The Environmental Element in Space Law: Assessing the Present and Charting the Future (Studies in Space Law)

The Environmental Element in Space Law

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 in Space Law Assessing the Present and Charting the Future

By

Lotta Viikari

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. 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. KJT3469.V55 2008 341.4’7--dc22 2008017590

ISSN: 1871-7659 ISBN: 978 90 04 16744 5 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 a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents 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 . . . . . . . . . . . . . . . . . . . . . . 2.1. Space Debris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2. Nuclear Contamination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3. Solar Power Satellites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4. Manned Space Stations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5. Exobiological Contamination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

29 31 45 49 50 50 52

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Contents

Chapter Three Space Law From an Environmental Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1. UN Space Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1. The Outer Space Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2. The Moon Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3. The Liability Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.4. The Registration Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.5. The Rescue Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2. The Nuclear Power Source Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3. The International Telecommunication Union. . . . . . . . . . . . . . . . . . . . . . . . 3.4. Developments within Certain Other International Organs . . . . . . . . . . . 3.4.1. The Inter-Agency Space Debris Coordination Committee . . . . 3.4.2. The United Nations Committee on the Peaceful Uses of Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3. The International Law Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5. Environmentally-oriented National and Regional Efforts . . . . . . . . . . . . 3.6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

97 102 104 111

Chapter Four International Environmental Law in the Space Sector . . . . . . . . . . . . . . . . . . . . . 4.1. Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2. Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1. Sustainable Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1.1. Components and Evolution . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1.2. Sustainable Development and the Space Sector . . . . . . 4.2.2. Sic Utere Tuo, Good Neighborliness and Due Diligence . . . . . . . 4.2.3. The Precautionary Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3.1. Components and Evolution . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3.2. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3.3. The Precautionary Principle and the Space Sector . . . . 4.2.4. Common but Differentiated Responsibilities . . . . . . . . . . . . . . . . . . 4.2.5. The Polluter-Pays Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.5.1. Components and Evolution . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.5.2. The Polluter-Pays Principle and the Space Sector. . . . . 4.3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

119 121 127 129 129 144 150 157 157 161 173 178 184 184 190 203

Chapter Five From General Principles to Practicable Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1. Complications of Traditional International Treaty-making . . . . . . . . . . . 5.2. Improved Norm-setting Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1. The Framework Convention Approach . . . . . . . . . . . . . . . . . . . . . . . 5.2.2. Selective Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3. Differential Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4. Promotion of Over-achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

207 210 215 215 222 225 231

55 58 58 62 65 73 81 83 85 93 93

Contents 5.2.5. Delegated Decision-making Powers and Self-correcting Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.6. Interim Agreements and Ratification Limits. . . . . . . . . . . . . . . . . . . 5.2.7. Common Rules of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.8. International Standards and Mutual Recognition of National Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.9. Information Sharing and Other Forms of Cooperation . . . . . . . . 5.3. Environmental Impact Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1. History and Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2. Procedure and Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3. EIA and Space Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3.1. Current Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3.2. The Future Potential of EIA in Space Activities . . . . . . 5.3.4. Strategic Environmental Assessment and Sustainability Impact Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1. Dispute Settlement under International Space Law . . . . . . . . . . . 5.4.1.1. The Outer Space Treaty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1.2. The Liability Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1.3. The Moon Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1.4. The International Telecommunication Union . . . . . . . . 5.4.1.5. Other Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2. Adjudication vs. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2.1. Benefits of Arbitration in Space-related Disputes . . . . . 5.4.2.2. The ILA Draft Convention on the Settlement of Disputes Related to Space Activities. . . . . . . . . . . . . . . . . . 5.4.3. Improving the Dispute Resolution in the Space Sector . . . . . . . . 5.5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

vii 233 238 241 249 257 260 261 268 273 273 278 280 285 287 289 290 295 295 296 298 301 305 309 317

Chapter Six Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 Treaties, Other Instruments and Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Union Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Documents Prepared by or for the UNCOPUOS . . . . . . . . . . . . . . . . . . . . . . Other International Instruments and Documents . . . . . . . . . . . . . . . . . . . . . . National Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

359 359 372 373 376 385

Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

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Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Monographs, Articles, etc., Attributable to Authors . . . . . . . . . . . . . . . . . . . . References without an Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Websites of Organizations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

325 325 352 357

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393

Acknowledgements This book is a slightly revised and updated version of my doctoral thesis, which I defended in June 2007. As so many Ph.D. candidates before me have noted, writing a doctoral thesis is a lonely enterprise. This has been particularly true for a person preparing a thesis on space law in Finland, which clearly does not rank among the major spacefaring countries and has little history in space law research. The solitary hours I have spent with this effort are countless. Nevertheless, numerous other persons and institutions have contributed to the process in one way or another. I am much indebted to them for assisting me during the research. Firstly, I have been privileged to be guided by Professor Kari Hakapää throughout my Ph.D. process. He was always willing to discuss any progress and read my drafts. His expert comments have been invaluable and his patience admirable. Indeed, I can hardly thank him enough. Professor Hakapää is also one of the few persons whom I know for sure has read the entire thesis. The other two are the external examiners, Professor David I. Fisher of the University of Stockholm and Professor Armel Kerrest of the University of West Bretagne. Both delivered their assessments of my work very promptly, which made it possible for the defense to take place just before summer holidays, for which I am very grateful. Professor Kerrest most kindly agreed also to act as my opponent in the public defense. I have been lucky enough to have had no major financial worries during the preparation of this work, which has obviously facilitated things significantly. Initially, I started to develop my Ph.D. in a project funded by the Academy of Finland. At early stages of the work, I also received a four-year scholarship from the second doctoral program in law in Finland, for which I am very grateful although I never actually used the funding. While writing the thesis, I have been ix

x

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working at the Faculty of Law of the University of Lapland, the Department of Law of the University of Joensuu, and the Northern Institute for Environmental and 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 the opportunity to be engaged in research and teaching in areas of international law also beyond the particular scope of my Ph.D. I have been fortunate enough to receive collegial support and encouragement from all of the places where I have worked. Principal thanks must go, however, to my colleagues at NIEM, especially our director, Professor Timo Koivurova, who also bears responsibility for luring me into the realm of Arctic legal questions. Additionally, I would like to mention in particular Leena Heinämäki and Maarit Klemetti, both of whom have tried to remind me of the existence of (different kinds of ) life beyond my office walls. Special thanks are also due to Txomin Hernández 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 writing the thesis, Esko Linnakangas, Ahti Saarenpää and Terttu Utriainen. My warm thanks are also due to Professors Rauno Halttunen and Juha Karhu. Moreover, thanks must go to Professor Maurice Andem, without whose involvement my Ph.D. process would have been quite a different journey. Additionally, I want to thank Professor Tapio Määttä, Professor Tuomas Kuokkanen, and Dr. Tapio Puurunen, with whom I have had the pleasure of discussing my research at the University of Joensuu. Of the many other people who have provided me with different kinds of assistance and encouragement I would like to mention with gratitude Dr. Walter Flury from the European Space Agency, Professor Lauri Hannikainen from the University of Turku, and Dr. Leslie Tennen from Law Offices of Sterns and Tennen. The resources provided by the library of the University of Lapland have been invaluable to my work. During the past couple of years, the services of the library at Arktikum in the Arctic Centre have been particularly relevant for me. Most importantly, I have also been able to conduct research at the libraries of the European Space Agency in Paris, the International Institute of Air and Space Law at the University of Leiden, the Institute of Air and Space Law at the University of Cologne, and the Peace Palace in The Hague. I have had the pleasure of getting most helpful assistance from the librarians of these institutions, for which I extend my warm thanks to all of them. I am also grateful to Richard Foley, from whose proofreading this manuscript has benefited. I have received financial assistance for the proofreading from the Finnish Branch of the International Law Association, which has had a very supportive attitude towards my endeavors in legal research from their very beginning. My sincerest thanks for that. My thanks are also due to Markku Vartiainen and Risto Haavisto of the Faculty of Law of the University of Lapland for 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 countless evenings, weekends and holidays with me at the university. Her inspiring

Acknowledgements

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example and constant support have been essential to completing this project. I must also thank my relatives, of whom I remember with special warmth my late Uncle Elmo. I dedicate this book to my family. Obviously, this book remains my own product and I alone bear full responsibility for the views expressed, as well as for any errors or omissions. Rovaniemi, November 2007 Lotta Viikari

Abbreviations ABM AIAA AJIL ARC BGBl CC CERES CETEX CFR CNES COMEST COSPAR DISCOS DoD EARC EC ECE ECJ ECSL ECSS EEZ EIA EMEP ENMOD

Anti-Ballistic Missile American Institute of Aeronautics and Astronautics American Journal of International Law Administrative Radio Conference Bundesgesetzblatt Claims Commission (of the Liability Convention) Coalition for Environmentally Responsible Economies Committee on Contamination by Extraterrestrial Exploration Code of Federal Regulations (US) Centre National d’Etudes Spatiales UNESCO World Commission on the Ethics of Scientific Knowledge and Technology Committee on Space Research Database and Information System Characterising Objects in Space (US) Department of Defense Extraordinary Administrative Radio Conference European Community (United Nations) Economic Commission for Europe European Court of Justice European Centre for Space Law European Cooperation for Space Standardization Exclusive Economic Zone Environmental Impact Assessment Environmental Monitoring, Evaluation and Protection Program Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques

xiii

xiv ESA EU EUMETSAT

Abbreviations

European Space Agency European Union European Organisation for the Exploitation of Meteorological Satellites EUROCONTROL European Organisation for the Safety of Air Navigation FCC (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 Committee IAEA 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 Disputes ICSU International Council of Scientific Unions / International Council for Science IGO 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 Proliferation INMARSAT 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 Ships MEO Medium Earth Orbit MOU Memorandum of Understanding MTCR Missile Technology Control Regime

Abbreviations NASA NEPA NGO NPD NPR NPS ODCWG OECD OJ OSPAR OST PCA PSA PSN RARC RIAA RTG SDR SEA SIA SLW SopS SSN SUIRG TIAS UIC UK UN UNCED UNCITRAL UNCLOS UNCOPUOS UNECE UNEP UNESCO UNGA UNISPACE UNOOSA UNTS US USC USD UST

xv

(US) National Aeronautics and Space Administration (US) National Environmental Policy Act Nongovernmental Organization NASA Policy Directive NASA Policy Requirement Nuclear Power Source(s) Orbital Debris Co-Ordination Working Group (of the ISO) Organisation for Economic Co-operation and Development Official Journal (of the EU) Convention for the Protection of the Marine Environment of the North-East Atlantic Outer Space Treaty Permanent Court of Arbitration (UN) Programme on Space Applications Pasifik Satellite Nusantara Regional Administrative Radio Conference (UN) Reports of International Arbitral Awards Radioisotope Thermal Generator Special Drawing Right Strategic Environmental Assessment Sustainability Impact Assessment; Social Impact Assessment Schriften zum Luft- und Weltraumrecht / Studies in Air and Space Law / Etudes de droit Aérien et Spatial Suomen Säädöskokoelman Sopimussarja (Finnish Treaty Series) Space Surveillance Network Satellite Users Interference Reduction Group Treaties and Other International Acts Series Uranium Information Centre United Kingdom United Nations United Nations Conference on Environment and Development United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Committee on the Peaceful Uses of Outer Space United Nations Economic Commission for Europe United Nations Environment Program United Nations Educational, Scientific and Cultural Organization United Nations General Assembly United Nations Conference on the Exploration and Peaceful Uses of Outer Space United Nations Office for Outer Space Affairs United Nations Treaty Series United States (of America) United States Code United States Dollar United States Treaties and Other International Agreements

xvi WARC WARC ORB WHO WIPO WRC WTO ZLW

Abbreviations World Administrative Radio Conference World Administrative Radio Conference on the Use of the Geostationary Satellite Orbit and the Planning of Space Services Utilizing It World Health Organization World Intellectual Property Organization World Radio Conference World Trade Organization Zeitschrift für Luft- und Weltraumrecht

Chapter One

Introduction 1.1. General Background This book examines the current international legal regimes in space law and environmental law in order to ascertain their applicability and efficacy in addressing environmental threats in the use of outer space. Outer space is the space upwards from the airspace (atmosphere) surrounding the Earth. As the composition of atmosphere does not change dramatically at a certain height, it is impossible to physically determine exactly where the atmosphere ends and outer space begins. Consequently, the problem of limitation is more of a political and legal issue than a technical one. Various alternatives have been suggested over the years as the most suitable criterion for making this distinction. There are two predominant approaches, the spatial and the functional.1 The 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 functional approach is the United States (US) Space Shuttle, which is launched like a rocket into Earth orbit but uses aerodynamic lift like an airplane when returning to the 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 its 44th session 2005, Annex I, para. 8.a. For a more detailed assessment of the delimitation issue, see, e.g., Metcalf 1999, pp. 56– 68.

1

2

Chapter One

depending on the phase of the mission.2 In accordance with the spatial approach, it has been proposed, for instance, that a realistic limit for the beginning of outer space might be the altitude of approximately 80 kilometers, given the composition of the atmosphere and the history of aeronautical and astronautical activities.3 Some kind of a fixed limit would be welcome because the airspace partly falls under national sovereignty,4 whereas outer space never does. Nevertheless, no legal boundary between the contiguous areas of the airspace and outer space—and hence between the areas of application of air law and space law, respectively—has yet been agreed upon.5 The Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) has discussed the definition and delimitation of outer space as an agenda item since 1967. Some nations have voiced the opinion that due to “scientific and technological progress, the commercialization of outer space, emerging legal questions 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.6 Some others, 2 Harris–Harris 2006, 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., Andem 1992, pp. 152–153. An authoritative example of the spatial approach is the Australian Space Activities Act of 1998 (as amended in 2002), which now uses the limit of 100 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 area beyond the distance of 100 km 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 is nevertheless the first regulatory attempt to define where space begins and thus also has certain wider relevance. 4 Airspace comes under national jurisdiction and sovereignty where it lies over national territory and territorial waters. Otherwise, it is not subject to national sovereignty, e.g., over the high seas. Convention on International Civil Aviation, Arts. 1 and 2; United Nations Convention on the Law of the Sea, Arts. 2, 58, 78, 87. Airspace over a state’s exclusive economic zone and the continental shelf is comparable in status to airspace over the high seas. Haanappel 1986, p. 145. 5 Application of the law of outer space is indeterminate not only as concerns the height from the Earth where it begins but also its extent. It does not necessarily appear feasible (or justifiable) for humans to extend their legal regulation into the infinity of space. See Hobe 2004(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 space treaties only refer in a somewhat abstract manner to “outer space”. Of course, at the moment the ability of humankind to conduct activities in space remains relatively limited. Nevertheless, the question of the extent of our authority to regulate space activities and of the legal status of outer space are fundamental. 6 Report of the Legal Subcommittee on its 45th session 2006, para. 90. “Some delegations expressed the view that the lack of a definition or delimitation of outer space

Introduction

3

however, consider that the current legal framework functions well enough and hence no such definition is needed, at least as yet. It has even been argued that “an attempt to define … outer space” would currently be only “a theoretical exercise” and, moreover, even counterproductive as it “could lead to complicating existing activities and might not be able to anticipate continuing technological developments”.7 The issue remains unresolved. Despite the fact that the international community has not agreed on a set limit 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 past half a century, humankind has managed to extend its active environment from the Earth and its atmosphere into outer space. Satellites are a major achievement of the human technology that has enabled this development, providing us with tools that facilitate the daily lives of millions of people worldwide. For instance, satellite navigation systems are used for positioning purposes in all fields of transportation today.9 Another important user of outer space is the remote sensing industry. To name but a few of the purposes it serves, it provides us with data for meteorological services (including weather forecasts), land and agriculture management, environmental planning and mapping, 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, intercontinental telephone calls, TV programs and, practically speaking, any transmission of text, data, video, audio or graphics, and remarkably large volumes of data at that. Satellites provide smooth two-way exchange of data, making the range of brought about legal uncertainty concerning the applicability of space law and air law and that matters concerning state sovereignty and the boundary between air and outer space 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 in 2002. 8 It has been suggested that as space exploration affects the “totality of the environment”, such physical separation of airspace and outer space would not even be necessary. See Bhatt 1979; Matte 1989, p. 421. 9 The primary system used throughout the world for satellite navigation is the US government Global Positioning System (GPS). Russia has a corresponding military network, the Global Navigation Satellite System (Glonass). The European Space Agency (ESA) and the European Union (EU) are now creating Europe’s own, exclusively civilian navigation system (called Galileo), which is scheduled to be fully operational by 2012 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 and Galileo, but they finally reached an agreement on the issue in February 2004. “EU and US a step further to agreement over Galileo satellite navigation following Brussels negotiating round” 2004.

4

Chapter One

possible applications almost unlimited. In addition to satellite activities, there are also other unmanned and manned space missions which operate in Earth orbits (such as the manned International Space Station) or beyond (e.g., unmanned planetary missions). The technological progress which has made space activities possible is admittedly impressive. Unfortunately, we have not proven equally successful in learning the lessons of terrestrial history regarding the importance of environmental protection. While decades of space ventures have led to significant advances in technology for the benefit of humans, they have also witnessed increasing space-related environmental problems. The world space community has long known that space activities contribute to pollution and contamination of the environment.10 Furthermore, the space environment is far less resilient than the Earth, as many parts of outer space cannot regenerate after disturbances in the way the terrestrial environment typically does.11 Nevertheless, especially at the beginning of the space era, all human space activities were so challenging that 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 to environmental questions has changed quite dramatically, utilitarian policies have disproportionately dominated space activities until today. This has gradually led to substantial environmental threats that constitute increasing hazards to the environment 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 of threats, these threats often do not affect the particular operation which causes them 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 activities but the detrimental impact of space exploitation can usually hamper all those

10

The potential damage from experiments in space was recognized by the scientific community as early as in the 1950s, and the International Council of Scientific Unions (ICSU) formed a Committee on Contamination by Extraterrestrial Exploration (CETEX) to study the issue. The task was assigned to the Committee on Space Research (COSPAR) when CETEX was disbanded in 1959. 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 various problems related to the space environment. Matte 1989, p. 427. Today, there are numerous organizations and bodies concerned with the issue (to a greater or lesser extent, and for different reasons). 11 Williamson 2003, p. 47. 12 Williamson 2006, p. 45. Over half of the early attempts to put a satellite in orbit failed (23 out of 40). At the time of the first manned spaceflight, the overall failure percentage of space missions was still around 50. Williamson 2003, p. 47.

Introduction

5

involved in the sector (and even others).13 Given the typically high short-term costs of curbing environmentally harmful effects of the use of outer space, it is no surprise 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 sharing any of the responsibility or cost”.14 Such an approach often seems particularly tempting in situations where substantial costs (such as those of combating environmentally harmful consequences of space activities) must be paid now but the benefits generated by the efforts will mostly be realized only in the future. This narrowness of the time horizon appears to be a feature alarmingly widespread within humankind today. The free-rider problem is particularly tricky where the commons are concerned and thus intrinsically relates to all space activities, making conflicts in this sector even more complicated and difficult to resolve. It can considerably diminish the will of some states to adopt environmentally more benign management practices: as long as the benefits of regulated development of the use of outer space accrue more or less equally to all actors irrespective of their behavior, some of them will feel little incentive to accept any restrictions. Of course, if most of the relevant stakeholders take such a stand, curbing the environmental problems will be impossible. Even where there are only few ‘free riders’, their irresponsible behavior can at worst frustrate genuine efforts by the majority. It does not seem very likely that the traditional state community will—at least in the near future—be able to treat many global environmental problems with the efficacy these problems appear to require. There is no reason to expect the situation to be any better as regards the environmental effects of human activities in outer space. The future of the Earth and near-Earth outer space—and hence also that of humankind—appears gloomy unless a new environmental consciousness soon starts to emerge. As concerns the space sector, positive indications are provided by the efforts of some states and international organizations to alleviate environmental degradation of outer space. For instance, in the case of space debris,15 there is increasing awareness of the seriousness of the problem and both the governmental sector and the industry have made efforts to mitigate the hazard by developing procedures and standards for the operation and design of space missions.16 However, 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 all the 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., Vogler 2000, pp. 10–15. 14 Susskind 1994, p. 23. 15 Space debris and other environmental problems related to space activities are examined in more detail below. 16 See Second Quarter 2002 Quarterly Launch Report, p. 9.

6

Chapter One

tragedy of the commons problem renders many strategies adopted nationally or by a limited set of states for combating adverse environmental consequences of space activities ineffective. Accordingly, space debris is one of the central issues being discussed within the UNCOPUOS. There have also been other efforts to confront the issue at a wider international level but as yet there exists no binding international regulation either for alleviation of the hazards deriving from space debris or other environmental problems related to space activities. In the increasingly international, commercialized and privatized space sector global rules are essential, however. They would ensure a level (or at least relatively fair) playing field for all stakeholders and help avoid the free-rider problem. Common regulation could also synchronize the efforts already taken in this area. Indeed, now would be the time for truly international norms instead of fragmented and informal approaches to the problems identified.17 For such regulation to be effective there is a need for genuine collective responsibility.18 Even international regulation does not help unless it is widely respected. Otherwise, application of the norms will only hamper an actor’s competitiveness. Considering the typically high immediate costs of environmentally more benign space technologies and practices, there is no reason to expect entrepreneurs in this highly competitive sector to be any more hesitant than their sea-faring colleagues in shipping to seek advantages under a regulatory system that allows them to conduct their activities in the most remunerative way—essentially a flag of convenience for space activities.19 Given the inherent internationality of the space sector today, it would be surprising if such a development could be avoided by any other means than comprehensive international regulation.20 Moreover, it seems to be high time to reconsider the fundamental premises on which all human space activities are based. The more pressing the environmental threats related to the use of outer space become, the more often the profound

17 Many of the experts working with environmental questions related to space activities 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 must precede and guide the law and not vice versa”. The Ethics of Space Policy 2000, p. 25. 19 See Kerrest 1999, pp. 258–259; Kerrest 2001, pp. 871–872. The most prominent example of such a development thus far is the Sea Launch company which launches satellites from a sea platform in international equatorial waters. It was created in 1995 and has completed some 20 launches to date. For more information, see the Sea Launch website. 20 All the more so, as space objects—once launched—are even more difficult to control than maritime vessels, which physically remain on Earth and, furthermore, have to visit harbors. Kerrest 1999, pp. 258–259.

Introduction

7

question of the legitimacy of the modern space sector is put forward. On what rights are the demands that humanity is making upon outer space ultimately based? How far can those rights extend? At what costs should the space sector be allowed to pursue its goals? Where do those goals derive from? Such questions are asked with increasing frequency, yet only few answers have been given to date.21 1.2. Structure This work consists of six main parts. After the introductory remarks, Part One presents the approach of the book and its basic starting points. It briefly contemplates the fundamental ideology of space activities, which builds upon industrial development and relies on a substantially anthropocentric worldview. Both of these orientations entail little environmentalist thinking. Part One also contains a presentation of the expanding spectrum of the various stakeholders 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 activities which can be labelled ‘environmental’. Part Three proceeds to sketch the fundamental elements of environmental management of space activities by studying the current instruments of the international law of outer space and assessing their suitability for addressing environmental concerns. The presentation also examines focal developments within international organizations which have adopted recommendatory instruments for alleviating environmental degradation related to the use of outer space. Additionally, this part presents some environmentally inclined 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 questions concerning the ethical basis of space activities. The ethics of space activities have also been considered within UNESCO, whose World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) set up a Working Group on the “Ethics of Outer Space”. The very fundamental questions brought up by this group include: “What is the role of human beings in the Universe?; How can the links between the earth and outer space be organized?; Who is to determine the priorities and choices of science and space technologies and on the basis of which objectives for society?; How can the risks 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 which individuals and groups must aspire for present and future generations?”. The Ethics of Space Policy 2000, p. 8. Obviously, it is very difficult to find consensus on such issues. In 2005, COMEST decided that it would not develop a declaration of ethical principles for space activities. Instead, it intends to “emphasize and promote awareness of moral and ethical issues raised by space activities in the framework of reinforced international cooperation”. Report of the Legal Subcommittee on its 44th session 2005, para. 44.

