced in the 113th Cong. (2013).

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precisely calculate the distance between the Earth and the moon.22 Furthermore, the artifacts left on the lunar surface provide valuable information about the effects of long-term exposure in outer space.23 On the other hand, the landing sites comply to the criteria enacted by UNESCO for cultural heritage recognition on earth.24 “I don’t think anybody would argue that this is not a significant, important, Earth-shattering event in the history of humanity, and all humanity participated”.25 Nevertheless, as long as the efforts retain a national pretext, the danger of hidden political blemishes will always be present. Heritage in outer space cannot be protected by a state alone; it is more of a matter of international cooperation.

7.3.3 Necessity for a Rapid Solution Already in 2019, several countries have planned to send probes to the lunar surface.26 The space missions in 2019 are few of the many to happen in the upcoming years. In this modern space race, since costs are significantly reduced from the last century,27 private companies manage to participate as well. Government and private funded missions plan to return both humans and robotic landers to the moon this very decade. Perhaps, at a certain point in the future, a new UN treaty for the protection of important artifacts on the moon would be reasonable. This very moment, such a treaty would start a long process with unknown outcomes. The complexity of drafting a treaty that would limit the lunar activities without allowing any state to make territorial claims in outer space, could delay the positive outcome to a point beyond the time when nations and companies may be already active on the moon. Lunar activity has increased and will increase rapidly, making the protection of lunar heritage more necessary than ever. The tight timeline requires a rapid; binding solution to prevent what has happened many times down on earth. 22 See

n 13, 844.

23 Ibid. 24 See

n 15, s I, art 1.

25 Interview of Beth O’Leary, professor at the University of New Mexico, expert in Space Archaeol-

ogy and Heritage, at, at the National Public Radio, Nell Greenfieldboyce, ‘How do you preserve history on the moon’ 21 February 2019. www.npr.org/2019/02/21/696129505/how-do-you-preservehistory-on-the-moon, accessed 21 September 2019. 26 Melanie Lidman, “Israel’s Beresheet Spacecraft Crashes into the Moon During Landing Attempt” Timesofisrael, 11 April 2019. www.timesofisrael.com/israels-beresheet-spacecraft-crashes-duringmoon-landing-attempt/. Accessed 30 September 2019; Elisabeth Howell, “Chandrayaan-2: India’s Orbiter-Lander-Rover Mission” Space.com, 9 September 2019. https://www.space.com/40136chandrayaan-2.html. Accessed 30 September 2019; Adam Mann, “China’s Chang’e Program: Missions to the Moon” Space.com, 1 February 2019. https://www.space.com/43199-chang-e-program. html. Accessed 30 September 2019. 27 Wendy Whitman Cobb, professor of political science at the Cameron University, ‘How SpaceX lowered costs and reduced barriers to space’ theconversation.com, 1 March 2019. https:// theconversation.com/how-spacex-lowered-costs-and-reduced-barriers-to-space-112586. Accessed 30 September 2019.

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7.4 Efforts Made up to Now In 2007, the Google Lunar X Prize program was announced, which offered a 20 million U.S. dollars reward to the first privately funded rover which would land, travel 500 meters and send back high-quality pictures from the lunar surface.28 An additional prize would be given to the rover which would manage to get pictures of one of the Apollo landing sites.29 This immediately raised the attention on the need of protecting the artifacts left on the moon. Since the existing law provided protection only for the equipment left behind, there was a clear lack of legislation for what concerns the sites around them.

7.4.1 NASA’s Recommendations to Space-Faring Entities In 2011, NASA reacted to the Google Lunar X Prize by issuing a non-binding set of recommendations to preserve the six Apollo sites and their associated artifacts. NASA laid out guidelines to protect those locations by setting limits to touchdowns, overflight and by prohibiting close visits. Then, reached agreements with competing companies for them to abide to the guidelines. Even if ‘it’s carefully written and NASA actually found some fairly clever ways of trying to enforce that’,30 the set of non-binding recommendations is not a sufficient way to grant protection to the lunar heritage sites. Indeed, the recommendations do not ensure protection and preservation. Being a non-binding legal solution, they do not represent mandatory United States government or international requirements. Since they are not supported by any national or international law, breaching the boundaries included would not entail any legal implications. Moreover, the boundaries set by NASA are not perfect. They are not thoroughly scientifically accurate. The two km exclusion radius for the Apollo sites from future lander descents for example, is not supported by scientific proofs.31 The boundaries must be brought up to date with scientific evidence to secure the necessary protection. Having said that, the recommendations are still of important use. Until a better solution to come, they can be helpful on informing lunar spacecraft mission planners interested in helping preserve and protect lunar historic artifacts and potential science opportunities for future missions.32 Although not a complete solution, they represent a big step towards the way of recognizing and protecting our lunar heritage. 28 See

https://www.xprize.org/prizes/google-lunar#.

29 Ibid. 30 See

n 10. the 2-km safe distance from the Apollo landing sites “has nothing to do with real science. It’s just a number we made up because we couldn’t do any better at the time”. 32 U.S. Office of Science and Technology Policy (OSTP) report on ‘Protecting & Preserving Apollo Program Lunar Landing Sites & Artifacts’ March 2018. 31 Ibid.,

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7.4.2 Apollo Lunar Landing Legacy Act The H.R. 2617, (Apollo Lunar Landing Legacy Act), was a bill introduced in the U.S. Congress in 2013.33 It aimed at preserving the Apollo sites on the moon by recognizing them as a U.S. national park, under the jurisdiction of the U.S. Department of the Interior. The Bill was never enacted since it would have been a unilateral action of the U.S. to control parts of the moon. Recognizing the Apollo sites as a U.S. national park would be a declaration of sovereignty on the moon; a direct violation of the Outer Space Treaty. Furthermore, the bill proposed that the sites would be administered by the Secretary of the Interior, under U.S. national law applied to national parks,34 clearly in contrast with the dispositions of the OST. The bill finally requires the Secretary of the Interior to submit the Apollo sites for designation as cultural heritage by the UNESCO. An act breaching article 2 of the OST, since it would imply that the Apollo sites enter within the U.S.’ sovereignty. A unilateral national declaration would only cause potential for conflict. ‘Once you start making exclusionary zones and stopping other countries from their free use and exploitation of space, you’re running up against the basic premise of the OST’.35 The 2013 bill failed completely to comply to the premise of heritage recognition, missing the necessity of international cooperation in such a matter.

7.4.3 One Small Step to Protect Human Heritage in Space Act The bill S.1694 was recently introduced to the U.S. Congress.36 It represents the second effort presented to the U.S. Congress aiming to protect lunar heritage. This time, rather than drafting new rules for space heritage protection, the bill relies on the NASA recommendations of 2011. In fact, the new bill, upon enactment, would require any U.S. Federal agency that issues a license to conduct an activity in outer space, to include a provision that the mission operators abide by NASA’s recommendations.37 Furthermore, federal

33 See

n 22.

34 16 U.S. Code 1a-1, 39 Stat 535, 25 August 1916, as amended. States that parks are “managed for

the benefit and inspiration of all the people of the United States”, which would be in contrast with article 1 of the OST “for the benefit and in the interests of all countries”. 35 Jack Beard, Law Professor at the University of Nebraska, in ‘Moves to safeguard lunar heritage’ China Daily, 13 July 2019. http://www.chinadaily.com.cn/a/201907/13/ WS5d292acaa3105895c2e7d427.html. Accessed 30 September 2019. 36 ‘One Small Step to Protect Human Heritage in Space Act’ S.1694 introduced in the 116th Cong. (2019). 37 Ibid., s 3, pt (a).

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agencies that issue licenses may asses penalty fees on the holders of such licenses when they violate terms of the agreement.38 The bill follows the Office of Science and Technology Policy report of 2018. In that report, the White House recognizes the value to protect the cultural, scientific and historic significance of the Apollo landing sites. The One Small Step to Protect Human Heritage in Space Act, is the first time a bill treats the protection and preservation of lunar heritage as an international issue. It successfully passed the senate and it might be the first effective step towards the protection of the heritage sites on the moon. Undoubtably, this act represents significant progress in space heritage protection. It does have, however, important limitations. Being a U.S. national law, it can only apply to the U.S. based space-faring entities that require licenses from U.S. federal agencies. In addition, the bill is based on the 2011 NASA recommendations which, as it is previously mentioned, are not perfect. National law is helpful for the protection of the lunar sites but not necessary.39 An ideal solution shall have as premise the international cooperation, as well as the guaranteed protection of the artifacts on the lunar surface.

7.5 Possible Solutions Efforts for the recognition and protection of lunar heritage landings sites have been already made. Such efforts though, do not guarantee efficient protection. Dealing with the heritage sites on the moon is not a national matter. Efficient solutions will only merge through the international community, through the stipulation of international accords.

7.5.1 A New UN Treaty Drafting a new treaty specifically concerning the preservation of outer space artifacts, would provide specific and detailed international legal protections. It would be a binding and secure way to grant a variety of guaranties to the artifacts on the moon. Currently, the international nonprofit organization “For All Moonkind” works with space agencies around the world to submit a protection plan to the UN Committee on the Peaceful Uses of Outer Space, aiming for a new treaty for the preservation and protection of the lunar landing sites.40 However, the difficulties of negotiating 38 Ibid.,

pt (d). n 33, 5. 40 Mike Wall, ‘Moon History: Group Works to Protect Apollo Landing Sites’ Space.com, 16 August 2017. https://www.space.com/37799-apollo-landing-sites-preservation-for-all-moonkind. html. Accessed 30 September 2019. 39 See

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and bringing together a new treaty are prohibitive for such an agreement to happen now.41 Negotiating any international agreement is a slow process, especially one involving a UN treaty concerning outer space. A successful outcome would depend on numerous states joining the agreement; something which is not certain since other space-faring states might interpret a new treaty on lunar heritage as a threat to their guaranteed legal protections.42 At some point in the future, drafting a new treaty will be necessary. Right now, such an effort could delay the protection of the lunar artifacts to a point when nations and private companies will be already active on the moon.

7.5.2 A Bilateral or Multilateral International Agreement Among the states that ratified the OST treaty, there are only a few that have had activity on the lunar surface. Between them, only the U.S., Russia and China have had successful landings. In contrast with a new treaty, an international agreement between the states with artifacts on the moon, would be politically sustainable and more capable of achieving the goal of protecting and preserving the artifacts sooner. Initially, an agreement should be reached between the major spacefaring nations. As more states develop technology becoming capable of accessing the moon, it could also include a provision which would make it open for other nations with interests in the preservation of the heritage sites, to abide in the future.43 Rather than dealing with the long and complicated procedures of a treaty, it would bring together the nations with interests on protecting those assets, aiming for a faster and effective solution. All the states that are currently having space activities have set precedents between them from other successful space agreements.44 The agreement should be based on the direct negotiations between the governments of the states, avoiding the numerus and complicated steps of a UN treaty. In spite of the political differences between the countries, an accord aimed to protect space heritage in the interest of mankind would be possible. Avoiding dealing with ‘sensitive’ issues, it would arrive to a solution that only benefits the international relations between the countries. Based on the premise of the OST, it would avoid declarations of sovereignty on the moon, promoting the international cooperation. The agreement would identify the heritage sites on the moon, including a set of boundaries and limitations in order to secure the protection of the artifacts. The 41 See

n 6. n 33, 5. 43 See n 6. 44 The International Space Station’s legal framework is based on the ‘International Space Station Intergovernmental Agreement, signed on 29 January 1998 by the governments involved in the Space Station program, see https://m.esa.int/Our_Activities/Human_and_Robotic_Exploration/ International_Space_Station/International_Space_Station_legal_framework. 42 See

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states would agree on a new set of rules, brought up to date with the requirements of protection for the recognized as heritage lunar sites. For their implementation, the states would force the new agreement through the national law applied to the entities that issue licenses. An international agreement between the countries with lunar activity would achieve the goal of protecting the lunar heritage in a relatively short period of time. Based on genuine partnership, it would strengthen the trust between the nations, opening the way for more future agreements.

7.5.3 Creation of an International Body With an international agreement, the states build the pillars for a long-lasting cooperation, creating the precedents for more agreements to come. Based on an international agreement, the states can opt for the creation of an international body, responsible for the supervision and control of the dispositions. Following the examples of the World Heritage and Underwater heritage conventions, the new agreement would create a governing committee which would decide which sites deserve heritage recognition.45 No state would have sovereignty over the lunar heritage sites. Through the cooperation of the states and the strong normative pressure,46 this body would implement and regulate the protection of the recognized heritage sites. Creating a separate body has already been a practice in international law.47 By adopting a similar solution, this body would secure the implementation of the agreement by all states, granting effective protection to the lunar artifacts.

7.6 Conclusion Even if the moon landings happened only fifty years ago, their heritage value is unquestionable. They mark one of the most important moments in humanity’s exploration history. They witness one of the greatest achievements in the history of mankind, the first steps in a different world. Protecting what represents the first steps in a new era of space exploration, is a responsibility of all nations. We find ourselves before a situation where we can preserve the heritage and avoid disasters that have happened many times on earth. Preserving and protecting the lunar heritage does not mean creating exclusion zones with political interests, limiting the freedom 45 See

n 13 s V. A.

46 Ibid. 47 ‘Convention on the International Maritime Satellite Organization’ 3 September 1976, The International Maritime Organization is the intergovernmental organization that ‘oversees certain public satellite safety and security communication services provided by mobile satellite communication systems’. http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/Conventionon-the-International-Maritime-Satellite-Organization.aspx.

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of exploration. The cultural value of those sites shall be protected in the name of all humankind, in an environment of international cooperation. Not by creating a brake for science and the future, but by building bonds between the nations for the safeguard of the scientific and cultural value of the lunar sites.

Alexandros Eleftherios Farsaris is a student in the last year at the law department of the University of Macerata, Italy. He is aiming for a master’s degree in Space Law, and currently working on the University thesis with a subject concerning space Law and telecommunications. Languages spoken are English, French, Italian and Greek.

Chapter 8

Protection of Lunar Heritage Sites: A Customary Law Perspective Parthabi Kanungo

Abstract When the idea of a Moon Village can almost be envisioned, there is an immediate need for the legal realm to adapt to the current multipolar world order, reflective of immense socio-political and scientific developments. The discussion revolving around lunar cultural heritage gained significant traction in the late 70s and early 80s, before losing its significance with the lack of global support for the Moon Treaty. As the discussion has reignited over the past two decades, with a tremendous increase in lunar exploration by states, it is indeed quite urgent to explore the existing standards that may accord legal protection to these lunar heritage sites, that have not even been formally recognised as such. The article tries to approach the question of protecting cultural heritage on the moon from the perspective of customary international law. First, it tries to assess if the existing space treaties have led to the formation of a custom that places a legal obligation upon states to protect these heritage sites on the moon, irrespective of their ratification-oriented relationship with the space treaties. It does so by examining the provisions under the Outer Space Treaty, the Liability Convention, and the Moon Treaty, and their customary effect. Secondly, it tries to assess the possibility of bringing lunar heritage sites under the purview of the custom of protecting cultural sites on the earth. It examines the applicability of provisions of the World Heritage Convention, and the customs emanating from them, to the protection of lunar heritage.

8.1 Introduction A chief characteristic of the legal order is its ability to evolve and adapt to changing times. From the protection of the rights of the non-binary gender, to the legalisation and decriminalisation of marijuana, the intrinsic link between law, on one end of the spectrum, and society and politics on the other, is undeniable. Even international humanitarian law has evolved over the years, from first trying to address the status of private military companies, to now even expanding its scope to regulate the potential P. Kanungo (B) Faculty of Law, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_8

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deployment of lethal autonomous weapons (LAWs). Therefore, it is not that much of a surprise that international law now showcases a considerable competence regarding questions originating far off, in the outer space. Protection of cultural heritage on the earth is, in itself, a debatable and complex concept, with different circumstances warranting different standards of protection. The scientific news cycle promises opportunities ranging from space tourism to even gaining ownership of land on the moon, amidst political assertions like that of creating a space force, all of which make it particularly fascinating to note the law’s view on granting special heritage status to Tranquillity Base, the space on the moon’s surface where humans first set foot, where Neil Armstrong and Buzz Aldrin touched down fifty years ago, creating history.1 While conventional space law has largely been governed by treaties and conventions, with the adoption of the Outer Space Treaty in 1967, it is not unprecedented for a treaty to give rise to an international custom. In this day and age, when the need for states to re-assert their sovereignty trumps their regard for this consent-based system of governance, that is international law, it is imperative to examine if customs exist or even have the potential to exist, in the realm of space law. Back on earth, the World Heritage Convention of 1972, as a landmark agreement promoting the protection of cultural heritage, established a universal interest among state parties, for the protection of the common world heritage. Now, over the years, after multiple UNESCO World Heritage Sites have been designated, and numerous General Assembly (hereafter GA) resolutions have been adopted, it is time to revisit the question of whether an international custom has been formed, in relation to the protection of cultural heritage on the earth. This is, in turn, followed by the question of whether an existing custom of protecting cultural heritage on the earth, can directly be applied to the realm of international space law. Space law is still a rapidly developing, relatively young discipline. Presently, most of the regulations associated with conventional space law originate from treaty provisions, like the Outer Space Treaty, the Liability Convention, or the Moon Agreement. While treaties are a highly authoritative source of international law, they are also subject to withdrawal by state parties. At a time when states with significant reputation in the global sphere are making the conscious choice of withdrawing from key international instruments, it is quite pertinent to examine the responsibility of these states from a customary law perspective. This article shall try to determine the potential existence of a customary obligation, in relation to the protection of cultural heritage on the moon. In doing so, it shall, first try to explore the possibility of the emergence of a custom from provisions in relevant space treaties, particularly the Outer Space Treaty, the Liability Convention, and the Moon Agreement. Secondly, it shall try to determine, if provisions under the World Heritage Convention have gained customary status, and if a parallel customary obligation could exist in relation to lunar cultural artefacts.

1 A Gorman, ‘We need to protect the heritage of the Apollo missions’ (Opinion Piece, 18 July 2019)

The Conversation.

