Tài liệu The Environmental Element in Space Law pptx

ESA European Space AgencyEU European Union EUMETSAT European Organisation for the Exploitation of Meteorological SatellitesEUROCONTROL European Organisation for the Safety of Air Navigat

Studies in Space Law

General Editor

Frans G von der Dunk

International Institute of Air and Space Law, Leiden University

VOLUME 3

The Environmental Element

Library of Congress Cataloging-in-Publication Data

Viikari, Lotta.

The environmental element in space law : assessing the present and charting the future / by Lotta Viikari.

p cm (Studies in space law, 1871-7659 ; v 3)

Revision of the author’s thesis (doctoral), 2007.

Includes index.

ISBN 978-90-04-16744-5 (hardback : alk paper) 1 Space law Finland 2.

Aeronautics Environmental aspects Finland I Title.

Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands.

Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing,

IDC Publishers, Martinus Nijhoff Publishers and VSP.

All rights reserved No part of this publication may be reproduced, translated, stored in

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Acknowledgements ix

Abbreviations xiii

Chapter One Introduction 1

1.1 General Background 1

1.2 Structure 7

1.3 Approach of the Book 9

1.4 The Expanding Spectrum of Stakeholders in the Space Sector 21

1.4.1 States 21

1.4.2 Other Entities 24

Chapter Two Environmental Problems Related to Space Activities 29

2.1 Space Debris 31

2.2 Nuclear Contamination 45

2.3 Solar Power Satellites 49

2.4 Manned Space Stations 50

2.5 Exobiological Contamination 50

2.6 Conclusion 52

Chapter Three

Space Law From an Environmental Perspective 55

3.1 UN Space Conventions 58

3.1.1 The Outer Space Treaty 58

3.1.2 The Moon Treaty 62

3.1.3 The Liability Convention 65

3.1.4 The Registration Convention 73

3.1.5 The Rescue Agreement 81

3.2 The Nuclear Power Source Principles 83

3.3 The International Telecommunication Union 85

3.4 Developments within Certain Other International Organs 93

3.4.1 The Inter-Agency Space Debris Coordination Committee 93

3.4.2 The United Nations Committee on the Peaceful Uses of Outer Space 97

3.4.3 The International Law Association 102

3.5 Environmentally-oriented National and Regional Efforts 104

3.6 Conclusion 111

Chapter Four International Environmental Law in the Space Sector 119

4.1 Treaties 121

4.2 Principles 127

4.2.1 Sustainable Development 129

4.2.1.1 Components and Evolution 129

4.2.1.2 Sustainable Development and the Space Sector 144

4.2.2 Sic Utere Tuo, Good Neighborliness and Due Diligence 150

4.2.3 The Precautionary Principle 157

4.2.3.1 Components and Evolution 157

4.2.3.2 Application 161

4.2.3.3 The Precautionary Principle and the Space Sector 173

4.2.4 Common but Differentiated Responsibilities 178

4.2.5 The Polluter-Pays Principle 184

4.2.5.1 Components and Evolution 184

4.2.5.2 The Polluter-Pays Principle and the Space Sector 190

4.3 Conclusion 203

Chapter Five From General Principles to Practicable Rules 207

5.1 Complications of Traditional International Treaty-making 210

5.2 Improved Norm-setting Strategies 215

5.2.1 The Framework Convention Approach 215

5.2.2 Selective Incentives 222

5.2.3 Differential Obligations 225

5.2.4 Promotion of Over-achievement 231

5.2.5 Delegated Decision-making Powers and Self-correcting

Treaties 233

5.2.6 Interim Agreements and Ratification Limits 238

5.2.7 Common Rules of Conduct 241

5.2.8 International Standards and Mutual Recognition of National Authorizations 249

5.2.9 Information Sharing and Other Forms of Cooperation 257

5.3 Environmental Impact Assessment 260

5.3.1 History and Status 261

5.3.2 Procedure and Goals 268

5.3.3 EIA and Space Law 273

5.3.3.1 Current Situation 273

5.3.3.2 The Future Potential of EIA in Space Activities 278

5.3.4 Strategic Environmental Assessment and Sustainability Impact Assessment 280

5.4 Dispute Resolution 285

5.4.1 Dispute Settlement under International Space Law 287

5.4.1.1 The Outer Space Treaty 289

5.4.1.2 The Liability Convention 290

5.4.1.3 The Moon Treaty 295

5.4.1.4 The International Telecommunication Union 295

5.4.1.5 Other Arrangements 296

5.4.2 Adjudication vs Arbitration 298

5.4.2.1 Benefits of Arbitration in Space-related Disputes 301

5.4.2.2 The ILA Draft Convention on the Settlement of Disputes Related to Space Activities 305

5.4.3 Improving the Dispute Resolution in the Space Sector 309

5.5 Conclusion 317

Chapter Six Concluding Remarks 321

Treaties, Other Instruments and Documents 359

Treaties 359

European Union Law 372

Documents Prepared by or for the UNCOPUOS 373

Other International Instruments and Documents 376

National Instruments 385

Cases 389

International Court of Justice 389

Other Cases 390

Bibliography 325

Monographs, Articles, etc., Attributable to Authors 325

References without an Author 352

Websites of Organizations, etc 357

Index 393

This book is a slightly revised and updated version of my doctoral thesis, which

I defended in June2007 As so many Ph.D candidates before me have noted,writing a doctoral thesis is a lonely enterprise This has been particularly truefor a person preparing a thesis on space law in Finland, which clearly doesnot rank among the major spacefaring countries and has little history in spacelaw research The solitary hours I have spent with this effort are countless.Nevertheless, numerous other persons and institutions have contributed to theprocess in one way or another I am much indebted to them for assisting meduring the research

Firstly, I have been privileged to be guided by Professor Kari Hakapääthroughout my Ph.D process He was always willing to discuss any progressand read my drafts His expert comments have been invaluable and his patienceadmirable Indeed, I can hardly thank him enough Professor Hakapää is alsoone of the few persons whom I know for sure has read the entire thesis The othertwo are the external examiners, Professor David I Fisher of the University ofStockholm and Professor Armel Kerrest of the University of West Bretagne Bothdelivered their assessments of my work very promptly, which made it possiblefor the defense to take place just before summer holidays, for which I am verygrateful Professor Kerrest most kindly agreed also to act as my opponent in thepublic defense

I have been lucky enough to have had no major financial worries during thepreparation of this work, which has obviously facilitated things significantly.Initially, I started to develop my Ph.D in a project funded by the Academy ofFinland At early stages of the work, I also received a four-year scholarship fromthe second doctoral program in law in Finland, for which I am very gratefulalthough I never actually used the funding While writing the thesis, I have been

working at the Faculty of Law of the University of Lapland, the Department ofLaw of the University of Joensuu, and the Northern Institute for Environmentaland Minority Law (NIEM) at the Arctic Centre of the University of Lapland.The longest time I have spent at the Arctic Centre, where I have had theopportunity to be engaged in research and teaching in areas of international lawalso beyond the particular scope of my Ph.D.

I have been fortunate enough to receive collegial support and encouragementfrom all of the places where I have worked Principal thanks must go, however, to

my colleagues at NIEM, especially our director, Professor Timo Koivurova, whoalso bears responsibility for luring me into the realm of Arctic legal questions.Additionally, I would like to mention in particular Leena Heinämäki and MaaritKlemetti, both of whom have tried to remind me of the existence of (differentkinds of ) life beyond my office walls Special thanks are also due to TxominHernández Bediaga From the Faculty of Law of the University of Lapland I wish

to especially thank three of the professors who acted as dean while I was writingthe thesis, Esko Linnakangas, Ahti Saarenpää and Terttu Utriainen My warmthanks are also due to Professors Rauno Halttunen and Juha Karhu Moreover,thanks must go to Professor Maurice Andem, without whose involvement myPh.D process would have been quite a different journey Additionally, I want

to thank Professor Tapio Määttä, Professor Tuomas Kuokkanen, and Dr TapioPuurunen, with whom I have had the pleasure of discussing my research at theUniversity of Joensuu Of the many other people who have provided me withdifferent kinds of assistance and encouragement I would like to mention withgratitude Dr Walter Flury from the European Space Agency, Professor LauriHannikainen from the University of Turku, and Dr Leslie Tennen from LawOffices of Sterns and Tennen

The resources provided by the library of the University of Lapland havebeen invaluable to my work During the past couple of years, the services ofthe library at Arktikum in the Arctic Centre have been particularly relevantfor me Most importantly, I have also been able to conduct research at thelibraries of the European Space Agency in Paris, the International Institute ofAir and Space Law at the University of Leiden, the Institute of Air and SpaceLaw at the University of Cologne, and the Peace Palace in The Hague I havehad the pleasure of getting most helpful assistance from the librarians of theseinstitutions, for which I extend my warm thanks to all of them

I am also grateful to Richard Foley, from whose proofreading this manuscripthas benefited I have received financial assistance for the proofreading fromthe Finnish Branch of the International Law Association, which has had avery supportive attitude towards my endeavors in legal research from theirvery beginning My sincerest thanks for that My thanks are also due to MarkkuVartiainen and Risto Haavisto of the Faculty of Law of the University of Laplandfor various kinds of assistance during the final stages of my Ph.D process.Finally, my heartiest thanks go to Dr Leila Juanto, who has spent countlessevenings, weekends and holidays with me at the university Her inspiring

example and constant support have been essential to completing this project Imust also thank my relatives, of whom I remember with special warmth my lateUncle Elmo I dedicate this book to my family.

