Appellate Attorney M.C. Sungaila on Space Cultural Heritage Preservation and Lessons to be drawn from Holocaust-Era Restitution Cases like Cassirer

Show Notes:
0:00 M.C. Sungaila discussing history / preservation of space exploration
1:50 Sungaila’s Portia Project Podcast interview with Space Law Expert Michelle Hanlon
2:45 Sungaila’s experience with University of Mississippi School of Law’s Air and Space Program
5:30 unclear language related to space law
8:00 mining on the moon
9:40 lessons from Holocaust-era restitution cases like Cassirer v. Thyssen-Bornemisza Collection Foundation
12:30 For All Moonkind
13:30 International Symposium on Cultural Heritage in War and Peace: Tangible and Intangible Cultural Heritage through Past, Present and Future
16:45 Sungaila’s proposed framework to create space cultural heritage commission
22:45 The Artemis Accords
24:50 Italian Opera added to UNESCO intangible cultural heritage list
25:15 treaty requiring registration of space objects
25:35 For All Moonkind’s moon registry
26:10 One Small Step To Protect Human Heritage in Space Act
27:40 Sungaila’s projection
29:30 Dubai space court
31:25 urgency of space cultural heritage preservation
32:40 definition of justice
35:40 9th Cir's 9 Jan 2024 opinion in Cassirer and the question of ethics and law
39:45 Mismatch between domestic law and international obligations
42:10 Institute on Space Law and Ethics
44:00 issues related to satellites, drones, air taxis

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Thanks so much for listening!

© Stephanie Drawdy [2024]

Transcript

Speaker 1: 0:00

In the 1960s, when we went to the moon, there was very little technology, very so far from where we are now, and the people who both built those machines and the people who journeyed on them are pretty remarkable people to have taken those kinds of risks to learn and explore, and that says something so much about who we are as human beings. It's important to continue to have that history, to preserve that sense of pride that we should have about our curiosity and our courage.

Speaker 2: 0:33

Really, Welcome to Warfare of Art and Law, the podcast that focuses on how justice does or doesn't play out when art and law overlap. Hi everyone, it's Stephanie, and that was appellate attorney MC Sangaila, who is also currently an LLM candidate at University of Mississippi's Air and Space Law program. In the following conversation, Ms Sangaila shares about the current state of space law, the recent Kassair decision handed down by the Ninth Circuit in January 2024, and how cases like Kassair, related to Nazi-era art restitution, can be used to build a framework for space cultural heritage preservation. Mc Sangaila, welcome back to Warfare of Art and Law. Thank you so much for being here.

Speaker 1: 1:27

Thank you, Stephanie.

Speaker 2: 1:28

I so appreciate for you having me back, and since we last spoke, you have started an LLM program devoted to air and space law. I was wondering if you might start with what drew you to that field.

Speaker 1: 1:42

Sure. So I was a few things actually, and it's actually related to my podcast, which will be an interesting continuity thing also. So early in my podcast I interviewed Michelle Hanlon, who is the director of the Center for Air and Space Law at Ole Miss, which is the oldest, you know, leading program in air and space law in the US. So I was so intrigued by her own career change to space law. She was an M&A lawyer at a big firm in New York and got the space law bug and went back to school and then is running this program, and her enthusiasm was very infectious. And she said you know, you would be a really great space lawyer because of your appellate training. We need different kinds of people in the space than you might traditionally think, as it's emerging, as it's growing, and I think you would be great. Like well, okay, thank you so much.

Speaker 1: 2:44

And then it took about a year and a half and I took some classes and I thought it sounded really interesting. So I applied to the program and now I'm in it with some really amazing people who are LOM students from all over the world. One of my colleagues is in the Canadian Space Agency and other people work for commercial space companies or are already practicing in aviation law. So it's a really diverse, really interesting group of fellow students. So, yes, so I'm doing that while maintaining my appellate practice and my you know full time work as a lawyer as well. That's a full plate for sure, yeah. And also I would say my father was also an aerospace engineer early on and he worked on some of the earlier missions to the moon, so I feel like that's sort of coming full circle, but his from an engineering perspective, which I could not do. That's not my thing.

Speaker 2: 3:41

Oh, that is full circle. So with that kind of parenting background, did you have a good understanding of air and space law going into the program, or is there a lot? That's a new exploration for you.