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8.2 Cultural Heritage Protection Under Space Treaties The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty),2 adopted in 1967, laid down the foundation for the conventional space law regime. Article I of the Outer Space Treaty establishes that outer space, including the moon, is the common province of all mankind, and its exploration shall be carried in the interest of and benefit of all nations.3 As far as protection of cultural artefacts on the moon is concerned, Articles VI, VII, VIII and IX of the treaty are primarily relevant. Article VI accords international responsibility upon state parties, for national activities in outer space, carried out by any of their citizens.4 Under Article VII, whenever a state party launches an object into outer space, including the moon, from its territory, the state party is liable for any damage to the citizens of another state party, caused by this object in question.5 With Article VIII, every state party shall retain jurisdiction over any object, registered in its name, that is launched into outer space, including the moon, while the object is still in outer space.6 Article IX introduces the principle of mutual cooperation among state parties, in the exploration of outer space, including the moon.7 State parties, while engaging in activities in outer space, including on the surface of the moon, are to refrain from conduct that could cause harmful interference with the activities of other state parties. While a state party may have jurisdiction over a satellite aircraft that it launches onto the moon, it is essential to remember the non-appropriation principle under Article II, which distinctly formulates that outer space, including the moon and other celestial bodies, cannot be nationally appropriated by a state, through a sovereignty claim, by establishing usage or occupation, or via any other means.8 So, as the law currently stands, United States cannot claim sovereign jurisdiction over Tranquility Base, irrespective of their supposed discovery of the site. To what extent exceptions to the non-appropriation principle have been accepted by states is beyond the scope of this article. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereafter The Moon Treaty), under Article 11(1), declares the moon to be the common heritage of mankind.9 Article 11(2) reiterates the non-appropriation principle, as mentioned in the Outer Space Treaty, while specifically referring to 2 The

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 26 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty). 3 Ibid., Art. I. 4 Outer Space Treaty, Art. VI. 5 Outer Space Treaty, Art. VII. 6 Outer Space Treaty, Art. VIII. 7 Outer Space Treaty, Art. IX. 8 Outer Space Treaty, Art. II. 9 The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force July 11 1984) 1363 UNTS 03 (Moon Treaty), Art. 11(1).

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the moon.10 Article 12(1) allows state parties to retain jurisdiction and control over their vehicles, equipment, facilities, stations and installations on the moon.11 Under Article 14, state parties bear international responsibility for their activities on the moon.12 Also relevant is the foremost requirement under Article 2, of ensuring that all activities on the moon is carried out in accordance with international law, and particular emphasis is placed on the UN Charter, and the 1970 General Assembly Declaration on Principles of International Law.13 These existing mechanisms do have the potential to grant a certain degree of protection to lunar heritage. The declaration that the moon is the common heritage of mankind, under Article 11(2) is a rather interesting proclamation by the Agreement. In classifying the moon as the common heritage of mankind, the Agreement may be alluding that the moon is subject to protection like any other common heritage of mankind, like any World Heritage Site designated as such by the United Nations Educational, Scientific and Cultural Organisation (hereafter UNESCO), for instance. The legal implications of this common heritage ascription to the moon shall be revisited in the latter part of this article, while discussing the protection of cultural heritage on the earth.

8.3 The Existence of a Custom? For an international custom to form, both the objective (state practice) and the subjective elements (opinio juris) need to be fulfilled.14 State practice, defined as consistent repetition of a particular behaviour by states, comprises of three conceptual elements: consistency, duration and generality.15 A short duration of time should not necessarily hinder the formation of a binding custom, as was observed by the International Court of Justice (hereafter ICJ) in its North Sea Continental Shelf judgement.16 As the International Law Commission (hereafter ILC) has also concluded, no particular duration is required, provided the practice is general.17 The opinio juris element reflects the acceptance of the practice as a legal obligation by the states. The lack of an evident opinio juris, however, does not prevent the existence of a custom, and existence of sufficient general and representative state practice is adequate for the

10 Moon

Treaty, Art. 11(2). Treaty, Art. 12(1). 12 Moon Treaty, Art. 14. 13 Moon Treaty, Art. 2. 14 A Henriksen, International Law (OUP, 2017) 25. 15 Ibid. 16 The North Sea Continental Shelf Cases (Federal Republic of Germany versus Denmark; Federal Republic of Germany versus Netherlands) [1969] (ICJ Rep. 4), para. 74. 17 International Law Commission, ‘Draft Conclusions on identification of customary international law’ (2018), part III, conc. 8. 11 Moon

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creation of a custom, unless state behaviour is believed to emanate from non-legal motivations, as has been opined by the ILC.18 Considering the fact that space law is a relatively new discipline, the duration element of state practice is indeed difficult to fulfil. Therefore, instead of emphasizing on the duration of the state practice, it is more suitable to look into other forms of evidence, including treaties, declarations, or practice of international organisations, which also establishes opinio juris for the practice in question.19 It has generally been believed that an instant custom was created, with the launch of Sputnik 1 into outer space, by the Soviet Union, in 1957.20 This is because, while the Soviet Union did not request permission from other states to launch its satellite into outer space, there were also no significant international protests that such action had infringed the sovereignty and territorial integrity of any state.21 It was understood that the traditional rules concerning sovereignty did not apply to outer space.22 In the years following that, the adoption of the five UN space treaties is a significant evidence of opinio juris, and no state has indeed claimed sovereignty over an area on the Moon, thereby adhering to the non-appropriation principle. So, while treaty provisions primarily govern space law, customary obligations have now been established, which shall come into play, in the event that a state decides to withdraw from the Outer Space Treaty. The fact that 109 states have ratified the treaty, considering it a legal obligation to protect this common province of mankind, which also includes the moon, is sufficient evidence of opinio juris.23 A complication, however, arises with the lack of support for the Moon Treaty, which directly proclaims the Moon as the common heritage of mankind. There are only 18 states that are currently parties to the Moon Treaty, and major space-exploring states, including the United States, Russia, China, and a majority of the member states of the European Space Agency have not ratified the treaty, making it highly unlikely for a custom to be formed, based on the treaty provisions, and henceforth, there is a significant lack of evidence for both state practice and opinio juris.

18 International Law Association, ‘Final Report of the Committee, Statement of Principles Applicable to the Formation of General Customary International law (London Conference, 2000) part III, para. 16, as cited in A Henriksen, International Law (OUP, 2017) 27. 19 Abigail D. Pershing, ‘Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today’ (2019) 44 Yale J Int’l L 154. 20 R. S. Jakhu and S. Freeland, ‘The Relationship Between the Outer Space Treaty and Customary International Law’ (2016). Available at SSRN: https://ssrn.com/abstract=3397145 or http://dx.doi. org/10.2139/ssrn.3397145. 21 Ibid. 22 Ibid. 23 Outer Space Treaty, Art. I.

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8.3.1 Province of All Mankind Versus Common Heritage of Mankind Differing interpretations exist, on the relation between the province of all mankind clause in Art. I of the Outer Space Treaty, and the common heritage of mankind clause in Art. 8 of the Moon Treaty.24 There are three different interpretations that have emanated, due to political considerations. The province of all mankind clause appears in the Outer Space Treaty, but during the negotiations to conclude the UN Convention on the Law of the Sea (hereafter UNCLOS), the clause common heritage of mankind was used instead, when referring to oceanic resources, and the clause was then transposed into the Moon Treaty. For the bloc led by the United States, the terms province of all mankind and common heritage of mankind were indistinguishable, and were considered to be an expansion of the res communis humanitatis principle, which affirms that a common heritage is not owned by any nation, but from which all nations can garner profits, and have an obligation to protect.25 The second bloc, in the 1970s, was led by the Soviet Union (later succeeded by Russia), which did not wish to accept the maxim of common heritage, owing to its links to Roman law, that had a bourgeouis affiliation.26 The Least Developed Countries (hereafter LDCs), many of whom had recently attained independence in the 70 s, when defining the province of all mankind, believed that it hinted at all nations having vested rights in common resources, which must be shared equitably among them. So, the LDCs led the movement in replacing the province of all mankind with the common heritage of mankind clause, during the UNCLOS negotiations.27 It is also fascinating to consider the strategic distinction that exists between the two concepts, in the sense that the province of mankind provision in Art. 1 of the Outer Space Treaty connotes to activities (exploration and use), and the common heritage provision in Art. 8 of the Moon Treaty addresses material objects on the moon.28 But a strategic difference does not negate that the common heritage provision has evolved from the province of mankind provision. With the considerable opinio juris that exists, relating to the acceptance of the provisions of the Outer Space Treaty, at the very least, it can be concluded that a custom has been formed, that establishes all bodies in the outer space, including the Moon, as the province of all mankind. Nations, therefore, have an obligation to ensure that their exploration activities do not cause damage to this common province, as that would then hamper the exploration interests of other nations. 24 Outer

Space Treaty, Art. I; Moon Treaty, Art. 8.

25 J I Gabrynowicz, ‘The “Province” and “Heritage” of Mankind Reconsidered: A New Beginning’

(1992) NASA Conference Publication 3166, 692. 26 Ibid. 27 Ibid. 28 Art. I, Outer Space Treaty; Art. 8, Moon Treaty, as cited in J I Gabrynowicz, ‘The “Province” and “Heritage” of Mankind Reconsidered: A New Beginning’ (1992) NASA Conference Publication 3166, 692.

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8.4 Applicability of the World Heritage Convention to Sites on the Moon Even though the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty to call for the protection of cultural heritage, it is primarily applicable during a situation of armed conflict, and was concluded, bearing in mind the damage caused to cultural heritage during the Second World War.29 It would, therefore, be an over-inclusive interpretation, to attempt to apply these provisions to the protection of cultural heritage on the moon, considering that there is no immediate risk of an armed conflict breaking out in outer space. Hence, the article shall focus on the provisions of the World Heritage Convention. The World Heritage Convention, adopted in 1972, places obligations upon member states to engage in the protection of both the common natural and cultural heritage of mankind.30 The complication with applying the World Heritage Convention to sites on the Moon becomes apparent in Article 3 of the Convention, which attaches a territorial character to the protection of cultural heritage, as each state is required to identify and delineate the different properties situated on its territory, which qualify as either natural or cultural heritage, under Articles 1 and 2. With regards to lunar heritage, the definition of heritage ‘sites’ under Article 1 of the Convention could potentially be applied, as sites are considered to be works of man (or combined words of man and nature), which are of outstanding universal value, from the historical, aesthetic, ethnological or anthropological point of view. Tranquillity Base, from this perspective, could be considered as a work of man, which has outstanding historical value, of being the record of man’s first steps on the moon.31 But the problem remains that the United States cannot claim Tranquillity Base as to being situated on its territory, owing to the non-appropriation principle. Articles 4, 5 and 6 of the Convention, while placing numerous obligations upon states to protect the world’s cultural heritage, still require for that form of heritage to be located within their respective territories.32 The Convention, in its entirety, even under Article 7, which calls for the establishment of a system of international cooperation for the protection of cultural and natural heritage, refers to heritage that states can identify, that exist within their own territory.33 On that account, it is not quite feasible to apply the provisions of the World Heritage Convention to the protection of lunar heritage, as such an over-inclusive interpretation would undermine the purpose of the Convention, which is to enable state 29 Convention for the Protection of Cultural Property in the Event of Armed Conflict (signed 14 May 1954, entered into force 7 August 1956) 249 UNTS 215. 30 Convention for the Protection of the World Cultural and Natural Heritage (signed 16 November 1972, entered into force 17 December 1975)1037 UNTS 151 (World Heritage Convention). 31 A. J. DiPaolo, ‘Space law and the protection of cultural heritage: The uncertain fate of humanity’s heritage in space’ (LLM, McGill University 2013). 32 World Heritage Convention, Art. 4, 5, 6. 33 World Heritage Convention, Art. 7.

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parties to better protect the heritage sites located within their territory, by elevating such heritage sites and objects to the standard of world heritage.

8.5 Existence of a Custom for the Protection of Cultural Heritage on the Earth Even though preservation of their own cultural heritage has been practised by states for centuries, cultural heritage has also often been destroyed by an invading empire, or cultural properties have been seized as exploits of war. Even the colonial era that predated the creation of the UN involved the seize of cultural artefacts by the colonial powers, from their colonies. So, it is not quite possible to accurately determine the existence of a custom for the protection of cultural heritage on the earth, prior to the adoption of the World Heritage Convention. So, once again, we shall consider the possibility of a treaty giving rise to a custom. In the previous section, we have concluded that the provisions of the World Heritage Convention cannot be applied to the protection of lunar heritage sites, owing to the territorial constraint. Nevertheless, it is still possible that the Convention may have materialised into an international custom, and that this custom, may be distinct from its source treaty, in the fact that it may not hint towards a territorial constraint on the preservation of cultural heritage. Non-binding declarations or resolutions of UN bodies can also be evidence of state practice, as has been noted by the ILC.34 Conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference is also believed by the ILC, as being a relevant evidence of opinio juris.35 The General Conference of UNESCO has adopted several declarations, including the Recommendation Concerning the Protection at National Level, of the Cultural and Natural Heritage, in 1972, along with the World Heritage Convention.36 Following the damage inflicted on the statues of the Buddha at Bamiyan, Afghanistan, by the Taliban in 1998–99, the General Assembly of State Parties to the World Heritage Convention adopted a resolution on the protection of cultural heritage in Afghanistan, which reaffirmed provisions enshrined in the World Heritage Convention.37 The General Conference of UNESCO had then also adopted a resolution on ‘Acts constituting a crime against the common heritage of mankind’, which again called upon member states to become parties to conventions, including the World 34 ILC, ‘Draft conclusions on identification of customary international law, with commentaries’ [2018(2–2)] Yearbook of ILC, conc. 4. 35 Ibid., conc. 10. 36 General Conference of UNESCO, ‘Recommendation Concerning the Protection at National Level, of the Cultural and Natural Heritage’ (16 November 1972, adopted during the 17th session). 37 General Assembly of State Parties to the World Heritage Convention, ‘Resolution on the protection of cultural heritage of Afghanistan’ (adopted at its 13th session in Paris, 30–31 October 2001), as cited in R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53(1) The International and Comparative Law Quarterly 189, 196.

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Heritage Convention, that would enable them to maximise the protection of the cultural heritage of humanity.38 Even prior to the confirmation of the destruction of the Buddhas, the UN General Assembly, through resolutions 53/203A, 54/185A, 55/174A and 55/243A, had constantly reiterated that relics and monuments of Afghanistan belonged to the common heritage of mankind, and had to be protected.39 In 2003, when the General Conference of UNESCO adopted the Declaration concerning the Intentional Destruction of Cultural Heritage, a preambulatory clause of the resolution read as, “Mindful of the development of rules of customary international law as also affirmed by the relevant case-law, related to the protection of cultural heritage in peacetime as well as in the event of armed conflict…”.40 With the distinct wording of the 2003 UNESCO Declaration, we observe a pattern, in all the legally non-binding documents that have been adopted before it, all of which call for the protection of the common cultural heritage of mankind. And the fact that the 2003 Declaration points to the existence of customary rules for the protection of cultural heritage, provides evidence of the materialisation of an international practice concerning the protection of cultural heritage. And the adoption of the Declaration by the General Conference, by the member states of UNESCO, that were still around 190 at the time, does satisfy the opinio juris requirement, as all member states of UNESCO, through the adoption of this Declaration, recognised the existence of the customary obligation to protect the common heritage of mankind. While some form of an international custom for the protection of the common heritage of mankind may have surfaced, it is still bound by the territorial restriction, as the provisions under the Convention are. All the declarations adopted reaffirm the principles under the Convention, and have tried to enable the national protection of cultural heritage by states, with the assistance of the international community. It is, therefore, not possible to apply the state practice or the opinio juris of such a custom to the realm of protection of lunar heritage sites, as both of these elements are rooted in the foremost obligation of states to protect the heritage sites within their territory. Even the international community is required to assist states in the protection of their territorial cultural heritage.

8.6 Conclusion: The Way Forward The unique legal status of the moon, as a province of mankind, which cannot be appropriated by any sovereign nation, renders any cultural heritage protection rules 38 General Conference of UNESCO, ‘Acts constituting a crime against the common heritage of mankind’ (adopted in Paris during its 31st session on 26 November 2001). 39 UNGA Res 53/203A, 54/185A, 55/174A and 55/243A, as cited in R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53(1) The International and Comparative Law Quarterly 189, 197. 40 General Conference of UNESCO, ‘Declaration concerning the Intentional Destruction of Cultural Heritage’ (adopted in Paris during its 33rd session on 17 October 2003).

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applicable to sites on earth useless, as regards their application to lunar heritage sites. Yet another subject of concern is that, no specific site on the moon has yet been recognised as a cultural heritage site. Lunar heritage sites will need to be defined, and recognised, before the world proceeds with the formulation of distinctly defined rules for their protection. In the event that a state suddenly wishes to withdraw from the Outer Space Treaty, enough customary obligations have materialised to, at a minimum level, guarantee the protection of this common province of all mankind, that is the moon, as far as exploration activities in space are concerned. Tranquility Base, for instance, cannot be destroyed by another nation through their exploration activities, as it would be against United States’ interest. So, in that respect, each state may be able to protect their own lunar heritage sites as against the exploration activities of other states, as long as the protection of that site is representative of their interest. There is a starting safeguard in place, but in order to proceed, the international community will need an agreement similar to the Moon Treaty, but with more specific provisions, and one that is able to garner the support of more than 18 state parties.

Parthabi Kanungo is currently pursuing her Bachelor in European Law at Maastricht University, in the Netherlands. Hailing from India, she tries to incorporate a sense of comparative reasoning into every law topic that she comes across. Space law particularly appeals to her because she sees it as the best testament to the law’s ability of adapting to regulate an ever-changing world. In addition to academic research, she is interested in Model UNs, debating and content development. She intends to specialise in international humanitarian law.

Chapter 9

Lunar Seismic Experiments: A Legacy Which Deserves to Be Remembered Christoffel Kotze

Abstract Over the years a number of experiments have reached the surface of the Moon all which should be considered as important reminders of human achievement. Though each functional object deployed on the Lunar surface has its own significance, a number of experiments were of particular importance, such as a network of seismic instruments. Deployed over a number of missions it contributed immensely to the understanding of the internal structure of the Moon. The data is still valuable to the present day as new analysis techniques provide new ways for it to yield information. The Apollo mission series, famous for placing the first humans on the Lunar surface has also been the biggest contributor to the body of knowledge regarding Lunar seismology a fact that deserves to be remembered. This brief overview aims to provide insight into the different seismic experiments and the missions involved.