Obviously, this book remains my own product and I alone bear fullresponsibility for the views expressed, as well as for any errors or omissions

Rovaniemi, November2007

Lotta Viikari

ABM Anti-Ballistic Missile

AIAA American Institute of Aeronautics and Astronautics

AJIL American Journal of International Law

ARC Administrative Radio Conference

BGBl Bundesgesetzblatt

CC Claims Commission (of the Liability Convention)

CERES Coalition for Environmentally Responsible Economies

CETEX Committee on Contamination by Extraterrestrial ExplorationCFR Code of Federal Regulations (US)

CNES Centre National d’Etudes Spatiales

COMEST UNESCO World Commission on the Ethics of Scientific

Knowledge and TechnologyCOSPAR Committee on Space Research

DISCOS Database and Information System Characterising Objects in

SpaceDoD (US) Department of Defense

EARC Extraordinary Administrative Radio Conference

EC European Community

ECE (United Nations) Economic Commission for Europe

ECJ European Court of Justice

ECSL European Centre for Space Law

ECSS European Cooperation for Space Standardization

EEZ Exclusive Economic Zone

EIA Environmental Impact Assessment

EMEP Environmental Monitoring, Evaluation and Protection ProgramENMOD Convention on the Prohibition of Military or Any Other Hostile

Use of Environmental Modification Techniques

ESA European Space Agency

EU European Union

EUMETSAT European Organisation for the Exploitation of Meteorological

SatellitesEUROCONTROL European Organisation for the Safety of Air NavigationFCC (US) Federal Communications Commission

GAOR General Assembly Official Records

GEF Global Environmental Facility

GEO Geostationary (Earth) Orbit

GLONASS Global Navigation Satellite System

GNP Gross National Product

GPS Global Positioning System

GSO Geosynchronous Orbit (or Geostationary Satellite Orbit)HELCOM Helsinki Commission

HEO Highly Elliptical Orbit

HIA Health Impact Assessment

IAA International Academy of Astronautics

IADC Inter-Agency Space Debris Coordination CommitteeIAEA International Atomic Energy Agency

IAF International Astronautical Federation

IAU International Astronomical Union

ICAO International Civil Aviation Organization

ICC International Chamber of Commerce

ICJ International Court of Justice

ICSID International Centre for Settlement of Investment DisputesICSU International Council of Scientific Unions / International

Council for ScienceIGO Intergovernmental Organization

IISL International Institute of Space Law

ILA International Law Association

ILC International Law Commission

ILM International Legal Materials

IMO International Maritime Organization

INESAP International Network of Engineers and Scientists Against

ProliferationINMARSAT International Maritime Satellite Organization

ISO International Organization for Standardization

ISS International Space Station

ITLOS International Tribunal for the Law of the Sea

ITU International Telecommunication Union

JAXA Japan Aerospace Exploration Agency

LCIA London Court of International Arbitration

LEO Low Earth Orbit

MARPOL Convention for the Prevention of Pollution from ShipsMEO Medium Earth Orbit

MOU Memorandum of Understanding

MTCR Missile Technology Control Regime

NASA (US) National Aeronautics and Space Administration

NEPA (US) National Environmental Policy Act

NGO Nongovernmental Organization

NPD NASA Policy Directive

NPR NASA Policy Requirement

NPS Nuclear Power Source(s)

ODCWG Orbital Debris Co-Ordination Working Group (of the ISO)OECD Organisation for Economic Co-operation and Development

OJ Official Journal (of the EU)

OSPAR Convention for the Protection of the Marine Environment of

the North-East AtlanticOST Outer Space Treaty

PCA Permanent Court of Arbitration

PSA (UN) Programme on Space Applications

PSN Pasifik Satellite Nusantara

RARC Regional Administrative Radio Conference

RIAA (UN) Reports of International Arbitral Awards

RTG Radioisotope Thermal Generator

SDR Special Drawing Right

SEA Strategic Environmental Assessment

SIA Sustainability Impact Assessment; Social Impact AssessmentSLW Schriften zum Luft- und Weltraumrecht / Studies in Air and

Space Law / Etudes de droit Aérien et SpatialSopS Suomen Säädöskokoelman Sopimussarja (Finnish Treaty Series)SSN Space Surveillance Network

SUIRG Satellite Users Interference Reduction Group

TIAS Treaties and Other International Acts Series

UIC Uranium Information Centre

UK United Kingdom

UN United Nations

UNCED United Nations Conference on Environment and DevelopmentUNCITRAL United Nations Commission on International Trade LawUNCLOS United Nations Convention on the Law of the Sea

UNCOPUOS United Nations Committee on the Peaceful Uses of Outer SpaceUNECE United Nations Economic Commission for Europe

UNEP United Nations Environment Program

UNESCO United Nations Educational, Scientific and Cultural

Organiza-tionUNGA United Nations General Assembly

UNISPACE United Nations Conference on the Exploration and Peaceful

Uses of Outer SpaceUNOOSA United Nations Office for Outer Space Affairs

UNTS United Nations Treaty Series

US United States (of America)

USC United States Code

USD United States Dollar

UST United States Treaties and Other International Agreements

WARC World Administrative Radio Conference

WARC ORB World Administrative Radio Conference on the Use of the

Geostationary Satellite Orbit and the Planning of Space ServicesUtilizing It

WHO World Health Organization

WIPO World Intellectual Property Organization

WRC World Radio Conference

WTO World Trade Organization

ZLW Zeitschrift für Luft- und Weltraumrecht

Introduction

1.1 General BackgroundThis book examines the current international legal regimes in space law andenvironmental law in order to ascertain their applicability and efficacy inaddressing environmental threats in the use of outer space Outer space is thespace upwards from the airspace (atmosphere) surrounding the Earth As thecomposition of atmosphere does not change dramatically at a certain height, it isimpossible to physically determine exactly where the atmosphere ends and outerspace begins Consequently, the problem of limitation is more of a political andlegal issue than a technical one

Various alternatives have been suggested over the years as the most suitablecriterion for making this distinction There are two predominant approaches,the spatial and the functional.1The latter requires a definition of ‘space activities’,whereas the former allows a far more straightforward definition of outer space:one based on distance One example of the difficulties related to the functionalapproach is the United States (US) Space Shuttle, which is launched like a rocketinto Earth orbit but uses aerodynamic lift like an airplane when returning tothe Earth’s surface Functionally, the Shuttle might thus be classified both as

a spacecraft and an aircraft and should be governed by space law and air law,

1 Report of the Legal Subcommittee on its44th session 2005, Annex I, para 8.a

For a more detailed assessment of the delimitation issue, see, e.g., Metcalf1999, pp 56–68

depending on the phase of the mission.2In accordance with the spatial approach,

it has been proposed, for instance, that a realistic limit for the beginning ofouter space might be the altitude of approximately 80 kilometers, given thecomposition of the atmosphere and the history of aeronautical and astronauticalactivities.3

Some kind of a fixed limit would be welcome because the airspace partlyfalls under national sovereignty,4whereas outer space never does Nevertheless,

no legal boundary between the contiguous areas of the airspace and outerspace—and hence between the areas of application of air law and space law,respectively—has yet been agreed upon.5The Legal Subcommittee of the UnitedNations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) hasdiscussed the definition and delimitation of outer space as an agenda itemsince1967 Some nations have voiced the opinion that due to “scientific andtechnological progress, the commercialization of outer space, emerging legalquestions and the increasing use of outer space in general”, there is a need for

a definition of outer space that would delineate it from airspace.6Some others,

2 Harris–Harris2006, p 6 See ibid for a recent assessment of the delimitation

problem; these authors are in favor of a fixed, spatial demarcation line, yet one “sensitive

to technological advances”