Speaker 1: 3:58

Yeah, it's completely yeah, it's completely I want to say completely new, because there's a huge overlay of international law in space law because it's really was really the province of just a few states who were spacefaring nations.

Speaker 1: 4:13

Now we're looking for to growing that other states and commercially, but because of that it's really based in treaties. So there's a lot of there is a bedrock of international law, but that law a lot of it hasn't been tested and a lot of it needs to be adjusted to some degree or at least filled in with the number of different actors who are now in the space, including the private actors. So, yeah, so it's an interesting time. I think that's also what attracted me to it was as an appellate lawyer. I'm involved in sort of expanding the law or contracting the law, just allowing it being part of its development in one direction or another through the courts. And space law is at the point where it really needs to be developed on a real macro level and kind of fleshed out and worked out, and and that seems to be a good fit for the skills I bring from the appellate practice.

Speaker 2: 5:14

When you were looking at and starting to study these treaties. I wonder where their omissions and silences of that jumped out at you.

Speaker 1: 5:24

Yeah, that's a. That's a good point. There's there's some, I would say, you know, gray areas or ambiguities, because the treaties themselves have not been worked out in in a court somewhere. People have generally used diplomacy, the states have used diplomacy to work things through, and so it's not like there's a body of law around the treaties. There's other treaty law which also applies, other international law that's incorporated into the obligations in the outer space treaty and other treaties, but it's not like there's a fully developed. Oh, we've we've had a lot of conflicts in this area and we have, you know, some decisions to flesh out what the treaties mean. So there's some language that's, I would say like, most frequently pointed to is that do regard. So everyone is to have do regard for each other's interests, and what does that mean and what does that look like? So that's a common gray area. That's kind of put out there.

Speaker 1: 6:28

I think the other thing, actually, that's there are a few other things that are discussed and being worked on in terms of orbital debris there being a lot more people launching satellites and launching objects into space, and at certain earth orbits, there's just a lot more items that could crash into each other or having then having created further problems with with other items out there. So being sustainable and what do we do in the case of orbital debris and how do we minimize it is a question that's being debated right now. There's other questions about dark and quiet skies, which is actually part of the problem that the students space law students in the international problem and the man Fred lacks, which I'm coaching for Ole Miss, are dealing with, and that is okay. If you launch a lot of these satellites, then you're going to make the sky's a lot brighter, you're going to have some impacts on astronomy and what we can see from from earth and things like that. So there's a sort of hot topics.

Speaker 1: 7:36

By, say, the biggest topic would be the moon. Everybody's racing to the moon. What does that mean? What does that look like? The outer space treaty says that exploration and use of the moon and other celestial bodies is for the benefit of of mankind. But but you say, okay, that's exploration and use. How do you define that there's? Can you own any property? No, it doesn't look like that, it's not like actual ownership. But but what do you do?

Speaker 1: 8:11

For example, in mining, there are a lot of companies that say we want to mine asteroids. We want to, you know, mine some great resources from the moon that we can bring back to earth, and so what's our incentive to do that if we basically have no right to any of that? So the US has come up with its interpretation of the treaty and it says what we understand it to mean is that the resources are yours. You may not own that land, you may not have exclusive use to mine that land, but once you pull those resources out, you own them and you can sell them. But other countries, you know, may not agree with that. So it's that kind of stuff happening.

Speaker 1: 8:51

I think that's interesting, is happening in real time. The scenarios are being played out in new ways and we have to figure out what is. What is the thing that makes the most sense, but within the framework and sort of I would say, somewhat the idealism of the outer space treaty, which says look, we're here to peacefully use outer space, we're here to explore, to benefit humankind, to share scientific exploration, things like that, and have and also have a lot of transparency. So there is one thing that's really, I think, different about, about the space arena and the outer space treaty, which which to me kind of really was highlighted when I was comparing the Holocaust art situation, especially the Kassir case. Recently, under the Outer Space Treaty, the nation states who have agreed to the treaty, which is overwhelmingly adopted around the world, say yes, okay, state activity is one thing, but any activity by a private actor within your state the state is responsible for. So the state has to in some way monitor, supervise the activities of its private actors to ensure that it is satisfying the treaty, and that is a connection in the treaty that doesn't happen in other scenarios.

Speaker 1: 10:19

So what that ends up meaning is that each state can interpret what that means. Does that mean we license launch vehicles? Does that mean we license other things? Like the FCC licenses the frequencies back and forth communicating from satellites. They're now looking to also license the in-space manufacturing. Is that their job? Should they be licensing that? Who knows?