9.1 Introduction In mid-September of 1959, the first object launched from Earth to reach the surface of the Moon in the form of Luna 21 (launched by the USSR) crashed into the Mare Imbrium. It is estimated that since that first encounter, more than 180 tonnes2 of Earth originated material has been deposited on the surface on the Moon, many consisting of what can be considered as discarded junk but also a significant number of functional artefacts serving as mementos of human ingenuity. Amongst the first objects reaching the surface in the “early” years of Lunar exploration was number of scientifically significant experiments dedicated to Lunar seismology, the data of 1 D. Valjak, ‘A Soviet Space Probe Reached and Crashed into the Moon 10 Years Before Apollo 11’, 19 March 2018. https://www.thevintagenews.com/2018/03/19/luna-2/. Accessed 9 September 2019. 2 S. Nicholson, ‘The Moon is Covered With 400,000 lb of Human Trash’, 1 February 2018. https:// interestingengineering.com/the-Moon-is-covered-with-400000-pounds-of-human-trash. Accessed 9 September 2019.

C. Kotze (B) NOEZ Strategic Advisory, Cape Town, South Africa e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_9

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which it collected is still significant and valuable to the present day. A series of Lunar seismology experiments designed to collect data in situ on the Lunar surface was installed over a number of missions, those successfully deployed laying the foundation for the current understanding of the Moon’s internal structure. Though not as glamorous as the more well-known Lunar exploits such as putting humans on the Moon, successful robotic Lunar sample retrievals and deploying a rover on the far side of the Moon it is of extreme significance which deserves to be remembered. The purpose of this piece is to provide an overview of the different experiments carried by various missions over the years which had the intended purpose of collecting Lunar seismic data; both successfully deployed and those unfortunate failures.

9.2 Seismology–A Brief Introduction Seismic waves can be generated by many different sources including explosions, supersonic planes, movement of people and vehicles though it is mostly associated with Earthquakes.3 Typically Earthquakes are associated with destruction and indeed the phenomenon has brought with it great tragedy through the ages, but there is another side to it. Through the study of Earthquakes i.e. seismology Earthquakes can tell a tale, exposing what is hidden beneath the Earth. This study involves the detection and recording of elastic4 waves which are known as seismic waves generated by Earthquakes or other sources. These waves can generally be classified being as one of four main types5 : • P—waves; are the first to arrive from the effect, known as the primary waves. These compressional waves creates an effect in both the opposing and the same direction as what the wave is travelling and creates a change in the volume of the seismic body. • S—waves; are transverse creating an effect perpendicular to the direction of the wave propagation and are the second to arrive. Also known as shear waves as it does not cause volumetric changes in the propagation body but rather shear it. • Love—waves; these transverse surface waves cause an effect perpendicular to the direction of the wave itself. • Rayleigh—waves; Also a surface wave, create an effect (shaking) neither perpendicular or transverse but rather as an elliptical motion. P-waves are fast and can propagate through liquid and solid materials. S-waves on the other hand are much slower waves which cannot propagate through liquids. The speed that both wave types travel will thus be influenced by the nature of the 3 C.J.

Ammon, ‘Waves, Seismograms, and Seismometers.’. http://eqseis.geosc.psu.edu/~cammon/ HTML/Classes/IntroQuakes/Notes/seismometers.html. Accessed 9 September 2019. 4 M. Sampaolo, ‘Elastic waves’, Encyclopaedia Britannica, 25 October 2016. https://www. britannica.com/science/elastic-wave. Accessed 9 September 2019. 5 United States Geological Survey, ‘Earthquake Glossary’. https://Earthquake.usgs.gov/learn/ glossary/. Accessed 11 September 2019.

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propagation material. The value of seismic waves is thus that they can create an image of the inside of a seismic body by taking into account the physical capabilities of the waves. By placing sensors around the world and measuring the different types of waves scientists were able to make certain deductions about the internal structure of the Earth such as the Earth has a solid inner core but a solid outer core.6 Apart from the purely scientific applications, seismology creates opportunity for many practical applications. By understanding more about Earthquakes and the travel path of the resulting seismic waves it allows for the creation of predictive models which can be used in turn for risk7 mitigation. Engineers can use the data to design buildings to minimize damage, emergency planners can use the models to warn potentially affected communities ahead of time e.g. tsunami warnings. Seismic wave patterns can also be used to gather strategic intelligence to distinguish between natural phenomena such as Earthquakes and volcanic activity and explosions e.g. to detect nuclear bomb detonations based on the unique seismic wave signature associated with it.8 Core to the science of seismology is a set of tools to detect end record the seismic waves in the form of seismic instruments.

9.2.1 Seismic Instruments The first instrument used to detect Earthquakes known as a “seismoscope” was invented in China (132 C.E.) credited to the astronomer Chang Heng.9 The device, on detection of a quake, alerted the minder of the machine by making a sound who could then determine the direction of the quake, a later iteration added the ability to measure intensity as well. As new technology presented itself it provided the opportunity for the original “seismoscope” to evolve in the to the modern “seismograph” the go-to instrument of the seismologist. A Seismograph is used to record seismic activity, it typically incorporates a seismometer which is the “active” component allowing for the detection of the seismic waves created by the disturbance. In its basic form it consists out of a stationary and non-stationary component which is connected to each other and mechanisms allowing the measurement of the relative movement between the two components to be recorded. A typical device will have a frame to which a heavy pendulum is connected via a spring. The frame is fixed to the ground which will subsequently move during a disturbance, whilst the pendulum will remain stationary due to inertia, the spring connecting it to the frame will allow the movement to be 6 A.

Mussett & M.Khan, ‘Looking into the Earth: an introduction to geological geophysics’, Cambridge University Press, 2000. 7 Seismology Research Centre, ‘Why Monitor Earthquakes?’. https://www.src.com.au/Earthquakes/ seismology-101/why-monitor-Earthquakes/. accessed 13 September 2019. 8 Berkely Seismology Lab, ‘Of Nuclear Bombs and Earthquakes’, 25 May 2009. https://seismo. berkeley.edu/blog/2009/05/25/of-nuclear-bombs-and-Earthquakes.html. Accessed 13 September 2019. 9 UPSeis, ‘How Are Earthquakes Studied?’. UPSeis: http://www.geo.mtu.edu/UPSeis/studying. html. Accessed 13 September 2019.

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Fig. 9.1 Principle of the basic seismograph. (Graphic courtesy of the author)

transferred to a recording device via a stylus connected to the pendulum to produce a representation of the seismic wave pattern also known as a seismogram (Fig. 9.1). A technique to interpret seismographs (using the logarithm of the seismic wave’s amplitude) to express the magnitude of an Earthquake in a standardized way, was developed by C.F. Richter in 1935 is still in use today, commonly known as the “Richter” scale.10

9.3 Lunar Seismology Missions This section briefly explores the various Lunar missions which carried dedicated seismology instruments. Though most of the missions were successful and created a body of knowledge on Lunar seismology, there were those that did not succeed but still deserves a mention for the record. Figure 9.2 aims to provide a summary glance of the different missions of seismological significance through a number of mission “buttons. The inside circle of the button contains the country flag, middle (white circle) on the top contains the seismology experiment pack/s with the bottom indicating the type of instrument collection. The color ring communicates the mission contribution to the Lunar seismology body of knowledge; green meaning a high degree of seismology contribution, orange equals some contribution and red indicating a failure to contribute.

10 T.

Harris & P.J. Kiger, ‘How Stuff Works - How Earthquakes Work’. https://science. howstuffworks.com/nature/natural-disasters/Earthquake6.htm. Accessed 13 September 2019.

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Fig. 9.2 The lunar seismology missions. (Graphic courtesy of the author)

9.3.1 Ranger 3 The first USA mission destined to land on the Lunar service was Ranger 3, a “rough lander” type mission, launched on 26 January 1962. The craft was equipped with an instrument payload which included a basic seismometer as well as an imaging system, gamma ray spectrometer and a radar altimeter.11 The mission unfortunately was not successful as it failed to enter the Lunar orbit causing the craft to fly past the Moon subsequently failing to land. The 3.6 kg seismology instrument transported on the mission was to provide basic recordings which could subsequently be transmitted back to Earth. A unique point of interest regarding the instrument pack; it was packed into a unique 650 mm spherical container constructed out of balsawood (arguably the first wood structure in space) designed to protect the pack from the impact of landing on the Lunar surface.12

11 Jet Propulsion Laboratory, ‘Mission to the Moon - Ranger 3’. https://www.jpl.nasa.gov/missions/

ranger-3/. Accessed 14 September 2019. 12 C.A. Scharf, ‘The First Wooden Spacecraft’, Scientific American 29 October 2017. https://blogs.

scientificamerican.com/life-unbounded/the-first-wooden-spacecraft/. Accessed 5 October 2019.

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9.3.2 Ranger 4 Also launched in 1962 the second of the Ranger missions destined for a Lunar landing, Ranger 413 unfortunately also ended in failure, although it did actually become the first United States spacecraft to reach the Lunar surface. It hard landed on the far side of the Moon in an unfortunate uncontrolled crash landing. It carried a similar instrument pack than Ranger 3 (imaging system, gamma ray spectrometer, radar altimeter and single axis-seismometer) enclosed in a balsawood container which was to be dropped onto the Lunar surface by the craft. Failure of the on-board computer caused a number of failures preventing the successful completion of the mission and causing the spacecraft to impact the Lunar surface at high speed, estimated in the region of 9600 km per hour.14 It remained the only the only15 spacecraft launched from Earth to reach the far side of the Moon until the successful landing of the Chinese craft China’s Chang’e-416 which landed on 3 January 2019.

9.3.3 Ranger 5 Launched in October 1962, the third of the Ranger series of intended landers, Ranger 517 sadly suffered a similar fate than Ranger 3 and 4. With a similar instrument pack it also failed to contribute any seismology data due to the spacecraft missing the Moon, the result of a power loss caused by battery drainage, remaining trapped in a heliocentric orbit to the present.

9.3.4 Apollo 11 On the 25 May 1961 President John F. Kennedy, in a presentation to a joint session of the United States Congress, presented the following challenge- “I believe that this nation should commit itself to achieving the goal, before this decade is out, 13 Jet Propulsion Laboratory, ‘Mission to the Moon - Ranger 4’. https://www.jpl.nasa.gov/missions/

ranger-4/. Accessed 14 September 2019. Science, ‘Ranger 4 in depth’. https://solarsystem.nasa.gov/missions/ranger-4/in-depth/. Accessed 16 September 2019. 15 L. David, ‘With First-Ever Landing on Moon’s Farside, China Enters “Luna Incognita”’, Scientific American, 21 December 2018. https://www.scientificamerican.com/article/with-first-ever-landingon-Moons-farside-china-enters-luna-incognita/, 15 September 2019. 16 R.A. Lovett, ‘Spacecraft’s descent on the dark side of the Moon is revealed’, Cosmos Magazine. https://cosmosmagazine.com/space/where-did-it-go-spacecraft-s-descent-on-the-farside-ofthe-Moon-unveiled. Accessed 15 September 2019. 17 Jet Propulsion Laboratory, ‘Mission to the Moon - Ranger 5’. https://www.jpl.nasa.gov/missions/ ranger-5/. Accessed 14 September 2019. 14 NASA

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of landing a man on the Moon and returning him safely to the Earth.18 ” On 20 July 1969 this goal was reached when Apollo 11’s Lunar landing module “Eagle” touched down successfully in the Sea of Tranquillity on the Lunar surface, allowing Neil Armstrong to utter the now famous line “…one small step for a man, one giant leap for mankind.19 “ A perhaps lesser known fact of this famous mission is that the Lunar lander also carried the first seismology instrument pack to reach the Moon in one piece, in the form as part of the Early Apollo Surface Experiments Package (EASEP20 ). The EASEP weighing in at 48 kg included a number of instruments mounted on a square base which was powered by solar panels, meaning it could only work during the Lunar day, during which it could collect and record data and transmit it back to Earth stations using an integrated communications module. Importantly it contained a seismology experiment in the form of the Passive Seismic Experiment Package (PSEP21 ). The instrument consisted of four (one short-period and three long-period) seismometers designed to detect Lunar quakes, meteorite impacts and any other Lunar surface\sub-surface seismic activity.22 The seismometers were all capable of measuring ground displacement in all three possibilities namely; east to west, north to south and up/down with the ability to determine location and time of the seismic event. EASEP was manually placed in position by the astronauts, about 17 m south of the landing zone of the Lunar landing module and remotely activated by the ground command. PSEP collected data during Lunar days and was terminated on 27 August 1969 thus having a very short functional life yet providing valuable data. It was an incredibly sensitive instrument detecting the footsteps of the astronauts on the Lunar surface and even inside the Lunar module.23 Due the extreme temperatures the PSEP had to endure during the Lunar night (up to −175 °C) it had an integrated heating system24 powered by the decay of a small amount of plutonium 238, to keep components at a workable temperature (above −54 °C). Recording amongst others up to 200 meteorites impacts, Moon quakes and more importantly it recorded data on

18 Smithsonian

National Air and Space Museum, ‘The Moon Decision’. https://airandspace.si.edu/ exhibitions/apollo-to-the-Moon/online/racing-to-space/Moon-decision.cfm. Accessed 19 September. 19 N. Wolchover, ‘”One Small Step for Man”: Was Neil Armstrong Misquoted?’. https://www.space. com/17307-neil-armstrong-one-small-step-quote.html. Accessed 19 September 2019. 20 NASA Space Science Data Coordinated Archive, ‘Apollo 11 Lunar Module/ EASEP’. https:// nssdc.gsfc.nasa.gov/nmc/spacecraft/display.action?id = 1969-059C. Accessed 19 September 2019. 21 Lunar and Planetary Institute, ‘Apollo 11 Science Experiments – Passive Seismic’. https://www. lpi.usra.edu/Lunar/missions/apollo/apollo_11/experiments/pse/. Accessed 19 September 2019. 22 NASA Science Resources, ‘Apollo 11 Seismic Experiment’. https://Moon.nasa.gov/resources/ 13/apollo-11-seismic-experiment/. Accessed 20 September 2019. 23 Apollo Lunar Surface Journal, ‘Apollo 13 – The Second ALSEP’. https://www.hq.nasa.gov/alsj/ a13/A13-ALSEP.pdf. Accessed 20 September 2019. 24 World Nuclear News, ‘Viewpoint: Nuclear’s small role in humanity’s biggest adventure’ 18 July 2019. http://world-nuclear-news.org/Articles/Nuclears-small-role-in-humanitys-biggestadventu. Accessed 20 September 2019.

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the propagation of Lunar seismic waves, providing the first insight into the internal structure of the Moon.

9.3.5 Apollo 12 Apollo12 was the second crewed mission to the Moon and the Lunar module “Intrepid” landed successfully in Oceanus Procellarum25 on the Lunar surface on 19 November 1969. This mission carried a more comprehensive collection of instruments for scientific experiments than Apollo 11 namely the Apollo Lunar Surface Experiment Package (ALSEP). A “central station” provided communications and power to the various experiments tethered to it, and also served as the communications link to Earth via a modified axial-helical antenna mounted on top of the central station. Importantly the power source used by this “central station” was not solar but rather a radioisotope thermoelectric generator (RTG). Known as the SNAP-2726 RTG it worked on the principle of the Seebeck27 effect (conversion of differences in temperatures into voltage) using the heat released by the decay of a radioactive material as source which allowed a much longer experiment lifetime and thus a greater contribution to the body of Lunar seismic knowledge. Important from the point of view of this article, part of the ALSEP28 package included a seismic experiment in the form of the Passive Seismic Experiment (PSE29 ). This was a more advanced version of the type deployed in Apollo 11 but served basically the same purpose namely detect and record the propagation of Lunar seismic waves. Consisting of a single vertical short-period element and three orthogonal long-period elements, the instrument was capable to detect and measure30 ; • Free oscillations and tidal deformations. • Frequency amplitude and attenuation. • Natural seismic wave velocity. The major difference between the seismic instrument deployed with ALSEP was that it was not solar powered but powered by the RTG thus allowing the instrument to 25 Lunar and Planetary Institute, ‘Apollo 12 Mission- Landing Site Overview’. https://www.lpi.usra.

edu/Lunar/missions/apollo/apollo_12/landing_site/. Accessed 22 September 2019. Radio Isotope Power Systems, ‘Legacy Power Systems’. https://rps.nasa.gov/power-andthermal-systems/legacy-power-systems/. Accessed 22 September 2019. 27 V. Vaidyanathan, ‘What Are The Seebeck Effect And The Peltier Effect?’, Science ABC, January 2019. https://www.scienceabc.com/pure-sciences/what-are-the-seebeck-effect-andpeltier-effect.html. Accessed 22 September 2019. 28 NASA Space Science Data Coordinated Archive, ‘Apollo 12 Lunar Module/ ALSEP ‘. https:// nssdc.gsfc.nasa.gov/nmc/spacecraft/display.action?id = 1969-099C. Accessed 23 September 2019. 29 Lunar and Planetary Institute, ‘Apollo 12 Science Experiments – Passive Seismic’. https://www. lpi.usra.edu/Lunar/missions/apollo/apollo_12/experiments/pse/index.shtml. Accessed 23 September 2019. 30 Apollo Lunar Surface Journal, ‘ALSEP Handook for Apollo 12 Crew’. https://www.lpi.usra.edu/ Lunar/ALSEP/pdf/31111000673218.pdf. Accessed 23 September 2019. 26 NASA

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work during the Lunar night as well. The RTG units proved much more reliable than the initial two year specified design life, with some ALSEP stations able to operate up to eight years.

