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How can heritage in space — the very objects and events that tell the story of humanity becoming a spacefaring civilization, such as Neil Armstrong’s and Buzz Aldrin’s bootprints, India’s Chandrayaan-3 lunar lander, and more recently Intuitive Machines’ IM-2 and Firefly Aerospace’s Blue Ghost — best be protected?
The experience of Holocaust art recovery — which has dragged on for 80 years after the end of World War II and led to very few restitutions to Jewish families — presents a cautionary tale. To prevent the same mistakes from occurring and to preserve the cultural artifacts of our past and future journeys into space, a Space Cultural Heritage Commission should be created. This can be done by the signatories to a U.N. treaty like the New York Convention, as an independent commission or one through the Permanent Court of Arbitration, to effectuate the terms of the Outer Space Treaty.
A Commission could also be created by the thus-far 55 countries signing onto the Artemis Accords who, through that bilateral instrument, already recognize the need to protect space cultural heritage. If a Commission is not established under either the New York Convention or the Artemis Accords, at the very least, the Dubai International Financial Centre’s Courts of Space should step in to provide a forum for such disputes, particularly those involving commercial space actors.
Lessons from the Holocaust art recovery experience
The looting of art by the Nazis was part of a deliberate and systematic policy of seizing and hoarding art and other cultural objects, and part of their planned process to persecute, dehumanize and annihilate the Jewish people and their culture. The Nazis removed impressionist, modern and other “degenerate” art from German institutions and the private collections of Jewish families; they then sold these valuable works to finance the creation of a German museum that would celebrate more traditional art that the Nazis deemed to represent the Germanic ideal. Between one-fifth and one-third of all art in the Western world changed hands through Nazi seizure or forced sale during the war.
After the war, the Allies returned some of this art to the country of origin, for those countries to in turn disperse to the original private owners. No international mechanisms were set up for the return of these objects. This left families to finance litigation themselves to seek these objects’ return. That litigation has been splintered in domestic courts throughout the world, and families’ claims have been frustrated by various procedural hurdles like sovereign immunity, laches and statute of limitations, as well as varying treatment of the passage of good title under civil and common law systems.
Congress has been playing catch-up for years to remove these hurdles and allow these claims to be heard on their merits; most recently in May when an amendment to the HEAR Act was introduced in the Senate. This amendment would further extend the limitations period for bringing Holocaust art recovery claims and allow such claims to be heard on their merits, rather than being dismissed because of the passage of time or other non-merits discretionary defenses, as they so often are.
The result is that, decades after the war, only a small percentage of art stolen by the Nazis has been restored to Jewish families. As a result, the impact of Nazi looting and subsequent trafficking of artwork can still be felt. As Hector Feliciano, the author of The Lost Museum has noted: “Many of the tens of thousands of works stolen then are missing to this day.”
The Holocaust art recovery experience shows the harm that can come from not setting up a uniform international system for recovery of cultural heritage at the outset. We should not repeat that mistake in space.
A framework for a Space Cultural Heritage Commission
A Space Cultural Heritage Commission should be created, whether in conjunction with the Artemis Accords or the New York Convention and the Outer Space Treaty, to consider claims made by states or individuals against private or public entities. Such a commission would incentivize a wide array of space actors, from countries to commercial companies, to comply with any safety zones set up under international law, like those currently being proposed by the UN COPUOS Legal Subcommittee’s Space Resources Working Group. It should have the power to mediate, arbitrate and issue binding decisions concerning space cultural heritage, including the return of objects or damage awards. Commission members would be attorneys or judges from member states with substantial litigation or arbitration experience, and familiarity with space and/or cultural heritage law. They should be allowed to appoint independent technical or scientific experts to assist in their decisionmaking.
The commission should equally allow for a staged process by which the parties could engage in mediation before commission mediators (separate from the panel of arbitrators who will decide the dispute) while the dispute resolution process is ongoing, and for emergency decisions where, for example, destruction of heritage may be imminent without the Commission’s intervention.
The commission should be created in coordination with the existing Registry of Objects Launched into Outer Space and allow for the creation of a separate registry of space cultural heritage sites, modeled on the registry already being created by the nonprofit For All Moonkind.
Decisions by the commission should be published to provide guidance to the public, but it may make anonymous the parties and cultural heritage involved. And an appellate review process should be available within the commission, to allow review of initial arbitral decisions by a larger panel of arbitrators.
For example: a commercial space company’s lunar lander carrying scientific payloads from a country’s civil space program plans to land within the area NASA has already notified the world threatens the erasure of Neil Armstrong’s bootprints. Or a space mining company plans to mine the Moon for Helium-3 in an area that threatens to disturb India’s Chandrayaan-3 or Firefly’s Blue Ghost landers. The United States, India, or Firefly could seek emergency relief from the Commission to prevent the proposed activities from taking place at those locations. And the parties could mediate concerning an alternate landing or mining location. If, however, the landers or bootprints are damaged or partially removed by a rogue actor before the Commission can intervene to prevent harm, damages could be awarded or the return of the stolen heritage could be ordered in a published opinion by the Commission.
The Holocaust art recovery experience highlights the importance of having in place an international forum for deciding cultural heritage disputes before it is needed, or at least before any claims are likely to be brought. As that experience shows, it is not enough to identify the space cultural heritage deserving of protection, or for international law to support its protection, or even for international law to require consultation where harm to cultural heritage is likely — we must establish a forum to resolve issues of ownership and compensation to give heritage protection teeth, and to incentivize compliance with the law and conduct consistent with the principle of due regard in the Outer Space Treaty. The time to create a Space Cultural Heritage Commission is now.
M.C. Sungaila is a partner at the Complex Appellate Litigation Group where she has litigated Holocaust art recovery claims and an adjunct Professor of Space Law and Policy at LMU Loyola Law School in Los Angeles. This article is based on her presentation at the 2023 Tangible and Intangible Cultural Heritage Conference at the University of Bologna and a forthcoming piece in the Space Law Journal.
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