Speaker 1: 10:47

So there's commentary on those regulations. But this question of what it looks like, does it require regulation or licensing at all? Does your civil space agency just need to be aware of what the companies are doing in your country? So this question of supervision and what that looks like varies by country, but it does tie together the private actors to the state, which also means that the country has to have regulations or licensing. Whatever it does needs to be consistent with its obligations under the international treaty, and that is where things kind of come into some issue in Kassir, I would say, most recently. The countries agree the Washington principles, they agree to these principles that are not binding in treaty, and then there's nothing that says that they have to act consistent with their international pronouncements.

Speaker 2: 11:47

You have brought up a very, some would say, disappointing case, the Kassir case. Stepping back for a moment, nazi era restitution you have worked in your appellate practice on different cases. When you went into your LLM, did you already know that you would have this connection with the cultural heritage work that you'd been doing in Nazi era restitution, with the space heritage?

Speaker 1: 12:19

No, no, not at all. So the director of the program and my professor, michelle Hamlin. She has a nonprofit called For All Moon Kind and they're singularly focused on cultural heritage, space cultural heritage and protecting it. Because she recognizes that once people start going there on a regular basis to the moon, it's going to be way too late to figure out what we're going to do with the material that's there that reveals the pathbreaking Nature of humanity very early on in the 60s and even since then with some of the many firsts that are happening on the moon. So she's been working and focusing on that, along with others at For All Moon Kind, and I serve on their ethics institute too. So space law and ethics, that's kind of the issue I work with on her nonprofit. But but yeah, so she's thinking about those issues.

Speaker 1: 13:24

And, frankly, what happened was when I started, just before, just when I was starting school, I saw this call for papers for this cultural heritage conference in Italy that the University of Bologna and also Ole Miss was sponsoring, and they called for abstracts. And I just had this thought because of the way the culture, the symposium was organized, it had what you would consider to be traditional, tangible and intangible heritage questions, unesco, all of those things being asked and different tracks for that. There was one track on space law and cultural heritage and how we look at those issues and how we might think of emerging issues in that area. And I think it was because all of those things were put together and there was a very thoughtful introduction to the symposium that I thought I wonder how these do come together and because Sear had not yet come out and really bothered me. But but I saw a connection you know.

Speaker 1: 14:27

I saw this is a problem in the families have had a very hard time recovering their art, especially in US federal courts, and it had a lot of hurdles to that. And there has been a call in in Holocaust art, in the Holocaust art arena by professors and some litigators. For some sometimes, maybe like five years ago, it started saying hey, this system where we sent everything back and everybody has to litigate in their home court doesn't seem to be working. So what can we do now to fix that problem? And there was a call to say we should have some cultural heritage commissions, we should have some central place to go so that you're not dogged by very different laws in different, in different settings and and there's a common place to go and it's efficient and it doesn't cost the family millions of dollars to try and get their piece of art and it's separate from the country that may actually have it right now, because a lot of the museums are stayed owned. So so there was that kind of calls for that and I thought about I've always thought that the seed of the the challenges for the families has been that there wasn't one central place to go and that people could go earlier to do that.

Speaker 1: 15:59

So I thought, well, we have that's a post hoc fix for something that hasn't been working. What if we take that as a lesson and say we don't want the same thing to happen with space, especially since it's unique in this sort of it's a whole brand new area in so many different ways? We don't want it to be hard. If it's hard, people might just ignore you know, some of the norms that are developing and once they're ignored, you know stuff is just destroyed. So there's really very little going back and you could have damages, but the for humanity's sake, the heritage is gone. So so I thought, yeah, what do we do that? Think about that now and set up a cultural heritage commission for space from the get go, you know before there is any issue, and so yeah, so that's what I ended up doing, sort of tying the more traditional aspects of the symposium together with with the development of space cultural heritage law and the abstract that you created, that presented, that was accepted and you presented your paper.

Speaker 2: 17:08

Would you give an overview of the framework that you did propose in the paper?

Speaker 1: 17:14

Oh sure, yeah, I was so excited that it got accepted, especially since it was my first symposium ever submitted anything to, so I was really happy about that. Congratulations on that, thank you so much. And it contributes something to the to me it's important to think about. I think sometimes it's because it's so new and people are so interested in its. Space law. International law is it does have its own set of treaties and norms and things like that, but it is part of a larger set of of international considerations and and part of should be part of a larger heritage discussion. So I think I think having that corollary really grounds the space discussion a little bit and helps you have some corollaries to things that you might know or understand, and space is a little more obtuse, so yeah, so I think it's a good merging of those.