9.3.6 Apollo 13 The Apollo 13 was the third in the series of crewed Lunar landing missions, was launched on 11 April 1970 and aborted on 13 April 1970 due to an oxygen tank failure. Similar to the previous mission it was also equipped with the ALSEP that contained a similar Passive Seismic Experiment (PSE) to be placed on the Lunar surface with the purpose to detect and record seismic data albeit from a different region of the Moon. Though the Lunar module “Aquarius” unfortunately never touched down on the Lunar surface and thus did not have the opportunity to deploy its ALSEP, it did manage to contribute to the seismic experiment series. This involved putting parts of the Apollo 13 space “junk” to use in conjunction with the equipment left behind on the Lunar surface by Apollo 12. In short the experiment involved crashing the third stage of the launch vehicle into the Lunar surface and recording the seismic signals with the PSE set up by the Apollo 12 crew. The trajectory of Apollo’s 13 S-IVB (third stage of the Saturn V rocket) was calculated to allow it to crash into a designated target site on the Lunar surface, as opposed to just flying into space, as was the case with previous missions.31 The impact of the vehicle at the target site thus became a predictable event that could be recorded by the seismic instruments already on the surface.

9.3.7 Apollo 14 The Apollo 14 Lunar module “Antares” touched down successfully on 5 February 1971 on the surface of the Moon near the Fra Mauro crater on the Lunar highlands.32 The craft contained a much more extensive version of the ALSEP with a cluster of scientific experiments - this time including two seismology instrument packages.33 In addition to the now familiar PSE included in the previous two missions it now also included an “active” experiment as opposed to the “passive” nature of the PSE included on the previous missions. The Active Seismic Experiment (ASE) allowed for the “active” creation of a seismic event on demand through the detonation of a 31 Lunar

and Planetary Institute, ‘Apollo 13 Mission- Science Experiments’. https://www.lpi.usra. edu/Lunar/missions/apollo/apollo_13/experiments/. Accessed 28 September 2019. 32 Lunar and Planetary Institute, ‘Apollo 14 Mission- Landing Site Overview’. https://www.lpi.usra. edu/Lunar/missions/apollo/apollo_14/landing_site/. Accessed 28 September 2019. 33 Lunar and Planetary Institute, ‘Apollo 14 Mission- Science Experiments’. https://www.lpi.usra. edu/Lunar/missions/apollo/apollo_14/experiments/as/index.shtml. Accessed 28 September 2019.

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number of small explosives charges. The objective of this experiment was to gain insight into the first couple of hundred meters of the Moon’s internal structure (up to 460 m). The explosive charges were delivered by the astronaut using a device called a “thumper,” in total 21 charges were prepared but a number misfired. The seismic P-waves caused by the explosions were subsequently detected and measured by a preinstalled geophone network. The thumper resembled a “walking stick” with the bottom end housing the explosive charge which was detonated in the ground, triggered by the astronaut. The “thumper” and network of geophones (essentially miniature seismometers) were connected by cable to the central station of the ALSEP where the recorded waves were amplified logged and transmitted back to Earth. In addition to the “thumper” delivered explosives, the experiment also proved a high explosive component in the form of four grenades which was planted almost 100 m from the Lunar module and was to be detonated from Earth, it was never executed due to safety concerns.

9.3.8 Apollo 15 Lunar module “Falcon” touched down successfully on the Lunar surface near the eastern edge of the Mare Imbrium on 30 July 1971.34 The Apollo 15 mission included major design changes over the previous missions to maximise data collection. The mission was the first to introduce the Lunar rover35 which allowed the astronauts to cover a greater ranges with more instruments. The Apollo 15 ALSEP36 included a more extensive range of scientific experiments including a PSE which was deployed on 31 July 1971 a couple of meters west of the ALSEP central station. Similar to those included in the previous missions, Apollo 15’s PSE was primary constructed using beryllium. Housed in a basic cylindrical container which rested on a levelling base the whole unit (including the base) was covered in a thermal shroud. Mounted on top of the shroud in top-centre of the unit was mounted, a gnomon in addition to a level sensor. A small heater in conjunction with the aluminized “Mylar” thermal shroud kept the instrument within the correct operating temperature range. As with previous versions the unit contained a single “short-period” seismometer for measuring vertical motion and three long-period seismometers in a triaxle arrangement to measure vertical and horizontal motion. Since the horizontal seismometers were extremely tilt sensitive it had to be levelled, which could be done from Earth using a motorized gimbal mount. The seismometers were sensitive to ground movement of as little as 0.3 nm and could measure gravitational acceleration sensitive to 0.008 mGal. 34 Lunar and Planetary Institute, ‘Apollo 15 Mission- Landing Site Overview’. https://www.lpi.usra.

edu/Lunar/missions/apollo/apollo_15/landing_site/. Accessed 28 September 2019. Space Science Data Coordinated Archive, ‘The Apollo Lunar Roving Vehicle’. https:// nssdc.gsfc.nasa.gov/planetary/Lunar/apollo_lrv.html. Accessed 28 September 2019. 36 NASA Space Science Data Coordinated Archive, ‘Apollo 15 Lunar Module/ALSEP’, < https:// nssdc.gsfc.nasa.gov/nmc/spacecraft/display.action?id = 1971-063C > 28 September 2019. 35 NASA

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The instrument was calibrated using external sources in the form of the impact of the discarded S-IVB as well as the Lunar module ascent stage. The PSE encountered some thermal control issues mid-August 1971 due to thermal leaks, resulting in the loss of some tidal data, other data collection was not affected and the instrument collected data up to 30 September 1977 (see Footnote 37) when it was finally shutdown. Apollo 15’s last Moon excursion included a very practical demonstration of Galileo’s deduction that all objects fall at the same rate; when a television camera recorded a hammer and a feather dropped by Commander David Scott, connecting the Lunar service simultaneously.37

9.3.9 Apollo 16 Apollo 16 was the first crewed craft to land in the central Lunar highlands west of the Descartes Mountains38 on April 21, 1972. It was the second of the extended mission capacity missions and eventually provided in excess of 20 h surface time for the crew. The mission included an extensive ALSEP instrument package including two seismic experiments. The first experiment set was the ASE (active) similar to that of Apollo 14 in that it also used a number of small explosives to provide a predictable seismic event and record the resulting seismic waves the second seismic experiment a PSE (passive). As with previous missions the goal of the ASE was primarily to collect data to build understanding of the Lunar surface/sub-surface physical construction and properties. Similar to the previous version it used a “thumper” device to effect the explosions which was then picked up by the geophone network all connected to the ALSEP central station powered by a RTG. The ASE39 monitored natural seismic waves as well that fell within the range calibrated for the explosive charges. A thumper was loaded with 21 standardized explosive sets (not dissimilar to a shotgun shell) of which 19 was discharged at 5 meters intervals. A set of high-explosive charges in the form of four rocket propelled grenades which were deployed from a “mortar box,” activated from Earth via radio control only after the safe departure of the astronauts. These grenades were intended to impact four target sites respectively 150, 300, 900 and 1500 meters away from the launch site, of which three were successfully deployed. The second seismic package was a PSE40 similar to previous missions but importantly added another source to detect seismic waves in a different Lunar location. As with 37 NASA

Space Science Data Coordinated Archive, ‘The Apollo 15 Hammer-Feather Drop’, < https://nssdc.gsfc.nasa.gov/planetary/Lunar/apollo_15_feather_drop.html > 28 September 2019. 38 Lunar and Planetary Institute, ‘Apollo 16 Mission- Landing Site Overview’. https://www.lpi.usra. edu/Lunar/missions/apollo/apollo_16/landing_site/. Accessed 28 September 2019. 39 Lunar and Planetary Institute, ‘Apollo 16 Mission Science Experiments - Active Seismic’. https://www.lpi.usra.edu/Lunar/missions/apollo/apollo_16/experiments/as/. Accessed 29 September 2019. 40 Lunar and Planetary Institute, ‘Apollo 16 Mission Science Experiments - Passive Seismic’, < https://www.lpi.usra.edu/Lunar/missions/apollo/apollo_16/experiments/ps/> .

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previous missions it was calibrated by the third stage of the Saturn 5 launch vehicle and the ascent stage of the Lunar module, deliberately crashed into the Lunar surface.

9.3.10 Apollo 17 Apollo 17 was the last of the Apollo craft to land on the Moon and to date the last crewed craft to visit the Lunar surface. On 11 December 1972 the Lunar module “Challenger,” touched down in the Taurus-Littrow41 valley which is located in the highlands at the rim of the Serenitatis basin. Although it carried a number of experiments as part of the ALSEP only a single seismic experiment, in the form of the Lunar Seismic Profiling Experiment (LSPE42 ) was included, no PSE was included on the mission. The primary purpose of this experiment was to gain detailed insight into the structure of the first subsurface kilometre of the Moon’s crust, though it ultimately yielded detail of the Lunar geology of depths up to 3 km. The experiment consisted out of four geophones with its own sub-module, a number of marker flags, a dedicated electronics packaged in the central station, its own antenna and transmitter and a total of eight explosive charges. The astronauts manually setup the antennas, the supporting electronics, deployed the geophones (each position marked with a marker flag) and connected all components to the ALSEP central station. Each of the four identical geophones was connected individually to a dedicated module which in turn was connected to the ALSEP, it was capable of a five samples per second rate. The geophones were set out in a T-shaped pattern, effectively forming a triangle with a geophone at each apex and one near the centre of the triangle, with the furthest one being 244 m and the closets 148 m from the Lunar module. Each geophone consisted out of a moving coil-magnet seismometer which was housed in a cylindrical contender using a spike at the bottom end to connect to the Lunar surface. The analogue signals detected by the geophones were amplified, compressed and converted to a 7-bit binary signal which was transmitted via the ALSEP communications subsystem back to ground control on Earth. The explosive component was centre to the experiment and included eight explosive packs (EP) which was placed as far as 3.5 km from the geophone deployment. Apart from the actual explosive charge, each EP contained a firing-pulse generator a receiver, signal processor, thermal battery with timer and the detonating cartridge used to set off the explosives, all packaged in a tiny box equipped with a handle, antenna on the side and three pull-rings. Each EP was activated by removal of all three pull-rings which prepared it for detonation, which was set off by receipt of the “correct fire signal” sequence from the central station. Different explosive charges 41 Lunar and Planetary Institute, ‘Apollo 17 Mission- Landing Site Overview’. https://www.lpi.usra.

edu/Lunar/missions/apollo/apollo_17/landing_site/. Accessed 29 September 2019. and Planetary Institute, ‘Apollo 17 Mission Science Experiments - Lunar Seismic Profiling’. https://www.lpi.usra.edu/Lunar/missions/apollo/apollo_17/experiments/lspe/. Accessed 29 September 2019. 42 Lunar

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(from 57 g up to 2.7 kg) were used for each package to cater for placement of long distances from the geophones. The charges were detonated (after the Astronauts had already left the Lunar surface) from Earth by radio, taking place over a three day period (December 15 to 18). The LPSE seismic waves created by the detonations were recorded by the previously installed geophone network to determine the P-wave (seismic velocity), it also recorded the ascent of the Lunar module on 14 December 1972 as well as the subsequent impact of the Lunar module ascent stage. The instrument stayed in active use for a number of years (1973–1975) during which time it served in the role as a “passive” listening device where it was routinely switched on once a week for thirty minutes as well as a number of “extended” periods by special request.

9.4 The Importance of the Lunar Seismic Experiments A massive amount of seismic data was collected and stored on reel-to-reel magnetic tape (seven track) eventually totalling around ten thousand tapes. Many of these tapes (though not all) have subsequently been converted into a more user-friendly format and are available for download via the internet.43 The seismic data produced several important scientific results including the following amongst the most important44 : • Lunar interior structure—determined the Moon similar to Earth, has and outer crust, and mantle surrounding a core though the crust is roughly three times that of Earth’s with a much smaller core. • Lunar seismic sources—is the result of meteors and Moonquakes. The seismometers detected more than 1700 meteor impact some up to 5000 kg in mass. • Moon quakes—in the operational period of the seismometers twenty eight “shallow” quakes were detected measuring between 2 and 5 on the Richter scale. In addition regular “deep” quakes were also detected, occurring at monthly intervals at depths up to 1000 km in specific areas, suggesting Lunar tides as possible cause. • Seismic wave attenuation—suggested a lack of the presence of water. The importance of the decades old data collected by the Apollo mission series cannot be over emphasized, with rapid advances in data analytics powered by advanced computing technology, the data is still revealing secrets of the inner structure of the Moon. A recent interrogation of the data using new techniques suggests, the Moon

43 M. Dumiak, ‘Old Lunar Data Gets New Life, With Help From Seismologists’, IEEE Spectrum, 25 November 2018. https://spectrum.ieee.org/tech-talk/aerospace/space-flight/old-Lunardata-gets-new-life-with-help-from-seismologists. Accessed 29 September 2019. 44 Lunar and Planetary Institute, ‘Apollo 11 Mission Science Experiments - Passive Seismic’. https://www.lpi.usra.edu/Lunar/missions/apollo/apollo_11/experiments/pse/. Accessed 29 September 2019.

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has a “magma ring45 ” surrounding its outer core, it also corroborated the initial findings that the Moon has a solid inner core encapsulated by a molten outer core similar to Earth. An additional reanalysis of the data has also found evidence to suggest the Moon is still shrinking due to cooling and is thus still prone to quakes an important hazard consideration for future missions which could involve construction of permanent bases.

9.5 Conclusion The data that was collected “In Situ” by Apollo 11, 12,14,15,16 and 17 remains the foundation of the current understanding of the structure of the Moon having said so, it had limitations. Apart from the constraints imposed by the relative small number of seismic observation stations, the area of observation was an obvious limitation as well imposing certain practical limitations, no stations were placed on the “far side” as well. Limitations aside, the data however has proven of extreme value and is still unlocking knowledge and will certainly still play crucial role in future Lunar crewed missions. These Lunar archeologically significant scientific relics, surely is a legacy worthy to remember and deserve to be preserved.

Christoffel (Chris) Kotze established a boutique technology strategic advisory company in 2012 after a successful corporate career spanning two decades. This company specialises in providing assistance to Digital Transformation projects within organizations, with a special interest in the use of technology resources to support sustainable development. Current research interests include space technology, dematerialisation through digital transformation and solutions to the “digital divide”. Qualifications include MPhil (Space Science) University of Cape Town, Bachelor of Commerce Honours (Information Systems)—University of Cape Town, Bachelor of Science (Physiology and Microbiology)—University of Pretoria, Diploma in DataMetrics (Computer Science) University of South Africa, a number of strategy focussed executive management courses at the Graduate School of Business from the University of Cape Town. ISACA Certified in the Governance of Enterprise IT (CGEIT), TOGAF 9 Certified (Enterprise Architecture).

45 N.T. Redd, ‘Details of the Moon’s Core Revealed by 30-year-old Data’, 6 January 2011. https://www.space.com/9710-details-Moon-core-revealed-30-year-data.html. Accessed 30 September 2019.

Chapter 10

The Moon that Owns Itself: Exploring New Legal Avenues to Protect Cultural and Natural Heritage in Space André Siebrits

Our remote descendants, safely arrayed on many worlds throughout the Solar System and beyond, will be unified by their common heritage, by their regard for their home planet, and by the knowledge that, whatever other life may be, the only humans in all the Universe come from Earth. They will gaze up and strain to find the blue dot in their skies. They will love it no less for its obscurity and fragility. They will marvel at how vulnerable the repository of all our potential once was, how perilous our infancy, how humble our beginnings, how many rivers we had to cross before we found our way. Carl Sagan, Pale Blue Dot: A Vision of the Human Future in Space (Ballantine Books 1994) 334

Abstract This chapter puts forth new ideas in relation to the debate surrounding the protection of culturally and historically valuable objects and sites on the Moon, chief among them the Apollo landing sites. This is done in the context of mounting calls for declaring these locations World Heritage sites, particularly given the context of heightened interest on the part of countries around the world in undertaking new Moon missions, and accordingly an analysis and classification is presented regarding human activities on the surface on the Moon. Debates in the literature are highlighted, key legal principles contained in the body of international space law are discussed, and the concepts and definitions of heritage as per the World Heritage Convention are explored. Arguments are then made in favour of considering all potential heritage sites on the Moon as constituting mixed heritage (both cultural and natural), as well as granting the Moon its own legal status and personhood, as has happened recently on Earth in relation to rivers, forests, and mountains in New Zealand and India. This could potentially avoid legal pitfalls related to appropriation, while protecting the Moon and the sites from harm.

A. Siebrits (B) Department of Political Studies, University of Cape Town, Rondebosch, South Africa e-mail: [email protected]; [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_10

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10.1 Introduction Over the years, calls have been issued for preserving human artefacts and history in space, particularly with reference to the Moon.1 These calls have recently coalesced around the non-profit space historic preservation organisation For All Moonkind, which has been a Permanent Observer to the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) since 2018.2 This organisation and its proponents argue that it is necessary to ‘extend the designations and protections of the United Nations’ World Heritage sites to … historic moon locations and other locations in space that represent significant advances in humankind’s explorations’.3 The major concern is raised in terms of preserving the various human artefacts and ‘historical archaeological sites’ on the Moon given the increasing interest of various states (and private organisations) in launching Moon missions in the coming years.4 Already, the Soviet Union/Russia and United States have been joined by Japan, the European Space Agency, India, China, and most recently Israel in launching missions destined for the lunar surface. As a consequence, arguments have been put forth in favour of preserving the objects and sites on the Moon because: Each bears witness to moments that changed, and advanced, our human civilization irrevocably. No longer are we tied to our Mother Earth. In incremental steps, the heavens have been opened for exploration, and celestial bodies for settlement. Certainly not every movement of human – or human-guided robot – on the Moon needs to remain sacrosanct. However, guidelines and the framework for potential protection should be set in place before revisits occur. The idea is not to stifle exploration, but to preserve, for present and future generations, those sites that meet certain agreed criteria.5

However, such an endeavour faces an array of challenges and obstacles, including legal ones. While a variety of potential solutions have been proposed, novel ideas are needed to help find sustainable solutions that will take into account the needs and interests of the whole international community. This chapter will approach this topic by first considering what human activities have taken place on the Moon (and would thus be the subjects of preservation), followed by a brief literature review summarising the existing arguments and approaches to this topic. This is followed by a summary of relevant international regulations pertaining to the Moon specifically, after which the issue of heritage and its definitions will be explored. Based on these discussions, the chapter will finally present and discuss new contributions to the debate. These will centre on the importance of the concept of mixed heritage in 1 Examples

of these will be explored in the Literature Review. https://www.forallmoonkind.org/moonkind-mission/human-heritage-in-outer-space/. 3 The Times Editorial Board, ‘Editorial: A World Heritage site on the moon? That’s not as spacey as it sounds’ (Los Angeles Times, 22 February 2019) https://www.latimes.com/opinion/editorials/laed-moon-nasa-russia-united-nations-world-heritage-20190222-story.html, accessed 21 September 2019. 4 ‘Human Heritage in Outer Space’ (For All Moonkind, 2019), https://www.forallmoonkind.org/ moonkind-mission/human-heritage-in-outer-space/, accessed 20 September 2019. 5 ibid. 2 See

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relation to the Moon, and the recent precedent on Earth of granting legal personhood to natural objects and features, and the proposed extension of this principle to outer space. First however, a brief review of human activities on the Moon is presented.