8

Chapter One

but not particularly space-related international legal instruments for the needs of the space sector. As the help available from international treaties remains quite limited, the examination turns to the principles of international environmental law for any relief they might be capable of providing. Part Five is the core contribution of the book. It concentrates on the prospects for developing new instruments for environmental management of the 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 the international community could be made more receptive to the adoption of such reforms by mechanisms similar to those used in international norm-making in the environmental sector. Accordingly, one starting point is an analysis of the ‘framework convention–subsequent protocol’ approach commonly applied in global environmental diplomacy today. Other mechanisms examined which could facilitate the adoption of increasingly effective international norms include the use of selective incentives and differential obligations. Promoting overachievement of treaty obligations is yet another approach to the issues that are taken up. Considering the challenges encountered in international norm-making in the space sector thus far, Part Five also assesses the chances of making new international norms operative faster as well as the possibility of creating instruments whose provisions can readily accommodate changing conditions (including instruments of legally non-binding nature). This examination includes mechanisms such as interim agreements, self-correcting treaties, codes of conduct, supranationally adopted technical standards, and international certification mechanisms. Information sharing and other forms of cooperation at different levels are also important. Moreover, special attention is paid to the possibilities of environmental impact assessment (EIA), which is one of the focal instruments of contemporary environmental law. It has the potential to spare the space community from many environmental problems much as it has helped 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 calls for authoritative settlement of disputes and just compensation and reparation of damage.22 Hence, whatever mechanisms for the alleviation of environmental problems related to space activities are employed, they can be of little significance unless accompanied by effective means of dispute settlement. Currently, there

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

Introduction

9

are various problems in this respect and it is widely recognized that they can significantly retard the development of the space activities. In particular, the dispute resolution mechanisms provided by UN space law are incapable of satisfying the needs of the modern space sector. Part Six concludes the book by drawing together its contributions. It contains recommendations for meeting the environmental challenges posed by space activities, urging the international community to extend the principle of sustainable development, above all, to the space sector in order to ensure a proper balance between the pursuit of economic interests and the protection of the environment. 1.3. Approach of the Book Obviously, a thorough examination of the entire modern space sector from an environmental point of view would be a task far too demanding to be covered by one treatise (and a single author). Hence, some limitations are unavoidable. This book is a study of environmental effects related to space activities, the most significant such effect today being the generation of space debris and the threats posed by it. Accordingly, this problem receives the most attention 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 treatment entails considerations that rely significantly—or even primarily—on other than legal knowledge. Hopefully, the interpretations, conclusions and proposals put forward nevertheless are realistic even from the point of view of specialists from other fields than law. The aim of this book is to examine 1) what the environmental problems related to space activities are; 2) the relevance of the legal instruments currently available for regulating environmentally harmful space activities; and 3) the potential for creating better mechanisms for the purpose of environmental management in this respect. Given that satellite activities comprise a significant portion of the space sector today, this book also concentrates largely on the environmental effects of the use of satellites. Other types of space endeavors, such as human space travel, are touched upon where relevant. In any case, the environmental problems encountered in different kinds of space operations typically are quite similar (if not identical). This may change radically with the future conquest of outer 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 on the environment and their regulation. Environmental degradation is often seen as a significant problem only to the extent that it has adverse consequences for human activities. Even the term ‘environment’ refers to something (or everything) surrounding a subject—humans. There is no single scientific notion ‘environment’ and hence no single definition of the concept; ‘everything

10

Chapter One

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 ‘environmental protection’, ‘environmental damage’ and so on, they hardly ever even try to define properly what this ambiguous ‘environment’ is. Even where definitions exist, they vary from treaty to treaty. Furthermore, even those international instruments that provide some sort of a definition of ‘environment’ usually prefer a sectoral approach by limiting their definitions explicitly for the purposes of that particular instrument only.24 This is not surprising, however, given the vague nature of the term. A slightly more complete, yet still only partial picture of what elements the ‘environment’ may comprise can be derived from the substantive provisions of environmental treaties and other instruments: as they strive to alleviate or compensate for environmental harm they have to define what kind of harm they consider ‘environmental’ and which consequences of it warrant 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 affecting the existence or development of someone or something”, or “that which environs”. Webster’s Encyclopedic Unabridged Dictionary of the English Language 1989, p. 477. For a discussion concerning the meaning of ‘environment’, see, e.g., Gilpin 1995, pp. 1–2. For an examination of the term ‘environment’ from the point of view of science, culture and international law, see Romano 2000, pp. 15–24. 24 An uncommonly broad and detailed definition of ‘environment’ in a legal instrument (although made only “[f ]or the purpose of this Convention”; Art. 2) can be found in the 1993 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, according to which “[e]nvironment means: natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction 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 different than, for instance, the two decades older very vague, highly anthropocentric (and even gender-biased) reference to the environment in the 1972 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), pursuant to which “[m]an is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual 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 to life itself ” (para. 1). In the 1986 Report of the World Commission on Environment and Development, 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 within that abode”; Chairman’s Foreword, p. 14). The 1992 Rio Declaration on Environment and Development contains no definition whatsoever of ‘environment’. 25 See Romano 2000, pp. 21–24.

Introduction

11

Indeed, international law is rife with examples of very different kinds of approaches to how environmental harm is treated. For instance, the 1963 Vienna Convention on Civil Liability for Nuclear Damage took a narrow view, compensating for injury to persons and property only. A protocol to the convention adopted in 1997 broadened the definition of nuclear damage to encompass environmental damage and preventive measures as well.26 Another example is the definition of ‘pollution’ in the United Nations Convention on the Law of the Sea (UNCLOS): it includes not only the introduction of substances (or energy) into the marine environment which may cause “hazards to human health” or “hindrance to marine activities” but also “harm to living resources and marine life”.27 Moreover, 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 within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”.28 The 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”.29 An example of a particularly extensive concept of environmental damage in international law is provided by the holistic Protocol on Environmental Protection to the Antarctic Treaty which, in addition to the protection of the “Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research”,30 is concerned about a broad range of other potential “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; and 6) “areas of biological, scientific, historic, aesthetic or wilderness significance”.31

26

For more detail, see below. Art. 1.4. In a similar manner, Arts. 145 and 194 of the UNCLOS encompass a broad 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 in the 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”. The 1988 Convention on the Regulation of Antarctic Mineral Resource Activities defines “damage to the Antarctic environment” to mean “any impact on the living or non-living components of that environment or those ecosystems, including harm to atmospheric, 27

12

Chapter One

‘Degradation’ is an equally relative term: unless we consider a change taking place in an environment as a negative phenomenon, it cannot be considered degradation but merely a change.32 When such changes have wide enough harmful potential they are considered environmental problems. This harmful potential is most often evaluated in relation to human activities. Only quite rarely is any intrinsic value of nature acknowledged and changes in the environment that have no relevance for humans (not even from the point of view of aesthetic, cultural or moral values) considered adverse. Not surprisingly, the concern of international law-makers for the environment has also primarily been anthropocentric (in one way or another).33 Accordingly, international environmental treaties may often appear to be more concerned with the utilization of natural resources and protection of property than the ‘mere’ preservation of nature.34 Many modern instruments of international law nevertheless take cognizance of other losses than those of economic value to humans, such as damage affecting amenity values. Even considerations of the intrinsic value of nature occasionally appear. Furthermore, instead of concentrating on the protection of individual components of nature, international environmental law increasingly recognizes the far more comprehensive need to protect entire ecosystems.35 Although this study strives to apply an environmental perspective to the examination of legal problems related to space activities, this perspective is not very far-reaching in terms of the ecological and/or intrinsic value of the space environment. 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 knowledge concerning the outer space environment. The fact that this knowledge still remains modest most likely also contributes to the resistance to environmentalist endeavors 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 own sake. It is still an issue whether outer space has any intrinsic value or is merely a resource for human utilization.36 There presently exists no permanent human

marine or terrestrial life, beyond that which is negligible or which has been assessed and judged to be acceptable pursuant to this Convention” (Art. 1.15). 32 See also Morgan 1998, p. 31. 33 See Birnie–Boyle 2002, pp. 5–6. 34 Rantala 1994, pp. 99–100. 35 The Antarctic Treaty system extends the ecosystem approach even to an entire continent and its marine environment. 36 Some see outer space as a hostile place where there are nevertheless riches available for humans to use (mineral resources of celestial bodies, for instance). Some would even like to see us transform outer space into an environment more favorable for human beings, i.a., changing other planets into habitable, Earth-like environments (a process known as terraforming). Williamson Mark 2000(a), p. 721. For many, at least as long as humans remain unable to discover intelligence (or any forms of life) outside our globe, the universe is, in principle, ours to exploit in any way that suits us. Indeed, quite often

Introduction

13

settlement in space. Although space missions often seem to have great resonance with and evoke widespread interest among the public, the environs in which they take place nevertheless remain a somewhat remote issue in the everyday life of the vast majority of humankind.37 The dangers of space activities do not seem as imminent as those associated with many similar problems on Earth— including environmental ones. This apparently makes it easier to view outer space as a mere resource reserve (and a dump for the refuse produced by space activities) that is available for the benefit of humans.38 Even at the very most (from an environmental point of view) outer space is perceived as an area for the conduct of scientific research.39 The environmental movement has also largely ignored 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] distant from the daily issues of survival faced by the populations in [some African] countries”. Report of the Legal Subcommittee on its 44th session 2005, para. 37. No doubt the same applies 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 Mark 2000(a), p. 721. 39 It has been argued that the reason for the lack of an environmental perspective in the UN space treaties is that at the time of their adoption the prevailing approach was one emphasizing the scientific utility of outer space. See Baker 1987, pp. 166–167; Hacket 1994, pp. 108–110. In turn, that environmental damage caused to planetary surfaces, for instance, has received relatively modest attention can be explained at least partly by the fact 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 acceptable than commercial, exploitative activities. This is particularly true where the activities are conducted in the global commons. Williamson Mark 2000(a), p. 720. 40 As one author put it, “everyone who lives on the Earth has a vested interest in protecting the planet’s environment, [whereas] no such interest exists for the Moon and Mars [or other celestial bodies beyond the Earth]”. Ibid., p. 724. Moreover, “[e]ven among environmentalists, concern about off-planet environmental issues has been slow in developing”. Hargrove 1986, p. ix. Quite few actually seem to consider outer space as part of our environment—despite the complete dependency of life on Earth upon the energy generated by the Sun, for instance. Hartmann 1986, p. 121; Williamson 2006, p. 183. It has been proposed that one way of making states more receptive to increasingly environment-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 spacefaring States 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, the prospects for a more environmentalist approach to space utilization do not seem very bright in the near future at least. Over time, this may change, though—even thanks to evolving space tourism, which might in part contribute to the development of positive attitudes towards planetary conservation. See Williamson Mark 2000(a), p. 724.

14

Chapter One

Despite the shift towards an increasingly less anthropocentric attitude towards the terrestrial environment since early 1980s with the introduction of the idea of ecosystem protection for the benefit of not only humans but all other species as well,41 there has been no comparable development in the space sector. There exist many other concerns, however, which are very much dependent upon the condition of the space environment. For instance, those concerned with the utility of outer space for commercial applications worry about the negative effects of environmental degradation on their activities. Others may be concerned about the purity of the space environment for the purposes of scientific research.42 Still others may consider an unclean space environment an aesthetic nuisance.43 Furthermore, the preservation of historic sites of human space exploration, such as the Apollo 11 landing site and the first human footprints on the Moon, may be regarded as valuable.44 All such approaches consider the space environment worthy of protection, but only because of different instrumental notions of outer space; environmental protection of space is not an end in itself.45 See Romano 2000, p. 20. For instance, the Saha crater on the far side of the Moon has been suggested as deserving special protection because its particular suitability for the search for extraterrestrial intelligence and scientific investigations. In accordance with such concerns, the International Telecommunication Union (ITU) issued in 1997 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–Tennen 2000. There is another ITU recommendation (RA.1417) on quiet zones dealing with “a radio-quiet zone in the vicinity 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 from the Earth. For instance, extensive strip mining on the nearside of the Moon could have impacts easily visible to us. Williamson 2005, p. 164. 44 See Williamson 2003, pp. 47–48. Very likely, these would also be among the top destinations for any future space tourists (once lunar tourism becomes feasible). Williamson 2006, p. 133. For a proposal for designating Tranquility Base (where humans first landed on the Moon) as a UN World Heritage Site, see Rogers 2004. UNESCO has, 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 Williamson 2006, p. 135. There have also been several other suggestions for preservation of parts of celestial bodies, for different reasons. These include a proposal for a system of “planetary parks” on Mars. See Cockell–Horneck 2004. 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 Hartmann 1986, pp. 130–131. 45 For an evaluation of the environmental effects of space activities from a clearly instrumental point of view, see, e.g., Perek 1983, p. 221. According to Perek, “[a]s all natural resources, also outer space should be managed to allow for an orderly and efficient utilization”. Ibid., p. 222. One more example of fundamentally instrumental values is the argument that the outer space environment “represents freedom, by providing an almost unlimited expanse for mankind to explore, understand and, if he so wishes, to conquer” 41 42

Introduction

15

One author has identified three levels in the evolution of environmental ethics: anthropocentric, biocentric, and cosmocentric. At the first level, the measure of the value of nature is tied to its utility for the needs (present and future) of humans. The environment can be exploited or protected, but both processes are driven by humanity’s instrumental ends. International law regarding outer space has designated space and its resources as a common good for humans, thus espousing a very anthropocentric way of thinking. A more environmentalist approach is represented in biocentric attempts to maximize the well-being of the totality of living existence, pursuant to which all living organisms—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, which entails a value system where the cosmos is the priority rather than humans or other biological entities. “An intrinsic value permeates all levels of both ecological and geomorphologic hierarchies; all ‘named’ features and those to be discovered have an inherent right of existence.” In terms of space policies, this would entail the protection and preservation of all features on Earth and in outer space in the name of the value of mere existence. Obviously, space activities today lie on the first, anthropocentric level, extending at most to biocentric considerations only.46 This work applies an approach which recognizes other than solely instrumental conceptions of outer space, at least to an extent. It attempts to consider 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 are capable of viewing the world. 46 See Sadeh 2002. According to the UNESCO/COMEST Working Group on the “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 a cosmocentric approach; the Working Group’s considerations also appear to reflect primarily anthropocentric, at most biocentric considerations. Tellingly, the questions on which the Working Group focused were “the presence of man in space and manned flights, the development of science and space technology, the use of space technologies, protection of the environment and protection of public freedoms and cultural identities” (excluding military considerations, except for issues regarding dual use of space technologies). The Ethics of Space Policy 2000, p. 6. In addition, a recent international study on space traffic management mentions the lack of “provisions on the environment” when speaking about the Space Debris Mitigation Guidelines of the Inter-Agency Space Debris Coordination Committee (IADC). However, this refers to the lack of rules concerning “avoidance of pollution of the atmosphere/troposphere” only, not preservation of the environment of outer space. Cosmic Study on Space Traffic Management 2006, p. 12.

16

Chapter One

development in the space sector as something which “needs to take place with reference to environment” and, conversely, to examine environmental degradation of outer space in relation to development issues.47 Despite some early efforts to introduce more environmentalist elements into the space sector,48 such an approach is still not very common today.49 This is particularly true where space law is concerned. In addition to the lack of adequate environmental concern within space law, general international environmental law has paid relatively little attention to the space sector.50 The development of a distinctively space-centered environmental vision would clearly require a far more original approach 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 See Kütting 2000, p. 6. E.g., Bhatt 1979. 49 For an attempt to develop a more sustainable model for lunar exploration in particular, see Williamson 2005. The same author has proposed the adoption of an ethical code for space exploration and development along the lines of the goal of sustainable development, i.e., a balance between exploitation and protection. According to his vision, “space ethics would cover, for example, the impact of our actions in space on each other, on each other’s property, on the Earth … and on the space environment”. Williamson 2003, pp. 48–49. (These ideas have been developed further in Williamson 2006.) For another proposal concerning a space code of conduct, namely, a code of ethics 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 the Moon), also evinces an increasingly sustainable ideology, even with a partly cosmocentric slant: 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 of the need to shift from anthropocentrism to more environmentalist approaches in space utilization, see Tatsuzawa 1998. 50 See, e.g., Birnie–Boyle 2002, where the protection of outer space is afforded a mere one and a half pages (pp. 534–535). In the recent “Judicial Handbook on Environmental Law” 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” or encompassing “the entire planet, including the atmosphere and stratosphere”. Shelton– Kiss 2006, p. 4. Hence there is no mention of the environment beyond the Earth (or environmental regulation of outer space). On the other hand, some scholars perceived already early on the potential for mutually beneficial developments within space law and international environmental law. See, e.g., Christol 1976, p. 31: “Through the peaceful and continuing use of space objects in [remote] sensing activities there will be the progressive development of international space law. With the maturity of such law there will also be a very 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). 47 48

Introduction

17

a legal study. However, as historical and ideological background for the rest of this work, I take the opportunity to briefly emphasize in this introductory part the profoundly anthropocentric nature of all space activities—and space law. The anthropocentric slant of the space sector derives from the historical phenomenon of industrial development. All human activities in outer space have been made possible by achievements of technology. Accordingly, the ideology prevailing within the modern space sector emanates from the fundamental concepts which this industrial tradition entails, above all the myth of unlimited industrial development. In such a setting, nature equals resources—resources which can be utilized to promote further industrial development. In a way, these resources are taken for granted; industrial development is dependent on technical and economic capacities rather than on the natural resource base— despite the fact that many natural resources are in fact limited.51 In the space sector, the limitedness of the outer space resources which we are currently capable of utilizing cannot be ignored. On the other hand, the total resource base of outer space seems quite unlimited (to our understanding at least).52 It has even been hoped that space resources will provide a solution to the increasing shortage of resources found on Earth. The faster our technology improves, the more feasible the utilization of outer space becomes—and we surely seem eager to take all available advantage of it. Ultimately, the ideology of industrial development is based on the (absurd) thought that human society is able to achieve independence from nature.53 At the moment, the inherent extreme hostility 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, clearly reflect the familiar ideology of humans as masters of nature—even in outer space.54

See Chatterjee–Finger 1994, p. 27. Humans have found a variety of natural resources in outer space; even our own solar system is expected to contain a vast supply of virtually all of the mineral resources used extensively on Earth today. Lee 2000, p. 409. Most likely there are still numerous new resources to be found, including minerals, energy sources, and organic and nonorganic substances. 53 Chatterjee–Finger 1994, pp. 27–28. 54 See also Williamson 2005. Considering how fundamentally reliant human life is on the terrestrial environment (the Earth being the only place where we can live without having to resort to advanced technology for life support), efforts to create self-sufficient space colonies can be seen as representing a striving for not only mastery of but even independence from nature. They may also reflect an ideology which considers the entire Earth 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 Hartmann 1986, p. 122. 51 52

18

Chapter One

In keeping with the ideology of industrial development, the answers proposed to environmental problems such as resource depletion and pollution typically rely on scientific progress, better technologies (technology being the application of science55) and better policies: further scientific, technological and political development is suggested to solve the very problems that development is causing.56 This is true also in the space sector where the root causes to environmental problems created by space activities are often ignored. That is by no means surprising, considering the inherent connection between technological development 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 space business 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 at all possible, they should enhance growth.57 This, however, often is an impossible goal. In most areas—and definitely in the space sector—increased environmental awareness is an imperative without which any activity will eventually become impossible. 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 to creating a more environmentalist (preservationist) ideology by revealing new knowledge about natural phenomena, their interrelatedness, and importance for human activities. It can also gradually broaden our appreciation of the environment as such—including the space environment. However, scientific research 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.58 Neither is science capable of determining political preferences.59 The decisive issue for the acceptance of international environmental regulation may not be so much the question of states’ desire to guard their sovereignty or other considerations of what they might lose by acquiescing to internationally agreed rules on environmental protection. Some of the relevant actors might simply fail to see what they have to gain by compliance with common environmental governance. Obviously, governments are reluctant to encumber their sovereignty unless they perceive that they are getting significant enough advantages in return. 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–Finger 1994, p. 8. 57 See ibid., p. 21. 58 Byerly 1986, p. 97. Obviously, legal science has far smaller role in the development of new attitudes than natural sciences. 59 See Underdal 2000, p. 5. 55

Introduction

19

However, international treaty negotiations (within the environmental sector in particular) have often seemed to focus primarily on the allocation of costs, while devoting little or no attention to the potential tangible benefits which will accrue from the instruments under negotiation or to how such benefits will be shared. Within such a limited perspective, the costs of environmental protection may appear as mere constraints on ‘development’ and thereby a factor which will put the states taking part in regimes combating environmental degradation (on a global scale in particular) in an unfavorable position compared to those who remain outside such regimes. Admittedly, adverse environmental impacts and the costs of alleviating them are rarely distributed ‘equally’ and some parties may lose more than they gain, even in the long run.60 Solutions to a single problem may 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 efforts with economic and security-related issues, for instance.61 In the space sector, numerous stakeholders are primarily concerned about getting their share of the benefits of these activities. Also, free-riding is by no means an unknown phenomenon in this international area: many seem to assume that others will make enough effort for increased environmental safety, from which they, too, can benefit—without shouldering any of the costs. The increasing role of the commercial space industry magnifies the problems since commercial actors largely follow the reasoning of any other investment decisionmaking. The environmental effects of space activities, however, involve a time frame that often is considerably longer than that in most other investment decisions. For instance, policies remedying orbital debris may span decades, a century, or even more. Hence, it will very likely be some other generation that obtains 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 environmental degradation caused by its activities are not very surprising. However, these problems need to be overcome, even quite soon, if humanity wishes to conduct activities in outer space also in the future. This study presents some options for improved environmental cooperation and decision-making in the space sector. It examines what kind of environmental problems relate to space activities and which norms of international law might be applicable in addressing these threats. This examination includes international legal instruments that address space activities directly as well as potentially relevant instruments from the sphere of international environmental law. The study goes on to present various prospects for the future development of the international regulation of

60 61 62

Susskind 1994, p. 23. Ibid., p. 36. See Greenberg 2003, p. 381.