Speaker 1: 18:17

So, yeah, sue, I took very much respect Owen Pell, who he and I have worked on cases or strategized on things before, and he had some great ideas for Holocaust Heritage Commission, and there were other ideas out there too, and so I started trying to think what would exist, what dispute resolution mechanisms exist for other things under the space treaties, what have we proposed, maybe even on the national level and how can we kind of put together the best things from each of those that would fit the particular problems for space cultural heritage? So the first thing I was thinking was having a commission that could with claims that could be brought either by states or individuals, so it doesn't have to be the state. There can be some issues with that. An individual would have to lobby the state to bring a claim and the commission and there can be some politics in that too that could slow down claims. So to the extent there are any of those who are not states who have issues, they could bring the claim. And then the power of the commission would be quite broad to mediate, arbitrate or even issue binding decisions or possibly even requiring the return, some more equitable injective type relief as well as damages. And the people who would be potential arbitrators or members of the commission would be not just those who have substantive knowledge of space or cultural heritage law, but it would include attorneys or judges from the member states who have experience litigating or arbitrating things like that, people who are not, who have beyond academic interest or knowledge. And then one thing I think that is important here and also important to a Holocaust art commission would be that decisions would provide would be published, to provide guidance to the public so they could start to understand what are the parameters here, especially in a new area that is not well established in the law. But to the extent it makes sense to, if you can make the parties anonymous so that we're telling we're sharing a lesson with everyone but we're not going to name and shame. So that would be one option I proposed.

Speaker 1: 20:49

And then really allowing this kind of staged process which I actually take from our court system, from the Ninth Circuit Court of Appeals specifically. There's an appellate process and I would say there should be an appellate process in this commission as well. But throughout there's opportunities to kind of off-ramp. In the Ninth Circuit you can file your appeal and then you can off-ramp to a mediation and that can move, weave in and out through the process if both parties agree at any stage that they want to talk about resolving something. That can do that and I think having that option is a good one to make it more attuned to how the parties want to proceed and possibly more efficient as well. So that's. I also think it's important to allow for potential emergency decisions If destruction of heritage is imminent or something like that, you would want to make sure that the commission could do something, because there has to be, like I said, some kind of downside to doing something to inhibit someone, prevent someone from being careless, shall we say so?

Speaker 1: 22:05

And then the issue is how would you create this?

Speaker 1: 22:07

By treaty or otherwise?

Speaker 1: 22:09

And I mean, I think there's certainly from the arbitration side of it. You could say well, the New York Convention, everybody assigned that, they agreed to arbitrate things and it would be binding through that. But it's also possible that through various other agreements, bilateral agreements, things like that, that there could at least be regional or other methods, instruments that could be used to implement these. And I think the corollary to that is some of the countries in Europe that are setting up their own cultural heritage commissions and Holocaust art commissions. So, similarly, here you would say, there's a region or signatories I'm thinking more specifically of the Artemis Accords which were put forth by the US and now I think we're at 36 countries who have signed on to those and that has an express cultural heritage provision in it, saying we agree to respect cultural heritage, define what it is in space, and that we all agree to work towards embodying that in the law and making that become more concrete, and so perhaps through that agreement you could have those countries agreeing to some kind of resolution around that.

Speaker 2: 23:30

Just to hit a few of the points from your framework that really jumped out at me. One, the fact that they would be binding decisions, so important, and that they would be made public with some degree of anonymity. But that is so important and not always the case. So those I applaud the whole framework and those especially jumped out at me. You mentioned the Artemis Accords and some gray areas earlier and when I was just reading through the Artemis Accords, a couple of things that jumped out at me were preservation of historically significant sites and irrelevant space objects being registered. Like those are again to me immediately I see where, oh well, what is relevant and what is historically significant. Especially with so many countries weighing in on this, to have a common understanding is so challenging, which highlights why a framework like yours is so needed.