10.2 Human Activities on the Moon Excluding lunar orbit for the purposes of this chapter, all human activities pertaining to direct contact of the lunar surface up to the present fall into one of four possible categories (see Table 10.1). Historically, the first phase of lunar surface exploration (other than remote sensing from orbit) has consisted of uncrewed impactors intentionally or unintentionally crashed into the Moon (as in the cases of Luna-2 for the Soviet Union, Ranger-4 for the United States, Hagoromo/Hiten for Japan, SMART1 for the European Space Agency, Moon Impact Probe (MIP)/Chandrayaan-1 for India, Chang’e-1 for China, and Beresheet for Israel).6 Only three states have until present (2019) managed to achieve the second phase of lunar surface exploration, namely soft landing a spacecraft on the Moon (the Soviet Union, US, and China), and only the US has thus far managed to achieve the third phase of lunar surface exploration, namely sending human beings. Additionally, only two states—the US and the Soviet Union—have managed to return lunar surface samples to Earth (via Apollo in the case of the former and the Luna sample return missions in the case of the latter).7 Fortunately, there have thus far been no crewed spacecraft impacts on the lunar surface. These activities are the subject of the calls for preservation, particularly the Apollo mission sites and artefacts as will be seen in the next section. It is noteworthy however that humans have sent approximately 191,012 kg of dry mass to the surface of the Moon, with the bulk of this mass being made up by the spent upper stages of boosters, such as the third stage of the Luna-2 Vostok rocket, and the Apollo 13-17 S-IVB stages which were crashed into the Moon.8 It is thus clear that not all human objects on the Moon are of the same stature or quality, and one of the debates concerning heritage Table 10.1 Types of human lunar surface activities up to the present (2019) Impact

Soft landing

Probe

Phase 1 – USSR, US, Japan, European Space Agency, India, China, Israel

Phase 2 – USSR, US, China

Crewed spacecraft

X

Phase 3 US

6 ‘Missions

to the Moon’ (The Planetary Society, 2019), https://www.planetary.org/explore/spacetopics/space-missions/missions-to-the-moon.html, accessed 18 September 2019. 7 ibid. 8 The mass calculation is provided by Wikipedia with the usual caveats regarding accuracy and reliability. Nevertheless, it is a useful illustration of the amount of mass humans have transported to

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sites on the Moon thus concerns what constitutes artefacts worth protecting. This is explored further in the next section, and later in the chapter. Moreover, human activities on the Moon can be considered as part of a broader historical trajectory in human exploration, specifically within the context of colonisation as it has unfolded on Earth historically.9 In other words, understandings of cultural heritage— and the dangers facing the sites and objects of value—will continue to evolve in future, an important consideration in discussions of the subject. Three broad phases of colonisation are discernible. The first phase of colonisation consists of discovering and charting new locations, and in this, human exploration of the Moon has been no different. All the efforts mentioned above— impacting, soft landing, and exploring with human beings—fall into this first phase. All lunar missions, like the historical expeditions of Christopher Columbus and others, have been funded by their country or countries of origin, and culminated in the case of Apollo in the planting of flags by the American expeditions. Where the Moon differs greatly from the experiences on Earth is that by planting these flags a state cannot stake its claim to territory (as will be discussed in relation to the body of law governing space-related activities later). Nevertheless, the broad historical trend remains the same. In the near future this first phase is set to intensify, although not all exploration efforts will be undertaken with the intent of colonisation. However, the risks to historical sites on the Moon will accordingly increase with greater human activity. The second phase of colonisation entails the dispatching of missions to create outposts and small settlements which are dependent on their home countries for supplies. While this phase has not yet begun in relation to the Moon, there are plans to establish such an outpost—the Lunar Orbital Platform-Gateway—in cislunar space in the next decade, and it is envisioned that ‘the outpost can serve as a jumping-off point, both for landers headed down to the lunar surface and for vehicles venturing out into deep space’.10 As for the lunar surface, various space agencies have announced their intentions to pursue the creation of lunar outposts, including the European Space Agency (ESA), and ‘[i]n 2016, the head of the ESA elaborated on plans to build a village on the moon’ while the ‘space agency has been touting the permanent lunar colony as a replacement for the orbiting International Space Station, which is due to be decommissioned in 2024’.11 However, such ideas are not new, and various lunar shelters and bases were proposed as part of Project Apollo, the Moon thus far. ‘List of artificial objects on the Moon’ (Wikipedia, 2019). https://en.wikipedia. org/wiki/List_of_artificial_objects_on_the_Moon, accessed 29 September 2019. 9 ‘How We Could Build a Moon Base TODAY – Space Colonization 1’ (Kurzgesagt, 16 September 2018) https://www.youtube.com/watch?v=NtQkz0aRDe8, accessed 21 September 2019. 10 Mike Wall, ‘NASA Plans to Build a Moon-Orbiting Space Station: Here’s What You Should Know’ (Space.com, 10 September 2018) https://www.space.com/41763-nasa-lunar-orbitingplatform-gateway-basics.html, accessed 19 September 2019. 11 Cheyenne Macdonald, ‘Get ready for the conspiracy theories: European Space Agency reveals plan to build an artificial moonbase with lunar soil in a German hanger’ (Daily Mail, 25 October 2018) https://www.dailymail.co.uk/sciencetech/article-6318097/ESA-reveals-plan-buildmoon-base-Earth-using-simulated-lunar-soil-facility-Germany.html, accessed 19 September 2019.

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although these were all cancelled due to the American space budget cutbacks made by the late 1960s and early 1970s.12 However long it may take, it seems likely that humans will create such outposts on the Moon at some point in the future given these interests, and the scientific, engineering, and other benefits that could be accrued as a result. This will again raise serious concerns regarding historically important sites on the Moon, as well as introducing more sites and objects worth preserving. As a consequence, a mechanism or regime for protecting heritage sites on the Moon should be established before this phase commences. The third phase of colonisation is subsequently attained when these outposts become true colonies which are to a large degree self-sufficient, allowing for labourers, prospectors, and other more diverse professions. At this point, the colony becomes a hub in the creation of new wealth (including knowledge) and opportunities, sending this bounty back to its country or countries of origin. The prospect of such a third-phase colony on the Moon lies far into the future, and many challenges (including legal ones) will have to be overcome since self-sufficiency will necessitate mining the Moon for natural resources. This represents the greatest threat to heritage sites on the Moon, and before such activities can be allowed to take place measures need to be established to protect and regulate heritage sites to the same (or greater) extent as on Earth. The three phases are depicted in Fig. 10.1. This discussion of lunar colonisation and the types of human activities on the lunar surface is necessary to provide a broader background and context to the consideration of cultural heritage sites on the Moon. For one, it highlights that human activities on the Moon will evolve across the different ages of lunar exploration, and thus any consideration of declaring and protecting heritage sites will have to account for this pre-emptively to ensure sustainability in protecting humanity’s legacy of exploration. The next section will provide a brief literature review.

10.3 Literature Review There is a general consensus in the literature related to human exploration of the Moon that sites and objects of cultural and historical significance should be protected and preserved just as similar significant sites and objects are on Earth. For example, an early call was made by Rogers, who argued in 2004 that given the interest of emerging spacefaring countries, including China at the time, in exploring the surface of the Moon, it was ‘important to see that the original, 1969 human lunar landing area, the “Tranquility Base”, with its contents, now becomes a UN World Heritage Site, to be protected for all, for all time’.13 Rogers observed that after the decline in the number of Moon missions after Apollo, a renewed ‘return to the Moon is being paid more 12 Mark Wade, ‘LESA Lunar Base’ (Astronautix, 2019) http://www.astronautix.com/l/lesalunarbase.

html, accessed 19 September 2019. 13 TF Rogers, ‘Safeguarding Tranquility Base: Why the Earth’s Moon base should become a World

Heritage Site’ (2004) 20(1) Space Policy 5.

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Fig. 10.1 Phases of lunar colonisation

formal attention than for some time’, prompting concern regarding the protection of the Apollo 11 Tranquillity Base and surrounding area.14 As a response, it was argued that the United States should, as the first signatory to the World Heritage programme, ‘take the initiative of requesting the UN [United Nations] to consider enlarging the solar system composition of its World Heritage Site program by creating one involving the Moon’s Tranquility Base’, including making the ‘offer to transfer ownership of the things left at Tranquility Base in 1969 to a UN lunar WHS [World Heritage Site] creation program’.15 In the same year, Spennemann argued for the same reason—the renewed interest in the Moon by several states—as well as the prospect of lunar tourism, coupled with the critical cultural and historical significance of the Apollo mission sites, that preserving these should be a priority.16 While the lunar sites and artefacts had experienced only natural weathering effects, ‘by limited environmental factors (micro-particle bombardment and solar radiation)’, they were still otherwise untouched (and remain so today), hence the urgent need to explore possibilities for managing and protecting 14 Ibid.,

6.

15 ibid. 16 Dirk

HR Spennemann, ‘The ethics of treading on Neil Armstrong’s footprints’ (2004) 20 Space Policy 279.

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these sites.17 This is especially the case since the ‘unique situation on the lunar surface is that, literally, one wrong step will reduce the significance of the site’.18 While international law in relation to outer space will be considered below, in brief Spennemann noted that all human objects on the Moon remain the property of their respective governments, while a strict principle of non-appropriation exists regarding the Moon itself—thus not preventing any visitations to sites on the Moon and thus potential disturbances.19 A similarity was also observed in the ‘management of sites located in international waters on Earth’ since ‘[w]hile the ownership of the artefact components of the sites is well defined, the sites rest on a surface that does not belong to any single country’.20 Spennemann’s solution was the creation of a new global heritage convention, with the United Nations being the only suitable body for such an endeavour, through the auspices of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and the United Nations Office for Outer Space Affairs (UNOOSA) and UNCOPUOS.21 Spennemann again wrote on the topic in 2006, noting that there existed a general ‘apathy by the heritage profession in dealing with this matter … [because] the Moon is deemed too far away, both physically and mentally—and so much out of the reach of people—that it is not worth bothering about’.22 The concern regarding tourism was again raised, particularly in relation to the exploration and degradation of the Titanic by overenthusiastic explorers. Spennemann argued that while there was an abundance of material culture on the Moon, ‘[t]he preservation of this material culture ranges from the very poor to the very good’, with crashed probes and their remains on the poor side, through to soft landed vehicles, and finally the six Apollo landing sites on the very good side.23 This echoes the types of human activities on the Moon as illustrated in Table 10.1, and ranks them into a hierarchy of importance in relation to preservation. It was also argued that not only were the artefacts and objects left behind on the Moon of importance, but indeed also ‘the totality of their [the astronauts’] movements on that occasion as recorded by the tracks in the lunar dust’— which together comprise the sites.24 This is a critical point for the discussion later in this chapter. Spennemann again repeated his analysis of international law in that a ‘traditional concept of “trespass” does not apply’ on the Moon, and while national heritage legislation could pertain to the objects themselves, this was complicated since the sites were located outside the territory of the respective states.25 It was noted—again of interest here—that ‘[o]n Earth, the closest approximation to the 17 Ibid.,

280. 287. 19 ibid., 286. 20 ibid., 287. 21 Ibid., 288. 22 Dirk HR Spennemann, ‘Out of this World: Issues of Managing Tourism and Humanity’s Heritage on the Moon’ (2006) 12(4) International Journal of Heritage Studies 357. 23 Ibid., 360. 24 Ibid., 362. 25 Ibid., 363. 18 ibid.,

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situation [on the Moon] would be an archaeological site, where individual artefacts are moveable cultural heritage items, but where they form an integral part of a site and thus cannot be removed without damaging the site’s integrity’.26 The proposal was raised to establish exclusion zones around the sites until technology would permit exploring them without disturbances, but that a global heritage convention in line with the Antarctic Treaty would still be necessary, that ‘could entail provisions that limit or prohibit resource-extraction activities (“mining”) within a set radius around the site as well as limit or prohibit any tourism operations’.27 In 2011, the US National Aeronautics and Space Administration (NASA) also contributed to the debate when it issued a document entitled ‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’.28 While this document admitted that it was not legally binding (‘this document does not represent mandatory USG [US Government] or international requirements’), it did aim to ‘inform lunar spacecraft mission planners interested in helping preserve and protect lunar historic artifacts and potential science opportunities for future missions’.29 While the document cannot be summarised at length here, it identified five types of lunar historic artefacts, with these being: (A) Apollo lunar surface landing and roving hardware; (B) unmanned lunar surface landing sites (e.g., Surveyor sites); (C) impact sites (e.g., Ranger, SIVB, LCROSS, lunar module [LM] ascent stage); (D) USG experiments left on the lunar surface, tools, equipment, miscellaneous EVA hardware; and (E) specific indicators of US human, human-robotic lunar presence, including footprints, rover tracks, etc.30 Recommendations for avoiding disturbances to the locations of these artefacts were provided, centred on the creation of a 2.0 km radial distance exclusion zone around ‘heritage lander sites’ (such as Apollo or Surveyor), and a 0.5 km radial distance exclusion zone around ‘heritage impact sites’ (such as Ranger or S-IVB Apollo upper stages).31 Special reference was made to the protection of the Apollo 11 and Apollo 17 sites, including that ‘[f]or the Apollo 11 site, the exclusion zone extends 75 m from the lunar module descent stage to encompass all hardware and human activity … [f]or the Apollo 17 site, the exclusion zone extends 225 meters from the lunar module descent stage’.32 The careful considerations contained in the document illustrate the concern of the US regarding the possibility of the degradation of the sites, and the importance of preserving them. It is also useful since it once again provides for the creation of a hierarchy distinguishing more and less 26 Ibid.,

364. 366. 28 ‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’ (National Aeronautics and Space Administration, 20 July 2011) https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_HISTORIC_ SITES_RevA-508.pdf, accessed 23 September 2019. 29 Ibid., 5. 30 ibid. 31 Ibid., 7. 32 Ibid., 17. 27 Ibid.,

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important sites. NASA also maintains a map of what it considers to be ‘lunar heritage sites’, and although these include the Soviet Luna impact and landing sites and Lunokhod rovers, no mention is made of Chinese, Japanese, ESA, Indian, or Israeli sites (Fig. 10.2). This is directly related to the contribution of Walsh in 2012, who argued in a similar vein to Spennemann that it was important to differentiate between space objects as ‘junk’ and as ‘heritage’.33 It was, Walsh argued, undeniable that most objects in space were considered debris, which ‘make[s] it hard to consider the overwhelming majority of orbiting equipment, or fragments of equipment, as anything other than

Fig. 10.2 NASA lunar heritage sites; Credits NASA/JPL-Caltech (‘Lunar Heritage Sites and GRAIL’s Final Mile’ (National Aeronautics and Space Administration, 9 July 2018) https://moon. nasa.gov/resources/269/lunar-heritage-sites-and-grails-final-mile/, accessed 19 September 2019.)

33 Justin

St. P Walsh, ‘Protection of humanity’s cultural and historic heritage in space’ (2012) 28 Space Policy 235.

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undifferentiated, purely utilitarian, and thus beneath consideration for preservation. Most objects in space are not very significant, or even necessarily significant at all’.34 In contrast, in special cases ‘[s]pace objects that display innovation, especially those that remain intact, can be seen as critical evidence for the development of humanity and, indeed, as part of our heritage’.35 It is possible, Walsh argued, to differentiate between these two categories by, for example, ‘gauging public interest in space heritage … by calculating attendance at museums like NASM [the Smithsonian Institution’s National Air and Space Museum]’ as evidence that ‘humans do, in fact, already think of some space objects as culturally and/or historically important, and that we even treat these objects accordingly’.36 Walsh also noted the problem concerning protecting astronaut footprints, since ‘footprints are not objects - rather, they exist as part of the landscape - a territory which, according to the OST [Outer Space Treaty – more on this below], cannot be governed by any nation’s laws. It is clear that an international solution is needed for this international problem’.37 Walsh discussed existing protocols as a foundation for protecting heritage sites on the Moon (and as such this will not be repeated here), namely the 1970 UNESCO Convention on Cultural Property, the 1972 UNESCO World Heritage Convention, the Law of the Sea, the 2001 UNESCO Convention on Underwater Cultural Heritage, and the Antarctic Treaty. Walsh also argued for the creation of a Heritage Protection Committee (HPC) under the auspices of UNCOPUOS, conceived on the broadest possible basis to include all relevant stakeholders including non-spacefaring states.38 Finally, it was argued that ‘[a]nother aspect of cultural heritage protection that ought to become part of standard practice is improved mission design’ and that ‘historic preservation should be no different from other kinds of environmental protection as an ethical concern’.39 This speaks directly to the likely future intensification of lunar surface activities as depicted in Fig. 10.1, and the need to design missions with heritage and historic preservation in mind. More recently, while For All Moonkind presents its mission statement as being to ‘[e]nsure the six Apollo Lunar Landing and similar sites in outer space are recognized for their outstanding value to humanity and consequently preserved and protected for posterity as part of our common human heritage’, and thus makes a distinction between the crewed Apollo landing sites and all others, no mention is made of impactors.40 This again recreates the hierarchy echoed in Table 10.1, and provides, as will be discussed shortly, a roadmap for identifying the sites of greatest concern. Hanlon, the co-founder of For All Moonkind has argued that the value of the landing sites on the Moon, particularly the Apollo sites, lies in the fact that 34 ibid. 35 ibid. 36 ibid. 37 Ibid.,

237. 240. 39 Ibid., 240–41. 40 ‘Crewed Landing Sites’ (For All Moonkind, 2019) https://www.forallmoonkind.org/moonkindmission/apollo-landing-sites/, accessed 15 September 2019. 38 Ibid.,

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these ‘Sites Memorialize the Work of Thousands, if Not More’, and since they ‘are the first archaeological sites with human activity that are not on Earth’ and ‘represent one of the most important technological developments in human history’, they should be protected and preserved.41 Hanlon also argued that existing precedent on Earth for this preservation effort can be found within the UNESCO World Heritage Convention, the Underwater Heritage Convention, and Annex V to the Protocol on Environmental Protection to the Antarctic Treaty.42 Hanlon has also helped to create US Senate Bill 1694 (‘One Small Step to Protect Human Heritage in Space Act’), which was unanimously passed by the US Senate this year (2019), and which requires US government agencies granting licences for space activities to require all applicants to adhere to the NASA guidelines mentioned above (2011).43 While this has no bearing on the activities of foreign states or their agents, ‘Hanlon believes its passage would inspire international action to protect historically important moon sites’.44 Based on this review of literature, the next section will briefly outline relevant legal treaties and principles.