20

Chapter One

space activities. Above all, it proposes the use of some innovative mechanisms of environmental standard-setting and implementation which could facilitate new, efficient institutional arrangements and more productive working relationships between the various stakeholders in the space sector. This book centers primarily on the possibilities for negotiating new instruments of international space law or otherwise introducing more environmentalist elements into the legal regime of outer space. Another approach would have been to study alternatives for reinterpreting the existing instruments of space law from a more modern, environmental point of view. That, however, would merit a treatise of its own and thus such aspects are only touched upon in passing in this work. The same applies to questions concerning national implementation of international space law as well as to the use of national regulation to bridge gaps in the international law of outer space: national legislation is discussed only where 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 environmental consequences of space activities which are in this treatise not afforded attention commensurate with their importance. Liability issues are obviously of focal significance here. Extending this study to include a thorough treatment of such questions would have broadened the scope of the work excessively and hence made it quite unmanageable. Moreover, it has been questioned whether it is wise to spend what are often scarce negotiating resources on the challenging task of developing liability regimes in the first place.63 Consequently, in addition to a brief examination of the liability-related norms of UN space law, liability is touched upon mostly in the context of the polluter-pays principle only, ‘making the polluter pay’ being among the most relevant goals of any environmental liability regime.64 Despite the above limitations, the findings of this work should enable far more than limited applications. Although the focus of the study is environmental management of space activities, it has in many respects the potential to have relevance 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, which necessitates caution when making use of analogies.65 Furthermore, this study Churchill 2003, p. 32; Brunnée 2004, p. 351. Other important aims of environmental liability typically include the compensation of victims and protection of environment, sometimes also the protection of developing countries against environmental risks. Ibid. 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 modern space sector, characterized by increasing privatization and commercialization, could draw equally useful lessons from experiences in other fields with similar challenges; the sectors providing apt analogies might only be somewhat different than earlier. Nevertheless, 63 64

Introduction

21

tries to avoid the presupposition that the legal approach is always the best way to resolve complications in the international system. Thus, in addition to international conventions and other legal mechanisms, various less formal cooperative means for ameliorating environmental problems are discussed. Such an approach seems particularly suitable given that the space sector is a domain where legal conceptions are supplied by many other disciplines, above all, the natural 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 are addressed by the provisions of such instruments: international law traditionally is a system of rules created by states for states.66 Accordingly, treaties between states 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 in outer space. States entered into international space treaties under the auspices of the United Nations (UN) but practical international cooperation in the sector long remained modest. The two superpowers, the Soviet Union and the United States, 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 use phrases such as “province of all mankind”, “for the benefit and in the interests of all countries”, or “common heritage of mankind” when referring to outer space and the activities relating thereto. Accordingly, one would imagine that this ‘mankind’ (or humankind) plays a prominent role in the governance of space 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 many respects. For instance, as concerns the possibility of drafting a new, comprehensive space convention, 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 its 45th session 2006, para. 46. 66 Kütting 2000, p. 3. 67 The ‘global commons’ are Antarctica, outer space, the high seas and the deep

22

Chapter One

of national jurisdictions. This global community has been, first and foremost, the community of states, which has concluded international conventions for managing outer space relatively early in the history of human space activities. In practice, the language of the space treaties promises much more for the humankind as a whole than what space utilization actually provides it with. The benefits do not accrue evenly among humanity (or even the state community) in accordance with some common regime. Instead, the space sector largely follows the far less noble principles of the modern industrial economy. Furthermore, states are increasingly not the unitary rational actors of the traditional assumptions. Neither are they autonomous but embedded in a framework of interactions among numerous entities in the international system. Despite the fact that space activities continue to be extremely hazardous and costly, there exist today a variety of different actors who are willing to invest in this sector. This is obviously due to the significant potential benefits which the use of outer space entails. The universe contains a myriad of natural resources, varying from solar power to minerals in celestial bodies. Also outer space as a whole has been depicted as a resource: one need only consider, for instance, the possibilities that the mere existence of Earth orbits provides for satellite activities. Now that technological development has enabled the utilization of space also for those capable 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 space activities by states alone is proving increasingly complicated and inefficient. Indeed, states are facing serious legitimacy problems in the space sector. In order to retain their focal position, states need to demonstrate that they are relevant agents also as regards the new challenges confronted in this area. They have not succeeded very well here, however. The international legal instruments thus far adopted for the regulation of space activities have mostly proven far too vague, and the state community has failed to reach agreement on new instruments (other than legally non-binding declarations and the like) for some decades already. Moreover, considering that states have faced major difficulties in achieving substantial improvements in any natural conditions of global magnitude, their possibilities in the environmental management of outer space seem less than promising. Nevertheless, in the formation of the international law of outer space, the focal organ still is the United Nations. It was originally founded for very different purposes than solving today’s global crises, which center around environmental 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–Wittkopf 1999, p. 316. For a more detailed treatment of the global commons, see Vogler 2000. 68 See Chatterjee–Finger 1994, p. 111.

Introduction

23

are many kinds of states. For instance, although sovereign states formally are all equal, some of them are in reality far more influential and active in the space sector and, accordingly, have much greater practical interests in the international regulation of this area. In addition to being ‘big business’ economically, space activities play a major role politically. This was particularly evident during the Cold War in the ‘space race’ between the US and the Soviet Union, but the political and strategic relevance of space by no means vanished at the end of the Cold 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 less developed areas (‘the North’ and ‘the South’) is most often depicted in terms of conflict. Outer space as an environment and a resource is typically perceived as some sort of a limited ‘pie’ of rights, to which all states aspire. However, such rights often appear in practice as something very close to a right to destroy and pollute the environment if needed (in the name of utilization). Conflicts will unavoidably 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 a mere 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 as common property, available on the basis of the ‘first come, first served’ principle. The South, on the other hand, is concerned about being guaranteed adequate possibilities for equal benefits either now or in the future. Southern states expect technical assistance to enable them to utilize outer space, the reservation of ‘their share’ for possible future use, or financial compensation for allowing the exploitation of ‘their’ resources by others.70 Typically, those states have also been in favor of the inclusion of liability regimes in international environmental agreements 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, the modern military relies essentially on high technology, space technology included. Hobe 2004(a), pp. 40–41. 70 An interesting case in this respect is the relatively recent ‘innovation’ of reserving satellite frequency spectrum and orbital slots for future use and/or subsequently renting them out to other users. This is done by filing with the ITU proposed satellite systems which 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 at the ITU and, to some extent, blocking of access to spectrum and orbital resources. This so-called ‘paper satellite’ problem will be discussed in more detail below. 71 Brunnée 2004, p. 351.

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Chapter One

if space activities need to be limited already in the name of environmental protection, the prospects for the current non-spacefaring nations to realize their ‘reserved’ rights in the future do not look too bright. As a matter of fact, increased environmental standards could generate even more benefits for the technologically most developed nations and thereby widen the gap between the North and the South. If, for instance, technical standards or pollution reductions are made mandatory, this will give a competitive advantage to the countries which can afford the technology needed to comply with such norms. Moreover, such requirements would necessitate further development of technology, which is likely to create still further competitive advantage. Hence, it seems inevitable that tensions between the environment and development cannot be averted in the space sector, nor can a setting be avoided where many of the key issues pit developed against developing countries. A positive view of international competition in the development of space facilities is that it stimulates scientific and technological progress—and did so already at the time when practically only the two superpowers were capable of conducting space activities. The particular industrial production which space activities tend to promote is military-induced: the link between space technologies and military applications is obvious. Nearly all space technology is at least potentially dual-use (military and civilian). Business, industry and the military pursue the same goals in many areas, because they share the same core values of industrial development. Accordingly, governments may include military advisers in their delegations to international treaty negotiations, for instance. Unfortunately, military applications have contributed significantly to environmental degradation worldwide (and even in outer space): the military is one of the largest polluters in terms of the amount of waste produced and energy consumed. Interestingly, while trying to make sense of themselves in a world where the importance of traditional military security is eroding, many military-industrial complexes have been converted for use in the space industry. 1.4.2. Other Entities In addition to states, the other entities which currently occupy significant positions in the space sector comprise a variety of sub- and transnational actors. They play major roles both as agents and targets of governance efforts. Among these actors are intergovernmental organizations (IGOs), both those operating on a global scale (such as the International Telecommunication Union—ITU—in space telecommunications) and those working on a regional basis (such as the European Space Agency, ESA).72 Some IGOs are concerned with international

72 For more information on the ITU, see the International Telecommunication Union website. On the role of the ITU in the space sector in general, see, e.g., Noll

Introduction

25

regulation of space-related activities. For instance, the ITU has developed an intricate international regulatory system to guarantee undisturbed telecommunication activities—including those that are space based.73 The primary purpose of some other IGOs, such as ESA or international weather satellite organizations, is to undertake joint operational space activities. (Obviously such cooperation necessitates the adoption of some international regulation in most cases.74) The spectrum of both operational and regulatory space organizations is indicative of the extreme risks and costs involved in space utilization.75 There are also different kinds of non-state actors trying to influence developments in the space sector not only domestically but, increasingly, internationally as well. Some of these can be characterized as space-related interest groups but most are groups that have an interest in space activities only among other issues in their respective areas of operation. These actors include environmental organizations, scientific associations, as well as the vast business sector. The effectiveness of non-state actors in their attempts to influence domestic and international developments varies widely according to their funding, focus, lobbying skills, means of exercising pressure, and so on.76 Governments may even have an interest in involving these actors in political processes, for they often possess special expertise which governments find advantageous to be channeled into decision-making. Furthermore, their inclusion may serve as a tool to reveal relevant societal views, yet in a manageable way, which can enhance the decision-makers’ sensitivity to domestic opposition and support. Involvement of the nongovernmental sector can also contribute to legitimizing governmental decisions and build commitment and loyalty, which may, for example, facilitate subsequent (national) implementation of (internationally) agreed obligations.77 1999. For more information on ESA, see the European Space Agency website. For an assessment of the role of international organizations in the law of outer space in general, see Kerrest 1999. 73 There are various other non-space specific international legal regimes which can also influence space activities, for example those in international trade and intellectual property rights. Worth mentioning here in particular is the World Trade Organization (WTO), as satellite communications are today also an object of global trade. See Salin 2000, pp. 69. Another example of potentially relevant regulation is that enacted by the European Union. 74 E.g., the Convention for the Establishment of the European Space Agency. 75 von der Dunk 2002, p. 445. The focal role of IGOs in the space sector has also been reflected in the UN space treaties. For instance, several of them allow IGOs (provided that they fulfill certain conditions) to become parties to the treaty regimes. See Art. 6 of the 1968 Rescue Agreement; Art. XXII of the 1972 Liability Convention; Art. VII of the 1975 Registration Convention; and Art. 16 of the 1979 Moon Treaty. 76 See Birnie–Boyle 2002, p. 67. 77 Stokke 1997, p. 56. It has even been argued that the inclusion of nongovernmental actors in treaty negotiations may represent “a wider trend towards viewing international society in terms broader than a community of states alone and in the progressive democ-

26

Chapter One

For non-state actors, their inclusion in the formulation of foreign policy of a state may heighten their influence nationally. Moreover, the fact that states promote (or at least permit) the participation of such groups in the domestic preparation of international accords enhances the possibilities of those groups to be involved in subsequent international deliberations as observers, for instance. Some nongovernmental groups have gained significant roles even within international organizations, achieving not only observer but consultative status of some sort. This may give them an opportunity to influence negotiation processes, even for legally binding international instruments.78 The expertise and contacts these groups gain at the international level are likely to further enhance their influence,79 particularly if they are capable of coordinating their policies and taking cooperative action.80 The space sector is inherently international. Due to the high costs of space activities, there exists today plenty of inter-state cooperation, as well as cooperation involving private, commercial actors. The importance of the latter entities has increased very fast and they have a major interest in the regulation of space activities.81 The focal role of the private sector today is also to be seen in the significant development of national space legislation in many states recently. Nevertheless, domestic processes are often largely ignored when analyzing the adoption of international treaties, although the presumed effects of international regulation at the domestic level are obviously a major factor in determining the national standpoints in treaty negotiations.82 In areas where domestic political attention is slack or diffuse, government authorities may find it difficult to identify their exact interests, which understandably complicates international treaty negotiations. This seems to be still the case in many countries as regards space activities. Moreover, even those states which are very active in the space sector can encounter problems in defining their preferences, due to the fact that

ratization of international norm making process”. Training Manual on International Environmental Law 2006, p. 10. 78 Birnie–Boyle 2002, p. 67. In the 1992 Rio Conference, for instance, nongovernmental organizations were allowed to take part in the work of the preparatory committees in a significant manner. Ibid., p. 42. 79 Stokke 1997, p. 56. 80 Consider, for instance, the networking of NGOs at the Rio Conference. Birnie– Boyle 2002, p. 67. 81 The first request by a private company to conduct space activities (suborbital tests) was presented to the US Government by Space Services Incorporated of Texas in 1982. The company launched a rocket later the same year. Henaku 1990, p. 46. 82 Stokke 1997, p. 55. National developments are relevant for international law also in that implementation of international agreements remains the responsibility of national governments; without effective implementation, even the most innovative international regimes can be even worse than worthless by giving an erroneous impression that ‘all is well’ when the reality may be quite the opposite. Freestone 1999(b), p. 360.

Introduction

27

space activities sometimes invoke highly emotional reactions which can blur the big picture. Occasionally, governmental interests and those of the national space industry (or other domestic stakeholders) may also collide. Despite the traditional focus on states as stakeholders at the international level, domestic politics and non-state actors increasingly affect international developments. Although nongovernmental entities still mostly lack formal standing in the international legal system and, accordingly, a formal role in international treaty-making, their influence may in fact be considerable. The private sector comprises a central part of what space activities are today and has significantly shaped the way these activities (and even space as an environment) is looked at. Private companies are no longer mere national-level lobbyists but partners of governments globally. Sometimes governments even seem to have turned into spokespersons for business. Such contradictions between the formal and the actual status of the different stakeholders in the space sector are proving increasingly problematic—not least from the point of view of international norm-making. One more type of actors with increasing influence even internationally in many areas is interest groups of individuals. Pressure from such groups can affect governmental policies and their implementation significantly.83 Unlike in many other fields of globalized activities, civic activism in the space sector has been rather modest. This is definitely the case as regards space-related environmental questions. Given that the role of grass-roots groups has traditionally been moderate in foreign affairs, this is no surprise, however. Foreign policy issues which substantially deal with state security in its different forms tend to be relatively unfamiliar to the public (if compared with domestic politics). Such activities are also traditionally presumed to require stability and consistency in policy, best ensured by as extensive centralization as possible.84 The space sector is inherently concerned with matters involving significant security and military interests and, furthermore, high levels of scientific expertise that is difficult for the non-expert to understand. Moreover, considering that a focal inspiration for space enthusiasts has always been that of exploration, even conquest of new worlds, it is not surprising that neither the resulting environmental degradation nor the idea of the non-weaponization of outer space evokes great general emotional resonance.85 Nevertheless, the situation seems to be gradually changing even in this respect. There are some nongovernmental and non-industry interest groups Stibrany 1998, p. 132. See Stokke 1997, p. 55. 85 See Stibrany 1998, p. 133. International space law only prohibits the stationing of nuclear weapons and other kinds of weapons of mass destruction in Earth orbits (Outer Space Treaty, Art. IV.1). Hence, the stationing of other weapons in outer space or its use for military purposes is not prohibited, except where the Moon and other celestial bodies are concerned; they are to be used exclusively for peaceful purposes (Art. IV.2). 83 84

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which consider themselves stakeholders in the space sector and thus aspire to influence policy-making in this area, such as the Planetary Society, “a nonprofit organization that promotes exploration of the solar system and the search for extraterrestrial intelligence”.86 Nongovernmental actors with a long history in the space sector include international organizations of scientists and legal scholars, such as the International Council for Science (ICSU),87 International Astronomical Union (IAU),88 International Astronautical Federation (IAF),89 and International Institute of Space Law (IISL).90 All of these organizations have on many occasions also drawn attention to environmental problems in the use of outer space. Additionally, there are nongovernmental organizations concerned with the weaponization of and use of nuclear power in outer space,91 both of which have considerable potential environmental implications. The environmental movement concerned with space utilization is, however, still quite fragmented and hence cannot yet provide a counter-force to the strong economic-military-political mainstream ideology of this sector. From an environmental point of view, such a counter-force would be very welcome.92 Unlike the space industry and states, such groups usually have no economic interest in environmental protection and hence are more likely to pursue genuinely environmental interests.

See the Planetary Society website. The Planetary Society was founded in 1980. See the International Council for Science website. The ICSU was established in 1931 as the International Council of Scientific Unions (it changed its name in 1998). 88 See the International Astronomical Union website. The IAU was founded in 1919. 89 See the International Astronautical Federation website. The IAF was founded in 1961. 90 See the International Institute of Space Law website. The IISL was founded in 1960. 91 See, e.g., the International Network of Engineers and Scientists Against Proliferation website; the Union of Concerned Scientist website; and the Global Network Against Weapons and Nuclear Power in Space website. Greenpeace also has a Stop Star Wars campaign; see the Stop Star Wars website. For a general assessment of the role of NGOs in space arms control, see Stibrany 1998. 92 Interestingly, some international environmental organizations have been solicited for input in the environmental impact assessment processes of space missions in the US at least. For instance, Friends of the Earth, the Global Network Against Weapons and Nuclear Power in Space, and Greenpeace were consulted in the preparation of EIA documentation for the ongoing New Horizons mission to Pluto. See Final Environmental Impact Statement for the New Horizons Mission 2005, Vol. 1, Chapter 6. 86 87

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Environmental Problems Related to Space Activities Space exploration is a polluting industry in various ways and in all its phases.1 As is typical for all industrial production, the production of space technology and the transport of its products on Earth are far from being environmentally friendly activities. Also, the launching stage is a polluter: it produces noise pollution, dust and emissions. A recent example of the adverse effects of launch activities is provided by a study which claims that launches at Russia’s space base in Baikonur, Kazakhstan, cause serious health problems among people living below the rockets’ flight path. For instance, the levels of endocrine disease and blood disorders in children are reported to be over twice the regional average. This is due to highly toxic propellants (notably hydrazine) which are dumped onto the land located along the flight trajectories: by a rough estimation, dozens of liters of unburned fuel is sprayed over several square kilometers of land with every launch. Local environmental groups have campaigned against the polluting launches, but with little success.2 Baikonur Cosmodrome is operated by the Russian Space Agency (Rosaviakosmos) which leases it from Kazakhstan. Also both NASA and ESA pay to have craft launched from Baikonur.3 Considering that Baikonur ranks among 1

As the UNESCO Working Group on the “Ethics of Outer Space” pointed out, “space technology … represent[s] a factor of damage to the circumsterrestrial [sic], terrestrial and planetary environments”. The Ethics of Space Policy 2000, p. 7. However, it can also provide an effective tool for the protection of the environment. E.g., Lebeau 2000, pp. 62–63. 2 “Russian Space Agency Denies Launch Site Causes Sickness Among Local Children” 2005. 3 These agencies explain that they only buy services at Baikonur and cannot be held

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the busiest launch sites in the world (being the world’s largest space launch facility) and, accordingly, is a considerable source of income for the Russian government, it is no surprise that Rosaviakosmos rejects the conclusions of the study indicating health problems:4 according to Rosaviakosmos, space activities at Baikonur do not impact directly on the health of nearby residents. However, the agency confirms that heptyl, a substance used for launches, causes environmental degradation. Nevertheless, Rosaviakosmos points out that all possible rocket fuels are environmentally harmful and declares that it does not intend to replace heptyl with other substances.5 Instead, it professes to be improving the ecological characteristics of existing launch vehicles6 and has signed an agreement with Kazakhstan which calls for the creation of an “ecologically safe space rocket complex”.7 Furthermore, on its way to outer space, a space vehicle necessarily travels through the atmosphere, where discharges from rocket motors deteriorate the ozone layer, diminishing the protection for life on Earth against ultraviolet radiation. Another environmental impact in this respect is acid rain. All rockets release or create products that contribute to depletion of the ozone layer, such as oxides of nitrogen.8 The potential threats to the ozone layer associated with responsible for possible problems associated with the site. Giles 2005. Considering that most other major launch bases used by these agencies send rockets out over the sea, one could even get the impression that for NASA and ESA the health of the Kazakh people is not among the top priorities. 4 Ibid. 5 “Officials Deny Russian Spaceport A Threat” 2005. 6 Unlike the current Proton rocket, which uses a toxic fuel, new Russian rockets are to be powered by a cleaner fuel mixture of liquid oxygen and kerosene. See “Kazakhs, Russians Create Space Venture” 2005, and “Russia and Kazakhstan to Build Commercial Rocket” 2005. 7 However, the primary purpose of the Russian-Kazakh agreement was apparently to enable Russia to continue to use Baikonur. “Space Complex Bill Sent to Duma” 2005. Considering the volume of launch activities in Baikonur, prospects for any improvements in the health of the local residents seem rather poor: in 2004, Russia carried out approximately 40 per cent of all rocket launches in the world. Of these about three-fourths (approx. 30 per cent of all launches globally) were conducted at the Baikonur Cosmodrome. “Russia Led In 2004 Space Launches” 2005. Moreover, Kazakhstan has announced a plan to build another space complex for launching small civilian spacecraft into low Earth orbit. “Kazakhs Plan New Space Complex” 2005. 8 Rothblatt 1993, p. 308. However, solid-fuel rockets, such as have been utilized in launches of the US Space Shuttle and Titan-4, as well as the Ariane 5 (ESA), are the biggest source of rocket pollutants that damage the atmosphere. The solid fuels contain, i.a., chlorine, which is a major contributor to depletion of the ozone layer. Christol 1995, pp. 254, 258. Another particularly harmful component of solid rocket propellants is aluminum, aluminum oxide being produced as a major exhaust by-product. Such

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space activities were acknowledged already decades ago.9 It has been argued, however, that the degradation of the atmosphere caused by space activities is negligible.10 In any case, the most severe environmental hazards in the space sector are those taking place after the launch phase. These are also the ones which this work concentrates on. 2.1. Space Debris The most prominent environmental problem connected with space activities is space debris. ‘Space debris’ is a general term referring to all tangible man-made materials in space other than functional space objects. Debris thus includes spent satellites themselves, ejected instrument covers, upper stages (orbital transfer stages), fragments thereof, etc., that is objects which originate from what were functional space objects but which no longer serve a useful purpose.11 The definition also encompasses leaking fuel and coolant droplets,12 paint

exhaust has “the potential to perturb atmospheric chemistry” and may contribute to the hazards of orbital activities as well. Aluminum oxide can act as a nucleation site for condensation of hydrochlorid acid, leading to increasing acidity, or can be further converted into aluminum chloride, which is a toxic irritant capable of affecting the mucous membranes. Christol 1993, p. 264. Particularly where long-term exposure is concerned, the aluminum oxide dust ejected by solid rocket motors can also cause erosion of exterior surfaces, chemical contamination, and degradation in operations of such vulnerable components as optical windows and solar panels. Greenberg 2003, p. 385. Even the release of such an ‘innocent’ chemical compound as water (as in Space Shuttle operations) at 100–200 km above the Earth can cause interference with ionospheric conditions, resulting in disruption to radio communications, for instance. Matte 1989, pp. 424–425. Resorting to alternative fuels, e.g., liquid fuels, would presumably significantly reduce the adverse effects of launch activities on the environment. Christol 1995, pp. 258–259. 9 The concern was reflected also in the Environmental Impact Statement for the Space Shuttle Program in the late 1970s, for instance. See Christol 1976. 10 See Perek 2001, p. 422 (referring to a study on the impact of aircraft and space launches on atmosphere and climate prepared by the French Academy of Sciences and the French National Air and Space Academy in 1998). 11 In addition to man-made space debris, there is also naturally occurring debris: meteoroids. Initially, the particulate environment against which satellites were designed was that of natural debris. Today, however, the population of debris that dominates concerns is clearly that of man-made origin. 12 For instance, in the 1990s, NASA observed an unexpectedly dense population of small particles in orbits around altitudes of 900–1000 km. This was determined to be to a considerable degree a consequence of the release of NaK (sodium potassium) coolant from thermoelectric Soviet reactors in the 1980s. Johnson 2005(a), p. 554.

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flakes13 and microparticulate matter,14 as well as tools dropped during space walks and garbage dumped in outer space by manned space missions, for instance. Hence everything launched into outer space has the potential to become space debris.15 Such items are occasionally also called space refuse, space junk or space trash.16 However, no international legal instrument gives a definition of space debris. None of the UN space treaties even expressly mentions the term ‘debris’. Nevertheless, it has been used in international law: in 1963, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water prohibited nuclear explosions in these environs as well as “in any other environment if such explosions cause radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosion is conducted”.17 Although international law does not define the term ‘space debris’, several definitions of it have been developed at the international level. These include the definition given by the International Academy of Astronautics (IAA), according to which orbital debris is “any man-made Earth-orbiting object which is non-functional with no reasonable expectation of assuming or resuming its intended function, or any other function for which it is or can be expected to be authorized, including fragments and parts thereof. Orbital debris includes nonoperational spacecraft, spent rocket bodies, material released during planned space operations, and fragments generated by satellite and upper stage breakup due to explosions and collisions”.18 A Technical Report on Space Debris (1999) by the Scientific and Technical Subcommittee of the UNCOPUOS uses the following definition: “Space debris are all manmade objects, including their fragments and parts, whether their owners can be identified or not, in Earth orbit or re-entering the dense layers of the atmosphere that are non-functional with no reasonable expectation of their being able to assume or resume their intended functions or any other functions for which they are or can be authorized.”19 The

13

Coating degradation and the chipping of paints and their binder agents is largely due to exposure to ultraviolet radiation and atomic oxygen. Expansion and contraction stresses related to major changes in temperature also contribute to the effect. Baker 1988, p. 187. 14 Microparticulate matter released during space operations includes particle and gas emissions, water dumps, cabin leakage and outgassing of heavy molecules. Ibid. These forms of pollution are relatively harmless and can usually be averted by protective shielding. “Space Debris: assessing the risk” 2005. 15 Baker 1988, pp. 207–208. 16 The term ‘debris’ could possibly also be replaced by ‘pollutant’, ‘contaminant’, or ‘flotsam’, for instance. See Fasan 1993, p. 282. Even space ‘garbage’ and ‘wreckage’ have been used. See Jasentuliyana 1998, p. 139 and Góbriel 1987, p. 113, respectively. 17 Art. I.1. This instrument is known also as the Partial (or Limited) Test Ban Treaty. 18 Position Paper on Orbital Debris 2001, p. 3. 19 Para. 6.

