Submission for the panel 3, "Protection of cultural heritage sites on the Moon".
Submitted by Klara-Maria Töpfer (born 18.08.1998), Student at Leuphana University Lüneburg.
Concerning the protection of cultural heritage sites on the Moon, organizations such as “For All Moonkind” call for the implementation of a new convention, as the lex specialis governing outer space does not mention the concept. However, there is a case to be made for the establishment of cultural heritage sites in the existing legal framework, specifically through the principle of “Common Heritage of Mankind”.
While “Common Heritage of Mankind” in context Article 11 of the Moon Agreement (“MOON”) should be viewed restrictively in its relation to resource exploitation rather than cultural heritage, a broader concept can be introduced to the lex specialis, namely through Article III of the Outer Space Treaty (“OST”), which stipulates that exploration in space is to be carried out “in accordance with international law”; this includes the principle of “Common Heritage of Mankind” in its broader meaning as set forward by codifications of other areas considered res communis omnium, such as the Area of International Waters, as evident in Article 135 United Nations Convention on the Law of The Sea (“UNCLOS”) as well as its preamble. Common Heritage of Mankind in this context refers inter alia to an area outside of territorial jurisdiction governed by an international authority with limitations to private exploitation of resources.
Article 149 UNCLOS puts the principle of “benefit of mankind as a whole” in the broader context of cultural preservation. But while the preamble of the World Heritage Convention (“WHC”) states the intention of establishing a “heritage of mankind”, paralleling the provisions concerning res communis omnium mentioned above, its focus on territorial jurisdiction for example in Article 3, seemingly negates the non-appropriation principle of Article II OST. However, Article 11 (3) WHC states that sites and objects can be declared cultural heritage if they are situated in “jurisdiction over which is claimed by more than one State” under general consent. Considering the “Common Heritage of Mankind” principle includes the administration of an international authority, an argument can be made that in the consent of all states, cultural heritage can be established on areas considered res communis omnium, even on celestial bodies as the Moon.
An possible implementation of this can be examined in the context of the international seabed through Article 11 and 12 of the Convention on the Protection of Underwater Cultural Heritage (“CPUCH”), which put this authority of declaring cultural heritage on the High Seas outside of national jurisdiction in the hands of the Director-General of the International Seabed Authority as well as a “Coordinating State” similar to the exploitation of natural resources of the seabed, in turn paralleling the provisions for resource exploitation established in the Moon Agreement. Therefore, the establishment of cultural heritage in the context of the existing legal framework governing Outer Space and paralleling areas should be considered.