10.4 International Space Law and the Protection of Cultural Heritage Sites on the Moon This section will outline the key legal principles pertaining to the protection of heritage sites on the Moon. The Outer Space Treaty (OST) is undoubtedly the cornerstone of the international legal regime pertaining to space, and Art. I-2 stipulates that ‘[o]uter space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, … and there shall be free access to all areas of celestial bodies’ while Art. II stipulates that ‘[o]uter space, including the Moon … is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’.45 In addition, Art. VI makes it clear that ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other 41 Michelle LD Hanlon, ‘Preserving Human History in Space—a Path to Sustainable Development and Peace’ (For All Moonkind, 7 November 2017) http://www.unoosa.org/documents/pdf/hlf/ HLF2017/presentations/Day2/Session_7b/Presentation2.pdf, accessed 20 September 2019. 42 ibid. 43 Currie Engel, “We Need That Boot Print.’ Inside the Fight to Save the Moon’s Historic Sites Before It’s Too Late’ (Time, 18 July 2019) https://time.com/5627640/moon-historic-sites/, accessed 20 September 2019; One Small Step to Protect Human Heritage in Space Act of 2019, 116th Cong. (2019) https://www.forallmoonkind.org/wp-content/uploads/2019/05/One-Small-Step-Actbill-text.pdf, accessed 21 September 2019. 44 Currie Engel, “We Need That Boot Print.’ Inside the Fight to Save the Moon’s Historic Sites Before It’s Too Late’ (Time, 18 July 2019) https://time.com/5627640/moon-historic-sites/, accessed 20 September 2019. 45 United Nations Office for Outer Space Affairs, International Space Law: United Nations Instruments (United Nations 2017) 4. Emphasis added.

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celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities’ while Art. VIII stipulates that: A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party’.46

Art. XII further clarifies that: All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.47

While the Moon Treaty (MOON) enjoys far less support internationally than the OST, it remains an important document, and while the OST makes no mention of heritage, Art XI-1 of the Moon Treaty states that ‘[t]he Moon and its natural resources are the common heritage of mankind’.48 Art. IV-1 outlines that ‘[t]he exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries’ while Art. V-1 and V-2 stipulate, respectively, that ‘States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of their activities concerned with the exploration and use of the Moon’ and ‘if a State Party becomes aware that another State Party plans to operate simultaneously in the same area … it shall promptly inform the other State of the timing of and plans for its own operations’.49 Some note is also made of protecting the environment of the Moon in Art. VII-1—‘[i]n exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, [or] its harmful contamination’.50 Finally, Art. IX-1 and IX-2 make it clear that ‘States Parties may establish manned and unmanned stations on the Moon. A State Party establishing a station shall use only that area which is required for the needs of the station’ and ‘[s]tations shall be installed in such a manner that they do not impede the free access to all areas of the Moon of personnel, vehicles and equipment of other States Parties’.51 Perhaps most importantly, Art. VII-3 makes 46 Ibid.,

5–6. Emphasis added. 7–8. Emphasis added. 48 Ibid., 35. Emphasis added. 49 Ibid., 32. Emphasis added. 50 Ibid., 33. Emphasis added. 51 Ibid., 34. Emphasis added. 47 Ibid.,

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provision for the creation of protected areas on the Moon, but the details for this must still be determined: States Parties shall report to other States Parties and to the Secretary-General concerning areas of the Moon having special scientific interest in order that, without prejudice to the rights of other States Parties, consideration may be given to the designation of such areas as international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations.52

Together, these principles make it clear that while states or their representatives may establish stations (or more broadly sites) on the Moon, they are not allowed to hinder or impinge upon the rights of other states to freely access all areas of the Moon. No appropriation of the Moon may take place by any means in the sense that other states are excluded from certain areas, and thus the proposals of NASA in relation to the creation of exclusion zones cannot be supported in international law since this can easily be interpreted as an attempt to appropriate territory on the Moon (recalling the phrase ‘by any other means’ above). In practice, as Walsh thus argues, ‘no government may designate protective status for any territory in space’.53 At the same time however, states are required to notify each other, and the UN Secretary General, of their activities, and to avoid disturbing the lunar environment or normal operations of facilities. No interference may take place with objects which remain under the ownership and jurisdiction of their respective governments. However, as noted earlier, this clearly does not apply to footprints on the Moon for example. It is also unclear what constitutes ‘only that area which is required’ for facilities, or how this is to be determined. As will be argued in the next section however, one important facet of lunar heritage is the intersection between cultural and natural heritage and the unavoidable combination of the two on the Moon. This points to a possible way forward in terms of determining the area required for preservation. The subsequent section will consider the point that the Moon and its resources are the common heritage of mankind, and will put forth a proposal that builds on this idea by granting the Moon its own legal rights and status.

10.5 The World Heritage Convention As indicated by the campaign of For All Moonkind, as well as the literature review, the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage is of critical importance as an existing and successful Earthbound counterpart to the protection of lunar sites. A central question is thus how heritage is defined within this convention. Provision is made for two types of heritage sites. The first type, cultural heritage, consists of three categories and their associated definitions, as outlined in Table 10.2. The second type, natural heritage, 52 Ibid.,

30. Emphasis added. St P Walsh, ‘Protection of humanity’s cultural and historic heritage in space’ (2012) 28 Space Policy 236. 53 Justin

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Table 10.2 Categories and definitions of cultural and natural heritage (United Nations Educational, Scientific and Cultural Organisation, Basic Texts of the 1972 World Heritage Convention (UNESCO 2005) 10.) Cultural Heritage

Natural Heritage

1. Monuments

Architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science

2. Groups of buildings

Groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science

3. Sites

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

1. Natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view 2. Geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation 3. Natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty

also consists of three broad categories, as also outlined in Table 10.2. In addition to these two types, a third type, mixed cultural and natural heritage, is outlined in the Operational Guidelines for the Implementation of the World Heritage Convention, with the following definition: ‘[p]roperties shall be considered as “mixed cultural and natural heritage” if they satisfy a part or the whole of the definitions of both cultural and natural heritage’.54 This same implementation document also clarifies that ‘[n]ominations of immovable heritage which are likely to become movable will not be considered’, while ‘[o]utstanding universal value means cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity’.55 The operational guidelines also stipulate what can be considered as outstanding universal value, given the centrality of this concept to all understandings of heritage. These ten stipulations are outlined in Table 10.3. 54 United

Nations Educational, Scientific and Cultural Organisation, Basic Texts of the 1972 World Heritage Convention (UNESCO 2005) 46. 55 ibid.

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Table 10.3 World heritage criteria for the assessment of outstanding universal value (United Nations Educational, Scientific and Cultural Organisation, Basic Texts of the 1972 World Heritage Convention (UNESCO 2005) 52-3) (i) represent a masterpiece of human creative genius (ii) exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilisation which is living or which has disappeared (iv) be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history (v) be an outstanding example of a traditional human settlement, land-use, or sea-use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance (the Committee considers that this criterion should preferably be used in conjunction with other criteria) (vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance (viii) be outstanding examples representing major stages of Earth’s history, including the record of life, significant ongoing geological processes in the development of landforms, or significant geomorphic or physiographic features (ix) be outstanding examples representing significant ongoing ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals (x) contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation

A final consideration here can be made in terms of deciding which lunar sites and objects are most important from a preservation standpoint. Given the discussion earlier in the chapter concerning types of human activities on the Moon, and the consistent tendency in the literature to highlight some sites as more important, a hierarchy and general trend can be proposed (Fig. 10.3). While the discussion has thus far only focused on cultural heritage, including in the literature, the Moon Treaty proscribes any adverse changes or disruptions to the existing balance of the lunar environment. The argument can thus be made that not only should cultural heritage be considered as part of lunar conservation efforts, but natural heritage as well. Much, if not all, of the Moon meets the criterion of ‘superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance’ as outlined in the criteria for outstanding universal value as per the World Heritage Convention. Moreover, the Moon meets two of the definitions of natural heritage (excluding the second one pertaining to plants and animals—as far

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Fig. 10.3 Relationship between human activities on the moon and importance of preservation

as is known56 ). It also meets another criterion of outstanding universal value, since it records and represents major stages of Earth’s history given the prevailing theory that the Earth and Moon essentially formed together following a large impact into the primordial Earth. This natural environment has as much claim to protection as the cultural sites of human beings. Moreover, it is argued here that all lunar heritage sites are necessarily mixed heritage by their very nature. It is undoubtedly true that particularly the most significant sites of human activity on the Moon (as per Fig. 10.3)—that is, everything from first impactors and up—meet the definitions for cultural heritage (particularly ‘groups of buildings’ and ‘sites’). It is also undeniable that they meet many of the criteria for outstanding universal value, including representing masterpieces of human creative genius, bearing a unique or at least exceptional testimony to a cultural tradition or to a civilisation which is living, are outstanding examples of types of technological ensemble which illustrate a significant stage in human history, and are outstanding examples representing major stages of Earth’s history. However, their true value is only brought into focus given their location on the Moon. While Apollo 11’s Tranquillity Base would have retained great value had it been placed on Earth, it is its presence on the Moon that grants it its unparalleled importance as an evolutionary milestone of humanity. The same could be said of other sites on the Moon, even the remains of crashed rocket stages, and while these cannot compare in importance to landing sites for example, they nevertheless gain great importance and value due to

56 Naturally,

if any lifeforms, however primitive, are discovered on the Moon (the same applies to Mars), the importance of protecting it will increase dramatically.

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their location and the determination, effort, and mastery required to get them to that location. By putting forth the argument that heritage sites on the Moon are mixed, it also becomes possible to begin addressing the concerns regarding the human footprints not being objects in themselves. By taking the human cultural heritage in combination with the lunar natural heritage, the totality of the sites gain importance since their definition rests on them being an amalgamation or zone of interaction between humans and the lunar environment. The sites are thus valuable because they record the pattern or form of interaction, just like a painting gains value in that it captures the signature—the brush strokes and technique—of the painter in concert with the raw materials of the paint and the canvas. This dimension has thus far been missing from the debate. Spennemann however rightly calls the sites on the Moon the ‘ultimate heritage site[s]’ because ‘[n]o heritage site on Earth, of whatever significance, can boast that all interaction on the site has been preserved—both because of subsequent interaction by other people and also because of the presence of an atmosphere on Earth with the concomitant erosive forces of wind and water’.57 Neverthless, Spennemann neglects the natural heritage of the Moon itself as a dimension in co-constituting (with human cultural heritage) the importance of the sites. Additionally, despite the faith of many commentators (including For All Moonkind) in the World Heritage Convention as a template for preserving the sites on the Moon, there are serious challenges to the validity of this model for space. First, while the World Heritage Convention enjoys widespread support and ratification among States Parties (193 in January, 2017), the United States and Israel recently withdrew from UNESCO citing anti-Israel bias, which followed on an earlier ‘funding slash ever since 2011 when both Israel and the US stopped paying dues after Palestine was voted in as a member state’.58 The US had also previously withdrawn from the organisation in 1984 but re-joined in 2003. While the US had pledged to remain a ‘non-member “observer state” on “non-politicised” issues, including the protection of World Heritage sites’, it is clear that discussions regarding heritage sites on the Moon cannot be undertaken without full US involvement and support. While this concern can be overcome, the second challenge revolves around the limitation that ‘by nature of the protective regimes, all World Heritage sites are within the jurisdiction of a single country’—which clearly cannot apply to the Moon.59 Moreover, despite the World Heritage Convention (and the others mentioned in the literature review), there exists ‘no binding international heritage

57 Dirk HR Spennemann, ‘Out of this World: Issues of Managing Tourism and Humanity’s Heritage

on the Moon’ (2006) 12(4) International Journal of Heritage Studies 362. 58 ‘US and Israel formally quit UNESCO’ (Al Jazeera, 1 January 2019) https://www.aljazeera.com/ news/2019/01/israel-formally-quit-unesco-190101094104787.html, accessed 13 September 2019. 59 Dirk HR Spennemann, ‘The ethics of treading on Neil Armstrong’s footprints’ (2004) 20 Space Policy 284.

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law’, with ‘no legal authority for any international body to intervene should a signatory country engage in negligent management or even in active destruction of world heritage-listed properties—let alone other properties managed by that country’.60 The third challenge is that resolving this shortcoming is not possible in the context of the Moon given the non-appropriation principle of the OST. At the same time, a fourth major challenge is emerging amid calls, for example by Dolman, to revise the OST and the legal regime pertaining to space to permit appropriation and exploitation—‘[t]he opening of the seas accomplished for these states what the true opening of space will in the future—but only if the current regime in outer space is abandoned and replaced with one that inspires explorations and exploitations of the vast riches there’.61 This new regime, Dolman argues, must be ‘consistent with capitalism and liberal democracy’.62 While such a revision of the legal regime would permit the establishment of heritage sites based on sovereignty as they are on Earth, it would destroy the principles defending the interests and benefits of all states and the universal freedom that exists to access space. New ideas are thus urgently needed that can meet the needs of preserving heritage sites on the Moon as well as the strengthening of established legal principles of the OST and other treaties. In the next section, this chapter proffers the intriguing example of the Tree that Owns Itself, and the recent development of states granting legal rights to rivers, forests, and mountains, as a model for the Moon.

10.6 Lessons from the Tree that Owns Itself There are, in fact, two trees that own themselves, and both can be found in the US. The more famous of the two grows in Athens, Georgia, and is in truth the offspring of the original tree that owned itself. This original white oak tree, it is said, ‘was reportedly so beloved by its owner that upon his death, he gave the tree ownership of itself in his will’, and this owner (Colonel William Henry Jackson) ‘deeded the tree and the soil around it to the tree itself’ when he died between 1820 and 1832.63 This story was first reported in the Athens Banner Weekly on August 12, 1890, with only the author of the article as witness. As such, the validity of these claims could never be verified. Additionally, ‘careful examination of property lines reveals that the tree isn’t even on his property’.64 Nevertheless, despite lacking any true basis in law, ‘the story became so popular that no one dared doubt the tree’s self-ownership. Effectively, the tree owned itself because everyone said it did’.65 While the original 60 ibid. 61 Everett

C Dolman, Astropolitik: Classical Geopolitics in the Space Age (Frank Cass 2002) 176. 177. 63 ‘The Tree That Owns Itself—Can a Tree Have Rights?’ (The Treeographer, 22 March 2018) https://thetreeographer.com/2018/03/22/the-tree-that-owns-itself/, accessed 21 September 2019. 64 ibid. 65 ibid. 62 ibid

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tree fell in 1942, a new tree ‘grown from an acorn of the Tree That Owns Itself was selected as the heir, an[d] transplanted into its new home in 1946’ and is now referred to as Son of the Tree That Owns Itself. Today, this successor tree ‘is such a well respected landmark in the city that the Athens-Clarke County government has declared that in spite of the actual legality, the tree owns itself’.66 While the original legal basis for the claim is lacking, there is thus an element of customary law present in the case. In the town of Eufaula, Alabama, another successor Tree that Owns Itself grows today in the place of an original oak tree that owned itself. In this case, there is documentation to support the claim: The city, through its mayor, recorded a deed in 1935 which reads in part: “I. E. H. Graves, as Mayor of the City of Eufaula, do hereby grant, bargain, sell and convey unto the ‘Post Oak Tree,” not as an individual, partnership nor corporation, but as a creation and gift of the Almighty, standing in our midst—to itself—to have and to hold itself, its branches, limbs, trunk and roots so long as it shall live.”67

It is also recorded that ‘[i]t was given its freedom by the governor in 1936’.68 The current tree is in fact the second successor to the original, but despite this, ‘it still retains its own deed to the property’.69 In the case of both trees a customary process of inheritance has thus taken shape. While these two trees may be considered intriguing oddities, the concept of granting legal personhood to natural objects is gaining traction. In 2017, in a world first, the Whanganui River in New Zealand was recognised as having the ‘same legal rights as a human being’.70 New Zealand’s parliament also passed legislation which recognised the Te Awa Tupua river as ‘an indivisible, living whole, and henceforth possesses “all the rights, powers, duties, and liabilities” of a legal person’.71 Additionally, ‘820 square miles of forests, lakes, and rivers—a former national park known as Te Urewera—also gained legal personhood’, followed by Mount Taranaki, which was granted ‘living person’ status.72 Also in 2017, an Indian court, citing the example of the Whanganui in New Zealand, granted legal

66 ibid. 67 Donna R Causey, ‘An oak tree in Eufaula, Alabama officially owns itself – here is why’ (Alabama Pioneers) https://www.alabamapioneers.com/tree-owned-eufaula-alabama/, accessed 21 September 2019. 68 ibid. 69 ibid. 70 Eleanor Ainge Roy, ‘New Zealand river granted same legal rights as human being’ (The Guardian, 16 March 2017) https://www.theguardian.com/world/2017/mar/16/new-zealand-rivergranted-same-legal-rights-as-human-being, accessed 21 September 2019. 71 Kennedy Warne, ‘A Voice for Nature’ (National Geographic, April 2019) https://www. nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/, accessed 21 September 2019. 72 Ibid.; ‘New Zealand’s Mount Taranaki granted “living person” status’ (Lonely Planet, 14 June 2018) https://www.lonelyplanet.com/articles/mount-taranaki-maori, accessed 21 September 2019.