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Inter-Agency Space Debris Coordination Committee (IADC) employs a more concise definition: “[s]pace debris are all man made objects including fragments and elements thereof, in earth orbit or re-entering the atmosphere, that are non functional”.20 As the definitions imply, there are many sources of space debris. One is space vehicles which have ceased to function: in principle, entire, intact satellites, for instance, are considered space debris if they are no longer functional but only adrift in outer space.21 This may, however, be a more complicated issue than it might seem at first sight. Pursuant to the Outer Space Treaty, a state on whose registry a space object is carried has jurisdiction and control over the object.22 It has been proposed that this implies that the same state (and only that state) is also the one entitled to determine whether its space object is functional or not. Although others might perceive a space object as completely useless, it could in reality still have some value. An inactive space object may, for instance, be in reserve for future activities, carry valuable classified information, or be of some other interest unknown to other states. Hence the criterion of ‘functionality’ (at least if understood in purely technical terms) may not be the most feasible one for distinguishing space debris from other space objects; even seemingly nonfunctional space objects may constitute valuable assets.23 Accordingly, the Draft Convention on Space Debris adopted by the International Law Association in 1994 defines space debris as “man-made objects in outer space, other than active or otherwise useful satellites, when no change can reasonably be expected in these conditions in the foreseeable future”.24 Hence at least this instrument takes into account other criteria than ‘objective’ functionality when determining the usefulness of spacecraft.25 Furthermore, space debris may be generated by explosions (intentional or accidental), collisions, or degradation of spacecraft.26 It has been suggested that

IADC Space Debris Mitigation Guidelines, Section 3.1. It has been pointed out that “[w]ithin three weeks of the launch of Sputnik I, the Earth satellite population consisted of only space debris: the inoperative Sputnik I and the derelict rocket stages which placed it into orbit”. Cosmic Study on Space Traffic Management 2006, pp. 30–31. 22 Art. VIII. 23 Perek 2005, p. 588. 24 Art. 1.c; emphasis added. 25 The expression “or otherwise useful” was added to the article precisely because of the above criticism. For a more detailed assessment of the discussion concerning this matter prior to the adoption of the ILA Draft Convention, see Report of the 66th Conference of the ILA 1994, pp. 309–311. 26 Examples of debris generated by intentional explosions include debris from military weapons testing, such as anti-satellite tests, and deliberate explosion to prevent recovery of certain satellites. Unintentional explosions usually result from a propulsion 20 21

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space debris could even be deliberately introduced into outer space in order to prevent access to a particular orbital region.27 Such actions will hopefully remain mostly hypothetical. Currently, about 9800 man-made objects are being tracked in orbit;28 of these only some 600–700 are operational spacecraft, leaving 93 per cent of the population space debris.29 The rate of increase in space debris has recently been some two per cent yearly.30 The figures only include officially catalogued objects, i.e., objects larger than 10–20 cm in diameter for low Earth orbit (LEO)31—altitudes up to 1500–2000 km—and one meter in diameter in

system failure. Baker 1988, p. 186. The most frequent objects to explode are cast-off launch vehicle upper stages (most launch vehicle lower stages fall back into the atmosphere and burn up). Spacecraft are usually designed so that there is spare fuel available to secure a successful launch. Once the upper stages are discarded, any extra fuel typically remains in pressurized tanks, which with the wear and tear over time become increasingly susceptible to explosions. “Space Debris Mitigation: the case for a code of conduct” 2005. Engine failures during operations are also known to have resulted in satellite explosions. The cause of many explosions has remained unidentified. Baker 1988, p. 186. The first known accidental break-up of a satellite occurred in 1961, when an Ablestar rocket exploded for an unknown reason, creating hundreds of pieces of debris. Matte 1989, p. 422. One of the more recent examples is the explosion of the third stage of a Chinese Long March 4 rocket on 11 March 2000, which generated over 300 fragments detectable from Earth. Flury 2000, p. 40. 27 For instance, a state could deem some regions valuable to its enemies and therefore decide to litter them with so much space debris that entering these regions would be dangerous. The calculated placement of space debris could also interfere with surveillance activities. Space debris could even be used as an offensive weapon: planned collisions between space debris and military targets could cause significant loss or damage. Baker 1988, p. 196. Hence, one could destroy or incapacitate very sophisticated spacecraft with, e.g., loads of rock or metal pellets only. This could be very costly, however. Moreover, it has been pointed out that “[e]ven if you were to put tens of thousands of particles out there, it would pale in comparison to what is already out there”. Stenger 2002 (interview of Nick Johnson from NASA’s Orbital Debris Program Office). Functional space objects could also be used for offensive purposes by exploding them into a cloud of space debris. Apparently, at least 10 known satellite fragmentations have been deliberate, the intention being to destroy other satellites. They have been carried out by the Soviet Union and the US. See Williamson 2006, p. 52. 28 Orbital Debris Quarterly News 2006, p. 9. 29 Flury 2000, p. 40. The percentage of operational spacecraft is constantly getting smaller. 30 Space Security 2005 Briefing Notes (2006), p. 2. Thanks to international mitigation efforts, the rate of debris production was reduced in the mid-1990s (after a sharp increase in the early 1990s). Space Security 2004 (2005), p. 4. Currently, it seems to be increasing slightly again. Space Security 2005 Briefing Notes (2006), p. 2. 31 In recent years, however, even much smaller particles in LEO have been catalogued, thanks to technological progress. Johnson 2001, p. 13.

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the Geostationary Orbit (GEO).32 Such objects are tracked and maintained in a data base by the US Space Command’s Space Surveillance Network (SSN).33 The most common source of space debris is on-orbit break-ups: over 40 per cent of the catalogued objects (and approximately 85 per cent of all space debris larger than five centimeters in diameter) consist of fragments from breakups in space;34 some 17 per cent are derelict rocket bodies discarded after use;

32

The geostationary orbit is situated above the Equator at an altitude of approx. 35 786 km. It is referred to as ‘GEO’ (Geostationary Earth Orbit) but quite often also as ‘GSO’ (Geostationary Satellite Orbit). However, GSO should be used only for ‘Geosynchronous Orbit’, of which the geostationary orbit is a special orbit with a zero inclination. Although satellites on all GSOs will complete their orbits in the same time as it takes for the Earth to rotate around its axis, a satellite in GEO—in principle—only moves in a west-east direction (hence staying ‘stationary’ in relation to a particular point on Earth). Satellites in other GSOs are in inclined orbits, thus moving north and south of the equator over the 24 hours. According to the IADC Space Debris Mitigation Guidelines (see more below), GEO is an “Earth orbit having zero inclination and zero eccentricity, whose orbital period is equal to the Earth’s sidereal period” (Section 3.3.3). 33 Position Paper on Orbital Debris 2001, pp. 2–3. The SSN tracks and catalogues space objects in the most systematic and comprehensive way globally. For a more detailed description of the SSN, see Space Security 2004 (2005), p. 16. Many other countries also have space surveillance capabilities and maintain registers of space objects. ESA has the Database and Information System Characterizing Objects in Space (DISCOS), which contains information from the SSN as well as from European tracking facilities. ESA is also developing a Space Debris Avoidance Service. Russia has its own Space Surveillance System and maintains a catalog of its space object observations. However, the Russian database is not widely available and the capacity of the observation systems remains unclear. Ibid., p. 17. See also Blagun et al. 2001. Currently, the US and Russian networks are the only global observation networks for space traffic monitoring. Other countries focus primarily on monitoring their own space assets. Cosmic Study on Space Traffic Management 2006, p. 35. China maintains a space object catalog, for which it has been using data from the SSN. Now it seems to be striving for self-sufficiency: it has recently announced the establishment of its first Space Target and Debris Observation and Research Center. “China Establishes First Space Trash observation Center” 2005. Also Canada is developing new space object tracking systems. Space Security 2004 (2005), p. 17. In 2004 Japan opened a new radar station solely for space debris observation in LEO. Ibid., p. 18. All this improves the overall space-tracking capability. However, the development of independent surveillance capacities has also been considered an indication of increased mistrust internationally. Space Security 2005 Briefing Notes (2006), p. 9. Moreover, the US decided in 2004 to impose restrictions on the provision of information on the orbital debris characteristics of spacecraft and debris (for fear that they could be employed, i.a., to damage or jam satellites). This has increased calls for collaborative international space monitoring capability. Space Security 2004 (2005), p. 18. 34 For more detailed information on the causes of such fragmentations for example, see Support to the IADC Space Debris Mitigation Guidelines, pp. 11–12.

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and about 22 per cent are defunct spacecraft. The remaining approximately 13 per cent consist of ‘operational debris’, i.e., mission-related objects released during space operations.35 Furthermore, there is a much larger number of smaller (uncatalogued) objects in orbit that cannot be observed directly but are nevertheless equally capable of puncturing spacecraft due to hypervelocities.36 Of greatest concern are objects between one centimeter and ten centimeters in diameter, referred to as ‘the lethal population’ (or ‘deadly objects’) as they cannot be individually tracked or catalogued but are capable of causing catastrophic damage if they collide with other space objects.37 The expected lifetimes for debris depend primarily on its location: in low Earth orbits, the air drag of the upper reaches of the atmosphere will eventually cause the debris to decelerate and heat up so that it breaks up under friction, whereas in higher orbits the atmospheric drag is virtually nil.38 Despite the cleaning effect of the atmospheric drag, it has been calculated that if removal of LEO spacecraft at the end of their lifetime is not conducted within 25 years or so, we can expect a marked increase in the number of accidental collisions later in this century.39 Interestingly, it has been discovered that greenhouse gasses produced on Earth result in a decline in temperature and density of the thermosphere (the uppermost part of atmosphere, above the altitude of about 90 km) and thereby reduce atmospheric drag. This in turn may allow space objects to remain in orbit longer. The positive result is that operational satellites save on fuel; the other side of the coin is that space debris becomes more persistent. It has been estimated that the density of the thermosphere may be as much as halved by the end of this century, meaning that orbital lifetimes of objects can be extended by up to 24 per cent (depending on the altitude and prevailing solar activity). What is most alarming is that the number of on-orbit collisions would increase exponentially.40 35 Position Paper on Orbital Debris 2001, p. 3. These percentages have remained roughly the same. 36 For more detailes on the velocities of objects in Earth orbits, see below. 37 “Space Debris: assessing the risk” 2005. According to one relatively recent estimation, the number of non-catalogued objects may be more than 500 000. “Spotlight On Space Debris” 2004. The population of small (intermediate) debris larger than 1 cm in size is estimated to comprise at least 100 000 objects. Flury 2000, p. 42. 38 Ibid. As altitude increases, drag diminishes. Above the altitude of 600 km its effect is already so weak that debris there can remain a threat for decades, centuries, or even thousands of years. Orbital Debris: a technical assessment 1995, p. 30. 39 “Accidental Collisions of Cataloged Satellites Identified” 2005, p. 2. 40 Emmert et al. 2005. It has been predicted that at the current rate of satellite launches and de-orbiting maneuvers, the number of space objects larger than one cm will increase by 30 per cent and those larger than ten cm by ten per cent by the year 2100. Lewis 2005, p. 248. The consequent increase in the number of on-orbit collisions would be about 17 per cent. “Space Debris Poses Collision Threat” 2005. The effects of longer orbital lifetimes and rising collision rates are expected to be most critical at

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As the origin, form, size and lifetime of space debris vary, so do its effects. Even astronomers complain about the harm that debris causes by hindering observations of far away stars and galaxies from the surface of the Earth.41 However, this does not exactly fall under the scope of the term ‘environmental damage’ as discussed in this work. Far more relevant to the present study is, for instance, the fact that debris may interfere with the radio communications of functional satellites and other spacecraft and disturb the receiving frequency bands on which such sensitive instruments as (Earth-based) radio telescopes operate.42 Even more significant a problem is the risk of collisions, particularly between space debris and orbiting spacecraft, which can cause significant human and economic losses. The harm that space debris may cause to an operational satellite can range from minor damage to total loss of the spacecraft.43 Fragmentation debris produced by collisions poses the most severe threat to space activities. Collisions can also release radioactive contamination and other harmful substances.44 The potential damage of even the tiniest debris particle circulating in outer space derives from the fact that impact velocities in orbits are enormous (0.1– 0.8 km/s in GEO; 6–14 km/s in LEO);45 at best (or worst) debris is traveling about 17 times faster than a machine gun bullet.46 Velocities of space debris also vary according to their mode of movement. Debris can move with orbital velocity, be falling to Earth—in which case it shows lower than orbital velocity— or move faster than orbital velocity—at escape velocity—orbiting in an outward bound manner.47 The danger of damage lies mostly in objects moving at orbital

altitudes between 250 and 1200 km, which are of great value for human space activities. Lewis 2005, p. 248. 41 Traces of orbiting debris and functional man-made space objects are frequently recorded in photographs taken by ground-based telescopes. Matte 1989, p. 424. Multisatellite systems and possible large solar reflectors can cause particularly intense light pollution. Pursuant to recommendations of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III) in 1999, “[a]ttention should be given to preserving or restoring astronomical observation conditions to a state as close to natural as possible by any practicable means”. Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space 1999, para. 73. 42 Baker 1988, p. 194. 43 The various contributing factors include at least the mass, relative speed and impact angle of the debris particle, as well as the mass, material composition and structural composition of the satellite in question. 44 Ibid., p. 186. For a more detailed assessment of the risks related to the use of nuclear power in outer space, see below. 45 Jahku 1992, p. 206. 46 “Spotlight On Space Debris” 2004. 47 Objects moving at escape velocity ultimately fall into the Sun, get caught by

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velocity around the Earth, as they will continue to circle it practically indefinitely if not intentionally removed or redirected.48 Due to the extreme velocities, a particle no more than one cm in diameter can easily incapacitate an entire functional satellite, and an even smaller piece of debris entering the body of an active satellite can trigger a fatal reaction.49 Accordingly, near-Earth missions (manned space missions like the ISS in particular50) use ever-more sophisticated shields against debris impacts. However, this is expensive.51 Moreover, it is practically impossible to prevent damage in the case of impact by a piece of debris larger than one centimeter.52 Even collisions with less fatal consequences result in more debris, as larger pieces fragment into smaller ones, increasing the risk of further collisions. Furthermore, space debris experts worry that (particularly in orbits between 700 and 2000 km) debris pollution will increase to such a level that at some time in the near future a collision might start a chain reaction which will cause small pieces of debris to tear apart larger objects in a cascading event.53 Especially in such a setting, the explosion of a satellite could be catastrophic also for any neighboring ones. The potential severity of the space debris problem was realized already in late 1970s and early 1980s.54 Today, inconsequential impacts of small meteoroids and man-made debris are routine for most operational spacecraft.55 The probability of a significant collision with space debris still remains relatively low, although as another celestial body of the Solar System, or even move into interstellar space beyond the Solar System. Fasan 1993, p. 286. 48 Ibid. 49 Jahku 1992, p. 209. Examples of damage that a 1-cm object can cause include penetrating the pressurized crew module of a space station, killing the crew and causing the station to break up; piercing the window of a spacecraft, killing its occupants and seriously damaging the craft itself; and disabling or destroying a satellite in GEO. A fragment no more than 0.5 mm in size could puncture a standard spacesuit and kill an astronaut. Baker 1988, p. 188. 50 NASA has recently announced its intention to install more protective shielding on the ISS. It has also studied possibilities to prevent the accumulation of debris in the orbital path of the station. Space Security 2005 Briefing Notes (2006), p. 4. The ISS is protected by continuous tracking by ground radar of orbital debris and the use of collision avoidance maneuvers where needed. Since mid-2002, the ISS has been moved five times to avoid collisions with debris. Cosmic Study on Space Traffic Management 2006, p. 65. Operational and design practices are also constantly developed in order to minimize risk to the station and its crew. Greenberg 2003, p. 382. 51 Although shielding of a spacecraft can extend its operational lifetime, it typically also leads to increased satellite cost and mass, thus increasing the cost of transportation and/or reducing capability. Ibid., p. 325. 52 “Spotlight On Space Debris” 2004. 53 Williamson Ray 2000, p. 31. 54 See Kessler 1986, pp. 47–48. 55 Johnson 2005(b), p. 8.

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many as hundreds of passes within less than one kilometer between catalogued objects occur daily.56 The average time between destructive collisions is 10 years but considering the economic interests at stake and, moreover, the threats debris poses to manned missions, even such a risk becomes serious.57 Several incidents have in fact already occurred. The first confirmed damage to an operational spacecraft by space debris was the US Space Shuttle Challenger windshield incident in June 1983, in which a particle of thermal paint about 0.2 mm in diameter struck the Shuttle’s windshield at a speed of some 3–6 km/s. Due to the pitting left by the collision, the window could not be reused.58 The first (and so far only) confirmed collision between two catalogued objects took place in July 1996, when CERISE, a functional French satellite launched in 1986, was hit and seriously damaged by a fragment of a launch vehicle stage of an Ariane I rocket which had exploded ten years earlier.59 There have also been many incidents where a space object has exploded into smaller fragments without a ‘good reason’: the cause may have been a collision with an unknown object. Several ‘serious encounters’ between two objects in outer space have also taken place, sometimes necessitating collision avoidance maneuvers. For instance, in December 1992 the pilot of the Space Shuttle Discovery only narrowly managed to avoid a catastrophic collision with a 10-cm piece of debris by swerving the craft.60 Debris may pose other kinds of hazards, too, as seen in the Soviet ‘trash “Accidental Collisions of Cataloged Satellites Identified” 2005, p. 2. Although a kilometer may sound like a relatively long distance, it is not in space activities; all passes within this range are described as close approaches. Ibid. 57 “Space Debris: assessing the risk” 2005. 58 Baker 1988, pp. 189–190. Later, small-particle impacts (including those caused by both natural and man-made debris) on the Space Shuttle have required replacement on average of one of the eight main windows after each flight. See Flury 2000. On debris impact risk to the Space Shuttle, see also Williamson 2006, p. 64. 59 As a result of the collision, a 4.2-meter portion of the gravity-gradient stabilization boom of CERISE was torn off. “Space Debris: assessing the risk” 2005. Since then, earlier collisions of catalogued objects have also been identified. For instance, a collision involving a Russian non-functional navigation satellite (Cosmos 1934) and a piece of debris from another, similar spacecraft (Cosmos 926) took place in December 1991 but was not recognized until 2005. The latter impacting piece of debris could no longer be tracked after the incident; it apparently broke up into much smaller, very dangerous pieces of debris. An example of a collision which both happened and was identified recently is one that occurred in January 2005. Then a 31-year-old US rocket body collided with a fragment from the third stage of a Chinese launch vehicle (which had exploded in March 2000). For a more detailed account of the incidents, see “Accidental Collisions of Cataloged Satellites Identified” 2005. 60 Only the previous year, two similar incidents occurred due to encounters with Cosmos rocket upper stages, and such maneuvers have been necessary on Shuttle flights ever since. See Flury 2000, pp. 42–43. Once in orbit, the Shuttle is also turned ‘backwards’ 56

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bag incident’ in 1987, where a cosmonaut risked his life to remove a plastic bag that was preventing an astrophysics module from docking with the Mir Space Station.61 Obviously, other than manned spacecraft are also at risk. Despite the high costs, it is thus today standard practice for near-Earth satellites to carry an allowance of fuel simply for evasive maneuvers necessitated by space debris.62 Space debris is also dangerous because it can crash to Earth, as in the case of the nuclear-powered Soviet satellite Cosmos 954, which crashed in northern Canada in 1978,63 or the Soviet Salyut 7 Space Station, which disintegrated over Argentina in 1991.64 Space objects returning to the atmosphere usually burn up completely but large pieces that survive the extreme heat inevitably return to Earth, impacting on the ground or in the oceans.65 Only few of those pieces are

so that its sensitive systems are better protected from collisions with debris. Furthermore, NASA operational restrictions prescribe that extravehicular activities are to be conducted such that the Shuttle serves as a shield from debris. Mirmina 2005, p. 652. The trajectories of orbital debris are constantly examined and if an object is expected to come within 2 km of the Shuttle, an avoidance maneuver is normally made. Williamson 2006, pp. 69–70. The threat of space debris is taken into account also at a much earlier stage of missions. For instance, NASA will call a launch hold in case “a debris object is predicted to violate a 5 × 25 × 5 km box around the [Space Shuttle] during the first two hours of a mission”. Such delays have occurred at least twice. Williamson 2006, p. 69. 61 Schwetje 1988, p. 168. During the time of the Mir Space Station, it was routine practice to dump trash bags in space. Dunn 2004. In a similar manner, the US Apollo astronauts left their waste on the surface of the Moon. Williamson 2005, p. 163. The ISS has no such practice, although it has also been reported to have released some garbage in space due to lack of storage room in the station. Dunn 2004. 62 “Space Debris: assessing the risk” 2005. In ESA, for instance, the Operations Centre uses a debris warning system, whereby a computer automatically issues a daily email message to operations staff who carry out avoidance maneuvers if the risk of collision is deemed too high. “Spotlight On Space Debris” 2004. 63 See more on the Cosmos 954 incident below. 64 Kim 1998, p. 315. These two incidents (amazingly) caused no major damage but before them there have been cases in which pieces of debris have damaged property or even health. In the 1960s, parts of a US satellite fell in Cuba, damaging property and killing a cow; a serious incident occurred at sea in which Japanese sailors were injured when their ship was struck by fragments of a Soviet satellite; and a German ship was hit by fragments of space debris in the Atlantic Ocean. Ibid., p. 313. 65 There is a 30-percent chance of an object hitting land, and a much smaller chance of it landing in a populated area. However, such odds are obviously of little comfort when the accident actually happens. Ibid. It has been estimated that the likelihood of a debris re-entry resulting in personal injury is about one in 10 000. Cosmic Study on Space Traffic Management 2006, p. 79. At this writing, the latest incident was the launch failure of the European ice research satellite CryoSat, which fell into the Arctic Ocean in early October 2005. This satellite never even managed to reach the intended orbit, as it crashed only minutes after take-off. “ESA Begins CryoSat Launch Failure Probe” 2005.

