“Due Regard” for Commercial Space Must Start with Historic Preservation

Today we rely on the concept of "due regard" to protect our assets – and heritage – in space. Ensconced in Article IX of the Outer Space Treaty "due regard" has no legal definition. Nor has its breadth or scope been rigorously tested in court or in any public diplomatic dispute. And so, we blithely promise each other to conduct all activities in space "with due regard to the corresponding interests of others." Meaning we pursue our activities with the fervent hope that no one will interfere, whether accidentally or intentionally.

This is an untenable state of affairs. It is compounded by the fact that it has recently proven difficult for the international community to agree on space governance matters. This article addresses the concept of due regard as it affects space commerce. Specifically, this article will explore the best way to reach agreement on how spacefaring entities must behave with respect to each other when engaged in activities in space and on other celestial bodies.

It is argued that the best path forward is to embrace cultural artifacts and sites in space as objects and areas of universal value, worthy of protection through multilateral agreement. Once the international community agrees on sites that deserve special recognition and protective treatment, that agreement can be adopted as a baseline to establish recognizable norms for meeting the due regard standard imposed by the Outer Space Treaty. To support this argument, the article: discusses the importance of protecting cultural heritage and draws attention to efforts implemented on Earth; provides a review of the international space law regime; and outlines a new approach to the implementation of a governance model for space.