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personhood to the Ganges and Yamuna rivers.73 This in effect means that ‘polluting or damaging the rivers will be legally equivalent to harming a person’.74 In February 2019, ‘voters in Toledo, Ohio, voted to grant legal standing to Lake Erie’, thus further adding to the list and the precedent.75 While many questions remain given that this is a very new and emerging legal field, the origins of the debate surrounding the granting of legal rights to non-human lifeforms or natural features and objects can be traced back to a seminal article by Stone in 1972, entitled ‘Should trees have standing?—towards legal rights for natural objects’.76 The recent legal developments have thus, however gradually and tenuously, begun to redefine the relationship between humans and nature. Moreover, granting legal personhood to non-human objects is well-establish in law, as in the case of family trusts, companies, and incorporated societies, thus providing precedence.77 While it is true that actions will still need to be taken on behalf of these new legal entities, for example appointing custodians and enacting measures to protect the rivers, forest, and mountain from harm, this represents in intriguing example for redefining humanity’s relationship with the Moon (and other celestial bodies) in a way that can meet the needs of preserving cultural and natural heritage while maintaining the well-established principles of space law such as non-appropriation. By granting the Moon the rights of a legal person it will become impossible for any state or their representative to appropriate the Moon or its resources. It will also recognise the Moon’s own natural heritage as deserving protection, as in the cases on Earth mentioned above. While a custodian or trustee (perhaps the UN Secretary General) will have to be appointed, most appropriately under the broad auspices of UNCOPUOS, it will not hinder the ability of any party to peacefully explore the Moon or set up facilities there. It will, however, force all such parties to follow the recommendation by Walsh that heritage and environmental protection should become part of standard practice, for example in improved mission design, helping to avoid complications and providing clarity in the future phases of lunar exploration and colonisation. It will also provide disincentive to any party contributing to space debris on the Moon since best practices in terms of mitigating space debris will no longer be voluntary given the legal rights of the Moon (and other locations). Any sites on the Moon that states or their representatives wish to have declared as heritage sites will thus have to be established in cooperation between the state party and the Moon 73 Michael

Safi, ‘Ganges and Yamuna rivers granted same legal rights as human beings’ (The Guardian, 21 March 2017) https://www.theguardian.com/world/2017/mar/21/ganges-and-yamunarivers-granted-same-legal-rights-as-human-beings, accessed 21 September 2019. 74 ibid. 75 Kennedy Warne, ‘A Voice for Nature’ (National Geographic, April 2019) https://www. nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/, accessed 21 September 2019. 76 Christopher D Stone, ‘Should trees have standing? Toward legal rights for Natural objects’ (1972) 45 South Calif Law Rev. 77 Adam Taylor, ‘There are now 3 rivers that legally have the same rights as humans’ (The Washington Post, 21 March 2017) https://www.washingtonpost.com/news/worldviews/wp/2017/03/21/thereare-now-3-rivers-that-legally-have-the-same-rights-as-humans/, accessed 21 September 2019.

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custodian/trustee. Since there would no longer be any risk of appropriation given the independent legal status of the Moon, establishing such heritage sites would be an easier prospect. This would also speak directly to the mixed heritage status of all sites on the Moon—human culture and lunar nature. While it is undoubtedly true that there would be resistance to such a proposal (particularly from those who wish to open the Moon for exploitation), given the legal and customary precedents on Earth it is not inconceivable that granting the Moon its own legal status could be a fruitful topic for consideration. It would also avoid the general apathy towards this issue as noted by Spennemann, and could—as in the case of the two trees in the US—draw even more interest. Regardless, the new legal developments pioneered by New Zealand and India (and the citizens of Athens and Eufaula) are worth considering.

10.7 Conclusion While the thorny challenges related to preserving the historic (and any future) sites on the Moon will not be easily or simply resolved, there is an imperative to consider new legal developments on Earth and any possible solutions they might present. To this end, this chapter has considered calls for declaring and protecting heritage sites on the Moon, historic lunar surface activities and the broader trend of lunar colonisation of which they are part, the positions of various scholars in the literature, legal principles pertaining to space, the concept and definitions of heritage, and the examples presented by natural features and objects being granted legal rights and personhood. Two key arguments were put forth. First, all heritage sites on the Moon should be considered mixed heritage sites in recognition of the natural heritage of the Moon itself, and the cultural heritage embodied within the human artefacts and objects present on the Moon. Second, by granting the Moon its own rights as a legal person, as was recently done on Earth for rivers, a forest, and a mountain (and customarily the two trees in the US), it would serve to strengthen the provisions of the treaties and principles related to space, and make allowance for the legal protection of the Moon and other bodies from exploitation, damage, and pollution. Similarly, this would avoid concerns of appropriation in relation to heritage sites and at the same time legally protect the sites from interference (without denying rights to other states or their representatives). While the issue of heritage sites on the Moon presents no easy solution, this chapter has put forth the idea that perhaps, one day, like the two trees and their descendants in Georgia and Alabama, the Moon too can own itself, and force human beings to carefully weigh the impacts and responsibilities of their actions on our nearest cosmic neighbour. Perhaps, by granting such legal rights to the Moon, it will be possible to create a new framework for preserving important sites left behind by human explorers and make it impossible for unscrupulous forces to damage or exploit the Moon and these sites. This idea requires and merits further development in future.

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Perhaps if the Moon owned itself, we would also be reminded of the vulnerability of our home world, and our primary responsibility of protecting it, as Carl Sagan aptly noted. For now, many rivers are waiting to be crossed.

André Siebrits is a South African researcher focusing on the space arena (especially in developing world contexts), education and the use of educational technologies, and International Relations (particularly in the Global South). He is currently working with the European Space Policy Institute (Vienna), and has experience as an e-learning researcher and as an African political risk analyst. He graduated with a Master of Arts in International Studies from the University of Stellenbosch, where his research revolved around theories of International Relations. He is currently a Ph.D. Candidate at the Department of Political Studies at the University of Cape Town (UCT), where his research focuses on the role of the Global South in the space arena, especially in relation to governance, seen from an International Relations perspective. André is an author of publications in the e-learning field, and has written on the space-education ecosystem for sustainability and the role of educational technologies in Africa, on integrated space for African society (legal and policy implementation of space in African countries—specifically Algeria, Morocco, Tunisia, and Zimbabwe), and on the African space arena. André has also presented lectures at the UCT SpaceLab (for their Space and Society course) on the African space arena and on the role of educational technologies in space education in Africa.

Chapter 11

The Protection of Cultural Heritage Sites on the Moon: The Poo Bags Paradox Hugo Lopez

Abstract During the several human Moon missions, astronauts left more than 100 metric tons of objects on and around the landing sites. Among them, there are scientific materials, symbolic, commemorative and personal artefacts as well as bags containing human wastes (feces, urine and vomit). Today, some initiatives have been started in order to declare these sites as «cultural heritage» by both States and regional organisations. However, the very presence of these «poo bags» raises some issues for public international law. Indeed, they could constitute a real threat to the lunar environment and for scientific activities carried out on the Earth’s natural satellite. This article aims to present the paradox of these bags which, on the one hand need to be protected according to their future status of «cultural heritage» and part of cultural sites on the Moon and, on the other, should be removed in order to protect both scientific interests and the lunar environment.

A trash bag from Apollo 11

H. Lopez (B) Université Paris-Sud, Orsay, France e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 A. Froehlich (ed.), Protection of Cultural Heritage Sites on the Moon, Studies in Space Policy 24, https://doi.org/10.1007/978-3-030-38403-6_11

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11.1 Introduction «Yeah, we left a few things up there».1 Here is another sentence from Neil Armstrong which will, later, resonate into the moon tourists’ minds, facing one of the rare cultural heritage sites beyond Earth limits. In front of them, take place the memories of Apollo 11 moon landing, as beached in the middle of this magnificent desolation described by Buzz Aldrin a century ago. When the speaker inside their astronaut helmet is turned off, the silence is impressive. Turned on, it is possible to hear a few eco-friendly tourists grumbling about the large amount of wastes, covered by the voice of a guide praising the American success. They are right, even this guy, driving a four-wheel drive car on Earth, not particularly of the environment, finds the cleanliness quite unusual for a cultural site. It must be said that, according to the guide’s speech, there are around 100 different objects that have been abandoned on place. Among them, there is, of course, scientific material, but also symbolic, personal, commemorative, and… organic artefacts. He is now realizing that he has under is eyes, feces, vomit and urine bags constitutive of a human cultural heritage. «A few things up there…». It is estimated that, since 1959,2 it is more than 100 metric tons which have been accumulated on the Moon’s surface.3 Among these human relics can be found 96 bags full of the organic wastes from the “envoys of mankind”. These wastes are today, for better or worse, part of the few 80 Moon landing sites of human and/or robotics missions, likely to be qualified as “cultural heritage sites” according to the 1972 World Heritage Convention.4 The latter defines a cultural site as the “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”.5 More than 40 years after the adoption of this convention, it seems that its implementation has, following the words of Janet Blake, “slowly moved away from the notion of ‘iconic’, ‘wonder of the world’ approach, toward the idea of exemplars of cultural heritage that are ‘representative of the best’ in a particular cultural area, region, them or historical period”.6 Even though there is this drifting in the very notion of cultural heritage, sites like the Apollo 11 one could be considered as such, either on the ‘iconic’ basis or on the ‘representative of the best’ one. To be qualified as a national, regional or international cultural heritage site, a request must be submitted to the competent national, regional or international organisation, which, for the case of the Moon, can raise some issues.

1 Quotation

in: Beth Laura O’Leary, One Giant Leap: Preserving Cultural Resources on the Moon, in Handbook of Space Engineering, Archaeology, and Heritage, 2009, page 760. 2 Luna 1, the first spacecraft sent to the Moon landed the 2nd January 1959. 3 Beth Laura O’Leary, Evolution of Space Archaeology and Heritage, in Handbook of Space Engineering, Archaeology, and Heritage, 2009, page 33. 4 UN Educational, Scientific and Cultural Organisation (UNESCO), Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972. 5 Ibid., Article 1. 6 Janet Blake, International cultural heritage law, Oxford University Press, 2015, page 13.

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The protection of these sites represents today an important issue with regards to the expansion of commercial space activities and the upcoming advent of space tourism. Indeed, the visit of the sites or the landing next to them could potentially deteriorate them in a permanent and pronounced way. In response to this, initiatives have been launched in order to ensure a national and/or an international protection of these cultural heritage sites. In this respect, it has been required for both the US National Aeronautics and Space Administration (hereinafter ‘NASA’) and the US Keeper of the National Register of Historic Places to the Tranquility base Moon site in the American National Historic Landmark in 2000. The NASA’s Deputy General Counsel answered: I must inform you that we cannot support your proposal to have Tranquility Base declared a National Historic Landmark (NHL). The Treaty [outer space treaty] declares that there can be no claims of sovereignty or territory by nations over locations in space … ‘by means of use or occupation, or by any other means.’ The listing of lunar areas as NHL’s is likely to be perceived by the international community as a claim over the Moon.7

The Keeper of the National Register followed the NASA’s answer in a letter dated from August 18, 2000, addressed to the authors of the request (the Lunar Legacy Project).8 However, it seems that the State practice is evolving. If, at the moment, it is not possible, according to the Treaty on the principles governing the activities of states in the exploration and use of outer space, including the Moon and other celestial bodies (hereinafter the space treaty), to claim sovereignty over the Moon and other celestial bodies9 —or part of them—, the NASA changed its view since the request. The American space agency has revised its initial position and set, in 2011, recommendations aiming to protect the American artefacts located on the Moon. These recommendations establish exclusion zones around the Moon landing sites of Apollo missions, robotic missions (e.g. Surveyor sites), impact sites (e.g. Ranger, S-IVF, LCROSS, …) and other indicators of US human, human-robotic lunar presence, including footprints, rover tracks, etc.10 The breadth of the exclusion zone is set on a case-by-case basis. For instance, for the Apollo 11 Moon landing site, its diameter from the lunar module descent stage is of 75 m and of 225 m for the Apollo 17 one.11 Furthermore, the American Congress adopted in 2013, the Apollo

7 Stephens,

R. M. 2000. Letter dated August 18, 2000, from NASA Deputy General Counsel to the Lunar Legacy Projects regarding NHL designation of lunar artifacts at Tranquility Base. On file at the Rio Grande Archives, New Mexico State University, Las Cruces, NM. 8 Shull, C. 2000. Letter dated August 18, 2000, from Keeper of the National Register to the Lunar Legacy Project regarding the NHL designation of lunar artifacts at Tranquility Base. On file at the Rio Grande Archives, New Mexico State University, Las Cruces, NM. 9 Article II, Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205. 10 NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts, July 20, 2011. 11 Ibid., page 17.

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Lunar Landing Legacy Act12 in order protect the Apollo missions’ sites. In addition, two States (California13 and New Mexico14 ) have added Tranquillity Base to their list of protected heritages sites. Despite being non-legally binding at an international level, it seems that, up to now, no State has been opposed to the US Moon cultural heritage protection policy. A second indicator of the evolution of the Sate practice toward a full protection of such sites, is the statement of the European Space Agency’s (hereinafter ‘ESA’) director general Jan Wörner, who wishes to recognize them as “cultural heritage”.15 This call for article is likely to be the omen of the Agency’s intention. It could be the catalyst of an evolution, if not, an adaptation of space law in this way. However, in addition to the question about the legality of the acknowledgment of the status of «cultural heritage» to the human relics on the Moon’s surface and of the creation of exclusion zones, the question of their protection raises many issues. For instance, the single presence of bags containing human organic waste challenges public international law on several aspects which will be studied all along this article. Indeed, the contents of these bags could, in the long run, cause major concerns for the lunar environment as well as for the human scientific activities carried out on the Moon. Regarding the first issue, the introduction of terrestrial substances onto the Moon or other celestial bodies could, permanently, jeopardize the existence of possible indigenous life forms.16 Concerning the second issue, these life forms or organisms left on the Moon by humans could distort the results of scientific researches carried out into outer space. If scientists, one day, discover a life form on the Moon, how would they know if the organism found was already present or if it is coming from one of these bags? Up to now, a such situation on the Moon is quite probable, but the treatment of the Earth’s natural satellite must be an example for the next human missions later carried out on Mars and other celestial bodies. For international law, this situation is paradoxical. Indeed, how to ensure a full protection of a cultural heritage site located on the Moon when one of its components is likely to contaminate and deteriorate it? The question of the protection of the sites this threat will be studied in a second part (II). The first part will be dedicated to the study of the legal status of these «poo bags» and consequently, the competences of the States over them (I). The understanding and the determination of the jurisdiction and control of a State over such objects is indeed, a substantial condition to the resolution of the «poo bag paradox». 12 H.R.

2617: Apollo Lunar Landing Legacy Act, 2013, available on: https://www.govtrack.us/ congress/bills/113/hr2617/text. 13 State of California Department of Parks and Recreation Primary Record sheet available online at http://ohp.parks.ca.gov/pages/1067/files/tranquility%20base_draft.pdf). 14 New Mexico Department of Cultural Affairs Historic Preservation Division file #1946 (http:// www.nmhistoricpreservation.org/assets/files/registers/2012%20Report_%20Section%202_% 20Arranged%20by%20County.pdf). 15 The Guardian, Apollo 11 site should be granted heritage status, say space agency boss, July 19, 2019. 16 Lotta Viikari, The environmental element in space law, assessing the present and charting the future, Studies in space law volume 3, 2008, page 51.

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11.1.1 From Human Waste to Cultural Heritage or How a Poo Bag Becomes a Cultural Heritage Protected Under Public International Law The legal obligations and competences of a State in outer space are enunciated in the corpus of space law. This one is based on several international instruments and has as Magna Carta17 the 1967 Outer Space Treaty. From these different treaties, it is possible to identify three categories of statutes, subject to different legal regimes: one for the space objects (including launchers, spacecraft, modules, …), one for the astronauts, and one for the Moon and other celestial bodies. For instance, an astronaut is considered as an “envoy of mankind” and therefore, benefits from a particular protection. Article VIII of the space treaty provides that a State retains its jurisdiction and control over its space objects launched into outer space as long as they stay there. The question, in order to determine if a State could remain competent over the human waste bags located on a cultural heritage site on the Moon, is now to know if such object could be considered as a space object (A) or if they shall be considered differently. Then, it will be possible to study the management of the overlap between the status of space object and the status of cultural heritage (B). This will allow us to understand the competences of the State to remove them—or not—from their location in order to ensure a full protection of the lunar environment as well as the scientific interests of other States in the second part.

11.1.1.1

The Uncertain Legal Status of the Poo Bags Located in Outer Space

The characterization of the legal status of the organic waste bags is a prior condition to be able to determine if a State retains control and jurisdiction over them. As seen above, there are three categories of legal statutes established by the different space treaties: one for the space objects, one for the astronauts and one for the Moon and other celestial bodies. If the latter can easily be excluded, the question is, which status fits the human waste located in outer space? Can human waste be considered as a space object? This would be in contradiction with the customary rules of the 1969 Vienna Convention on the law of treaties according to which a provision of a treaty “must be interpreted in good faith, in accordance with the ordinary meaning given to their terms in their context and in the light of the object and purpose of the Convention”.18 It is clear that the ordinary meaning of “object” does not ordinarily include human wastes. But, do these wastes fit the ordinary meaning of the term “astronaut” as well? 17 M. N. Andem, The 1967 outer space treaty (1967 OST) as the Magna Carta of contemporary space law: a brief reflection, International Institute of Space Law, Issue 3, 2004. 18 See e.g., International Court of Justice, Jadhav case (India v. Pakistan), Judgment, 17th July, 2019, page 20, para 71.