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usually recovered.66 Most of the debris returning to Earth is out of control but the return may also be a pre-planned phase of a space mission. Even then all risks cannot be eliminated, however, as it is never possible to calculate the exact position or time of the impact, particularly if malfunctions occur. In addition to the risks to human space activities and life on Earth, space debris is pollution in the space environment as such. Hence it constitutes a severe long-term hazard from many perspectives. Space debris is very difficult (if not impossible) to clean up and the amount of it is increasing steadily, despite the decline in the number of launches per year.67 Currently, a particularly severe threat posed by space debris is that found in the so-called geostationary orbit (GEO). The spectrum of radio frequencies and GEO (often described as the spectrum/orbit resource) are two unavoidable natural components of communication by satellite and have been designated scarce natural resources.68 GEO is the orbit most suitable for telecommunications and weather satellites and is therefore densely occupied by them—and the increasing population of debris these satellites generate. The special importance of GEO in telecommunications (and its ensuing great economic value) derives from the fact that a satellite placed in this orbit has the same period of rotation around the Earth as the Earth has around its own axis, whereby the satellite will appear stationary to an observer on the surface of the Earth—i.e., geostationary – 24 hours a day. This geostationary character of the orbit minimizes the operational requirements of Earth stations receiving the satellite’s signals, as the ground terminals do not need the capability to constantly reorient their antennas and track signals themselves, given that the satellites always transmit their beams from a fixed position.69 Furthermore, a satellite in GEO has a constant view Flury 2000, p. 44. Ibid., p. 40. It has been estimated that at the current rate of yearly debris increase “nothing [will] be able to enter space orbit by 2300”. “China Establishes First Space Trash Observation Center” 2005. 68 Salin 2000, p. 45. Geostationary orbital positions and the radio spectrum cannot be separated from one another if appropriate coordination and regulation are to be effected for GEO services (see below about the ITU regime for this purpose). 69 Also, the Doppler shift in radio frequency signals is minimized (as the source of the signals is stationary with respect to the receiver). Wilson 1998, p. 256. In reality, however, certain natural forces, such as the elliptical shape of the Earth’s Equator and the gravitational pull of the Sun and the Moon, cause even a geostationary satellite to drift somewhat from the optimal position, necessitating some kind of active station maintenance propulsion systems on board a satellite to enable it to stay within the desired orbit. Ibid., p. 254. Obviously, geostationary debris does not stay put in GEO either. In practice, the Earth’s non-uniform gravity creates two stable orbit points in the geostationary ring, one above India and one over the Pacific. Debris cannot be maneuvered and hence it will drift towards the nearest stable point and oscillate through it in a pendulum-like manner, which creates a continuous collision risk. One example of the ensuing hazards is the US satellite Telstar 401, control of which was accidentally lost 66 67

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over a large area of the Earth and is always visible from any point within that area; communication services provided by one geostationary satellite can cover up to one-third of the Earth’s surface, meaning that as few as three geostationary satellites are enough to provide global coverage.70 However, only the particular position of GEO which enables a satellite to efficiently cover the area that it is required to serve is of use to each country. This results in congestion of certain areas of this orbit, which is unevenly occupied to begin with given that about three-quarters of the Earth’s surface is water-covered areas, where demand for satellite communications is smaller. This situation in turn leads to an increased risk of interference and hence diminished possibilities for safe access and operation of satellites in the sections of GEO in most demand.71 Until recently, finding a physical position for a new system in GEO has not been a problem, although difficulties of coordination have been growing—and will only continue to grow, considering that there is constantly increasing demand for both the radio frequency spectrum and orbital slot allocations.72 However, the question is not merely one of access, since there are still many frequency bands that are thinly or not at all populated. Rather, it is a question of access using technology that is affordable even for less developed countries and can be operated on otherwise feasible terms, too.73 (due to a magnetic storm) in 1997. Since then the satellite has been drifting along the geostationary ring, forcing a number of active satellites to interrupt their services and carry out collision-avoidance maneuvers. Muir 2005; see also Jehn et al. 2005. 70 Wilson 1998, p. 256. On the other hand, some countries, particularly those near the North Pole, cannot benefit very much from the use of geostationary satellites. These areas are located at such an angle in relation to GEO that buildings and terrain shadow them severely enough to make GEO transmissions highly cumbersome. Such areas can utilize analogous polar satellite systems, located on orbits above the North Pole. 71 Jahku 1992, pp. 210–211. 72 For a more detailed assessment of the situation, see Space Security 2004 (2005), pp. 9–16. Orbital slots may also be shared between several satellites. Obviously, the more satellites there are placed in the same orbital position, the better they have to be controlled in order to avoid interference. See Cosmic Study on Space Traffic Management 2006, p. 65. 73 At least once a country has already had to accept a less-than-ideal position for its first satellite on GEO: India had to compromise on both the positions and the technical characteristics for its Insat satellites, because it had difficulties finding positions for the system. This had implications both in financial terms and regarding the services provided. Moreover, the conflict arose despite the fact that only few countries had assignments in that particular part of GEO. Mexico has also had difficulties in placing its Morelos satellites between the US and Canadian systems. Jasentuliyana 1999(a), pp. 260–261. Even more dramatic have been the problems that Vietnam has encountered with its first telecommunication satellite “Vinasat”. Initially, the satellite was planned to be launched in late 2005. “Vietnam To Launch Its First Satellite In 2005” 2003. However, the project suffered major delays, especially due to difficulties in coordinating frequencies with the

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The major constraint on the efficient use of GEO still is radio frequency interference between systems,74 which can in broad terms also be called ‘environmental’ harm.75 While technical progress has made it possible to decrease potentially harmful interference between satellites, space debris now poses an increasingly significant threat. Although the probability of interference and collisions between active satellites remains low, the risks multiply if hazards posed by defunct satellites, let alone fragmented pieces of debris, are taken into account. Collisions within the defunct satellite population itself are obviously relevant as well, because these add to the number of pieces of debris in GEO, which in turn increases the hazards faced by active satellites.76 The expectation of collisions is reduced due to the fact that all objects in GEO move in the same direction (east). On the other hand, GEO collisions or explosions can start countries holding rights to neighboring satellite positions. These are Japan and Tonga, the latter of which does not even have a satellite to occupy its orbital slot. Tanner 2003. At the moment, the plan is to launch the Vinasat in 2008. “Vietnam Aims To Launch First Satellite In 2008” 2005. 74 Due to the considerable distance from the Earth and the use of high bandwidth signals for TV applications, for instance, GEO satellites need to generate high-power transmissions that tend to cause interference. Moreover, in practice GEO satellites are often placed within distances that are not sufficient to avoid signal interference. Space Security 2004 (2005), pp. 13–14. Currently, frequency interference is a daily occurrence: about 5 per cent of satellite operators’ time is spent addressing interference issues. Tanner 2003. 75 The Report of the ESA Space Debris Working Group of 1988 seems to be in no doubt that radio frequency interference constitutes environmental harm. According to the report, “harmful interference, though not a form of space debris in the normal sense of the term, is certainly a form of pollution” (emphasis added). The ESA report defines the “over-use of orbital slots in combination with the unlimited use of frequencies” as “two additional forms of pollution specific to the geostationary orbit”. The Report of the ESA Space Debris Working Group 1988, p. 66. At least in its common understanding, the term ‘pollution’ should equate to ‘environmental harm’. 76 Wilson 1998, pp. 257–258. A study carried out by the satellite Artemis has shown that only approximately one-third of the space objects in GEO can be found in the US Space Command Catalogue; the remaining two-thirds are unknown. The majority of these particles are less than one meter in diameter. Earlier, it was expected that the GEO debris population would consist mainly of entire old satellites, launch vehicle motors and microparticulate matter, such as particles released during rocket motor operations. Debris of the size 1–100 cm was expected to be non-significant in this area. However, the Artemis study shows that the pieces of debris that we are currently aware of represent only a minority of all GEO particles above one centimeter in diameter. This means that there must have occured numerous uncontrolled break-ups of abandoned space objects (satellites approximately 20 years old) which we have simply not been able to detect. Moreover, the situation is expected to worsen dramatically very soon as the extensive current generation of satellites begins to deteriorate. “Avaruusromua GEO-vyöhykkeellä” 2001.

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chain reactions that may cause debris to begin orbiting in a westerly direction and at greater velocities.77 Furthermore, space debris in GEO will in practice remain there if not removed. Although GEO has long been the orbit of particular concern when talking about telecommunication satellites (and demand is still greatest for orbital slots in GEO78), attention should also be focused on satellite activities in the close vicinity of the Earth as part of the LEO systems that the US Federal Communications Commission in particular has been licensing since 1994.79 Existing LEO systems circle the Earth mostly in the lower LEO regime, at altitudes below 1000 km. LEO appears to be the region of greatest interest for space activities today and in the near future.80 LEO satellites are typically used for remote sensing.81 They tend to be smaller than satellites in GEO but they typically operate in large constellations. What is more, the smaller the satellites’ size, the more vulnerable they are to smaller pieces of debris.82 The fact that there are many possible orbits for LEO satellites further adds to challenges in coordination. On the other hand, objects in LEO are much closer to Earth and have more unstable orbits than those in GEO, the result being shorter hazardous lifetimes for debris.83 Hence, the environmental consequences of a collision in LEO may be less severe, but the much higher relevant velocities of objects there mean that the risks posed by debris are nevertheless far greater.84 Moreover, extra-vehicular activities mostly take place within this region.85 Also,

77 Jahku 1992, pp. 206–207. This is also known as the ‘cascade effect’ or ‘Kessler effect’. 78 Space Security 2005 Briefing Notes (2006), p. 1. The population of space objects in GEO is also the most diverse as regards ownership: over 35 countries and organizations own assets there. Cosmic Study on Space Traffic Management 2006, p. 25. 79 Salin 2000, p. 45. 80 Cosmic Study on Space Traffic Management 2006, pp. 24, 26. In 2003, approximately 43 per cent of all space missions to reach Earth orbit were LEO missions, while GEO missions accounted for 38 per cent. Ibid. 81 Space Security 2004 (2005), p. 12. 82 Brisibe–Pessoa-Lopes 2002, p. 316. 83 Unlike in GEO, the atmospheric drag (in principle) slowly clears the LEO region. However, the Space Debris Evolutionary Study conducted by NASA in 2005 indicated that if no removal of space objects from LEO is carried out, the debris generation there will continue to increase—even if no new launches are conducted. See Johnson 2006, p. 12. 84 Brisibe–Pessoa-Lopes 2002, pp. 311–312. The third known accidental collision in LEO (at approx. 900 km above Earth) between catalogued objects took place on January 2005. It involved an orbital stage of a US launch vehicle (Thor Burner 2A) and a piece of fragmentation debris from a Chinese (CZ-4) orbital stage broken up in 2000. Johnson 2006, p. 8. 85 For instance, the International Space Station orbits about 400 km above Earth.

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most space debris resides in the LEO area as most debris-producing activities are carried on there.86 In addition to GEO and LEO, there is a third basic orbital arc where satellites operate: Medium Earth Orbit (MEO). This is the area at the altitude of about 5000–10000 km from Earth. It is particularly suitable for navigation systems such as the GPS and Galileo. Currently, there are about 620 operational satellites in orbit: some 270 in LEO, 50 in MEO and 300 in GEO. Additionally, there are specific applications increasingly using Highly Elliptical Orbits (HEO).87 With time, space debris can develop into a serious threat in any orbital area. In the future, if human activities in and around the Moon increase significantly, lunar orbits may also become congested with man-made debris. There, the situation could deteriorate much faster because the Moon has no appreciable atmosphere which could burn up debris.88 2.2. Nuclear Contamination A problem closely connected with that of space debris is the threat of nuclear contamination. A major source of such contamination in outer space would be accidental satellite collisions and explosions that create nuclear space debris and radiation.89 Clearly, the launching phase also involves particular risks in the case of space objects using nuclear power. The first satellite with a nuclear power source (NPS) was launched in the early 1960s. Once solar cell technology improved, the space industry started to use that power source increasingly instead. The last satellite with an NPS intended for operations in Earth orbit was launched in 1988.90 However, a renewed interest in nuclear power and propulsion 86 Space Security 2005 Briefing Notes (2006), p. 2. There are areas of particular concentration of space objects at the altitudes of 800, 1000, 1400, and 1500 km. Cosmic Study on Space Traffic Management 2006, p. 32. 87 Space Security 2004 (2005), p. 12. 88 For a more detailed account of lunar orbital debris, see Williamson 2006, pp. 105– 109. Obviously, similar problems may occur in relation to other celestial bodies as well. Ibid., pp. 251–252. 89 For an assessment of the risks of collision between space debris and nuclear power sources, see, e.g., the UNCOPUOS working paper “Collisions between nuclear power sources and space debris” 2001. Previously, intentional nuclear explosions, i.e., nuclear tests, were also conducted in outer space by both of the superpowers, the US and the Soviet Union. Such operations were prohibited in 1963 by the Partial Test Ban Treaty. 90 The same year, the US and the Soviet Union even made a joint proposal to ban the use of nuclear power in Earth orbit. See Space Law: basic legal documents, Vol. 2, Part B.III.10. According to the proposal, such a ban would be not only feasible but also desirable, from both the military and the environmental point of view. However, the ‘environment’ this proposal was concerned about was not that of outer space: “[t]he proposal … grows out of our efforts to prevent both the radioactive contamination of the

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systems could easily multiply the amount of nuclear materials in outer space.91 In particular, the numerous current plans for deep space missions most likely involve the use of NPS.92 The plans put forward to use nuclear reactors to provide electricity for future lunar bases are at least equally disturbing.93 Nuclear reactors may also be needed for Earth orbital missions requiring particularly high power.94 Moreover, the NPS-equipped spacecraft which are moved to disposal orbits for long durations further amplify the probability of collisions involving radiation

earth’s surface and the extension of the arms race into space” (emphasis added). A decade earlier, the decay of Cosmos 954 had already prompted many proposals by scholars to ban the use of nuclear power in Earth orbit. See, e.g., Haanappel 1978, p. 149; Gorove 1978, p. 144. 91 There are countries which are currently considering (or have already started to develop) new NPS for potential use on Earth orbital missions or for missions where the NPS might remain in Earth orbit even for years before departure on deep space missions. Johnson 2005(a), p. 553. The NPS used in space missions include radioisotope and fission reactor systems, as well as small radioisotope heater units for providing local heating of spacecraft components. “Proposed outline of objectives, scope and attributes for an international technically based framework of goals and recommendations for the safety of planned and currently foreseeable nuclear power source applications in outer space” 2005, Annex, para. 1. Currently, there are at least eight radioisotope thermoelectric generators, 13 nuclear reactor fuel cores, and 32 nuclear reactors in Earth orbits below 1700 km. Johnson 2005(a), pp. 551–552. 92 See, e.g., para. 64 of the Report of the Legal Subcommittee on the work of its 43rd session 2004. For instance, solar panels are not capable of providing a suitable source of electric power for interplanetary missions because such missions are, firstly, very long and, secondly, operate at too great a distance from the Sun. “Proposed outline of objectives, scope and attributes for an international technically based framework of goals and recommendations for the safety of planned and currently foreseeable nuclear power source applications in outer space” 2005, Annex, para. 1. 93 Smith 1993, p. 312. For instance, one concept for the design of such nuclear reactors is to bury them in lunar soil or surround them by berms rather than a proper containment structure. This would mean that humans could not safely come closer than 180 meters to an operating reactor, which could render large areas of the lunar surface uninhabitable. After the operational phase of the reactors is completed—calculated at some seven years—they would be decommissioned by in situ abandonment, whereafter the area around the reactor would need to be isolated for at least another few hundred years. Ibid., p. 319. Nuclear waste on the Moon is nothing new, however: both US and Soviet missions have already left nuclear materials there. For instance, all Apollo missions carried an experiment package powered by a plutonium-fuelled radioisotope thermal generator (RTG), and all these packages (a total of six) were left on the Moon. Apparently, the Soviets contributed to nuclear contamination of the Moon in a similar way during their two Lunokhod missions in 1970 and 1973, which used polonium-fuelled RTGs. Ibid., p. 313. 94 Report of the Scientific and Technical Subcommittee on its 43rd session 2006, Appendix, para. 4.b.

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hazards.95 Obviously, disposal strategies for spent NPS spacecraft necessitate considerations of both nuclear safety and debris mitigation.96 A collision involving a NPS-equipped spacecraft can involve both immediate and long-term consequences, just like any other collision in outer space. If control of the spacecraft is lost, this will in all likelihood render any active disposal plans, such as maneuvering to a safer storage orbit, unfeasible. If an NPS is directly hit, the worst-case scenario is the creation of radioactive orbital debris. Due to its notorious reputation, nuclear contamination may even be deemed deleterious for the space environment per se, although the consequences usually considered most detrimental are those affecting human activities. Generally speaking, radioactive debris is not a greater risk to space activities than non-radioactive.97 However, nuclear radiation may create serious hazards for participants in manned space flights. At worst it can even affect the terrestrial environment. The threat of nuclear explosions in outer space is particularly serious because with no atmosphere to cushion them, their impact is extremely powerful. The radiation generated can therefore freely spread out over a radius of thousands of kilometers, extending even to the Earth. In addition to health hazards, the electromagnetic field caused by a nuclear explosion may be strong enough to break all electronic equipment within thousands of kilometers.98 Even when functional and in orbit, the reactors of NPS satellites See Johnson 2005(a), p. 551. It has also been suggested that “circum-solar space at a great distance from the Earth offers unlimited storage capacities for indefinite duration” and hence wastes of terrestrial nuclear industry could—technology permitting—be stored there. Of course, this is not feasible today (or anytime in the foreseeable future). Besides, it would require “the attainment of conditions of absolute safety”. The Ethics of Space Policy 2000, pp. 22, 26, and Lebeau 2000, p. 63. It can be argued whether such “absolute safety” can ever be achieved even in principle. 96 The disposal of NPS-equipped spacecraft has been a source of concern for as long as such power sources have been utilized in space. It has been estimated that, for instance, for the Soviet Cosmos 1818 spacecraft (with a thermionic reactor) on its orbit at 800 km, the chance of a collision with a 1-mm particle within one year is almost certain while the chance for a similar collision with a 1-cm particle is only about 0.04 per cent per year. However, given that the orbital lifetime of the spacecraft is around 400 years, even optimistic scenarios (in the light of the expected growth of the debris environment) indicate that it is very likely that the spacecraft will be hit by a 1-cm particle before re-entry. Johnson 2005(a), pp. 552–553. 97 Ibid., p. 553. 98 In 1962, a nuclear test known as the Starfish was carried out in outer space (at the altitude of approx. 400 km). The experiment included the explosion of a hydrogen bomb above the Pacific, resulting in, i.a., a short circuit and power outage in Honolulu. Also, phenomena resembling the Northern Lights were observed. On the other hand, should nuclear explosions take place in outer space, much of the material damage that would occur in a similar explosion on Earth would be avoided, because no pressure wave can form in the vacuum of space. Riihiaho 1989, pp. 170–171. Nevertheless, the Starfish 95

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can create problems. For instance, they may emit radiation which adversely affects astronomical observations.99 From a human point of view, the most severe of the risks posed by the use of nuclear power in space currently seems to be the possibility of radioactively contaminated objects returning to Earth. This poses a real risk for the population living beneath the orbit of an NPS, as was demonstrated by the notorious unprogrammed re-entry on 24 January 1978, of the Soviet satellite Cosmos 954 which was equipped with a uranium-fuelled nuclear power source. The orbit of Cosmos decayed, and it re-entered the atmosphere and disintegrated in Canada, scattering hazardous radioactive debris across a large tract of land. Some of the refuse found was lethally radioactive. Fortunately, it landed in the uninhabited Canadian north (the Northwestern Territories), resulting in no more than cleanup operations. Had the debris of Cosmos 954 come down in populated areas, massive damage to health and property could have occurred.100 Finally, an obvious risk of nuclear contamination derives from the possible deployment, let alone use, of space-based nuclear weapons. Even the use of non-nuclear weapons in environs where there are NPS-equipped spacecraft can be deleterious.101 Accordingly, it has been pointed out in reports of the UNCOPUOS to the UN General Assembly that “the testing, deployment and use of space weapons would create an environment where such weapons would become a threat and target to global security and that States possessing nuclear weapons as well as ballistic missiles could explode a nuclear weapon in space that could cause uncontrolled damage to satellites”.102 The seriousness of such risks can hardly be overemphasized. I shall only make brief references to risks deriving from space weaponization, however, as this book is concerned primarily with the environmental threats related to peace-time space activities.103 test alone damaged about one-third of all satellites in LEO. Space Security 2004 (2005), p. 128. 99 Matte 1989, p. 426. 100 It has been speculated that the decay of Cosmos 954 might even have been caused by a collision with another space object, possibly debris. Kim 1998, p. 313. For a more detailed account of the Cosmos 954 incident, see, e.g., Gorove 1991, pp. 239–241. In 1983, the reactor core of a similar ocean reconnaissance satellite—Cosmos 1402—re-entered over the South Atlantic. Flury 2000, p. 44. 101 The stationing of “any objects carrying nuclear weapons or any other kinds of weapons of mass destruction” in outer space is banned by the Outer Space Treaty, Art. IV.1. Furthermore, the Moon and other celestial bodies are reserved for “exclusively peaceful purposes” (Art. IV.2). However, there is no commonly accepted definition of ‘peaceful purposes’; the interpretation supported by state practice seems to be that ‘peaceful’ in this case merely means ‘non-aggressive’. Space Security 2004 (2005), p. 23. Moreover, states may violate legal rules and not all states are even parties to the Outer Space Treaty. 102 Report of the Committee on the Peaceful Uses of Outer Space 2005, para. 141. 103 In principle, the mere deployment of nuclear weapons in outer space can be seen

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2.3. Solar Power Satellites One still largely unpredictable source of environmental risks in space activities is the use of solar power satellites. Solar power satellites would collect solar energy in space, convert it first to electricity and then to microwave beams for transmission to Earth, where it would be reconverted into electricity. This would in principle be a non-polluting, practically unlimited power source.104 Solar power satellites can be positioned so that they receive constant direct sun light, which would enable the use of solar power also at night time and during less than optimal cloud conditions. Other advantages of solar power satellites are that there would be no need to use large terrestrial land areas, unlike with ground-based solar collectors.105 Solar power satellites may, however, have serious impacts on the space environment, and the possible transmission of solar power to Earth may not only harm the ozone layer but also impact life on the surface of the globe directly. Furthermore, it could result in harmful electromagnetic interference with aerial navigation systems, for instance.106 Of particular concern is the long-term impact of exposure on humans and biota on the ground in the receiving area and in the airspace that the beams transverse.107 Exploitation of solar power will also require orbital positions for the satellites, which will be potentially very large in size108 and thus more susceptible to collisions than smaller space objects.109 It is likely that not all of the risks connected to the utilization of solar power satellites are even known in detail yet. Moreover, later on, lunar materials are likely to be used for the construction of solar power satellites and solar cells. This would entail new kinds of environmental concerns. Considering in particular the plans as falling within the category of peaceful activities, but it is forbidden by the international law of outer space (Outer Space Treaty, Art. IV.1; see more below). 104 Williamson 2006, p. 250. 105 For a relatively recent assessment of the potential of solar power satellites, see Boswell 2004. For comparison, see, i.a., Space Activities and Emerging International Law 1984, pp. 473–503, which provides an assessment of solar power satellites carried out two decades earlier. There have also been plans for placing solar power stations on the surface of the Moon. These stations would transmit energy to the Earth through a microwave beam and a complex system of mirrors in terrestrial orbit. See Courteix 1993, pp. 272–273. 106 Ibid., p. 276. 107 Gorove 1991, pp. 175–176. 108 Some designs envision solar arrays even several kilometers in size. Thus far, the largest solar panels in space have been those of the ISS, with a coverage of over 830 square meters (73 meters long and 11 meters wide). Boswell 2004. 109 On the particular risks related to sizeable space objects, see also the next chapter, which briefly examines another type of large space structures, namely, manned space stations.