3 See, e.g., Andem1992, pp 152–153 An authoritative example of the spatial approach

is the Australian Space Activities Act of1998 (as amended in 2002), which now usesthe limit of100 kilometers as the altitude where outer space begins by, for instance,prescribing that to ‘launch’ a space object means to “launch the object into an areabeyond the distance of 100km above mean sea level” (or to attempt to do so; Sect.8) Although such a limit of course applies only as regards domestic purposes, it isnevertheless the first regulatory attempt to define where space begins and thus also hascertain wider relevance

4 Airspace comes under national jurisdiction and sovereignty where it lies overnational territory and territorial waters Otherwise, it is not subject to national

sovereignty, e.g., over the high seas Convention on International Civil Aviation, Arts.1and2; United Nations Convention on the Law of the Sea, Arts 2, 58, 78, 87 Airspaceover a state’s exclusive economic zone and the continental shelf is comparable in status

to airspace over the high seas Haanappel1986, p 145

5 Application of the law of outer space is indeterminate not only as concerns theheight from the Earth where it begins but also its extent It does not necessarily appearfeasible (or justifiable) for humans to extend their legal regulation into the infinity

of space See Hobe2004(a), pp 28, 41 At the moment, only one of the five United

Nations (UN) space treaties (the Moon Treaty; see below) explicitly limits its application

to the Moon and other celestial bodies within our solar system only The other spacetreaties only refer in a somewhat abstract manner to “outer space” Of course, at themoment the ability of humankind to conduct activities in space remains relativelylimited Nevertheless, the question of the extent of our authority to regulate spaceactivities and of the legal status of outer space are fundamental

6 Report of the Legal Subcommittee on its 45th session 2006, para 90 “Somedelegations expressed the view that the lack of a definition or delimitation of outer space

however, consider that the current legal framework functions well enough andhence no such definition is needed, at least as yet It has even been arguedthat “an attempt to define … outer space” would currently be only “a theoreticalexercise” and, moreover, even counterproductive as it “could lead to complicatingexisting activities and might not be able to anticipate continuing technologicaldevelopments”.7The issue remains unresolved.

Despite the fact that the international community has not agreed on a setlimit between the airspace and outer space, this has not (at least thus far)created notable problems in the utilization of either area.8 During the pasthalf a century, humankind has managed to extend its active environmentfrom the Earth and its atmosphere into outer space Satellites are a majorachievement of the human technology that has enabled this development,providing us with tools that facilitate the daily lives of millions of peopleworldwide For instance, satellite navigation systems are used for positioningpurposes in all fields of transportation today.9Another important user of outerspace is the remote sensing industry To name but a few of the purposes itserves, it provides us with data for meteorological services (including weatherforecasts), land and agriculture management, environmental planning andmapping, as well as national reconnaissance A last, but by no means the least,branch of space activities that relies heavily on satellites is telecommunications.Telecommunication satellites enable us to receive radio signals, intercontinentaltelephone calls, TV programs and, practically speaking, any transmission oftext, data, video, audio or graphics, and remarkably large volumes of data atthat Satellites provide smooth two-way exchange of data, making the range of

brought about legal uncertainty concerning the applicability of space law and air lawand that matters concerning state sovereignty and the boundary between air and outerspace needed to be clarified in order to reduce the possibility of disputes among States.”Ibid., para.91

7 Ibid., para.92 For a summary of the discussion concerning the question over the

years, see the UNCOPUOS document “Historical summary on the consideration of the

question on the definition and delimitation of outer space” prepared in2002

8 It has been suggested that as space exploration affects the “totality of theenvironment”, such physical separation of airspace and outer space would not even

be necessary See Bhatt1979; Matte 1989, p 421

9 The primary system used throughout the world for satellite navigation is the USgovernment Global Positioning System (GPS) Russia has a corresponding militarynetwork, the Global Navigation Satellite System (Glonass) The European Space Agency(ESA) and the European Union (EU) are now creating Europe’s own, exclusively civiliannavigation system (called Galileo), which is scheduled to be fully operational by2012 or

2013 See more at the European Space Agency’s Galileo website The US and ESA/EU

were long at odds over frequency allocation and interoperability between the GPS andGalileo, but they finally reached an agreement on the issue in February 2004 “EUand US a step further to agreement over Galileo satellite navigation following Brusselsnegotiating round”2004

possible applications almost unlimited In addition to satellite activities, there arealso other unmanned and manned space missions which operate in Earth orbits(such as the manned International Space Station) or beyond (e.g., unmannedplanetary missions).

The technological progress which has made space activities possible isadmittedly impressive Unfortunately, we have not proven equally successful

in learning the lessons of terrestrial history regarding the importance ofenvironmental protection While decades of space ventures have led to significantadvances in technology for the benefit of humans, they have also witnessedincreasing space-related environmental problems The world space communityhas long known that space activities contribute to pollution and contamination

of the environment.10Furthermore, the space environment is far less resilientthan the Earth, as many parts of outer space cannot regenerate after disturbances

in the way the terrestrial environment typically does.11Nevertheless, especially

at the beginning of the space era, all human space activities were so challengingthat nearly any method seemed acceptable for placing objects in outer space.12

Although space has become far more accessible to us and the general attitude toenvironmental questions has changed quite dramatically, utilitarian policies havedisproportionately dominated space activities until today This has gradually led

to substantial environmental threats that constitute increasing hazards to theenvironment of outer space as well as to human space activities and even to life

on Earth

Although environmental hazards in outer space already pose a variety ofthreats, these threats often do not affect the particular operation which causesthem but endanger other space (and even terrestrial) activities indiscriminately.This is a manifestation of the ‘tragedy of the commons’ problem: benefits

of individual space missions accrue to the entities conducting these activitiesbut the detrimental impact of space exploitation can usually hamper all those

10 The potential damage from experiments in space was recognized by the scientificcommunity as early as in the 1950s, and the International Council of ScientificUnions (ICSU) formed a Committee on Contamination by Extraterrestrial Exploration(CETEX) to study the issue The task was assigned to the Committee on SpaceResearch (COSPAR) when CETEX was disbanded in1959 COSPAR then established

a Consultative Group on the Potentially Harmful Effects of Space Experiments (with

a broad mandate to make recommendations regarding space activities) and a Panel

on Potentially Environmentally Detrimental Activities in Space to consider the variousproblems related to the space environment Matte1989, p 427 Today, there are numerousorganizations and bodies concerned with the issue (to a greater or lesser extent, and fordifferent reasons)

11 Williamson2003, p 47

12 Williamson2006, p 45 Over half of the early attempts to put a satellite in orbitfailed (23 out of 40) At the time of the first manned spaceflight, the overall failurepercentage of space missions was still around50 Williamson 2003, p 47

involved in the sector (and even others).13Given the typically high short-termcosts of curbing environmentally harmful effects of the use of outer space, it is nosurprise that many of the relevant stakeholders can be hesitant to take measures

to prevent environmental degradation A related concept is that of ‘free riders’,referring to entities which “benefit by the actions of others without sharingany of the responsibility or cost”.14Such an approach often seems particularlytempting in situations where substantial costs (such as those of combatingenvironmentally harmful consequences of space activities) must be paid nowbut the benefits generated by the efforts will mostly be realized only in thefuture This narrowness of the time horizon appears to be a feature alarminglywidespread within humankind today The free-rider problem is particularlytricky where the commons are concerned and thus intrinsically relates to allspace activities, making conflicts in this sector even more complicated anddifficult to resolve It can considerably diminish the will of some states to adoptenvironmentally more benign management practices: as long as the benefits ofregulated development of the use of outer space accrue more or less equally toall actors irrespective of their behavior, some of them will feel little incentive toaccept any restrictions Of course, if most of the relevant stakeholders take such

a stand, curbing the environmental problems will be impossible Even wherethere are only few ‘free riders’, their irresponsible behavior can at worst frustrategenuine efforts by the majority

It does not seem very likely that the traditional state community will—atleast in the near future—be able to treat many global environmental problemswith the efficacy these problems appear to require There is no reason toexpect the situation to be any better as regards the environmental effects

of human activities in outer space The future of the Earth and near-Earthouter space—and hence also that of humankind—appears gloomy unless a newenvironmental consciousness soon starts to emerge As concerns the space sector,positive indications are provided by the efforts of some states and internationalorganizations to alleviate environmental degradation of outer space For instance,

in the case of space debris,15there is increasing awareness of the seriousness ofthe problem and both the governmental sector and the industry have madeefforts to mitigate the hazard by developing procedures and standards for theoperation and design of space missions.16However, although unilateral action

is a step forward, it does not alone suffice to remedy the proliferation of debris.The effects of human activities on the global commons of outer space have allthe potential to be severe, irreversible and wide in scope At the same time, the