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The legal status of the human wastes is uncertain and could be debated. Indeed, the very term of “space object”, however central in space law, did not receive any legally binding definition within the space treaties, but only some indicative elements. Notably, the Convention on international liability for damage caused by space objects19 (hereinafter ‘the liability convention’) provides that the term “space object includes component parts of a space object as well as its launch vehicle and parts thereof ”.20 This implies that each object and its components—and the debris they could potentially generate—located in space are considered as space objects. The definition of the space object is even more important since it implies a full jurisdiction and control of the State of registry over them, during all the time that they are in outer space.21 Bin Cheng established a definition derived from an analysis of the State practice and affirms that the term space object is “the generic term used to cover spacecraft, satellites and, in fact, anything that human beings launch or attempt to launch into space, including their components and launch vehicles, as well as parts thereof ”.22 Stephen Gorove reached a more precise definition and interpretation of the term space object. He explains that “a “space object” may mean any object which was designed to be launched into outer space […]. The component parts of a space object would include all elements normally regarded as making up the space object, including fuel tanks and perhaps even the fuel itself. Thus any object, without which the space spacecraft would be regarded incomplete, may be taken to constitute a component part”.23 However, concerning human wastes, this definition, and more generally, the lack of definition, raises some questions. Indeed, should they be considered as a “space object”? These wastes are certainly part of a space object (a launcher, a module, …) but are not themselves coming from a space object since they have been ejected by an “envoy of mankind”. Although this expression is a fiction impregnated by the philosophy of the space treaties,24 the legal framework applicable to a human being in space is different than the one applicable to a space object. Thus, it does not seem possible, like it is the case for space object, to consider as “envoys of mankind” each of their constitutive elements. Such a consideration would imply, for instance, a duty

19 Convention on the international liability for damage caused by space objects, opened for signature

on March 29, 1972, U.N.T.S. 961, page 187. Article 1. 21 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205, article VIII. 22 Bin Cheng, Legal status of spacecraft, satellites, and space objects, in Studies in International Space Law, Clarendon Press Oxford, 1997, page 3. 23 S. Gorove, The recovery and return of objects launched into outer space: a legal analysis and interpretation, The International Lawyer, Vol. 4, No 4, July 1970, page 685. 24 Article V of the space treaty does not provide that the astronauts are “envoys of mankind” but “shall be considered” as an “envoys of mankind”. Thus, the treaty refers to a fictive status of international law. 20 Ibid.,

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of the States to rescue25 the astronauts’ organic wastes as well as their limbs—in the improbable case of a dismemberment—which would be disproportionate regarding the cost of a space mission and the benefit of the “rescue”. This issue regarding the legal status of human wastes or limbs is debatable and will probably remain unsolved, but in the case of such wastes found on the Moon cultural heritage sites, it is possible to answer by surrounding it. Indeed, on the Moon, the wastes are contained in bags and consequently, it is possible to distinguish the content from the container. If the content of the bags cannot be defined, the bags can be since they were boarded on the spacecraft and, therefore, were part of them. Moreover, these bags have been thought and developed to be embarked during space mission to contain human waste, it is arguable that they have to be regarded as part of the spacecraft and consequently, as a space object. Following this reasoning, States do not have the full jurisdiction and control over the human waste directly but over its containers, giving them the possibility to adopt laws and regulations to manage them on the Moon and, for instance, by acknowledging them as cultural heritage.

11.1.1.2

From Space Object to International Cultural Heritage

Once the status of the human organic wastes located on the Moon sites identified, it is interesting to turn to the question of the modalities and legal consequences of its evolution to a “cultural heritage”. The studied bags are today part of the different Moon landing sites which, according to the definition from the 1972 World Heritage Convention, could be qualified—in case of request from the State who has jurisdiction over these elements—as cultural sites. The first raising issue is to discover to what extent a State could make such a request. For instance, the 2001 Convention on the protection of the underwater cultural heritage establishes a time condition, as well as a condition related to the cultural, historical or archaeological importance of the object/site located underwater. This convention provides that to be qualified as underwater cultural heritage, the “traces of human existence” must be “partially or totally under water, periodically of continuously, for at least 100 years”.26 It seems however, that the reasoning by analogy with the Moon cultural sites has not vocation to apply since some States already wish to qualify them as such, regardless of any time condition.27 The exceptional character of human missions on the Moon seems therefore to be self-sufficient to consider their sites as cultural heritage. A bag full of organic wastes should not, in itself, be considered as a cultural heritage, but it is arguable that its very presence in the heart of a cultural site, since its origin, is enough to convey it this qualification. However, who is competent to 25 Agreement

on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature Apr. 22, 1968, 672 U.N.T.S. 119. 26 Article 1, UNESCO Convention on the protection of the underwater cultural heritage, adopted on November 2nd, 2001. 27 See e.g. the US Apollo Lunar Landing Legacy Act (2013) and the NASA’s Recommendations to Space-Faring Entities.

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decide if a Moon site, consequently located in an area beyond national jurisdiction, could be qualified as such? The World Heritage Convention stipulates, indeed, that States can only submit to the UNESCO sites within their territory.28 The US Apollo Lunar Landing Legacy Act, to this extent, provides that a request shall be sent to the UNESCO to register Apollo mission sites on the World Heritage list.29 To date, no such request seems to have been made. The protection of the Moon cultural sites would therefore not be ensured through the World Heritage Convention and, would rather have to be either national or regional (in the case of future ESA’s Moon’s surface mission for instance30 ). Another solution would be to adopt, like it is the case for Antarctica, an international instrument, specific to this issue in this international area.31 However, today, some States, including the United States, constantly reject the multilateralist basis in space law matters. De facto, this branch of public international law is no more developed through the consensualist basis, but rather upon the adoption of technical regulations, within the works of the Committee on the Peaceful Uses of Outer Space (UNCOPUOS)’s Scientific and Technical Subcommittee.32 This organ would then be competent to adopt legal—non-binding—norms aiming to protect the cultural heritage sites on the Moon. It is also possible that a multilateral convention, specific to this issue, might be adopted since the main obstacle to space law negotiations—the United States—has, firstly, the will to protect such sites and, secondly, interests in doing so. Indeed, the measures they have adopted until now are not binding for third States. Pending an international protection regime, the States remain competent over cultural sites on the Moon through the jurisdiction and control they exercise on their space objects,33 including, as seen before, human organic waste bags. Consequently, the overlapping between the status of space object and the status of cultural heritage does not pose any difficulties as in both cases, States retain jurisdiction over the artefacts located on the Moon. However, what would happen if these relics received the status of “cultural heritage” at the international level (on the UNESCO World Convention or other multilateral agreement basis)? Does a status would have to be prioritized over the other? For instance, if a Moon tourist uses the golf club abandoned 28 Article

3, UN Educational, Scientific and Cultural Organisation (UNESCO), Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972. 29 Section 8, H.R. 2617: Apollo Lunar Landing Legacy Act, 2013. 30 To date, ESA only sent a probe in lunar orbit (SMART-1) in 2003. The question of the protection of orbital cultural heritage on Moon is also discussed by scholars. See e.g.: Alice Gorman, Heritage of Earth orbit: orbital debris—its mitigation and cultural heritage, in Handbook of Space Engineering, Archaeology, and Heritage, 2009, page 381–397; Walsh, Justin St. P, Protection of humanity’s cultural and historic heritage in space, Space Policy, 28.4, 234–243, 2012. 31 Antarctic Treaty Consultative Meeting (ATCM), Guidelines for the assessment and management of Heritage in Antarctica, adopted in 2018, available at: https://www.ats.aq/documents/recatt/ att643_e.pdf. 32 Armel Kerrest, Actualités du droit de l’espace: la responsabilité des Etats du fait de la destruction de satellites dans l’espace, Annuaire Français de Droit International, vol 55, 2009, page 623. 33 Article VIII, Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205.

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by Alan Shepard during the Apollo 14 mission, to beat another tourist, causing him a “personal injury”, does the responsibility of United Stated could be engaged under the Liability convention? In the case where the object is part of the cultural site but conserves its status of space object, this would be possible. Otherwise, if the object, part of the cultural site, only keeps the status of “cultural heritage”, the responsibility of United States would not be engaged. Insofar, as these objects were and are space objects by nature and have only been qualified as cultural heritage after recognition, it is arguable that the second should be given precedence over the first and that only the “cultural heritage” qualification should be retained. Thus, the organic waste bags can be qualified as “cultural heritage”, which could, at first glance, be puzzling with respect to the vision of human that we wish to leave to future generations.34 However, in addition to the arguable nature of cultural heritage, these bags represent a real threat for the lunar environment as well as for the scientific activities carried out on the Moon and, according to space law and international environmental law, should not have been abandoned up there.

11.1.2 From Cultural Heritage to Interplanetary Threat: The Poo Bag Paradox During the future acknowledgement, either national, regional or international, of lunar cultural sites, States would have to face a reality: the “poo bags” are a threat for the Moon’s environment. The situation is then paradoxical as they will have to be protected and conserved regarding their status of cultural heritage, despite the fact that their very presence is prohibited under space and international environmental law. First, it will be show to what extent their presence at the Moon’s surface is breaching international law (A) and, secondly, it will be studied what are the solutions to this paradoxical situation (B).

11.1.2.1

The Controversial Legality of the Poo Bags’ Presence on the Moon’s Surface

It is estimated that more than a billion bacteria are present per grams of wet stool, turning a simple excrement into a complex bacterial ecosystem. These stools could have harmful consequences into outer space. For instance, within the International Space Station (ISS), it is acknowledged by the American Federal Astronautical Administration (FAA) that the organic wastes can cause damages. In a report, the FAA recognized that “Biological solid waste, such as those from food, are generally not stable, as they contain 40-90% moisture and soluble organic compounds. As a result, these wastes cannot be stored for extended periods, because they will decompose, 34 Article

4 of the World Heritage convention provides that States have a duty in the transmission of the cultural to the future generations.

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leading to the growth of undesirable anaerobic microorganisms (which could pose a threat to crew health), produce noxious gases (including N 2 O, NH 3 , H 2 S), and create foul odors from volatile fatty acids”.35 Once on the Moon, it is possible that similar harmful effects could occur: The Earth already showed us the effects of the introduction of alien species from an environment into another.36 On the Moon, scientists still do not know if the bacteria present in these bags are still alive, but this possibility has not been rejected.37 Even more, there is a theory, called “Panspermia”, still under debate among the scientific community, according to which the life on Earth has been brought by space bodies such as asteroids38 and therefore, can survive during an interplanetary journey. It is then arguable that life could survive longer than 50 years on the Moon’s surface. Without entering into this scientific debate, bacteria can be found in the harshest environment on Earth: in the deep seabed area, within glaciers, … Their survival up there is therefore possible. Such a possibility would thus imply the violation of public international law on two basis. Firstly, the organic waste bags are constitutive of a risk for the lunar environment, and, secondly, could potentially jeopardize the scientific activities carried out on the Moon. Concerning the threat to the lunar environment, the 1967 outer space treaty provides that “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination […]”.39 In addition, it is also possible to take into account the whole corpus of international environmental law in this case as article III of the same treaty enunciates that States have to conduct their activities in accordance with international law.40 Thus, this “contact clause” between space law and international law, allows for the application of the sic utere tuo ut alienum non laedas principle (use your own property in such a manner as not to injure that of another)41 codified in the principle 21 of the 1972 Stockholm Declaration42 and in 35 FAA,

Advanced Aerospace Medicine On-line, section III, 3.2, 2017, Available on: https:// www.faa.gov/about/office_org/headquarters_offices/avs/offices/aam/cami/library/online_libraries/ aerospace_medicine/tutorial/media/III.3.2_Waste_Management.doc. 36 According to the National Wildlife Federation, approximately 42% of threatened or endangered species are at risk due to invasive species. 37 For more information on the consequences of the presence of poo bags on Moon see: VOX, Apollo astronauts left their poop on the moon. We gotta go back for that shit, July 12, 2019, available at: https://www.vox.com/science-and-health/2019/3/22/18236125/apollo-moon-poop-mars-science. 38 See e.g. H. J. Melosh, The rocky road to panspermia, Nature 332, page 687–688, 1988; Harmke Kamminga, life from space—A history of panspermia, Vistas in Astronomy, Vol 26, Part 2, pages 67– 86, 1982, …. 39 Article IX, Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205. 40 Ibid., Article III. 41 Jutta Brunnée, Sic utere tuo ut alienum non laedas, Max Planck Encyclopedia of Public International Law, 2010, para 1. 42 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972.

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the principle 2 of the 1992 Rio Declaration.43 According to this principle, “States have […] the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.44 Even though the customary nature of this principle is still under debate,45 this one is considered as “a cornerstone of international environmental law”,46 nay as a “generally accepted principle of international law”.47 However, no damages to the environment has been demonstrated up to now and it is unlikely that this would occur one day, without eliminating the risk. The precautionary principle would imply that States have a duty to remove the organic waste bags from the lunar surface, even if they are considered as “cultural heritage” of the Moon. Further development will be given about this issue in the next Sect. 11.1.2.2. Concerning the possible harm to the States’ interests in the conduct of their activities in outer space, these bags could also constitute a threat to their scientific activities. Activities which, historically, are at the heart of the space conquest.48 Indeed, in the case of the discovery of a life form on the Moon, how would it be possible to know if it was already present in situ or if it comes from one of the bags’ content abandoned by astronauts? In order to mitigate this issue, the Committee on Space Research (COSPAR), in the continuity of article IX of the space treaty, has adopted non-legally binding guidelines which it regularly modifies.49 In these, the COSPAR aims to protect scientific activities and interests of the States by the implementation of technical requirements in order to avoid the contamination of the space environment. Despite being inexistent at the time of the Apollo missions, it is arguable that, today, the abandonment of human organic waste on the Moon would be prohibited. The very presence of this kind of bags is therefore in contradiction with both space and international environmental law. The raising question is therefore, what should we do with them? Could we remove them from a cultural heritage site located on the Moon?

43 Rio

Declaration on Environment and Development, Rio de Janeiro, 14 June 1992. article 2. 45 Jutta Brunnée, Sic utere tuo ut alienum non laedas, Max Planck Encyclopedia of Public International Law, 2010, para 16. 46 Philippe Sands and Jacqueline Peel, Principles of international environmental law, Third edition, Cambridge University Press, 2012, page 191. 47 Article 4(6), Convention for the protection of the natural resources and environment of the south pacific region, adopted in 1986. 48 The first man made satellite, Sputnik 1, has been orbited by Russia in 1957, in the frame of the International Geophysical Year (AGY). The strong presence of scientific activities into outer space can also be guess at the reading of the 1967 space treaty and in the 1979 Moon agreement which provide specific provisions related to the protection of scientific interest of the State. 49 G. Kminek (ESA), C. Conley (NASA), V. Hipkin (CSA), H. Yano (JAXA), COSPAR’s Planetary Protection Policy, 2017 (last version). 44 Ibid.,

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The Removal of the Poo Bags from the Moon: An Unsolvable Equation

Once the organic waste bags qualified by States as a cultural heritage, they will entail into a paradoxical situation. On the one hand, their very presence is in breach of public international law and a threat to the whole site on which they are located—and more generally, the Moon’s environment—and, on the other hand, they will have to be protected due to their status. The question is now to know what should the States do to deal with this issue? Should they remove them, at the risk of degrading the cultural site or, on the contrary, should they leave them up there at the risk of contaminating the Moon? In the first case, if, for instance, United States want to remove these bags located on the Apollo 11 site, they would have to face a reality: the removal would imply the denaturation of the site, and not only by the destruction of a cultural object. In the case of a human mission aiming to take them back to Earth, the footprints of the astronauts would either be confused with Armstrong or Aldrin’s ones or would deteriorate them. In the case of a robotic mission, this would imply the creation of new prints which would also deteriorate permanently the site. Finally, in the case of an airlift by a probe—which is unlikely because of the poor lunar atmosphere— the blow would have for consequence to raise particles which could then cover the footprints of our space pioneers. Moreover, the removal would necessarily be in breach with the national, regional or international rules relating to the protection of the cultural heritage as both are incompatible. Indeed, it is unlikely that the cultural regulation will allow the permanent removal of one of the objects constitutive of a cultural site. Lunar sites are therefore victims of their own protection… In the second case, if United States decides not to remove the bags—or disregard this issue—there is a risk that their content would cause harm to the lunar environment as seen in the previous section. However, the precautionary principle, which wording varies according to the international instruments in which it is found,50 seems to imply a duty to remove these wastes. According to the 1992 Rio Declaration, this principle implies that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.51 Philippe Sands and Jacqueline Peel have brought a common interpretation of this principle from the different conventions, and found that this “principle requires activities and substances, which may be harmful to the environment, to be regulated, and possibly prohibited, even if no conclusive or overwhelming evidence is available as to the harm or likely harm they may cause to the environment”.52 This principle has become today a “guiding principle of modern international law” as well as national instruments and 50 See

e.g.: Stevens, Mary, The Precautionary Principle in the International Arena, Sustainable Development Law and Policy, Spring/Summer, 2002. 51 Article 15, Rio Declaration on Environment and Development, Rio de Janeiro, 14 June 1992. 52 Philippe Sands and Jacqueline Peel, Principles of international environmental law, Third edition, Cambridge University Press, 2012, page 222.

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jurisprudence relating to the protection of the environment and the conservation of natural resources.53 In the case of the organic wastes located on the Moon, there is no clear evidence of its potential harm to the environment. However, the absence of evidence does not mean the evidence of the absence: the precautionary principle has to be followed in the case of the protection of the lunar environment, and the organic wastes have to be removed. The paradox is therefore at its apogee, a removal of these bags is necessary, but it could only occur at the cost of the cultural site’s integrity. Some might argue that these bags should be removed as both environmental and scientific interests of all of mankind are at stake. Meanwhile, others, more conservative, might argue that the States should let them up there as the low risk of contamination does not justify the cost of a removal mission, as well as the degradation of the cultural site. A third solution, and probably the one chosen by United States and other States, is to not be preoccupied by this question. Today, it seems unlikely that the United States and other States are concerned about this issue. Everything suggests that these bags, these bacteriological Damocles’ sword, will not be removed and will, for ever, be part of the lunar cultural heritage.

Hugo Lopez is a French law student. After having started technical and scientific studies, he decided to switch and joined Toulouse Capitole University to obtain a public law bachelor degree. Today, he holds a master 1 in public international law and European law and is about to start the master 2 in space and telecommunications law at Paris Saclay University. In parallel, he is doing a research internship at the Institut du droit de l’espace et des télécommunications (Idest).

53 Meinhard

Schröder, Precautionary Approach/Principle, Max Planck Encyclopedia of Public International Law, March 2014, para 1.