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to establish permanent lunar colonies,110 and the fact that a research group has already managed to use simulated moon dust to make a key component of a working solar cell,111 such concerns might become topical surprisingly soon. 2.4. Manned Space Stations Another new source of hazards worth mentioning is manned space stations, which can compound the detrimental effects of space activities in their vicinity due to the simple fact that they are stationary. For instance, the existence of large space structures such as space stations (or solar power satellites) further increases the probability of interference and the risk of collisions.112 Their long shadows may cut off solar power to other satellites.113 Moreover, the utilization of solar and nuclear power by these stations poses threats, particularly to their immediate surroundings in space (in addition to the health risks to station personnel). Space stations may also litter their surroundings—at worst by deliberately dumping the waste from missions directly into outer space. Fortunately, this is not standard practice any longer. 2.5. Exobiological Contamination Finally, two additional types of potential environmental hazards should be mentioned, namely organic contamination of outer space (‘forward contamination’) and its converse, ‘back-contamination’ of the Earth by unfamiliar organisms and like contaminants transported by returning spacecraft.114 Such threats were discussed intensely in the infancy of space exploration in the 1950s and 1960s.115 110 Already in 1989, US President George Bush Senior announced plans for a manned base on the Moon and manned exploration of Mars as major US space policy objectives. Hintz 1992, p. 59. In 2004, the next US President Bush announced his space vision, including, i.a., a permanent lunar colony. See for more detail “President Bush Delivers Remarks On U.S. Space Policy” 2004. The latest news is that NASA plans a permanent Moon base to be established in the 2020s. Leary 2006. 111 See Horton et al. 2005. 112 Jahku 1992, p. 207. Despite the relatively extensive shielding (some 200 shields) used to protect the ISS, for instance, the risk assessment conducted for the Columbus Orbiting Facility (ESA’s contribution to the ISS) has shown a 20 per cent chance over ten years that a debris particle will penetrate the shielding. Flury 2000, p. 43. 113 Gorove 1991, pp. 78–79. 114 The two types of contamination are also referred to by one single term, ‘crosscontamination’. See Robinson 1992, p. 325. 115 The issue of possible contamination of celestial bodies was brought up at least as far back as 1956, at the Seventh International Congress of the IAF. Ibid., p. 326. As early as 1958, the ICSU investigated the problem of contamination of

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The Apollo missions to the Moon, particularly the landing of Apollo 11 in 1969, further fuelled the debate. The 1969 mission was the first to make direct contact with the lunar surface, with astronauts walking on the Moon and collecting soil and atmospheric samples.116 The Apollo missions included procedures for the crew that were carried out already in flight in order to prevent contamination of the Earth. These involved the recovery of the spacecraft and transport of the crew, samples and mission equipment to a quarantine site, as well as procedures for human quarantine and sample isolation. Both the United States and the Soviet Union also implemented sterilization procedures for unmanned platforms impacting the lunar surface, pursuant to national planetary protection policies.117 The issue of planetary protection has taken on renewed relevance with the various plans for new (manned and unmanned) Moon and Mars missions.118 The introduction of terrestrial substances onto a celestial body, for instance, could permanently jeopardize the existence of possible indigenous life forms. If such life were to exist, interaction with organic substances from Earth could cause mutations, destroy the indigenous life forms or otherwise alter the natural development of life on the celestial body. Terrestrial contaminants could cause deleterious environmental consequences to celestial environments in many other ways, too. Analogously, extraterrestrial substances, transported via satellites or celestial bodies through the special CETEX committee it established for the purpose. CETEX issued some recommendations on how to balance freedom of space activity and environmental concerns. COSPAR published recommendations concerning planetary quarantine requirements in 1964. These recommendations have since then been reexamined periodically. See Sterns–Tennen 1981; Tennen 2003. In essence, COSPAR can be described as representing NASA’s planetary protection policies internationally. Sadeh 2002, p. 158. In principle, NASA participates in international missions only if the COSPAR planetary protection policies are followed. Pursuant to Chapter 2.1.2.a of NASA’s Planetary Protection Provisions for Robotic Extraterrestrial Missions, “NASA will approve the flight of NASA-developed instruments and/or experiments on non-U.S. planetary spacecraft only if the launching organization adheres to the COSPAR-approved planetary protection policy and its requirements”. However, active decontamination of spacecraft appears to be taken far less seriously today than in the early days of the space age. For a more detailed treatment, see Tennen 2003. 116 However, by the time of this mission, several spacecraft had already been intentionally impacted on the Moon. In addition to the debris resulting from them, a number of failed soft-landing attempts had contributed to littering of the lunar surface. In total, over 20 lunar impacts had taken place prior to the Apollo 11 mission. Williamson 2006, pp. 93–94. 117 See Robinson 1992, pp. 326, 331–332. For a more detailed account of spacecraft decontamination, see Williamson 2006, pp. 115–127. On planetary protection and NASA, see the NASA Planetary Protection website. 118 Currently, at least the US, India, Japan, Canada, China and Russia are planning Moon and/or Mars missions. Finarelli–Pryke 2005, p. 97.

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other spacecraft, might cause equally catastrophic consequences on Earth or in inhabited space facilities.119 Furthermore, the re-introduction to terrestrial surroundings of Earth organisms possibly mutated during a space mission— through irradiation, for instance—might have dramatic consequences. Although such threats obviously pertain mainly to space missions involving the landing of a spacecraft on a celestial body, it is at least theoretically possible that orbiting space objects could also introduce harmful organic substances into outer space, and possibly back to Earth if they return. Although there is no consensus among the scientific community on the threat of cross-contamination risks, the possibility of exobiological contamination from space activities cannot be excluded from potential scenarios either. Traditionally, main concern regarding biological contamination of non-Earth environments has not, however, been primarily an environmental one but rather one about the integrity of scientific experiments.120 2.6. Conclusion Human space activities involve a variety of risks that can be termed environmental. The detrimental effects may concern the space environment per se, the atmosphere, the Earth, and/or human activities in these environments. The worst-case scenario includes danger even to terrestrial life. Admittedly, health risks posed by space activities to humans on Earth in particular may seem rather hypothetical at the moment. However, the situation may change dramatically—at least faster than the international community is currently able to react effectively, as already demonstrated by the space debris problem. Environmental problems related to the use of outer space are mostly considered detrimental because of their negative impacts on human activities in economic and health terms: environmental degradation is harmful for current space utilization, can compromise potential future uses of outer space, or may impair the integrity of scientific investigation, for instance. Despite these human-centered perceptions, some also share a less anthropocentric concern for the changes our activities cause in the natural environment of outer space in many ways. For example, the Moon has no substantial atmosphere, weather or other natural processes which could effectively smooth its surface, meaning that even seemingly minor changes such as vehicle tracks and human footprints Sterns–Tennen 1992, p. 96. An interesting recent experiment (taking place in June 2005) showed that lichens can in fact—at least for a period of two weeks—survive exposure to the harsh conditions of outer space unharmed; they even retained their ability for photosynthesis unchanged. This obviously supports the propositions that there exist possibilities for the transfer of life between celestial bodies. “Lichen Survives in Space” 2005. 120 Hargrove 1986, p. x; Tennen 2003. 119

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on the Moon are practically permanent.121 Concern for such changes is not very common, however. Furthermore, recent practices in space exploration have shown an alarming tendency towards recklessness. For instance, in 1999 the Lunar Prospector was targeted at the pristine lunar south pole, with the hope that the impact would liberate water molecules from suspected ice deposits. The Prospector had not been sterilized or actively decontaminated; what is more, it carried some cremated remains of lunar geologist Eugene Shoemaker.122 In all likelihood, in the not too distant future we will witness a variety of new kinds of uses of outer space, all of which are not necessarily very benign from an environmental perspective. For instance, the launching of cremated human remains into Earth orbit is already even a business.123 Such deliberate launches Williamson 2006, p. 105. It has been calculated that, for example, the combustion products and cabin leakage from only twenty lunar landings of the Apollo type could double the mass of the tenuous lunar atmosphere. Hintz 1992, p. 60. Such additions to the atmospheric gases of the Moon would be temporary, however, as the solar wind, above all, would soon clear them. Nevertheless, continuous lunar activities (mining or permanent settlements, for instance) could result in permanent modifications. Williamson 2005, p. 164. 122 See Williamson Mark 2000(b), p. 4. There is nothing new in crashing spacecraft and related debris onto the Moon: there have been about 80 impacts thus far. Williamson 2006, pp. 101–102. The first spacecraft (Soviet Luna 2) was crashed on the Moon already in 1959. Ibid., p. 91. Later, spacecraft have also impacted such celestial bodies as Venus, Mars, Jupiter, and Saturn, for instance. For a list of lunar and planetary impacts, see ibid., pp. 94–98. As a consequence, there is even more than 100 tonnes of spacecraft and rocket-body debris on the lunar surface today. Apparently, this is not a very widely known fact even among space professionals. Moreover, quite few of those aware of the situation consider this debris a problem. In line with this, current space mission plans seem to suggest that numerous planetary impacts will be made within the next couple of decades. However, even if the practice of impacting spacecraft on the Moon, for instance, were abandoned immediately, the debris already there might constitute a real safety hazard to human activities in the future. Ibid., pp. 101–104. Obviously, it also constitutes pollution of the formerly ‘pristine’ lunar environment. 123 Dying seems to be becoming a profitable business in the space sector: the Space Services Inc. of Houston (which formerly operated under the name Celestis Inc.) sells a service called the “Memorial Spaceflights”: they arrange launches of cremated human remains into Earth orbit. Actual space tourism is feasible for extremely few, but the services of the Space Services can be accessed for a mere USD 995. For this, they will “entomb a gram of cremated remains in a container the size of a watch battery and fly it”. For the price of USD 5,300, they will “capsule the size of a lipstick tube with about seven grams of cremated ash, pack it into a small canister and arrange to have it flown into space”. Other options are to have a portion of one gram launched either into lunar orbit or onto the lunar surface, or into deep space (the cost of these options is USD 12,500). Relatives can attend the launch and participate in a group memorial service afterwards, and they will receive “a keepsake video of the launch preparations and blastoff”. For more information about such services, see the Memorial Spaceflights website. In the future 121

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of seemingly useless, potentially dangerous debris can hardly be considered a very sustainable use of outer space. They highlight the fact that, in addition to ascribing outer space little more than instrumental value for ourselves, we do not pay much attention to the rights of future generations.124 The current extensive space utilization by satellites and other spacecraft has turned nearEarth outer space into one more environment impaired by the greed of the present generation. As space exploration expands further into outer space and takes more extensive forms, such as construction of permanent facilities and the utilization of natural resources for the support of missions, anthropogenic alterations of this environment and the related hazards will be of an order of magnitude far greater than those seen today.125

Space Services plans to operate regularly scheduled space memorial launch services three or four times a year. The cost of actual space tourism, on the other hand, continues to be prohibitively high for the vast majority of humankind. As one author has put it, “[t]he sorry truth is, right now, for ordinary people to get into space, they have to be dead”. Klotz 2004. 124 See Baker 1987, pp. 170–171. 125 See Sterns–Tennen 1992, p. 99.

Chapter Three

Space Law From an Environmental Perspective The field of international legal regulation most obviously applicable to space activities is the international law of outer space. The body of international space law consists of five United Nations treaties: the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (hereinafter ‘the Outer Space Treaty’, or OST); the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereinafter ‘the Rescue Agreement’); the 1972 Convention on International Liability for Damage Caused by Space Objects (hereinafter ‘the Liability Convention’); the 1975 Convention on Registration of Objects Launched into Outer Space (hereinafter ‘the Registration Convention’); and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter ‘the Moon Treaty’). Unfortunately, the UN space treaties have relatively little to say about environmental issues. At the time of their conclusion, such considerations were not among the highest-ranking items on the agendas of spacefaring nations, and it has later proven very challenging for the actors in that arena to agree on new legally binding international rules. Even the most recent UN space treaty, the Moon Treaty, dates back to 1979. Moreover, it did not gain the five ratifications required for its entry into force until 1984 and has at this writing attracted no more than twelve ratifications, all by states that do not conduct independent launch activities.1 In practice this renders the treaty void. In contrast, the first

1 The states parties to the Moon Treaty are Australia, Austria, Belgium, Chile, Kazakhstan, Mexico, Morocco, the Netherlands, Pakistan, Peru, the Philippines, and

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and most fundamental of the UN conventions, the 1967 Outer Space Treaty, has received virtually universal acceptance and has been ratified by about half of the nations on Earth, including all states active in space utilization.2 Another important regulator of space activities is the UN-sponsored International Telecommunication Union (ITU). The ITU strives to guarantee undisturbed telecommunication activities, including those that are space based. It also produces legally binding international instruments, but their focus in the space sector is somewhat different from that of the UN space treaties, as will be discussed below. Nevertheless, the instruments of the ITU have relevance from an environmental point of view. Furthermore, the UN General Assembly has adopted five sets of principles applicable to the use of outer space: the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space; the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting; the 1986 Principles Relating to Remote Sensing of the Earth from Space; the 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space (hereinafter ‘the NPS Principles’); and the 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, Taking into Particular Account the Needs of Developing Countries (hereinafter ‘the Space Benefits Declaration’). The most relevant of these for the present study is the Uruguay. A further four nations have signed but not ratified: France, Guatemala, India, and Romania. Despite the small number of states parties, the Moon Treaty at least sets out some kind of an international viewpoint on how activities on celestial bodies, particularly the Moon, should be conducted. It thus has a certain relevance despite the lack of adherent countries. Moreover, at least the fact that France and India have signed the Moon Treaty may gain significance, considering that both countries have an orbital launch capability (France is a major partner in the cooperation within ESA, the spaceport of which is the Guyana Space Centre in Kourou, French Guyana). Pursuant to Art. 18 of the Vienna Convention on the Law of Treaties, “[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when … it has signed the treaty … until it shall have made its intention clear not to become a party to the treaty”. Thus France and India should not be involved in operations which entail substantial conflicts with the Moon Treaty. Moreover, Australia and Pakistan, both ratifying states to the Moon Treaty, possess sub-orbital capability, which is enough for a spacecraft to enter space (but not to achieve an orbit around the Earth). Over time, these states may develop independent orbital launch capabilities which could generate renewed resonance for the Moon Treaty. For a list of states with launch capabilities, see Space Security 2004 (2005), p. 43. 2 Whether this denotes wide acceptance or not can be debated. With its nearly hundred ratifications (98, at this writing), the OST has been considered both a very successful international convention (e.g., Hobe 2004(a), pp. 29–30) as well as an instrument “with only a hundred” states parties (e.g., Cosmic Study on Space Traffic Management 2006).

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1992 NPS Principles, which will be taken up in more detail later. These rules are not legally binding, however. One author has described the history of the international law of outer space in terms of three eras: the “classical period” (1957–1979), the “transitional period” (1980–1991), and the “modern period” (1992–). The “classical period” was the time for creating the basic structure and main principles of space law. It was also the time of the Cold War and domination of military and foreign affairs. Consequently, UN space law at the time reflects a “pro-state, anti-free enterprise” ideology. Starting in the 1980s, the number of states involved in space activities began to increase rapidly. The variety of new practical interests in the space sector made it impossible to find agreement such as that which had enabled adoption of the UN space treaties in the previous decades by consensus. Particularly relevant was the emergence of commercial space applications. With international space law having come to a standstill, other areas of legal regulation had to step in. Hence, the “transitional period” was marked by the development of transnational contracts among states and corporations and domestic legislation. The UNCOPUOS, unable to produce new space treaties, concentrated on the development of non-binding norms and guidelines instead, i.e., the Principles Declarations of 1980s and 1990s.3 With continuing development in technology and markets, space commerce has further expanded, often taking the form of transnational corporations and international joint ventures. Although national and military considerations remain relevant, the increasing cooperation on various levels has diluted many of the ideological and nationalistic underpinnings in the space sector. The “modern period” of space law has also witnessed the demise of the Soviet Union (and the end of the Cold War). Consequently, space law has focused increasingly on the commercial development of space. Today, there seems to be a new activeness even in international space law, albeit only in the form of declarative statements and non-binding standards thus far.4 It remains to be seen whether and how the international community manages to produce new norms of a more binding character for the regulation of the evolving space sector. This is the fundamental question in this work. From an environmental perspective in particular, UN space law continues to provide very little. Fortunately, more recent—and more plausible—efforts to alleviate environmental problems related to space activities by common norms have taken place. For instance, recommendations to promote environmentally more benign practices in the use of outer space, especially as concerns the problem of space debris, have been issued by many organs. This study examines in more detail the work of such organs as the Inter-Agency Space Debris Coordination Committee (IADC), the International Law Association (ILA), and the UNCOPUOS, all

3 4

Goldman 2002. Ibid.

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of which have been trying to mitigate the hazard of space debris above all. Also, the International Academy of Astronautics issued a Position Paper on Orbital Debris5 in 2001. A subcommittee of the International Organization for Standardization (ISO) has started working on standards based on space debris mitigation guidelines developed by the IADC.6 Moreover, the Committee on Space Research (COSPAR) has long been working on issues related to planetary protection7 and has also discussed other environmental aspects of space activities to some extent.8 Additionally, there is an increasing number of national efforts that deserve attention. Although the international level is the focus of this treatise, a short review of environmentally oriented regulatory efforts undertaken at the regional and national levels is included to provide a more comprehensive perspective. 3.1. UN Space Conventions 3.1.1. The Outer Space Treaty The most environmentally relevant articles of the space treaties are to be found in the ‘Space Constitution’, the Outer Space Treaty. The leading principle in space activities is that of the freedom of use and exploration, as provided by Article I.2 of the OST: Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

This access might be compromised by pollution of outer space, particularly by the growing amount of space debris.9 Moreover, the first paragraph of the same article reads: For more detail, see, e.g., Flury–Contant 2001. See more below. 7 COSPAR has, i.a., developed the “COSPAR Planetary Protection Policy”. 8 COSPAR prepared, for instance, a study for the UNCOPUOS entitled “Environmental Effects of Space Activities” in 1983. The study discussed harmful effects for scientific research of gaseous and other materials released in space, the impact of launching and operation activities, and the impact of chemicals and electrical propulsion systems. See also the report “Environmental Effects of Space Activities” from 1988, which was a follow-up study with a particular emphasis on space debris. Perek 2002, p. 126. 9 See, e.g., The Ethics of Space Policy 2000, p. 7. Space debris is “a prime threat … to the continued access of the global community to the benefits of outer space”. Report of the Committee on the Peaceful Uses of Outer Space 2006, para. 129. Accordingly, it 5 6

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The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Article II further specifies: Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Although the starting point is the freedom of use and exploration,10 outer space in its entirety constitutes an international resource and hence utilization of space cannot be totally unrestricted. As the above provisions clearly establish space activities as the province of all humankind and not of a single state, preservation of the space environment can be regarded as a basic condition for guaranteeing equal opportunities in exploration and use by all countries. This urges, albeit in a rather general way, responsible behavior on the part of all users of outer space. Another central principle is that the launching state retains jurisdiction and control over a space object and “over any personnel thereof, while in outer space or on a celestial body”. The ownership of objects launched into outer space (or of objects constructed on a celestial body) is not affected by their presence there or by their return to Earth.11 At the time the Outer Space Treaty was drafted, it was obviously presumed that each state wanted to maintain the ownership of a spacecraft at all times. This is not necessarily the case with space debris, however, because of the responsibility and liability provisions,12 as will be examined in more detail below. Limitations on conducting space activities in environmental terms in particular are dealt with more directly in Article IX, which is the basic provision for all environmental protection of outer space. It requires states parties to conduct their activities in outer space, including the Moon and other celestial bodies, has been proposed in the deliberations of the UNCOPUOS that “in order for States to continue having unrestricted access to outer space, all spacefaring nations should be implementing space debris mitigation measures as expeditiously as possible”. Report of the Scientific and Technical Subcommittee on its 42nd session 2005, para. 97. In addition to the threat of orbital debris around the Earth, man-made debris could become a problem in the future also as concerns access to other celestial bodies. See Williamson 2006, p. 154. 10 It does not seem important (or even feasible) to make a strict distinction between the two terms. ‘Exploration’ has been understood as activity of a more investigative nature (research) while ‘use’ appears to refer to exploitation and other activities applying the knowledge typically acquired by ‘exploration’. See Hacket 1994, p. 67. 11 Art. VIII. 12 Arts. VI and VII of the OST, respectively.

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“so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, [to] adopt appropriate measures for this purpose”. It should be noted that although the OST prescribes that states are to avoid any harmful contamination of outer space, the terrestrial environment is only protected from “changes … resulting from the introduction of extraterrestrial matter” (i.e., back-contamination). Another observation is that the determination of which measures should be regarded as “appropriate” (and when it is “necessary” to adopt such measures) is completely at the discretion of the state conducting potentially harmful space activities. Moreover, the OST fails to give guidance in determining the meaning of both “harmful contamination” and “adverse changes in the environment”.13 Article IX includes a principle of cooperation and mutual assistance in the exploration and use of outer space that could serve as a basis for the duty of states to prevent contamination. Furthermore, there is an obligation to conduct space activities “with due regard to the corresponding interests of all other States Parties”, similarly pointing towards an obligation to avoid creating hazards that could adversely affect the safe conduct of space activities by other states.14 Article IV.1 forbids the stationing of “any objects carrying nuclear weapons or any other kinds of weapons of mass destruction” in outer space. It also reserves the Moon and other celestial bodies for “exclusively peaceful purposes”, banning all military activity on them.15 As for more concrete obligations, Article IX establishes a requirement for a state party to undertake “appropriate international consultations” before proceeding with a planned space activity or experiment that might cause “potentially harmful interference” with the space activities of other states parties. Another state party may request such consultations— but only if it “has reason to believe” that the planned activity “would cause potentially harmful interference with activities in the peaceful exploration and use of outer space”. Prior consultations and cooperation can admittedly be very important, particularly when introducing new types of activities whose consequences are as yet unclear. By talking about harmful interference with others’ space activities, the consultation clause of the OST clearly aims not to protect the environment per se but merely to safeguard other states’ space activities. Yet, a spill-over 13 For a discussion concerning the terms “contamination”, “harmful”, and “adverse changes”, as well as the “necessity” and “appropriateness” referred to in Art. IX, see, e.g., Report of the 64th Conference of the ILA 1990, pp. 156–161. 14 The duty to pay due regard to the corresponding interests of other states in the OST (and in the law of the sea) is examined in more detail in Hacket 1994, pp. 86–103. 15 Art. IV.2. The focal idea that outer space should be used merely for peaceful purposes has a long history. It was, in principle, shared by the two superpowers of the time, the US and the Soviet Union, already in the aftermath of the mission of Sputnik I in 1957. See Fisher 1990, p. 63.

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effect of international consultations may of course be better environmental protection. It can even be argued that since space objects tend to turn into (or at least produce some) space debris that may gravely interfere in the space activities of all states, such consultations might be necessary before any future launch of a space object.16 However, the obligation of the OST to enter into consultations does not entitle the potentially affected state to bar the planned activity, nor does it specify any procedure or time limits for the consultations (or disputes arising therefrom) or requirements for providing the other state(s) involved with information of any kind. Furthermore, the consultations need not lead to a certain (or any) result, and even if they do, there is no obligation to take into account the result in any way when eventually conducting the space activities concerned.17 Therefore, although consultations could provide a positive force for environmental protection the obligation of Article IX to enter into consultations remains rather trivial in practice. Even the basic notion of “appropriate international consultations” remains quite ambiguous.18 Although all consultations have the potential to contribute to enhanced cooperation and hence the consultation requirement of the OST is in principle a positive step forward, its ambiguity makes it rather meaningless. Not surprisingly, states are not particularly eager to consult with each other about their planned space activities, at least not if the ensuing harm to other states is not direct. Consider, for instance, anti-satellite tests, which clearly have the potential to create orbital debris that can be harmful for all other spacefaring nations: apparently, international consultations never preceded such experiments.19 A 16 See Fasan 1993, p. 285. Also Hacket 1994 points out that the environmental ineffectiveness of the consultation requirement of the OST can be overcome by the interpretation that any “unsound use of outer space” is potentially detrimental to the freedom of use of other states (p. 122). See ibid., pp. 120–131 for a treatment of the OST consultation clause in general. 17 Initially, the Soviet Union favored a cooperation provision with reference to consultations and agreement but this was opposed by many as a veto contradictory to the freedom-of-use principle. Baker 1987. For a detailed overview of the negotiation history of Art. IX of the OST (beginning from the negotiations concerning the preceding Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space of 1963), see ibid. 18 It has been suggested that “international consultations” under the OST should be undertaken at various levels, including the national level (within relevant national space agencies) and the international level (in bodies of ESA, the ITU, and the UNCOPUOS, especially its Legal Subcommittee). The Report of the ESA Space Debris Working Group 1988, pp. 65, 67. On the other hand, the consultation requirements of the space treaties have been called “merely cosmetic”. Uhlir–Bishop 1986, p. 206. 19 Jasani 1999, pp. 37–38. A state reluctant to consult can in many cases also easily claim that it was not aware of any potential threat by its plans to other states’ space activities. Hacket 1994, p. 124. However, there are more developed consultation systems outside UN space treaties. The most advanced manifestation of the general consultation

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recent example is the anti-satellite test carried out by China in January 2007— with no prior international consultations.20 One more provision of the OST worth mentioning here is that giving states parties the right to inspect each others “stations, installations, equipment and space vehicles on the moon and other celestial bodies”. Such inspections can be undertaken provided that “reasonable advance notice of a projected visit [is given], in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited”.21 Although this right is (at least currently) quite difficult to implement, it can at least in principle serve as a preventive measure to restrict illegal space operations—including those violating environmentally oriented obligations of the law of outer space. 3.1.2. The Moon Treaty The provisions of the Moon Treaty apply to the Moon but also to other celestial bodies within the Solar System, except the Earth.22 The Moon Treaty is the most advanced of the space treaties in an environmental sense. Nevertheless, even this instrument only contains a general environment protection clause resembling its OST equivalent: In exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise.23

This provision is a step forward in asserting the need to preserve the status quo of the environment of celestial bodies. “Disruption of the environment” also seems to be a somewhat more extensive concept than the “harmful contamination” applied by the OST, as harmful contamination is but one form of environmental disruption.24 However, also the Moon Treaty fails to establish any system of requirement for avoiding harmful interference in international space law is the ITU coordination procedure for the allocation of geostationary radio frequencies and orbital slots (see more below). 20 See more below. 21 Art. XII. 22 Art. 1.1. 23 Art. 7.1. 24 It should be noted, however, that the treaties themselves give no definition of either ‘harmful contamination’ or ‘adverse changes’. Hence it is somewhat difficult to assess the meaning and scope of these notions.