Speaker 1: 24:29

Yeah, no, that was a good identifying of ambiguities there for sure. The question of the definition of what is included in cultural heritage, I mean that's still ongoing in other international contexts. The whole question of intangible heritage and I just saw that recently things like performing, so like opera, italian opera has just been named by UNESCO as something that is a special part of cultural heritage, so it's expanding in that context. You would think it would be likely to expand in the space context too. There are a couple of things to start working from in that regard. So there is a treaty that requires registration of space objects. So there should already be at least some registry in place generally not specifically you know whether it's cultural heritage or not, but whether it's a space object that you could start to work with to identify things. And then also for All, moon Kind is actually starting its own registry and trying to put together a database so you could refer to. What they have concluded with their heritage experts is something that should fit in that definition. So there are things that are kind of percolating and that already exist that perhaps you could put together and you would have a pretty good listing of that.

Speaker 1: 26:03

Nasa also has identified some. In fact, the US has an act, one small step act, designed to preserve NASA's first, the US's first, on the moon, and NASA has actually developed. Here's a handbook. Everyone who might be going to the moon. Here's what we think should be done to or is needed to be done to preserve our stuff. That's there just a just a little idea for y'all. Here's a handbook, scientifically, of what we think needs to be done. So there's, there's a few things out there for for guidance.

Speaker 2: 26:46

The, the one small step. Law is it a collection of best practices, so there is no real Stick that goes behind it if not complied with.

Speaker 1: 26:57

Yeah, I mean, I would say, not not directly, but you're, you're putting out Well, you're putting out sort of your line in the sand and what you believe should be the standards, and as more Standards and norms get accepted, than that Starts to be folded into international law as well. So there's a lot of impact to being the first mover in things and to start proposing Standards and then having more people adopt those. Then it becomes oh we, we have a norm around Protecting this now and this is how we do it.

Speaker 2: 27:33

Do you have a projection for where we will be going, say, in the next 10 to 20 years?

Speaker 1: 27:39

Yeah, well, I mean, the heritage issues are, you know, a very Sub part of the all the space law issues that are developing. So the question would be, how important in the hierarchy of things that are coming to pass, will that be to to solve? And, on the one hand, you think, well, there's probably only a few, a few countries that might have an interest in that India, china, japan and the US right now, who have, you know, a lot of first landings on the moon, and so that doesn't seem like it would be a huge call to action there. On the other hand, it really does seem like you need to figure out what you're going to do with this before everyone starts Doing their thing on the moon in the 2030s. So hopefully they'll be, you know, continued momentum and action, prayer to that point in in setting things up.

Speaker 1: 28:35

I also think it's part of a larger question, which actually I'm focusing on in the LLM program, which is how do we, where do we go to resolve disputes In space? Who has jurisdiction over what questions? That's certainly been debated quite a bit. You're not on any particular person's jurisdiction, because nobody owns the moon. So what do we do with that? And yes, technically you could go to, perhaps the permanent court of arbitration for space disputes or the I see J for certain things. But once you have so many different actors involved, maybe you want something else that would, would you know, solve your, solve your disputes a little more quickly or efficiently, or have these options of arbitration which seem to be favored in the international arena.

Speaker 1: 29:29

Anyway and Dubai actually is has formed its own space courts. It's decided it wants to be a center for these kinds of disputes and a important country in space. And so they say, hey, we've created these space courts. They're, you know, sort of private courts and we're we're gonna import some lawyers and judges from the UK and Other folks with good rule of law that people will respect and and we're gonna start having these courts. But so far I don't think people have had disputes that they've wanted to take for the Space. But it's interesting that they're doing that. They're recognizing the void right and creating the court.

Speaker 2: 30:11

Yeah, I saw that in your paper and it did Surprise me and I was curious what you just answered it. But I was curious like had there been any cases coming through there, or what was the docket?

Speaker 1: 30:25

Yeah, exactly. Well, they're still setting up the framework because, you know, in the international realm, you have to have a lot of consensus and people have to agree on a lot of things and they, they want to have buy-in to the procedures of the court before they, you know, start having the, the disputes. So, yeah, so that's still an ongoing process, but they're still ahead of others in terms of, you know, developing a space center court and, and, and, of course, everybody would have to agree to come there, because why does Dubai have jurisdiction over you if you're? You know, I'm nothing to do with Dubai. So, so, it's just interesting to see that you know entrepreneurial bench in the in the space law system. But, but there is, I think, a lot of Thinking needs to be done about what are the options and how would we do that and how would you set that up. So, so, being the litigator, that's what I'm thinking about.

