Space Education and Strategic Applications Journal
Under this interpretation , “ due regard ” requires a balancing test , taking into consideration the rights of the State that have been impinged by the contested activity , the extent of the impairment , the nature and importance of the contested activity , and the availability of alternative approaches . This balance will produce different outcomes on a case-by-case basis , an uncertainty which in and of itself is enough to make States and their nationals consider carefully their international obligations in respect of space activities .
There are already many objects on the Moon , Mars and other celestial bodies — and soon to be many more . What does it mean to show those objects “ due regard ?” Arguably , when approaching an object which is conducting scientific experiments or undertaking commercial activity , showing “ due regard ” would require maintaining a certain distance to assure the activity is not affected either directly or indirectly by another actor .
But what does it mean for non-operational objects ? In the one extreme , they can be treated the same as operative objects and given wide-berth . But then , arguably , a State is violating Article II of the Outer Space Treaty by keeping its non-operational objects strewn about the Moon and other celestial bodies and thereby claiming territory by an “ other means .” On the other extreme , because the objects are non-operational , it is not possible to do harm to them , so they may be removed from their resting areas and , ostensibly , returned to their owners . But what if the object is a cultural artifact with unquestionable historic significance ? Imagine if objects found at the site where Luna 2 — the first human made object to impact another celestial body lies , or Mare Tranquillitatis — the site where humans took their first off-world footsteps — were removed by private entities ? Even if they were returned to Russia and the U . S . respectively , scores of details that belong on the historical record would be irretrievably lost .
And what about the first bootprints ever left by humans on another celestial body ? Unlike their counterparts on Earth , cultural heritage and sites in space enjoy no protection whatsoever under any law .
III . Protecting Human Heritage
A . A Cradle of Civilization
In April 1959 , the Egyptian Minister of Culture contacted the United Nations Educational Scientific and Cultural Organization ( UNESCO ) 29 with an “ agonizing dilemma .” In order to promote and accelerate industrialization and the modernization of its economy , Egypt needed to harness the power of the Nile River . 30 Unfortunately , the plan to build what is now known as the Aswan High Dam would result in the creation of a
¶ 519 ( Perm . Ct . Arb . 2015 ).
29 Fekri A . Hassan , The Aswan High Dam and the International Rescue Nubia Campaign , 24 The African Archaeological Rev ., 73 , 79 ( September / December 2007 ).
30 Id . at 75 .
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