Race for Space: Protection of cultural heritage vis-a-vis the principle of non appropriation

[Sameer Gupta]

The flagship Artemis program launched by NASA envisions landing the first woman and the next man on the Moon by 2024. The program also intends international collaborations and consequentially NASA has released the Artemis accord (Accord) as a set of guiding principles for a safe, peaceful and prosperous future in the outer space. Through the accords NASA further aims to enter into international partnerships to govern the civil exploration and use of outer space. Presumably, the Accord is an instrument for the participating states to govern the exploration activities on Moon, especially when the Moon Agreement has not received a widespread support from the member states of the United Nations.

Among the ten key principles identified in the Accord, the principles concerning the protection of cultural heritage raises few fundamental concerns. As a logical corollary, it becomes quintessential to evaluate this principle on the touchstone of the principle of non-appropriation enumerated under Article II of the Outer Space Treaty (OST). Article II of the OST specifically states that Outer Space including the moon and other celestial body is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The principle object behind this provision is to ensure that the States with high technological capabilities do not exclude States which have relatively less technological prowess. Additionally, the Outer Space is a res communis omnium, which means that the Outer Space belongs to the entire community. The context in which Article II of the OST finds its textual representation makes it sufficiently clear that the principle concerning the protection of heritage appears to be in conflict with the non-appropriation principle.

The terrestrial cultural properties are preserved under the framework provided by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and as a part of the entire process for protection of cultural heritage; the 1972 World Heritage Convention requires a sovereign nomination. This inevitably leads to manifestation of exclusive sovereign rights over the sites or objects of cultural importance. However, the World Heritage Convention does not apply to objects or sites of cultural importance in Outer Space and therefore we find that there exists no certain guideline for the protection of cultural heritage in Outer Space including the moon. Additionally, it is reasonable as well as foreseeable to argue that protection of cultural heritage on moon has a propensity to witness activities by the States showing their exclusivity over such objects or sites (concerning cultural heritage) on the surface of the moon. This discussion becomes even more important when we evaluate it through a historical perspective, especially when the US flag was planted by NASA’s Apollo 11. However, the preparatory documents of the OST clearly indicate that the Outer Space is not a domain meant for exclusivity or State dominion and therefore the draft treaty titled “the legal principles to govern the activity of states in the field of exploration and conquest of the moon and other celestial bodies” tabled by U.S.S.R was never accepted by the committee. This clearly indicates the non-exclusive nature of the OST. The planting of the US flag and the discussions thereafter have generated thoughts and literature of great length which includes the idea of creating an international flag for planet earth which might be used to mark territories of cultural heritage on the surface of the moon or other celestial bodies. However, our thoughts should not be confined to use of national flags in Outer Space. Rather, the international community should be receptive towards a larger perspective wherein Sates may end up engaging in activities which exclude other States while protecting the cultural heritage sites.

The protection of cultural heritage by States may not squarely fall within the ambit of ‘claiming sovereignty’ or ‘occupation’; however as a logical corollary of free use, Article II of OST aims to exclude national exclusivity and therefore any sort of exclusivity during the protection of cultural heritage may still subvert the fundamental tenet of the principle concerning non-appropriation. Therefore, the final frontier needs a global consensus wherein protection of cultural heritage is done without offending the core principles of the OST. A global discourse in this direction will not only strengthen the principle of collectiveness, but will also exclude the possibility of nationalism in outer space.