Speaker 2: 31:21

Yes, and the, the urgency that I Imagine should be placed on these types of objects as compared with the, the artifacts, the cultural heritage that we're usually used to discussing. I mean, certainly there are a lot of fragile objects in that realm, but these seem to be in a much more elevated category. So having a direct and predispute Acknowledgement of where you're going to go is just seems so key.

Speaker 1: 31:58

Yes, because I it seems that those there could be a lot more urgent need for guidance or intervention in that setting, and if there isn't, then you know there's just a Distraction of something and that is irreplaceable. So it seems like that you would want to something up and in the process of that, perhaps Learn about how that functions and see which of those components you might want to transport to other kinds of space disputes.

Speaker 2: 32:32

Yeah, when you were on the podcast the last time, I had asked your definition of justice and you had given so many very good aspects of it, and one of them was related to a confidence in the rule of law that individuals or parties going to a court feel that they've been hurt, and Kassair, which we talked about earlier, I think might be a shiny example of where they never got past the procedural issues to get to the merits to be heard. And so I wonder in this space, faring age, if you might have any kind of additional points or Definition that you have come to related to how you see justice.

Speaker 1: 33:26

Yeah, that's a good question in that context. So I think one of the things that being in in, you know, only a partially charted area like space law is that it allows you to kind of come above that the system you're used to working with and the possibility of of how it could be different and, looking at that from you know, a much higher, broader perspective that makes you think about what are the components that Give confidence, what are the components that Drive behavior that reinforces a rule of law as opposed to not reinforcing it? I mean, there there are a lot of things and I think they're. The value of the outer space treaty is setting some of those parameters from a time of, certainly, conflict. There was Cold War conflict and that's what you know.

Speaker 1: 34:25

The competition between the US and the USSR really precipitated those treaties, but it was able to include a lot of things that I think we would believe to be hopeful, like we want the peaceful use of outer space. We want use and exploration for the benefit of all humankind. We're going out to expand the human race, what we know, to bring things back to Earth, to make life better here, to just learn more about the universe and not to go out and land grab and do you know, and to have weapons of mass destruction and things like that. That is not the point of our exploration and that's not you know, we're. The principles that are embodied in the outer space treaty give you hope and it makes you using those as the baseline. It gives you hope about what you could create from a rule of law perspective, when those aspects of kindness and unity are the foundation for it.

Speaker 2: 35:32

Yeah, is there anything that you wanted to address that I have not asked you about?

Speaker 1: 35:43

Oh, I still have one lingering I mean, I have a lot of lingering things from Kassir although Kassir continues and there'll be a petition for re-hearing filed, I think, probably next week is this sort of debate that it raises, about both the interplay of international law with states, national law or even individual states in the US, their laws, and the question of ethics and law and how those interact. Because I really came to the forefront in the most recent decision. So two of the judges on the panel had originally said hey, we think there's some ambiguity in California choice of law that could impact the outcome in this case, whether Spanish law or California choice of law applies, and whichever one applies kind of decides the case. So we want to give California the chance to clarify this for itself. What do you mean? What's California mean in this choice of law question? There was another member of the panel who said no, no, no, it's kind of manufacturing this question in California law. I think it's clear and the answer is Spain rules, so they send it off. They ask the California Supreme Court to weigh in and the California Supreme Court doesn't, which is very unusual. They've very almost 100% of the time in recent years have taken when the Ninth Circuit asks for it, when the federal court asks the state court, please tell us what you think your state law means before we tell you what your state law means, they usually say we'd be happy to, but they didn't. And so then, as a result of that, the panel says well, okay, under the law we see, for California we do think that Spanish law has to apply and that means that the museum keeps it in Spain.

Speaker 1: 37:48

And there was a concurrence by one of the judges who had originally asked for California's intervention and she said well, you know, spain should just give it back because it's the morally right thing to do. It's what they agreed to do in the Washington Principles and the Terrazin Declaration and they're filing down on their obligations that they took on themselves. But the principles and the Declaration are not international law. We do not have the authority to enforce it. But we're happy, but I'm happy to shame Spain into maybe giving it back, which is so unlikely given the 20 years of litigation. But you know, sort of bless her for trying to do that. And I just thought about that. I thought, well, this question of we don't have the power to enforce that, because it's really just some kind of moral obligation that Spain has agreed to really concern me, because international law, yes, I understand those are not treaties, they are principles and all of that, but it's certainly a policy that the state has put forth, the United States has put forth and Spain has put forth on the international stage, and it looks terribly hypocritical to not go forward with that.