13 For a more detailed assessment of the tragedy of the commons problem, see, e.g.,

tragedy of the commons problem renders many strategies adopted nationally or

by a limited set of states for combating adverse environmental consequences ofspace activities ineffective

Accordingly, space debris is one of the central issues being discussed withinthe UNCOPUOS There have also been other efforts to confront the issue

at a wider international level but as yet there exists no binding internationalregulation either for alleviation of the hazards deriving from space debris orother environmental problems related to space activities In the increasinglyinternational, commercialized and privatized space sector global rules areessential, however They would ensure a level (or at least relatively fair) playingfield for all stakeholders and help avoid the free-rider problem Commonregulation could also synchronize the efforts already taken in this area Indeed,now would be the time for truly international norms instead of fragmented andinformal approaches to the problems identified.17

For such regulation to be effective there is a need for genuine collectiveresponsibility.18Even international regulation does not help unless it is widelyrespected Otherwise, application of the norms will only hamper an actor’s com-petitiveness Considering the typically high immediate costs of environmentallymore benign space technologies and practices, there is no reason to expectentrepreneurs in this highly competitive sector to be any more hesitant thantheir sea-faring colleagues in shipping to seek advantages under a regulatorysystem that allows them to conduct their activities in the most remunerativeway—essentially a flag of convenience for space activities.19Given the inherentinternationality of the space sector today, it would be surprising if such a devel-opment could be avoided by any other means than comprehensive internationalregulation.20

Moreover, it seems to be high time to reconsider the fundamental premises onwhich all human space activities are based The more pressing the environmentalthreats related to the use of outer space become, the more often the profound

17 Many of the experts working with environmental questions related to spaceactivities seem to share the opinion that an international-level set of rules is what is

now needed See, e.g., “Space Debris Mitigation: the case for a code of conduct”2005

18 As the United Nations Educational, Scientific and Cultural Organization(UNESCO) Working Group on the “Ethics of Outer Space” put it: “[e]thics mustprecede and guide the law and not vice versa” The Ethics of Space Policy2000, p 25

19 See Kerrest1999, pp 258–259; Kerrest 2001, pp 871–872 The most prominentexample of such a development thus far is the Sea Launch company which launchessatellites from a sea platform in international equatorial waters It was created in1995and has completed some20 launches to date For more information, see the Sea Launch

question of the legitimacy of the modern space sector is put forward On whatrights are the demands that humanity is making upon outer space ultimatelybased? How far can those rights extend? At what costs should the space sector beallowed to pursue its goals? Where do those goals derive from? Such questions areasked with increasing frequency, yet only few answers have been given to date.21

1.2 StructureThis work consists of six main parts After the introductory remarks, PartOne presents the approach of the book and its basic starting points It brieflycontemplates the fundamental ideology of space activities, which builds uponindustrial development and relies on a substantially anthropocentric world-view Both of these orientations entail little environmentalist thinking PartOne also contains a presentation of the expanding spectrum of the variousstakeholders in the modern space sector They generate increasing complexity

in the management of space activities, not least from a legal point of view.Part Two examines the various types of problems related to space activitieswhich can be labelled ‘environmental’ Part Three proceeds to sketch the funda-mental elements of environmental management of space activities by studyingthe current instruments of the international law of outer space and assessing theirsuitability for addressing environmental concerns The presentation also exam-ines focal developments within international organizations which have adoptedrecommendatory instruments for alleviating environmental degradation related

to the use of outer space Additionally, this part presents some environmentallyinclined efforts to regulate space activities at the regional and national levels.Part Four reflects on the possibilities to use other, more distinctly environmental

21 Several of the organizations active in the space sector have been discussing questionsconcerning the ethical basis of space activities The ethics of space activities have alsobeen considered within UNESCO, whose World Commission on the Ethics of ScientificKnowledge and Technology (COMEST) set up a Working Group on the “Ethics of OuterSpace” The very fundamental questions brought up by this group include: “What isthe role of human beings in the Universe?; How can the links between the earth andouter space be organized?; Who is to determine the priorities and choices of scienceand space technologies and on the basis of which objectives for society?; How can therisks engendered by the space technologies be defined democratically and what risks can

be regarded as ‘acceptable’?; What is the level of responsibility and solidarity to whichindividuals and groups must aspire for present and future generations?” The Ethics ofSpace Policy2000, p 8 Obviously, it is very difficult to find consensus on such issues

In2005, COMEST decided that it would not develop a declaration of ethical principlesfor space activities Instead, it intends to “emphasize and promote awareness of moraland ethical issues raised by space activities in the framework of reinforced internationalcooperation” Report of the Legal Subcommittee on its44th session 2005, para 44

but not particularly space-related international legal instruments for the needs

of the space sector As the help available from international treaties remains quitelimited, the examination turns to the principles of international environmentallaw for any relief they might be capable of providing

Part Five is the core contribution of the book It concentrates on theprospects for developing new instruments for environmental management ofthe space sector There is an obvious need to clarify the ambiguous obligations

of the UN space treaties in one way or another The presumption is that theinternational community could be made more receptive to the adoption of suchreforms by mechanisms similar to those used in international norm-making

in the environmental sector Accordingly, one starting point is an analysis ofthe ‘framework convention–subsequent protocol’ approach commonly applied

in global environmental diplomacy today Other mechanisms examined whichcould facilitate the adoption of increasingly effective international norms includethe use of selective incentives and differential obligations Promoting over-achievement of treaty obligations is yet another approach to the issues that aretaken up

Considering the challenges encountered in international norm-making inthe space sector thus far, Part Five also assesses the chances of making newinternational norms operative faster as well as the possibility of creating instru-ments whose provisions can readily accommodate changing conditions (includ-ing instruments of legally non-binding nature) This examination includesmechanisms such as interim agreements, self-correcting treaties, codes of con-duct, supranationally adopted technical standards, and international certifi-cation mechanisms Information sharing and other forms of cooperation atdifferent levels are also important Moreover, special attention is paid to thepossibilities of environmental impact assessment (EIA), which is one of thefocal instruments of contemporary environmental law It has the potential tospare the space community from many environmental problems much as it hashelped address terrestrial concerns

Part Five ends with a consideration of the dispute resolution In an ideal world,neither liability mechanisms nor dispute resolution would be needed In reality,however, regulatory systems seldom work so smoothly that no conflicts emerge.For instance, the occurrence of environmental harm is no rarity, which callsfor authoritative settlement of disputes and just compensation and reparation

of damage.22Hence, whatever mechanisms for the alleviation of environmentalproblems related to space activities are employed, they can be of little significanceunless accompanied by effective means of dispute settlement Currently, there

22 Obviously, the existence of solid liability and dispute resolution mechanisms isalso likely to make the actors more inclined to observe the relevant norms in the firstplace and hence diminish the need to actually resort to these mechanisms

are various problems in this respect and it is widely recognized that they cansignificantly retard the development of the space activities In particular, thedispute resolution mechanisms provided by UN space law are incapable ofsatisfying the needs of the modern space sector.

Part Six concludes the book by drawing together its contributions It containsrecommendations for meeting the environmental challenges posed by spaceactivities, urging the international community to extend the principle ofsustainable development, above all, to the space sector in order to ensure aproper balance between the pursuit of economic interests and the protection ofthe environment

1.3 Approach of the BookObviously, a thorough examination of the entire modern space sector from

an environmental point of view would be a task far too demanding to becovered by one treatise (and a single author) Hence, some limitations areunavoidable This book is a study of environmental effects related to spaceactivities, the most significant such effect today being the generation of spacedebris and the threats posed by it Accordingly, this problem receives the mostattention in this study The expertise of the author necessitates further limitations

as regards the scope of the work: this is, above all, a legal examination of

space activities from an environmental perspective However, such a treatmententails considerations that rely significantly—or even primarily—on other thanlegal knowledge Hopefully, the interpretations, conclusions and proposals putforward nevertheless are realistic even from the point of view of specialists fromother fields than law