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sanctions.25 As already mentioned, the treaty suffers from a chronic—very likely fatal—lack of adherents. According to the second paragraph of Article 7, states parties have the obligation to inform the UN Secretary-General of the measures being adopted for the prevention of environmental harm in the Moon or back-contamination of the Earth. This could partly increase the effectiveness of the duty to prevent disruption of the environment. Even more importantly, states parties are obligated to make prior notification (“to the maximum extent feasible”) of placements of radioactive materials on the Moon (as well as of the purpose of such placements).26 They must also inform the UN Secretary-General of any phenomena in space that could endanger human life or health27 and report to him or her “concerning areas of the Moon having special scientific interest” which might be worth designating as international scientific preserves.28 Such 25 The Moon Treaty (and the OST) have also been criticized for not making any distinction between the environment of the Moon and of other celestial bodies of the Solar System, although these can be very different from each other. Uhlir–Bishop 1986, pp. 197, 201. According to these authors, the differences in celestial environments would call for “specialization of provisions to meet the different requirements of each environment” and, moreover, through a regime which allows for flexibility to reassess environmental standards according to new scientific information obtained (and even requires periodical updates). As one solution which could accommodate the need for such specialized treatment they suggest a system of zoning areas of outer space and celestial bodies for “certain uses or nonuses”. Ibid., p. 205. Also others have proposed that some areas or orbits in space could be reserved for particular types of activities or space objects only. For instance, space stations and other large space structures may require special protection. Kopal 1990, p. 46. Even if not completely prohibited, certain space activities could be restricted in certain regions so as to avoid interference with other space activities, especially in key orbits. In particular, advertising in outer space and the launching of cremated human remains could be limited to certain orbital areas (if allowed at all). The ITU regime for GEO already establishes some sort of “limited de facto zoning” as concerns the use of this particular orbital area. See Cosmic Study on Space Traffic Management 2006, pp. 69–70. 26 Art. 7.2. 27 Art. 5.3. Also the OST includes an obligation to immediately inform the UN Secretary-General or other states parties of any phenomena in space that could constitute a danger to the life or health of astronauts (Art. V.3). Such threats could be caused by, i.a., environmental degradation of outer space, such as nuclear contamination of a particular area or the explosion of a spacecraft resulting in a significant amount of new pieces of space debris. 28 Art. 7.3. It may even be argued that all areas of outer space and celestial bodies are in fact “of specific scientific interest”, at least until extensively explored and scientifically investigated. Sterns–Tennen 1992, p. 100. Although no international scientific space preserves have been established yet, there have been proposals to provide special protection for such areas. See, e.g., Hartmann 1986, pp. 130–131, for a proposal to establish “space wilderness areas”, where only scientific research would be allowed.

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reporting requirements constitute a refinement vis-à-vis the OST, pursuant to which states parties only have to provide the UN Secretary-General (as well as the public and the international scientific community) with information about the nature, conduct, locations and results of their space activities “to the greatest extent feasible and practicable”.29 However, also the Moon Treaty lacks sanctions if a state fails to disseminate the information as required. Article 15.2 of the Moon Treaty obligates states to enter into consultations in a manner similar to the Outer Space Treaty. The Moon Treaty also reaffirms the right conferred by Article IX of the OST of each state party to inspect other states’ facilities in space.30 Furthermore, it repeats the Outer Space Treaty requirement that the Moon be used for peaceful, non-military purposes only,31 and further consolidates the prohibition against placing nuclear or other kinds of weapons of mass destruction in outer space in orbits around the Moon and other trajectories to or around it.32 Such requirements contribute to the environmental protection of outer space, as it is well known that military maneuvers and nuclear weapons may create serious environmental disruption.33 However, the Moon Treaty expressly permits the removal and collection of samples of the lunar surface and subsurface,34 the landing of objects on and launching of them from the Moon,35 and placing and freely moving personnel, vehicles, equipment, facilities, stations, and installations on or below the lunar surface or subsurface.36 All such activities involve obvious potential for environmental degradation of celestial bodies. Article 9 of the Moon Treaty somewhat diminishes the environmental threats posed by activities on the Moon by requiring that if lunar stations are established, only the area which is required for the needs of the station be used. Moreover, the treaty expressly designates the Moon and its natural resources as the “common heritage of mankind”.37 Article 4.1 further provides that 29 Art. XI. However, there is, for instance, no indication of the manner in which the information must be conveyed to the scientific community and the public, nor any standards for determining when human life or health may be endangered such as to trigger the reporting requirement. 30 Art. 15.1. 31 Art. 3.1. 32 Art. 3.3. 33 On the other hand, the resources of the military—its observation capabilities in particular—can also play an important role in the management of space activities (environmental management included). See Cosmic Study on Space Traffic Management 2006, pp. 18–19. The military has also been more willing to invest in radio frequency interference detection equipment than many commercial operators, for instance. Bates 2005. 34 Art. 6.2. 35 Art. 8.2.a. 36 Art. 8.3.b. 37 Art. 11.1.

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[t]he exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations.

Outer space is an environment that in principle is shared by all states, populations and generations, and its contamination could jeopardize their rights of exploration and use. Most interestingly, paragraph 5 of Article 11 requires the establishment of an “international regime” before exploitation of lunar resources becomes practicable. The main purposes of such a regime include the orderly and safe development of the resources, together with their rational management.38 Nevertheless, the Moon Treaty leaves ample scope for interpretation—not least as regards the ‘international regime’. Besides, if a space mission is conducted by an entity which does not include a state party to the Moon Treaty—as will most likely be the case—the provisions of the instrument may be wholly inapplicable.39 3.1.3. The Liability Convention A central concern when talking about environmental harm caused by space activities is responsibility and liability.40 In principle, the UN space treaties provide a party suffering a loss as a result of space activities with a very favorable international liability regime if compared to most other areas of hazardous activities. The general rule, according to Outer Space Treaty Article VI, is that states bear international responsibility for activities in space. Article VII, moreover, establishes international liability of launching states. The launching state is liable for damage to another state party or to its natural or juridical persons caused by its space object “or its component parts on the Earth, in air or in outer space, including the Moon and other celestial bodies”. The Liability

Art. 11.7. For a more thorough treatment of the Moon Treaty and its regime for the exploitation of lunar natural resources, see Viikari 2002. 40 It should be noted that there are several schools of thought as to how the two terms should be used. ‘Responsibility’ and ‘liability’ may even be used rather interchangeably. See, e.g., Hacket 1994, pp. 154–159. In this book, ‘state responsibility’ refers to answerability contingent upon a breach of an international obligation, whereas ‘liability’ relates more generally to remedying harm (whether it has resulted from a violation of an international rule or not). Such an approach also reflects the manner in which the terms are used in UN space law. 38 39

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Convention complements these provisions by setting out more detailed rules for cases of ‘space damage’ involving different states. First, the Liability Convention establishes two separate regimes of liability: one of absolute liability (without any ceiling) to be applied in the case of damage caused by a space object “on the surface of the Earth or to aircraft flight”,41 and another based on fault liability which applies when the damage occurs in outer space.42 All space activities are ultra-hazardous and it has been deemed appropriate that those engaged in such activities (and gaining profit from them) should also bear the risk of any ensuing damage, whereas possible victims on Earth deserve full compensation.43 In particular, if nuclear power sources are used, such damage can be considerable. Article V improves the possibilities of

41 Art. II. Pursuant to Art. VI, exoneration from absolute liability is to be granted “to the extent that a launching State establishes that the damage has resulted either wholly or partially from gross negligence or from an act or omission done with intent to cause damage on the part of a claimant State or of natural or juridical persons it represents”, except in cases where the launching state has caused the damage by violating international law. 42 Art. III. Such inclusion of two parallel systems of liability within a single multilateral convention is quite unusual in international law. Another example is the 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal (Arts. 4 and 5). Silva Soares–Vieira Vargas 2003, p. 94. 43 The intention of the liability regime of the UN space treaties has been to give a high level of protection to third parties not involved in a space project. Pursuant to the preamble to the Liability Convention, a focal motive for the convention was the “need to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage”. As is stated in a document called “Advantages of adherence to the Convention on International Liability for Damage Caused by Space Objects” (produced by a Working Group on the Status and Application of the Five United Nations Treaties on Outer Space under the Legal Subcommittee of the UNCOPUOS), “[b]y concentrating internationally the concept of absolute or objective and unlimited liability for any damage caused by space objects on the surface of the Earth or to aircraft in flight, the [Liability] Convention has become a unique case and a real novelty in contemporary public international law concerning the protection of victims”. Report of the Legal Subcommittee on the work of its 45th session 2006, Annex I, Appendix, para. 3. On the other hand, the Liability Convention does not apply at all to “damage caused by a space object of a launching State to: (a) Nationals of that launching State; (b) Foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching State” (Art. VII).

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victims of damage to obtain compensation by establishing joint and several liability of all launching states for joint launches and the right of the victim state to seek the entire compensation from any or all of the launching states. However, although this system may by and large afford victims of space operations considerable protection, it can appear far less just from the point of view of the states involved in the launch of a space object. A major problem is the overly extensive definition of a launching state. Pursuant to the Liability Convention, [t]he term ‘launching State’ means: (i) A State which launches or procures the launch of a space object; (ii) A State from whose territory or facility a space object is launched.44

Hence, most launches will involve several launching states, of which only few typically have a real say in the operation of the space mission. Application of the Liability Convention may thus result in liability of states that are in fact little more than ‘innocent bystanders’. It may even be complicated to determine which states constitute the launching states under the Liability Convention. Above all, the procurement of the launching of a space object is anything but an unequivocal expression, particularly where space objects launched by private entities are concerned.45 Application of the UN space treaties may thus result in somewhat questionable outcomes. The Liability Convention also regulates situations where damage is caused

44 Art. I.c. Para. 3 of Art. V of the Liability Convention further specifies that a state “from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching”. See also UNGA Res. 59/115 on the concept of launching state, adopted on the basis of a resolution of the UNCOPUOS in 2004 (Report of the Committee on the Peaceful Uses of Outer Space 2004, para. 149 and Annex II). 45 ‘Procurement’ may be interpreted to include financial backing for a launch, a request by one state to another to launch a satellite of the requester or a private individual or enterprise providing payload for a launch, for instance. Any such link could cause a country to be considered a ‘launching state’. Even state members of an international organization requesting the launch services of some state could be considered states “procuring” the launch of a space object. On the other hand, such activities as supplying minor components to the payload or the sale of a satellite should not be enough to qualify as ‘procurement’. Christol 1995, pp. 271–272. The Liability Convention does not, however, define the concept in detail. It has been pointed out that “[n]ew developments in the field of launching technology and the privatization of this sector could lead to the conclusion that [the definition of the term ‘launching state’ in Art. I of the Liability Convention] is not sufficient”. “Review of the Status of the Five International Legal Instruments Governing Outer Space” 1998(a), para. 11.c.

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In principle, this means that, for instance, if a piece of space debris hits a spacecraft of another state and this causes further damage to a third state, both the launching state of the debris (where its identity can be established) and that of the (‘innocent’) spacecraft damaged by it are jointly and severally liable for possible damage to any other states. In the case of damage which occurs in outer space, fault liability applies,47 whereas for damage on Earth (or to aircraft in flight) liability is absolute.48 If a spacecraft with an NPS is involved and parts of it fall back to Earth, the damage may be very grave and the ensuing absolute liability accordingly significant. Moreover, the victims are allowed to ask for full compensation from any one of the liable states, who are then to apportion it between themselves according to fault.49 Consequently, if there is no fault on behalf of the launching state of the NPS-equipped spacecraft but only on the part of the launching state of the piece of debris (no matter how small that piece is), the latter is to pay all of the compensation pursuant to the Liability Convention.50 Even in such a case, the victims of damage on Earth can, on the other hand, legitimately demand the entire compensation from the ‘innocent’ state, which may eventually encounter difficulties in collecting it from the state at fault (despite its undeniable right to do so pursuant to the Liability Convention). As concerns the amount of reparation for damage, Article XII provides that compensation for harm caused by space activities shall “provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred”. This standard could result in very high damages, particularly in the case of harm to the health or lives of people. On the other hand, the very general reference in Article XII to “international law and the principles of justice and equity” for

46

Art. IV.1. Art. IV.1.b. 48 Art. IV.1.a. 49 Art. IV.2. “If the extent of the fault of each of these States cannot be established, the burden of compensation shall be apportioned equally between them”. 50 This illustrative example has been presented by Kerrest 2001, pp. 870–871, who suggests that liability rules should be amended so as to avoid outcomes where damage resulting from nuclear pollution is not compensated by the user of the NPS. Ibid., p. 873. 47

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determining the compensation is open to a variety of interpretations.51 Damage is, moreover, only compensable if it results in “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations”.52 This excludes any damage to the environment itself, whether occurring in outer space or on Earth in areas outside the national sovereignty of states. Hence, a potential polluter does not need to worry much about environmental losses, even when they can affect the environment significantly, as long as there is no damage to ‘foreign’ property or persons.53 The Liability Convention does not even mention such environmental problems as pollution; it is merely concerned with direct damages suffered by states or legal or juridical persons due to the space activities of others. Only Article XXI can be interpreted as referring to the environmental consequences of space activities: it mentions damage caused by space objects presenting “a largescale danger to human life” or seriously interfering “with the living conditions of the population or the functioning of vital centres”, i.e. major catastrophes. This article does not, however, regulate issues of responsibility or liability but merely aspires to guarantee “appropriate and rapid assistance to the State which has suffered the damage”, if that state so requests. The Liability Convention restricts its scope also by excluding damage caused to citizens of the same country which launched the space object in question, as well as to foreign nationals participating in that space operation.54 Furthermore, under Article III, persons (as well as property) must be on board a space object in order to recover damages, a condition which in principle would, for instance, exclude incidents in which astronauts engaged in extravehicular activities are killed. It is also questionable whether the Liability Convention’s “damage” actually covers anything but clearly material damage. If it is interpreted to include only strictly material damage, interference caused by telecommunication satellites to space activities of others, for instance, would at worst not fall under the scope of the Liability Convention’s provisions at all but only under Article IX of the Outer Space Treaty.55 Moreover, the ambiguous terminology of the Liability Convention can even be interpreted to exclude all damages caused by space 51

The preamble to the Liability Convention states equally ambiguously that the payment should be “a full and equitable measure of compensation”. 52 Art. I.a. 53 As the salience of ‘environmental health’ as a concept incorporating notions of both human health and environmental protection increases, this may open up new possibilities to interpret the “impairment of health” (and thus “damage”) in the Liability Convention in a more expansive way. At the moment, however, little support for such interpretations can be derived from the practices of the modern space sector. 54 Art. VII. 55 It was argued by the US already during negotiations concerning the OST that “damage” as referred to in OST, Art. VII concerning liability would exclude

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debris: it applies to damage “caused by a space object” and the only definition Article 1.d gives for a space object is that it includes “component parts of a space object as well as its launch vehicle and parts thereof ”.56 Such a definition is very vague, being nearly no definition at all. This provision appears to refer to space objects that are entire units, extending at most to component parts (also unitary) thereof.57 There seems to be no great difficulty in designating inactive satellites as well “space objects”. The situation gets most complicated in the case of little pieces of debris, as one can argue that such an item constitutes neither a space object nor a component part of one (nor a launch vehicle or a part thereof ). It seems especially debatable whether a piece of fragmentation debris and microparticulate matter can be regarded as a “space object” or a “component part”. Even less clear is the situation with other types of pollution and contamination, including space mission litter. Questions have also been presented regarding the legal status of rockets that never reach outer space, for instance, due to a launch failure.58 If space debris does not qualify as a space object for the purposes of the Liability Convention, the instrument becomes largely meaningless in establishing liability for space activities. The most common and hazardous form of potential damage related to space activities would then fall wholly outside the scope of any international legal regulation.59 Consequently, it has been argued that “anything which has been launched into outer space whatever its size”

electronic damage. Hence jamming of telecommunications would only be covered by the consultation requirement of OST Art. IX. See Christol 1979, pp. 447–450. 56 This definition is repeated in Article 1.b of the Registration Convention. 57 The provision has even been interpreted as dealing with not only entire but preferably fully operating units, i.e., “functioning unitary entities”. Christol 1995, p. 256. (According to the author, harms produced by space debris nevertheless invoke liability under the existing treaty regime. Ibid.) 58 Baker 1988, p. 209. It has been pointed out that if an object simply ceases to be functional, this should have no influence on its legal status. The fact that even an attempted launch qualifies as “launching” under the Liability Convention (Art. 1.b) also seems to support the conclusion. See Hacket 1994, p. 58. 59 Even if this were the case, the Outer Space Treaty would offer some protection from space debris as it demands that space activities be conducted “with due regard to the corresponding interest of all other States Parties” (which may be hampered by the introduction of debris) and, furthermore, that exploration of celestial bodies is to be conducted “so as to avoid their harmful contamination” (Art. IX). Art. VI establishes international responsibility for assuring that space activities are conducted “in conformity with the provisions set forth in the [OST]”. Obviously, such general requirements are, however, not in themselves (without more specific international standards defining the threshold of harmfulness, for instance) enough to prevent proliferation of space debris. For a discussion concerning the scope of OST Art. VI in respect of space debris and pollution, see Report of the 64th Conference of the ILA 1990, pp. 162–164.

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qualifies as a “space object”.60 Alternatively, space debris can even be regarded as a “component part” of a space object.61 Such a practical approach with a focus on safety and environmental concerns—by considering space debris as constituting either a space object or at least a component part of it—indeed seems as the only feasible interpretation given the hazards space debris poses today.62 Regardless of the interpretation of “space object”, mere activity involving a risk of damage, no matter how hazardous, can never result in liability under the provisions of the UN space treaties. Moreover, even in cases of indisputable material damage, proving the fault and the causality required is often an insurmountable obstacle. For instance, even if debris particles of all sizes were included in the legal definition of a ‘space object’, great practical difficulties would remain in establishing liability of the launching state. In most cases it is almost impossible to prove in a given case that the damage was even caused by space debris, that a particular piece of debris is part of a registered space object of a certain state and, furthermore, that there exists such fault (when the incident takes place in outer space) on the part of the launching state that it can be held liable for the damage.63 More generally, there are obvious difficulties involved in establishing any fault when standards of conduct for handling the 60 See Kerrest 2001, pp. 870, 873 fn. 1. See also the European Code of Conduct for Space Debris Mitigation which defines space debris as “[a]ny man made space object including fragments and elements thereof, in Earth orbit or re-entering the Earth’s atmosphere, that is non-functional”, and space object as “[a]ny man-made space system and any of its components or fragments” (pp. 13–14). 61 This is the position taken in The Report of the ESA Space Debris Working Group 1988, p. 67. 62 One explanation presented for the lack of a substantive definition of the term ‘space object’ in the Liability Convention (and other UN space treaties) is that there was a common understanding of the meaning of the term at the time these instruments were drafted. See Hacket 1994, pp. 56–57. For a discussion concerning the notions ‘damage’ and ‘space object’ in UN space treaties, see, e.g., Report of the 64th Conference of the ILA 1990, pp. 164–167. The question of a legal distinction between valuable spacecraft and worthless space debris has been identified as one requiring consideration by the UNCOPUOS. If space debris should be defined as a space object under the UN space treaties, it has been recommended that an additional protocol be elaborated for determining exactly which provisions of the space treaties apply to space debris and which to valuable space objects. If space debris is not deemed to be a space object, the protocol could determine when it is perhaps permissible to remove or re-orbit space debris in order to prevent collisions or close encounters with functional spacecraft. Cosmic Study on Space Traffic Management 2006, p. 15. 63 The situation is typically less complicated where damage is caused by space debris falling down to Earth: there is no need to establish fault because the absolute liability regime applies and, moreover, objects that are capable of entering the Earth atmosphere tend to be large and heavy and thus more likely to be identifiable. See Kerrest 2001, p. 870.

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environmental hazards of space activities have yet to be adopted.64 This seems problematic particularly in the case of damage caused by space debris. Moreover, it is very difficult, if not impossible, to ascertain what kind of damage certain debris can cause, let alone when a particular form of damage will occur. Even where some kind of a prediction of a possible collision can be made, there rarely exists any possibility of carrying out maneuvers to avoid it.65 Further problems limiting the effectiveness of the Liability Convention include its poor dispute settlement mechanism,66 which will be examined in more detail later in this book. The only claim that has ever been presented under the Liability Convention was that of Canada in the Cosmos 954 case, where a former USSR nuclearpowered satellite disintegrated over remote northern areas of Canada in 1978. The Canadian claim for some six million Canadian dollars was based on the Liability Convention, the Outer Space Treaty and general principles of international law.67 It covered, i.a., the costs of restoring the territory rendered partly unfit for use by radioactive debris scattered over large areas, hence constituting damage to property within the meaning of the Liability Convention.68 Canada also reserved the right to present additional claims, e.g., for compensation for the costs of establishing a Compensation Commission under the Liability Convention. Eventually, however, the dispute was settled not in accordance with the system of the Liability Convention but by a protocol between the two states in 1981. The Soviet Union agreed to pay three million Canadian dollars “in full and final compensation” which Canada in turn accepted “in full and final settlement of its claim”.69 However, the Cosmos 954 case provides an interesting precedent in one important respect concerning the interpretation of the Liability Convention: at least in this incident space debris was evidently considered a ‘space object’ as it sufficed, in the light of the initial Canadian claim, to establish liability under the Liability Convention.70 Matte 1989, p. 435. Not surprisingly, the rationale for fault-based liability for damage caused in outer space has been frequently questioned; e.g., Baker 1988, pp. 214–215; Hacket 1994, pp. 211– 212. 66 Provided in Arts. IX and XIV. 67 Statement of the Canadian Claim, paras. 14–24. 68 The total costs of the Canadian government were apparently much higher, however (some 14 million Canadian dollars); what is more, the US helped with the cleanup operations. Reiskind 1981, p. 463. 69 Protocol Between the Government of Canada and the Government of the Union of Soviet Socialist Republics 1981. For a more detailed treatment of the Cosmos 954 case, see Sands 2003, pp. 897–898. 70 Perek 2005, p. 289. However, the Soviet Union never officially admitted liability and the dispute was ultimately not resolved by invoking the Liability Convention. Besides, it can be argued that the case only supports the conclusion that particularly 64 65

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3.1.4. The Registration Convention The Registration Convention also has relevance, if only indirect, for environmental problems related to the utilization of outer space. The convention obligates launching states to register all objects “launched into Earth orbit or beyond” in a national register71 as well as to furnish the UN Secretary-General “as soon as practicable”72 with various types of information concerning space objects registered in the national registry. This information is then entered into a UN register maintained by the Office for Outer Space Affairs (UNOOSA). The register of the UNOOSA has been established pursuant to Article III of the Registration Convention. In addition to this ‘Convention Register’, there is also another UN register on objects launched into outer space, the ‘Resolution Register’ established pursuant to an earlier General Assembly resolution from 1961.73 This resolution called upon states to furnish information to the UN Secretary-General for registering launchings of space objects.74 The Resolution Register has been maintained since 1962 (also by the UNOOSA, formerly the Outer Space Affairs Division). After the entry into force of the Registration Convention in 1976, the information on launchings provided by the states parties to the convention has been recorded in the Convention Register. The two registers are complementary in nature. The Resolution Register is still used for information provided by states which are not parties to the Registration Convention.75 The 1961 Resolution does not specify the information that should hazardous (radioactive) space debris constitutes a ‘space object’ under the UN space law. Baker 1988, pp. 211–213. 71 Art. II.1. At this writing, 17 notifications have been made to the UN SecretaryGeneral of the establishment of national registers (including notifications made by EUMETSAT and ESA) for space objects pursuant to Art. II (the latest one being Belarus, in July 2006). See Index of Notifications by Member States and Organizations on the Establishment of National Registries of Objects Launched into Outer Space. According to Art. II.3, “the contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned”. Where a space object has several launching states, they are to determine together which one of them is the “State of Registry” (Art. II.2); hence they have to make some kind of an agreement on that. 72 Art. IV.1. 73 UNGA Res. 1721(XVI), Section B, para. 2. 74 Section B, para. 1. 75 They account for nearly one-third of the over 30 states and international organizations that have provided information on their space objects to the UN. “Practice of States and international organizations in registering space objects” 2005, para. 15. Of all the states that have launched space objects into outer space, some 60 per cent are parties to the Registration Convention. Ibid., para. 95. If compared to the other UN space treaties (with the exception of the Moon Treaty), the Registration Convention

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be provided but since 1976, the information recorded in the Resolution Register has usually been identical to that required by the Registration Convention.76 The information to be registered with the UN pursuant to the Registration Convention includes a) the name of launching state(s); b) an appropriate designator of the space object (or its registration number); c) the date and territory or location of launch; and d) basic orbital parameters.77 The “general function of the space object” should also be notified.78 Furthermore, the Registration Convention requires notification of space objects which are no longer in Earth orbit.79 In addition to the more specific registration requirements, states are expressly allowed, “from time to time, [to] provide the [UN] SecretaryGeneral … with additional information concerning a space object carried on its registry”.80 The practice of states (even the states parties to the Registration Convention) in registering space objects differs in many respects. For instance, the time for submission of information to the UN varies from weeks after launch to years (the average being two to three months).81 As concerns the particular information which is registered, the only coherent data provided seems to be the name of the launching state(s). The Registration Convention allows states themselves to determine the “appropriate designator of the space object”, for instance.82 Moreover, the notion “basic orbital parameters”83 is open to interpretation. Consequently, the units of measurement used vary, as does the level of detail provided.84 The notion “general function of the space object” allows for even more discretion in the registration. Accordingly, “the amount of information on the function of the space object ranges from a two-word statement of its

has a relatively small number of states parties. It has been presumed that this might be due to the (false) assumption that the Registration Convention can be useful only for launching states. Perek 2002, p. 124. 76 For a more detailed treatment, see “Practice of States and international organizations in registering space objects” 2005. The UN register “Online Index of Objects Launched into Outer Space” is accessible on the Internet. 77 Art. IV.1. The basic orbital parameters include: i) nodal period; ii) inclination; iii) apogee; and iv) perigee (Art. IV.1.d). 78 Art. IV.1.e. 79 Art. IV.3. 80 Art. IV.2. 81 Occasionally, the UN has received registration information on space objects before they have even been launched. After a successful launch, the data provided have been confirmed and the registration completed. “Practice of States and international organizations in registering space objects” 2005, para. 49. 82 Art. IV.1.b. 83 Art. IV.1.d. 84 For a more detailed assessment, see “Practice of States and international organizations in registering space objects” 2005, paras. 54–77.