Speaker 1: 39:10

And the second part of that is what role does that international law play with the domestic law? And that's the part where I think there's more potential harmony in the outer space treaty than there is here, right, because of course principles and declaration aren't treaties either, and that's the major problem. But there's continuity between the domestic law and the international obligations. And with Spain, the domestic law does not match the result that they're adopting under the principles and the declaration. So there's a mismatch between domestic law and international law, and that is where the rub comes. That's why it comes with this strange result.

Speaker 1: 39:57

And so the question of the interplay of morality and ethics and legal principles and the question of the interplay of international law, I mean my argument would be that yes, ok, they're not binding, but certainly shouldn't, for example, the international obligations be considered as part of California's choice of law and the policy that they would want to see happen, and the same thing with Spain and the policy they would want to see happen. And that's the interest. The various state interests are part of the thing you look at in choice of law principles. So it seems like separating out the international obligations from the domestic law in that way is really problematic and somehow creates two different systems in two different ways. One is moral and ethical, somehow are divorced or separate from legal. And then that the international obligations or policy statements really not only have no teeth at all but just are irrelevant to domestic law, which seems strange when the same entity is bound by both or at least agreed, stated, made these public statements that sound good internationally.

Speaker 2: 41:19

Yeah, and to be able to reduce the amount of moralistic preening that occurs related to space heritage would be ideal.

Speaker 1: 41:30

Yeah, I mean, I worry about that same thing, that people can say these things in principle that sound really good, but then when it comes down to you know the nitty gritty, it doesn't happen. So so that to me is another sense of urgency and being able to have somewhere to go for those disputes. Same thing with the Holocaust art. If we'd had that maybe we wouldn't have these situations.

Speaker 2: 42:04

This prompts me to circle back to a point you raised earlier. I believe you were saying that you were on the committee for space law and ethics. For all Moon kind.

Speaker 1: 42:16

Yes, there's just started an institute for space law and ethics, yes, and there's a wide array of people who are weighing in on it. Some of them are longstanding people of strong regard in the space arena, like Frank White, who is not a lawyer but coined the overview effect and which has become almost like public culture now, understanding of what that means and, in his view, from his interviews with many astronauts and down to people who are space law scholars, who are weighing in on this question, which I think is important. When there's ambiguity in the law and limited ability to fill in that ambiguity is okay. If we don't have law, then where does ethics fit into that and how do we consider them as two separate things? Do they favor different outcomes or should they be, in Congress, parallel interpretation with each other and how do we look at those questions? I think that's a relevant question given the development and the fast moving nature of what's happening in space.

Speaker 2: 43:42

Such an evolving shifting.

Speaker 1: 43:45

Yeah, like every day, every day, there's some new thing, there's some somebody's trying something else and you're like, oh okay, well, I didn't think that could happen, but all right, what do you do with that scenario? So it's really, yeah, it keeps it really interesting. And then in the satellite space that's developing too, all the new constellations of satellites, the smaller satellites, which make it so much less expensive to create them and launch them, which means a lot more people are doing that, which then creates other legal issues too. And, yeah, and even extends down to Earth a little bit, in terms of drones and some of the, you know, ev tall infrastructure that's being built up for the LA Olympics. There's some sense that people will have, you know, sort of air taxis to some degree, taking them between different venues, and so those questions are still questions of air and potentially space law, because drones are sometimes drones are the only kinds of things that can be used for certain activities on the moon too. So it's all interconnected.

Speaker 2: 45:00

Well, I look forward to seeing as you delve further into this field and the ethical aspects especially. I look forward to seeing where this goes and watching how it develops. Yeah, it's so interesting.

Speaker 1: 45:15

I think it's interesting to everything we have learned. You know sort of is cumulative, and so being able to bring the experiences from the Holocaust art cases into this arena to think about, okay, this is sort of analogous. We need to think about what we're going to do in the future and why there's such an imperative to protect, preserve and return these things.

Speaker 2: 45:49

There will be links in the show notes to learn more. If you are intrigued by this podcast, it will be much appreciated if you could leave a rating or review and tag Warfare of Art and Love podcast. Until next time, this is Stephanie Drotti bringing you Warfare of Art and Love. Thank you so much for listening and remember Injustice Anywhere is a threat to justice everywhere.