The aim of this book is to examine1) what the environmental problems related

to space activities are;2) the relevance of the legal instruments currently availablefor regulating environmentally harmful space activities; and3) the potential forcreating better mechanisms for the purpose of environmental management inthis respect Given that satellite activities comprise a significant portion of thespace sector today, this book also concentrates largely on the environmentaleffects of the use of satellites Other types of space endeavors, such as humanspace travel, are touched upon where relevant In any case, the environmentalproblems encountered in different kinds of space operations typically are quitesimilar (if not identical) This may change radically with the future conquest ofouter space but such considerations are mostly left out of the scope of this work.The general concern of this study is thus the effects of space activities onthe environment and their regulation Environmental degradation is often seen

as a significant problem only to the extent that it has adverse consequencesfor human activities Even the term ‘environment’ refers to something (oreverything) surrounding a subject—humans There is no single scientificnotion ‘environment’ and hence no single definition of the concept; ‘everything

surrounding us’ and the like obviously are excessively broad definitions to qualify

as scientifically meaningful for most purposes.23

Law is no more explicit in this respect Although the various instruments

of international law regularly and increasingly speak about ‘environmentalprotection’, ‘environmental damage’ and so on, they hardly ever even try todefine properly what this ambiguous ‘environment’ is Even where definitionsexist, they vary from treaty to treaty Furthermore, even those internationalinstruments that provide some sort of a definition of ‘environment’ usuallyprefer a sectoral approach by limiting their definitions explicitly for the purposes

of that particular instrument only.24This is not surprising, however, given thevague nature of the term A slightly more complete, yet still only partial picture

of what elements the ‘environment’ may comprise can be derived from thesubstantive provisions of environmental treaties and other instruments: as theystrive to alleviate or compensate for environmental harm they have to definewhat kind of harm they consider ‘environmental’ and which consequences of itwarrant compensation.25

23 The word ‘environment’ comes from the French word environs It means, i.a.,

“the aggregate of surrounding things, conditions, or influences, especially as affectingthe existence or development of someone or something”, or “that which environs”.Webster’s Encyclopedic Unabridged Dictionary of the English Language1989, p 477

For a discussion concerning the meaning of ‘environment’, see, e.g., Gilpin1995, pp 1–2.For an examination of the term ‘environment’ from the point of view of science, culture

and international law, see Romano2000, pp 15–24

24 An uncommonly broad and detailed definition of ‘environment’ in a legalinstrument (although made only “[f ]or the purpose of this Convention”; Art.2) can befound in the1993 Convention on Civil Liability for Damage Resulting from ActivitiesDangerous to the Environment, according to which “[e]nvironment means: naturalresources both abiotic and biotic, such as air, water, soil, fauna and flora and theinteraction between the same factors; property which forms part of the cultural heritage;and the characteristic aspects of the landscape” (Art.2.10) It is considerably differentthan, for instance, the two decades older very vague, highly anthropocentric (and evengender-biased) reference to the environment in the 1972 Declaration of the UnitedNations Conference on the Human Environment (Stockholm Declaration), pursuant

to which “[m]an is both creature and moulder of his environment, which gives himphysical sustenance and affords him the opportunity for intellectual, moral, social andspiritual growth … Both aspects of man’s environment, the natural and the man-made,are essential to his well-being and to the enjoyment of basic human rights the right tolife itself ” (para.1) In the 1986 Report of the World Commission on Environment andDevelopment, called “Our Common Future”, ‘environment’ is defined merely as “where

we all live” (and ‘development’ as “what we all do in attempting to improve our lot withinthat abode”; Chairman’s Foreword, p.14) The 1992 Rio Declaration on Environmentand Development contains no definition whatsoever of ‘environment’

25 See Romano2000, pp 21–24

Indeed, international law is rife with examples of very different kinds ofapproaches to how environmental harm is treated For instance, the 1963Vienna Convention on Civil Liability for Nuclear Damage took a narrowview, compensating for injury to persons and property only A protocol tothe convention adopted in1997 broadened the definition of nuclear damage toencompass environmental damage and preventive measures as well.26Anotherexample is the definition of ‘pollution’ in the United Nations Convention on theLaw of the Sea (UNCLOS): it includes not only the introduction of substances(or energy) into the marine environment which may cause “hazards to humanhealth” or “hindrance to marine activities” but also “harm to living resources andmarine life”.27Moreover, according to an advisory opinion of the International

Court of Justice (ICJ) on the Legality of the Threat or Use of Nuclear Weapons,

“[t]he existence of the general obligation of States to ensure that activities withintheir jurisdiction and control respect the environment of other States or of areasbeyond national control is now part of the corpus of international law relating tothe environment”.28The International Law Commission’s (ILC) Draft Articles

on Prevention of Transboundary Harm from Hazardous Activities apply to

“harm caused to persons, property or the environment”.29An example of aparticularly extensive concept of environmental damage in international law isprovided by the holistic Protocol on Environmental Protection to the AntarcticTreaty which, in addition to the protection of the “Antarctic environmentand dependent and associated ecosystems and the intrinsic value of Antarctica,including its wilderness and aesthetic values and its value as an area for theconduct of scientific research”,30is concerned about a broad range of otherpotential “adverse effects” caused by activities conducted in the Antarctica,including effects on 1) climate or weather patterns; 2) air or water quality; 3)atmospheric, terrestrial, glacial or marine environments;4) flora and fauna; 5)endangered or threatened species; and6) “areas of biological, scientific, historic,aesthetic or wilderness significance”.31

26 For more detail, see below.

27 Art.1.4 In a similar manner, Arts 145 and 194 of the UNCLOS encompass abroad obligation to protect the marine environment

28 Para 29 Furthermore, in the Gabcikovo-Nagymaros case, the ICJ found that a

possibility of environmental damage could justify a plea of necessity (although not inthe case in question; para.54)

29 Art.2.c

30 Art.3.1

31 Art.3.2 The 1992 Conventions on Climate Change (Art 1.1) and Ozone Layer(Art.1.2) also refer broadly to changes which entail significant deleterious effects on,i.a., “the composition, resilience or productivity of natural and managed ecosystems”.The1988 Convention on the Regulation of Antarctic Mineral Resource Activities defines

“damage to the Antarctic environment” to mean “any impact on the living or non-livingcomponents of that environment or those ecosystems, including harm to atmospheric,

‘Degradation’ is an equally relative term: unless we consider a change takingplace in an environment as a negative phenomenon, it cannot be considereddegradation but merely a change.32When such changes have wide enough harm-

ful potential they are considered environmental problems This harmful potential

is most often evaluated in relation to human activities Only quite rarely is anyintrinsic value of nature acknowledged and changes in the environment thathave no relevance for humans (not even from the point of view of aesthetic,cultural or moral values) considered adverse Not surprisingly, the concern ofinternational law-makers for the environment has also primarily been anthro-pocentric (in one way or another).33Accordingly, international environmentaltreaties may often appear to be more concerned with the utilization of naturalresources and protection of property than the ‘mere’ preservation of nature.34

Many modern instruments of international law nevertheless take cognizance ofother losses than those of economic value to humans, such as damage affectingamenity values Even considerations of the intrinsic value of nature occasionallyappear Furthermore, instead of concentrating on the protection of individualcomponents of nature, international environmental law increasingly recognizesthe far more comprehensive need to protect entire ecosystems.35

Although this study strives to apply an environmental perspective to theexamination of legal problems related to space activities, this perspective is notvery far-reaching in terms of the ecological and/or intrinsic value of the spaceenvironment This is due partly to the strong human-oriented tradition evident

in all space law thus far and partly to the significant gaps in our knowledgeconcerning the outer space environment The fact that this knowledge stillremains modest most likely also contributes to the resistance to environmentalistendeavors in the modern space sector One of the biggest challenges seems to

be the reluctance to see the space environment as worth protecting for its ownsake It is still an issue whether outer space has any intrinsic value or is merely

a resource for human utilization.36There presently exists no permanent human

marine or terrestrial life, beyond that which is negligible or which has been assessed andjudged to be acceptable pursuant to this Convention” (Art.1.15)

32 See also Morgan1998, p 31

settlement in space Although space missions often seem to have great resonancewith and evoke widespread interest among the public, the environs in whichthey take place nevertheless remain a somewhat remote issue in the everydaylife of the vast majority of humankind.37The dangers of space activities do notseem as imminent as those associated with many similar problems on Earth—including environmental ones This apparently makes it easier to view outerspace as a mere resource reserve (and a dump for the refuse produced by spaceactivities) that is available for the benefit of humans.38Even at the very most(from an environmental point of view) outer space is perceived as an area for theconduct of scientific research.39The environmental movement has also largelyignored space utilization.40

life (in a form which we are capable of detecting) seems to be the only measure of worth

as regards outer space See ibid., p.723

37 Moreover, it has been pointed out that the entire “topic of outer space [is] distantfrom the daily issues of survival faced by the populations in [some African] countries”.Report of the Legal Subcommittee on its44th session 2005, para 37 No doubt the sameapplies to many less developed nations all over the world

38 For obvious reasons, “[a] policy of ‘out of sight, out of mind’ is considerably easier

to establish when planetary environments are concerned.” Williamson Mark2000(a),

p.721

39 It has been argued that the reason for the lack of an environmental perspective inthe UN space treaties is that at the time of their adoption the prevailing approach was

one emphasizing the scientific utility of outer space See Baker1987, pp 166–167; Hacket

1994, pp 108–110 In turn, that environmental damage caused to planetary surfaces, forinstance, has received relatively modest attention can be explained at least partly by thefact that such damage has thus far been mostly the result of scientific space missions.Activities labeled ‘scientific’ tend to be regarded generally as more valuable or acceptablethan commercial, exploitative activities This is particularly true where the activities areconducted in the global commons Williamson Mark2000(a), p 720

40 As one author put it, “everyone who lives on the Earth has a vested interest inprotecting the planet’s environment, [whereas] no such interest exists for the Moon andMars [or other celestial bodies beyond the Earth]” Ibid., p.724 Moreover, “[e]venamong environmentalists, concern about off-planet environmental issues has been slow

in developing” Hargrove1986, p ix Quite few actually seem to consider outer space aspart of our environment—despite the complete dependency of life on Earth upon theenergy generated by the Sun, for instance Hartmann1986, p 121; Williamson 2006,

p.183 It has been proposed that one way of making states more receptive to increasinglyenvironment-oriented space policies is to educate the public on the space environment

“If the public opinion will not be changed then it will be easy for the spacefaringStates to further their selfish policies on environmental matters in outer space” Hacket

1994, p 146 Considering how humanity has treated even its home planet, however, theprospects for a more environmentalist approach to space utilization do not seem verybright in the near future at least Over time, this may change, though—even thanks toevolving space tourism, which might in part contribute to the development of positive

attitudes towards planetary conservation See Williamson Mark2000(a), p 724

Despite the shift towards an increasingly less anthropocentric attitude towardsthe terrestrial environment since early1980s with the introduction of the idea

of ecosystem protection for the benefit of not only humans but all other species

as well,41there has been no comparable development in the space sector Thereexist many other concerns, however, which are very much dependent uponthe condition of the space environment For instance, those concerned with theutility of outer space for commercial applications worry about the negative effects

of environmental degradation on their activities Others may be concerned aboutthe purity of the space environment for the purposes of scientific research.42Stillothers may consider an unclean space environment an aesthetic nuisance.43

Furthermore, the preservation of historic sites of human space exploration, such

as the Apollo11 landing site and the first human footprints on the Moon, may

be regarded as valuable.44All such approaches consider the space environmentworthy of protection, but only because of different instrumental notions of outerspace; environmental protection of space is not an end in itself.45

41 See Romano2000, p 20

42 For instance, the Saha crater on the far side of the Moon has been suggested asdeserving special protection because its particular suitability for the search for extrater-restrial intelligence and scientific investigations In accordance with such concerns, theInternational Telecommunication Union (ITU) issued in1997 a recommendation (RA.479–4) which established a “lunar quiet zone” where certain frequencies are afforded

protection on nearly the entire lunar far side See Sterns–Tennen2000 There is anotherITU recommendation (RA.1417) on quiet zones dealing with “a radio-quiet zone in thevicinity of the L2 Sun-Earth Lagrange point” See also Williamson 2006, pp 163–164

43 At worst the (un)aesthetic effects of space activities might be detectable even fromthe Earth For instance, extensive strip mining on the nearside of the Moon could haveimpacts easily visible to us Williamson2005, p 164

44 See Williamson 2003, pp 47–48 Very likely, these would also be among thetop destinations for any future space tourists (once lunar tourism becomes feasible).Williamson2006, p 133 For a proposal for designating Tranquility Base (where humans

first landed on the Moon) as a UN World Heritage Site, see Rogers2004 UNESCOhas, however, rejected the possibility of designating the Moon or particular areas of it

as World Heritage Sites; the World Heritage Convention applies on Earth only (and,

moreover, to the territories of contracting states only) See Williamson2006, p 135 Therehave also been several other suggestions for preservation of parts of celestial bodies, fordifferent reasons These include a proposal for a system of “planetary parks” on Mars SeeCockell–Horneck2004 For a more detailed treatment of the question of conservation

of particular areas of outer space either for their historic importance or special natural

qualities (“space wilderness areas”), see Hartmann1986, pp 130–131

45 For an evaluation of the environmental effects of space activities from a clearly

instrumental point of view, see, e.g., Perek1983, p 221 According to Perek, “[a]s allnatural resources, also outer space should be managed to allow for an orderly and efficientutilization” Ibid., p.222 One more example of fundamentally instrumental values is theargument that the outer space environment “represents freedom, by providing an almostunlimited expanse for mankind to explore, understand and, if he so wishes, to conquer”

One author has identified three levels in the evolution of environmentalethics: anthropocentric, biocentric, and cosmocentric At the first level, themeasure of the value of nature is tied to its utility for the needs (presentand future) of humans The environment can be exploited or protected, butboth processes are driven by humanity’s instrumental ends International lawregarding outer space has designated space and its resources as a common goodfor humans, thus espousing a very anthropocentric way of thinking A moreenvironmentalist approach is represented in biocentric attempts to maximizethe well-being of the totality of living existence, pursuant to which all livingorganisms—not only humans—have a value in themselves The intrinsic value

of all life is focal Hence, possible indigenous life forms on Mars, for instance,would need to be respected Even more ‘extreme’ is a cosmocentric ethic, whichentails a value system where the cosmos is the priority rather than humans orother biological entities “An intrinsic value permeates all levels of both ecologicaland geomorphologic hierarchies; all ‘named’ features and those to be discoveredhave an inherent right of existence.” In terms of space policies, this would entailthe protection and preservation of all features on Earth and in outer space inthe name of the value of mere existence Obviously, space activities today lie onthe first, anthropocentric level, extending at most to biocentric considerationsonly.46

This work applies an approach which recognizes other than solely mental conceptions of outer space, at least to an extent It attempts to consider

instru-and that this ‘freedom’ should not be compromised by environmental degradation.Williamson 2003, p 48 In a way, any values (even the less instrumental ones) we

attach to outer space (or other environments or entities) are inevitably human values—

ultimately even the intrinsic value we attribute to entities or phenomena However, this

is quite unavoidable, as there is no other lens but the human one through which we arecapable of viewing the world

46 See Sadeh 2002 According to the UNESCO/COMEST Working Group onthe “Ethics of Outer Space”, “[t]he main objective of the ethics of space policy is

to keep in mind the place of human beings” However, this does not refer to acosmocentric approach; the Working Group’s considerations also appear to reflectprimarily anthropocentric, at most biocentric considerations Tellingly, the questions

on which the Working Group focused were “the presence of man in space andmanned flights, the development of science and space technology, the use of spacetechnologies, protection of the environment and protection of public freedoms andcultural identities” (excluding military considerations, except for issues regarding dualuse of space technologies) The Ethics of Space Policy2000, p 6 In addition, a recentinternational study on space traffic management mentions the lack of “provisions onthe environment” when speaking about the Space Debris Mitigation Guidelines of theInter-Agency Space Debris Coordination Committee (IADC) However, this refers tothe lack of rules concerning “avoidance of pollution of the atmosphere/troposphere”only, not preservation of the environment of outer space Cosmic Study on Space TrafficManagement2006, p 12

development in the space sector as something which “needs to take place withreference to environment” and, conversely, to examine environmental degra-dation of outer space in relation to development issues.47Despite some earlyefforts to introduce more environmentalist elements into the space sector,48

such an approach is still not very common today.49 This is particularly truewhere space law is concerned In addition to the lack of adequate environmentalconcern within space law, general international environmental law has paid rel-atively little attention to the space sector.50The development of a distinctivelyspace-centered environmental vision would clearly require a far more originalapproach than the current study can provide In all likelihood, this would have

to draw on philosophy to a degree that would disqualify the current treatise as

47 See Kütting2000, p 6

48 E.g., Bhatt1979

49 For an attempt to develop a more sustainable model for lunar exploration in

particular, see Williamson2005 The same author has proposed the adoption of an ethicalcode for space exploration and development along the lines of the goal of sustainabledevelopment, i.e., a balance between exploitation and protection According to hisvision, “space ethics would cover, for example, the impact of our actions in space oneach other, on each other’s property, on the Earth … and on the space environment”.Williamson2003, pp 48–49 (These ideas have been developed further in Williamson2006.) For another proposal concerning a space code of conduct, namely, a code ofethics for conducting business in outer space (called “Code of Ethics for Off-Earth

Commerce”), see Livingston 2003 The above-mentioned proposal concerning Mars,with the formation of a “Planetary Park system” (which could be applied also to theMoon), also evinces an increasingly sustainable ideology, even with a partly cosmocentricslant: the reasons listed for the need for Martian Planetary Parks are (1) the intrinsic

worth of the environment; (2) responsibility for future generations; (3) protection of sites

of natural beauty; (4) utilitarian value (for the purpose of scientific investigation); and(5) historical value Cockell–Horneck 2004 For an example of general recognition ofthe need to shift from anthropocentrism to more environmentalist approaches in space

utilization, see Tatsuzawa1998

50 See, e.g., Birnie–Boyle2002, where the protection of outer space is afforded a mereone and a half pages (pp.534–535) In the recent “Judicial Handbook on EnvironmentalLaw” of the United Nations Environment Programme (UNEP), the term ‘environment’has been defined in geographical terms even as narrowly as referring “to a limited area” orencompassing “the entire planet, including the atmosphere and stratosphere” Shelton–Kiss2006, p 4 Hence there is no mention of the environment beyond the Earth (orenvironmental regulation of outer space) On the other hand, some scholars perceivedalready early on the potential for mutually beneficial developments within space law and

international environmental law See, e.g., Christol1976, p 31: “Through the peaceful andcontinuing use of space objects in [remote] sensing activities there will be the progressivedevelopment of international space law With the maturity of such law there will also be avery substantial inducement to international environmental law to enlarge its expanding

frontiers The mutuality of relationships between these two areas of international law will

prove to be beneficial to both” (emphasis added).

a legal study However, as historical and ideological background for the rest ofthis work, I take the opportunity to briefly emphasize in this introductory partthe profoundly anthropocentric nature of all space activities—and space law.The anthropocentric slant of the space sector derives from the historicalphenomenon of industrial development All human activities in outer space havebeen made possible by achievements of technology Accordingly, the ideologyprevailing within the modern space sector emanates from the fundamentalconcepts which this industrial tradition entails, above all the myth of unlimitedindustrial development In such a setting, nature equals resources—resourceswhich can be utilized to promote further industrial development In a way,these resources are taken for granted; industrial development is dependent ontechnical and economic capacities rather than on the natural resource base—despite the fact that many natural resources are in fact limited.51In the spacesector, the limitedness of the outer space resources which we are currentlycapable of utilizing cannot be ignored On the other hand, the total resourcebase of outer space seems quite unlimited (to our understanding at least).52It haseven been hoped that space resources will provide a solution to the increasingshortage of resources found on Earth The faster our technology improves,the more feasible the utilization of outer space becomes—and we surely seemeager to take all available advantage of it Ultimately, the ideology of industrialdevelopment is based on the (absurd) thought that human society is able toachieve independence from nature.53 At the moment, the inherent extremehostility of the space environment to humans still places significant restrictions

on space activities, keeping us ‘at the mercy’ of this environment However, the(increasingly realistic) visions of permanent space colonies, for instance, clearlyreflect the familiar ideology of humans as masters of nature—even in outerspace.54

51 See Chatterjee–Finger1994, p 27

52 Humans have found a variety of natural resources in outer space; even our ownsolar system is expected to contain a vast supply of virtually all of the mineral resourcesused extensively on Earth today Lee2000, p 409 Most likely there are still numerousnew resources to be found, including minerals, energy sources, and organic and non-organic substances

53 Chatterjee–Finger1994, pp 27–28

54 See also Williamson2005 Considering how fundamentally reliant human life is

on the terrestrial environment (the Earth being the only place where we can live withouthaving to resort to advanced technology for life support), efforts to create self-sufficientspace colonies can be seen as representing a striving for not only mastery of but evenindependence from nature They may also reflect an ideology which considers the entireEarth as but one resource available for human utilization; after its depletion, we can move

on to exploiting other planets Such an approach has been referred to as the “disposable

planet mentality” See Hartmann1986, p 122

In keeping with the ideology of industrial development, the answers proposed

to environmental problems such as resource depletion and pollution typicallyrely on scientific progress, better technologies (technology being the application

of science55) and better policies: further scientific, technological and politicaldevelopment is suggested to solve the very problems that development iscausing.56 This is true also in the space sector where the root causes toenvironmental problems created by space activities are often ignored That is by

no means surprising, considering the inherent connection between technologicaldevelopment and the use of outer space Moreover, modern space activities are

a large and multinational business, and large-scale industries typically result

in accelerated environmental destruction The salient ideology in the spacebusiness revolves around the maximization of economic profit While recognized

as valuable objectives, waste reduction, risk management, pollution control,energy efficiency, and the like should not cut into growth; on the contrary, if atall possible, they should enhance growth.57This, however, often is an impossiblegoal

In most areas—and definitely in the space sector—increased environmentalawareness is an imperative without which any activity will eventually becomeimpossible Whether humans understand and accept these conditions and react

to them soon enough is a question largely dependent upon the development

of a new environmental ethic Obviously, scientific research can contribute tocreating a more environmentalist (preservationist) ideology by revealing newknowledge about natural phenomena, their interrelatedness, and importancefor human activities It can also gradually broaden our appreciation of theenvironment as such—including the space environment However, scientificresearch alone cannot produce a new awareness “[S]cientific research can only

answer scientific questions”: it can help to implement an ethic but is not (alone) capable of establishing one.58Neither is science capable of determining politicalpreferences.59

The decisive issue for the acceptance of international environmental tion may not be so much the question of states’ desire to guard their sovereignty

regula-or other considerations of what they might lose by acquiescing to internationallyagreed rules on environmental protection Some of the relevant actors might sim-ply fail to see what they have to gain by compliance with common environmentalgovernance Obviously, governments are reluctant to encumber their sovereigntyunless they perceive that they are getting significant enough advantages in return

55 Baarschers 1996, p 27 For a more detailed account of the role and mutual

relationship of science and technology, see, e.g., Skolnikoff 1993.

56 Chatterjee–Finger1994, p 8

57 See ibid., p.21

58 Byerly1986, p 97 Obviously, legal science has far smaller role in the development

of new attitudes than natural sciences

59 See Underdal2000, p 5

However, international treaty negotiations (within the environmental sector inparticular) have often seemed to focus primarily on the allocation of costs, whiledevoting little or no attention to the potential tangible benefits which will accruefrom the instruments under negotiation or to how such benefits will be shared.Within such a limited perspective, the costs of environmental protection mayappear as mere constraints on ‘development’ and thereby a factor which willput the states taking part in regimes combating environmental degradation (on

a global scale in particular) in an unfavorable position compared to those whoremain outside such regimes Admittedly, adverse environmental impacts andthe costs of alleviating them are rarely distributed ‘equally’ and some parties maylose more than they gain, even in the long run.60Solutions to a single problemmay also merely shift the risk or the impact to another domain (and, at worst,even magnify it on the way) This could be offset by guaranteeing the ‘losers’other kinds of benefits through a linkage of international environmental effortswith economic and security-related issues, for instance.61

In the space sector, numerous stakeholders are primarily concerned aboutgetting their share of the benefits of these activities Also, free-riding is by

no means an unknown phenomenon in this international area: many seem toassume that others will make enough effort for increased environmental safety,from which they, too, can benefit—without shouldering any of the costs Theincreasing role of the commercial space industry magnifies the problems sincecommercial actors largely follow the reasoning of any other investment decision-making The environmental effects of space activities, however, involve a timeframe that often is considerably longer than that in most other investmentdecisions For instance, policies remedying orbital debris may span decades, acentury, or even more Hence, it will very likely be some other generation thatobtains the benefits of debris mitigation measures than the one which incurs the(potentially very high) costs.62

In this light, the current problems of the space sector in addressing mental degradation caused by its activities are not very surprising However,these problems need to be overcome, even quite soon, if humanity wishes toconduct activities in outer space also in the future This study presents someoptions for improved environmental cooperation and decision-making in thespace sector It examines what kind of environmental problems relate to spaceactivities and which norms of international law might be applicable in address-ing these threats This examination includes international legal instruments thataddress space activities directly as well as potentially relevant instruments fromthe sphere of international environmental law The study goes on to presentvarious prospects for the future development of the international regulation of

environ-60 Susskind1994, p 23

61 Ibid., p.36

62 See Greenberg2003, p 381

space activities Above all, it proposes the use of some innovative mechanisms ofenvironmental standard-setting and implementation which could facilitate new,efficient institutional arrangements and more productive working relationshipsbetween the various stakeholders in the space sector.

This book centers primarily on the possibilities for negotiating new ments of international space law or otherwise introducing more environmental-ist elements into the legal regime of outer space Another approach would havebeen to study alternatives for reinterpreting the existing instruments of space lawfrom a more modern, environmental point of view That, however, would merit

instru-a treinstru-atise of its own instru-and thus such instru-aspects instru-are only touched upon in pinstru-assing inthis work The same applies to questions concerning national implementation

of international space law as well as to the use of national regulation to bridgegaps in the international law of outer space: national legislation is discussed onlywhere it is considered particularly relevant for exemplifying the implementation

of international space law or augments the international legal regime

Furthermore, there are international legal aspects directly related to mental consequences of space activities which are in this treatise not affordedattention commensurate with their importance Liability issues are obviously offocal significance here Extending this study to include a thorough treatment

environ-of such questions would have broadened the scope environ-of the work excessively andhence made it quite unmanageable Moreover, it has been questioned whether

it is wise to spend what are often scarce negotiating resources on the challengingtask of developing liability regimes in the first place.63Consequently, in addition

to a brief examination of the liability-related norms of UN space law, liability istouched upon mostly in the context of the polluter-pays principle only, ‘makingthe polluter pay’ being among the most relevant goals of any environmentalliability regime.64

Despite the above limitations, the findings of this work should enable farmore than limited applications Although the focus of the study is environmentalmanagement of space activities, it has in many respects the potential to haverelevance for the development of space law more generally The analysis draws

on experiences from a variety of multilateral legal regimes in different areas—bearing in mind, however, that each case has its specific characteristics, whichnecessitates caution when making use of analogies.65Furthermore, this study

63 Churchill2003, p 32; Brunnée 2004, p 351

64 Other important aims of environmental liability typically include the sation of victims and protection of environment, sometimes also the protection ofdeveloping countries against environmental risks Ibid

compen-65 Space law has long traditions of being developed in view of analogous areas

of international regulation, the law of the sea in particular It seems that the modernspace sector, characterized by increasing privatization and commercialization, could drawequally useful lessons from experiences in other fields with similar challenges; the sectorsproviding apt analogies might only be somewhat different than earlier Nevertheless,

tries to avoid the presupposition that the legal approach is always the bestway to resolve complications in the international system Thus, in addition

to international conventions and other legal mechanisms, various less formalcooperative means for ameliorating environmental problems are discussed Such

an approach seems particularly suitable given that the space sector is a domainwhere legal conceptions are supplied by many other disciplines, above all, thenatural sciences, politics, and economics

1.4 The Expanding Spectrum

of Stakeholders in the Space Sector

1.4.1 States

In public international law, the state is still very much the foremost actor.States can enter and carry out international treaty-making negotiations and areaddressed by the provisions of such instruments: international law traditionally

is a system of rules created by states for states.66Accordingly, treaties betweenstates have even been seen as the principal form of all international cooperation.Such a perception used to fit the reality of space activities well For decades,only states—and very few of them—were capable of carrying out activities inouter space States entered into international space treaties under the auspices ofthe United Nations (UN) but practical international cooperation in the sectorlong remained modest The two superpowers, the Soviet Union and the UnitedStates, carried out their space programs quite independently and, furthermore,

in a highly competitive setting

At the beginning of the space era, not many other states possessed any capacity

to engage in space activities Nevertheless, the UN space treaties constantly usephrases such as “province of all mankind”, “for the benefit and in the interests

of all countries”, or “common heritage of mankind” when referring to outerspace and the activities relating thereto Accordingly, one would imagine thatthis ‘mankind’ (or humankind) plays a prominent role in the governance ofspace activities In the same vein, speaking about outer space and its resources

in terms of ‘global commons’67 suggests that it is the global community that

is in charge of the management of these areas which fall outside the scope

the law of the sea will most likely continue to be a fruitful source of analogy in manyrespects For instance, as concerns the possibility of drafting a new, comprehensive spaceconvention, the UNCLOS has been considered as a useful source of comparison, both

as regards the content of the regime and experiences of the process of negotiating it.Report of the Legal Subcommittee on its45th session 2006, para 46

66 Kütting2000, p 3

67 The ‘global commons’ are Antarctica, outer space, the high seas and the deep

of national jurisdictions This global community has been, first and foremost,the community of states, which has concluded international conventions formanaging outer space relatively early in the history of human space activities.

In practice, the language of the space treaties promises much more for thehumankind as a whole than what space utilization actually provides it with Thebenefits do not accrue evenly among humanity (or even the state community) inaccordance with some common regime Instead, the space sector largely followsthe far less noble principles of the modern industrial economy

Furthermore, states are increasingly not the unitary rational actors of thetraditional assumptions Neither are they autonomous but embedded in aframework of interactions among numerous entities in the international system.Despite the fact that space activities continue to be extremely hazardous andcostly, there exist today a variety of different actors who are willing to invest in thissector This is obviously due to the significant potential benefits which the use ofouter space entails The universe contains a myriad of natural resources, varyingfrom solar power to minerals in celestial bodies Also outer space as a whole hasbeen depicted as a resource: one need only consider, for instance, the possibilitiesthat the mere existence of Earth orbits provides for satellite activities Now thattechnological development has enabled the utilization of space also for thosecapable of lesser investments, states comprise only a part of the global network

of entities active in the space sector In such a setting, the management of spaceactivities by states alone is proving increasingly complicated and inefficient.Indeed, states are facing serious legitimacy problems in the space sector Inorder to retain their focal position, states need to demonstrate that they arerelevant agents also as regards the new challenges confronted in this area Theyhave not succeeded very well here, however The international legal instrumentsthus far adopted for the regulation of space activities have mostly proven fartoo vague, and the state community has failed to reach agreement on newinstruments (other than legally non-binding declarations and the like) for somedecades already Moreover, considering that states have faced major difficulties

in achieving substantial improvements in any natural conditions of globalmagnitude, their possibilities in the environmental management of outer spaceseem less than promising

Nevertheless, in the formation of the international law of outer space, thefocal organ still is the United Nations It was originally founded for verydifferent purposes than solving today’s global crises, which center aroundenvironmental and development issues rather than questions of world peace.68

As an organization of states, the UN also directly reflects the problems related

to states and their role in the international system One is the fact that there

seabed See, e.g., Kegley–Wittkopf1999, p 316 For a more detailed treatment of the

global commons, see Vogler2000

68 See Chatterjee–Finger1994, p 111

are many kinds of states For instance, although sovereign states formally are allequal, some of them are in reality far more influential and active in the spacesector and, accordingly, have much greater practical interests in the internationalregulation of this area In addition to being ‘big business’ economically, spaceactivities play a major role politically This was particularly evident during theCold War in the ‘space race’ between the US and the Soviet Union, but thepolitical and strategic relevance of space by no means vanished at the end of theCold War.69

The space sector also needs to cope with the global differences in development.Despite the global commons rhetoric, the relationship between more and lessdeveloped areas (‘the North’ and ‘the South’) is most often depicted in terms ofconflict Outer space as an environment and a resource is typically perceived assome sort of a limited ‘pie’ of rights, to which all states aspire However, suchrights often appear in practice as something very close to a right to destroy andpollute the environment if needed (in the name of utilization) Conflicts willunavoidably arise, as more or less all states today share the same basic ideology

of industrial development, for the purposes of which outer space is seen as amere resource available for exploitation by all who have the necessary means.This is only likely to intensify the competition for the limited possibilities

In such a situation, it is no surprise that the North, which has the means

to conduct space activities, is eager to perceive outer space and its resources ascommon property, available on the basis of the ‘first come, first served’ principle.The South, on the other hand, is concerned about being guaranteed adequatepossibilities for equal benefits either now or in the future Southern states expecttechnical assistance to enable them to utilize outer space, the reservation of

‘their share’ for possible future use, or financial compensation for allowing theexploitation of ‘their’ resources by others.70Typically, those states have also been

in favor of the inclusion of liability regimes in international environmentalagreements whereas the North has more often resisted provisions to that end.71

Environmental degradation is making the picture increasingly complicated:

69 Quite the contrary: it has been estimated that the strategic relevance of outer space

is only increasing as the role of information and hence satellite telecommunications,remote sensing and satellite navigation systems are more important than ever Also, themodern military relies essentially on high technology, space technology included Hobe2004(a), pp 40–41

70 An interesting case in this respect is the relatively recent ‘innovation’ of reservingsatellite frequency spectrum and orbital slots for future use and/or subsequently rentingthem out to other users This is done by filing with the ITU proposed satellite systemswhich only exist on the paper, as a mere registration of a satellite system with the ITU

is enough to hold a slot open The result has been a severe backlog of applications atthe ITU and, to some extent, blocking of access to spectrum and orbital resources Thisso-called ‘paper satellite’ problem will be discussed in more detail below

71 Brunnée2004, p 351