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function to a detailed account of its mission objectives, the science payload and radio frequency plans”. The information provided by most states remains “very basic”.85 There is no mechanism for controlling the accuracy of the information provided. A telling fact is that apparently no state has ever registered a launch of a space object as having a military purpose.86 About one-third of space objects launched are not registered with the UN at all.87 Furthermore, only about 50 per cent of re-entries of space objects (of states parties to the Registration Convention) to the Earth’s atmosphere are notified to the UN.88 The Registration Convention operates in conjunction with the Liability Convention in particular. Availability of information such as that registered with the UN pursuant to the Registration Convention can be focal in the case of a collision between space objects as it can facilitate identification of the launching state(s) involved. Without such identification, it is impossible to establish liability. If the affected state is not able to identify the space object which has caused damage to it (or to any of its natural or juridical persons) or “which may be of a hazardous or deleterious nature”, other states parties are to assist in the identification if requested.89 The Registration Convention entails problems similar to those in the other UN space treaties. For instance, it relies on the same definition of a launching state as the Liability Convention,90 whereby the same problems of interpretation occur in its application.91 Also, the term ‘space object’ is (once more) in need of clarification.92 A fundamental problem is that the Registration Convention, too, appears to envision only the registration of unitary space objects when they are launched and therefore provides little help in cases where the cause of damage is, for instance, a tiny piece of fragmentation debris from a satellite. On the other hand, the recording of orbital parameters required by the Registration

85 Ibid., para. 78. An example of an entity providing comprehensive information on the space objects’ function is ESA. Ibid. For a Matrix of Registration Practices of States and International Organizations, see ibid., Annex III. 86 Goldman 2002, p. 168. 87 At least in 2002 it was found that about 30 per cent of space objects that had been launched in 2000 were not in the UN register. Perek 2003, p. 464. 88 “Practice of States and international organizations on registering space objects” 2005, para. 81. 89 Art. VI. States have never requested this kind of information through the UN, yet the exchange of such information is common practice. Ibid., para. 92. 90 Art. I.a. 91 Both the Liability Convention and the Registration Convention have been deemed “not fully reflect[ing] the needs and realities of ongoing commercialization and use of space for research”. Report of the Legal Subcommittee on its 45th session 2006, para. 142. 92 E.g., Report of the Legal Subcommittee on the work of its 43rd session 2004, para. 118.

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Convention may prove incomplete or imprecise in the case of large satellite constellations.93 Such problems are partly remedied by the practice of states in registering space objects, which often goes beyond the obligations of the Registration Convention. However, this practice is by no means uniform and it always remains at the discretion of each state. Space objects registered in the UN register include both functional space objects and non-functional (or formerly functional) objects. There are states that provide information on functional objects only,94 yet many go far beyond that; as a matter of fact, over half of the registered space objects are non-functional. Some states provide information on all space objects (functional ones as well as objects generated any time during and after launch) that are detectable by surveillance systems from the Earth, thus including many pieces of space debris.95 Some limit their information to functional space objects and objects which are generated during or just after launch.96 Hence debris produced by later explosions, for instance, may not be registered. Registration of launch-related non-functional objects is usually carried out by the state providing the launch service.97 Where there are multiple launching states, they jointly determine the “State of Registry”;98 hence the state that provides the launch service sometimes also registers the ‘foreign’ payload.99 Some launch service providers only register space objects related to the launch vehicle.100 Considering the numerous multinational space missions (and thus Salin 2000, pp. 49–51. Examples are Israel, Japan and the Russian Federation. “Practice of States and international organizations on registering space objects” 2005, para. 27. 95 France, for instance, records the break-up fragments of spacecraft domestically. All information registered on the national level is passed on to the space object register of the UN. France considers the concept ‘space object’ to include “a spacecraft whatever is its status: active or inactive (derelict)”; “a part of a launched spacecraft when this spacecraft is separated in several parts, deliberately … or involuntarily (break up)”; “a launcher stage which remains in orbit after the launching mission is complete”; “a part of the launcher which remains in orbit after the mission is complete”; and “a part of an in-orbit launcher stage when a fragmentation occurs”. Trebaol 2005, pp. 583–584. The US also provides information on all space objects, functional or non-functional. “Practice of States and international organizations on registering space objects” 2005, para. 25. 96 This practice is followed by China, India, and ESA. Ibid., para. 26. 97 Ibid., para. 25. 98 Registration Convention, Art. II. 99 At least China has been reported to have done so on behalf of many of its international launch clients. Ibid., para. 40. 100 Examples are at least France and the US. Ibid., para. 41. France and the Russian Federation also include a notification in their registrations that their launch vehicles have been used for launching another state’s space objects (without including the foreign objects in the national registry). Ibid., para. 42. 93 94

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multiple ‘launching states’), it is not always easy to determine who should carry out the registration. Consequently, there are space objects that have even been registered by more than one state101 (and many that have been registered by none). Transfer of ownership of space objects in orbit is one more factor causing complications in registration. Changes of ownership from one commercial entity to another are particularly common in the case of geostationary communication satellites, which can be leased or sold years after their launching.102 Such transfer of ownership is usually not reported to the UN, even though the initial launching state may no longer have any control over the satellite.103 If new environmental standards for space activities are established, more exacting registration requirements could provide an increasingly important mechanism for assuring compliance.104 This might necessitate registration of different and more detailed information. For instance, bearing in mind collision hazards, it would be most useful to have information about a space object’s power source registered—above all where this is nuclear power. Currently, that is not required. The Registration Convention also does not differentiate between geostationary and other satellites. The orbital parameters required by the Registration Convention are very similar where GEO satellites are concerned as they reside in the same orbital region, yet the convention does not require the registration of the most distinctive orbital parameter for GEO objects, namely, the location of the object relative to the surface of the Earth.105 Another very simple improvement would be to require registration of information on the mass of the objects.106 Furthermore, although the Registration Convention requires notification of space objects which are no longer in Earth orbit,107 there are no 101

For a list of such objects, see ibid., Annex IV. Ibid., para. 36. 103 Ibid., para. 37. A rare example where a change of ownership was registered was the transfer from the United Kingdom (UK) to China of the satellites Asiasat-1, Asiasat-2, Apstar-1 and Apstar-1A in 1997. The UK informed the UN that these satellites had been removed from its national registry, while China respectively submitted information that the same satellites had been added to the Chinese national registry. Sometimes a state has also explicitly notified the UN that it does not consider itself the “State of Registry” when a commercial entity incorporated in its territory has purchased a space object in orbit. See ibid., paras. 37–39. 104 Uhlir–Bishop 1986, p. 199. 105 This is usually expressed as the corresponding longitude on the Earth’s Equator. “Practice of States and international organizations on registering space objects” 2005, para. 73. Nevertheless, despite the lack of an obligation to do so, most states with space objects on GEO have also registered their GEO positions (which usually are also registered with the ITU; see more below). Ibid., para. 74. 106 See “Review of the Status of the Five International Legal Instruments Governing Outer Space” 1998(a), para. 11.b. 107 Art. IV.3. The record of notifications by states parties to the Registration Convention concerning re-entering space objects is not laudable, however: only about 102

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requirements concerning explosions and break-ups of registered space objects or changes of orbital positions. The convention also says nothing about furnishing information regarding defunct satellites still in orbit or other types of space debris, nor does it provide for registration of different parts of a space object. Moreover, there is no requirement to register possible transfer of ownership of space objects in outer space. All such deficiencies hamper the identification of deleterious space objects and the states responsible for them. Obviously, any additional information can be furnished to the UN already now on the basis of Article IV.2 of the Registration Convention. As mentioned above, registrations of transfer of ownership of space objects in orbit are rare, yet some examples exist. The registration of other kind of ‘additional information’ has been more common. For instance, information has been provided when a satellite has ceased to function. Article IV has been also used for notifying the international community in potential emergency situations involving an impending re-entry of space objects and—even more importantly—decay of nuclear-powered space objects.108 Such additional registrations are, however, always completely voluntary. One of the proposals made for improving the situation is that states could register the functional status of their space objects and thus themselves define whether, for instance, intact satellites that are no longer active should be regarded as debris.109 Technically, the simplest register along these lines would be one that contains information on those objects which are considered ‘functional’ (or which a state wants to protect).110 Another approach would be the registration of objects considered debris (or notification that a space object is not functional). Although it could be unfeasible to register very small objects, registration of at least the bulkier parts of spacecraft that have become debris, such as used launchrelated rocket bodies and stages, would seem not only possible but potentially

50 per cent of re-entries are notified to the UN. “Practice of States and international organizations on registering space objects” 2005, para. 81. 108 Ibid., Chapter IV.C.7. In order to strengthen the role of the NPS Principles (see below) in case of an accident or if a space object is malfunctioning with the risk of re-entry of radioactive materials, European states have proposed that NPS Principles 5 (Notification of Re-entry), 6 (Consultations) and 7 (Assistance to States) should be “included into the supplement to the Registration Convention”. “Review of the Status of the Five International Legal Instruments Governing Outer Space” 1998(a), para. 11.e. 109 See “Practice of States and international organizations on registering space objects” 2005, para. 109. Furthermore, it has been proposed that an inter-agency body similar to the IADC (something like “Inter-Agency Coordinating Committee for Registration Practices” or “IARP”) could develop international guidelines for the practice of registering the functionality of space objects. Perek 2005, p. 588. 110 See the proposal of Perek to that end in Report of the 65th Conference of the ILA 1992, pp. 144–145.

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very beneficial as well.111 As mentioned, information concerning space debris is already entered into some national registers and even transmitted to the UN Secretary-General. Some states also register launch vehicles and payloads separately.112 Such more detailed registration practices can greatly facilitate the identification of hazardous space debris, possibly providing an incentive to prevent the generation of debris.113 Other additional registration requirements which could prove useful concern at least such information as the GEO location and date of decay or re-entry of space objects, as well as web links to official information on space objects.114 Currently, the registration practice varies greatly, both nationally and internationally. Moreover, it has been argued that there has recently been a considerable overall decrease in the registration of space objects, which undermines all of the UN space treaties.115 Obviously, this also compromises the reliability of the registration of space objects by the organization. Accordingly, it has been suggested not only that the current Registration Convention should be applied in a uniform and complete manner116 but that its implementation and applica-

111 Perek 2005, p. 588. Where a collision in space between space objects of different states results in debris, determination of the nationality of the new pieces of debris could be very difficult, though. The Ethics of Space Policy 2000, p. 22. 112 E.g., Report of the Legal Subcommittee on its 45th session 2006, para. 132. Mandatory separate registration of launch vehicles and their parts, as well as registration of transfer of ownership of space objects in orbit, has also been suggested. Ibid., Annex III, para. 8.c. 113 Kerrest 2001, p. 873. 114 “Practice of States and international organizations on registering space objects” 2005, para. 109. Among the other suggestions made is the registration of not only the states involved in a space mission but also of other legal entities participating in it. Kopal 2001, p. 380. 115 E.g., Report of the Legal Subcommittee on its 45th session 2006, para. 135. About seven per cent of the total population of functional space objects launched into outer space since 1976 have not been registered with the UN. “Practice of States and international organizations on registering space objects” 2005, para. 94. For a list of such objects, see ibid., Annex V. The factors contributing to non-registration include the multiplicity of parties involved in many space missions and the number of space objects owned and operated by intergovernmental organizations. Sometimes modules of space stations are not registered, nor are probes and recoverable capsules which separate from a space object to eventually enter the atmosphere of the Earth or crash on another celestial body. Also, space objects performing national security functions may be left out of registers. Furthermore, it is commonly understood that international registration is required only for objects launched after the accession of a state to the Registration Convention. See ibid., Chapter V. 116 E.g., Report of the Legal Subcommittee on its 45th session 2006, para. 134; “Practice of States and international organizations on registering space objects” 2005, para. 108.

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tion could be enhanced by, i.a., standardization of the form and content of the information delivered to the UN, setting a reasonable deadline for the registration of space objects, and facilitating access to national space object registers.117 Clearly, the harmonization of content and format of information transmitted by states would at least contribute to increased uniformity of the UN register.118 A set deadline for registration, as well as better access to national registers, could improve the registration rate in general. It has also been suggested that the Registration Convention be supplemented with provisions requiring pre-launch notification.119 However, such improvements cannot remedy the fact that many expressions of the Registration Convention would still leave ample room for interpretation and remain inadequate without more sophisticated requirements concerning the information submitted.120 117 E.g., Report of the Legal Subcommittee on its 44th session 2005, paras. 127– 128. See also Report of the Chairman of the Working Group on the Practice of States and International Organizations in Registering Space Objects, Report of the Legal Subcommittee on its 45th session 2006, Annex III. 118 Unilateral improvements in registration practices could, on the other hand, cause further differentiation between the national registers. Kopal 2001, p. 384. 119 Cosmic Study on Space Traffic Management 2006, p. 39. There are some other instruments which partly remedy the lack of prior-notification provisions in the Registration Convention. The ITU provides for a mandatory pre-launch notification system concerning the use of GEO (see below). One idea to improve the overall situation is to link or merge the ITU information system with the UN registration system. Ibid., p. 90. Another type of existing notification systems is the legally non-binding International Code of Conduct against Ballistic Missile Proliferation of 2002 which provides for the “exchange [of ] pre-launch notifications on … Ballistic Missile and Space Launch Vehicle launches and test flights”, including “such information as the generic class of the Ballistic Missile or Space Launch Vehicle, the planned launch notification window, the launch area and the planned direction” (Art. 4.iii). The Code already has far over a hundred subscribing states (in January 2006, the number was 123; UNGA Res. 60/62, para. 1) and hence carries significant political weight despite being a legally non-binging instrument. In 2000, the US and the Russian Federation had already agreed on prior notification with regard to launch activities, but only among themselves (Memorandum of Understanding on Notifications of Missile Launches). Moreover, the Russian Federation has made an initiative in the Conference on Disarmament announcing its willingness to provide prior notification of spacecraft launches, their purpose and main parameters. It called on the other states with launch facilities to join the initiative “to promote openness and to build confidence in the domain of outer space activities”. Letter dated 2003/06/11 from the Permanent Representative of the Russian Federation to the Conference on Disarmament. For the spacecraft launch plans of the Russian Federation, see “The Ministry of Foreign Affairs of Russia, Schedule of spacecraft launches in the Russian Federation”. 120 As regards the method for adopting additional rules to the Registration Convention, states do not seem eager to amend the convention itself. Thus one suggestion has been to adopt a protocol to it, leaving the convention itself intact. Another idea is the

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3.1.5. The Rescue Agreement Finally, the Rescue Agreement, although mainly regulating quite different aspects of space activities, may have some relevance in cases involving environmental damage in the space sector. As the name of the instrument indicates, it provides guidance for situations where space objects or astronauts are in one way or another in distress. The distress could derive also from environmental hazards. Articles 2 and 3 of the agreement obligate states to render assistance to astronauts in such situations. Another potentially relevant article from an environmental point of view is Article 5. Pursuant to paragraph 2, a non-launching state can, “upon the request of the launching authority and with assistance from that authority if requested”, recover a space object (or its component parts) which have returned to Earth and have been discovered in its territory. Paragraphs 1 and 3 indicate that a recovery by a non-launching state might be possible also where a space object has been found in areas “not under the jurisdiction of any State”—hence possibly even in outer space;121 however, a request by the launching authority still seems to be required. Paragraph 4 regulates situations where a state party “has reason to believe that a space object [of another launching state] discovered in territory under its jurisdiction, or recovered by it elsewhere, is of a hazardous or deleterious nature”. In such a case, once the launching state has been notified about the situation, it is obliged to “immediately take effective steps … to eliminate possible danger or harm”.122 It has been suggested that Article 5 could even allow a state threatened by a spacecraft or a piece of space debris launched by another state to unilaterally recover such an object in outer space. Here, too, vagueness of terminology creates

introduction of new rules by a resolution of the UN General Assembly (and thus on a non-binding level only). Kopal 2001, pp. 383–384. An initiative made by European states consists of a number of proposed improvements to the Registration Convention which would clarify and possibly supplement the convention. Pursuant to the proposal, the improvements would be agreed upon in the UNCOPUOS and adopted by UNGA Resolutions, and eventually transformed into international law “as supplementary international legal instrument to the Registration Convention” to be ratified by states. “Review of the Status of the Five International Legal Instruments Governing Outer Space” 1998(a), para. 12. 121 Para. 1 obligates a state party to notify the launching authority of the return of its space object once it learns that such an object has been discovered in its own territory or in any place not under the jurisdiction of any state (i.a., outer space). Para. 3 requires that “upon request of the launching authority”, a space object found beyond the territorial limits of the launching state (i.e., either in the territory of another state or beyond national territories) be returned or “held at the disposal of representatives of the launching authority”. 122 Art. 5.4.

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uncertainty; what constitutes a space object still remains disputable, as does the question whether the expressions “beyond the territorial limits of the launching authority” or “elsewhere” pertain to outer space.123 The Rescue Agreement does not seem to allow such an interpretation, considering its requirement that the launching authority request any recovery operations. It should also be remembered that Article VIII of the Outer Space Treaty assigns the jurisdiction, control and ownership of a space object to the state of registration for an indeterminate period of time, which militates against the unilateral removal of such an object by another entity. On the other hand, as the debris population increases, hazards may become so severe that there might not always be time to negotiate about the need to remove a certain space object with the state that has jurisdiction and control over it. Eventually, it might be necessary to exempt space debris from such ‘protection’ by space law.124 It is no new idea that where space debris poses severe threats, a state other than the launching state could legitimately remove such an object. For instance, it has been suggested already several decades ago that the principles concerning jurisdiction and control of Article VIII of the OST balanced with those of Article IX regarding states’ obligation to conduct their activities in outer space with due regard to the corresponding interests of other states would result in a qualified right to de-orbit inactive satellites, comparable to that concerning removal of derelict vessels on the high seas. This particular procedure would require prior notification to the launching state / state of registry of the threat posed by the satellite. The launching (or registry) state would still have the opportunity to eliminate the threat itself. If this were not done, there would be consultations on the means of removing the danger and, finally, independent verification of the need to de-orbit the satellite by a third party (an international organization such as COSPAR, for instance). The possibility of de-orbiting a foreign space object would be available only in cases entailing imminent danger to life and property from the unprogrammed re-entry of a space object. Hence security and economic threats deriving from the mission of the satellite could not justify de-orbiting of foreign satellites.125 Matte 1989, p. 433. For a more thorough assessment of the possibilities of resorting to unilateral responses to danger posed by space debris, see Christol 2001. 124 Perek 2005, p. 589. 125 DeSaussure 1978, pp. 389–394. The right to such protective intervention has even been described as a right of unilateral humanitarian action. Ibid. Numerous proposals concerning possibilities to take measures as regards non-functional space objects of other states have been presented, very often drawing on analogies from the law of the sea. For a treatment of ‘salvage of space objects’, see, e.g., Schwetje 1990, pp. 36–40; Christol 1990, pp. 268–276; Hacket 1994, pp. 189–199. On unilateral measures as a response to space debris, see also, e.g., Christol 1990, pp. 276–280. It has even been proposed that—in an extreme situation—a state could invoke its “inherent right” of self-defense pursuant to Art. 51 of the UN Charter. This, however, would require the space debris in 123

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It would seem more feasible to accept rights to remove fragments originating from foreign satellites rather than intact satellites themselves, albeit nonfunctional. This is particularly true as concerns fragments which cannot be identified.126 On the other hand, it has been suggested that registering space objects in accordance with their functionality could even entail a general right to remove from orbit (where feasible) those spacecraft that are not registered as ‘functional’. Considering the serious doubts which the idea of unilateral action raises, this is likely to remain a distant possibility.127 However, it has also been suggested that the Outer Space Treaty Article IX and Rescue Agreement Article 5 be supplemented with the following: If the state of registration, after notification and consultation, is not going to remove debris which endangers outer space or the Earth within a reasonable time, a nonstate of registration or a non-launching state will have the right to salvage, take away or destroy that object.128

At present, such removal is obviously unfeasible in most cases due to inadequate technology. Nevertheless, future regulatory mechanisms for debris removal could even require that space debris be declared to be under no one’s “jurisdiction and control”; otherwise removal mechanisms not capable of distinguishing between different kinds of objects could end up being in violation of the UN space law.129 3.2. The Nuclear Power Source Principles A positive step towards more advanced environmental protection by legal means in the space sector was taken in December 1992, when the UN General Assembly unanimously adopted the “Principles Relevant to the Use of Nuclear Power Sources in Outer Space” (the NPS Principles). However, the NPS Principles only apply to nuclear power sources for electricity generation—not to the possible use of nuclear energy for propulsion purposes (as a means to place a space object into orbit) or nuclear substances found in space.130 Also, the safety requirements adopted in the Principles are rather general, allowing those utilizing question to be so threatening as to constitute an “armed attack”. See Matte 1989, p. 434. Justifying preventive action on such a basis would be very extraordinary and would entail a considerable threat of misinterpretation of the intentions of debris impacts, for instance. See Baker 1988, pp. 191–192. 126 See Gál 1997, pp. 134–135. 127 See the proposals to this end in Report of the 65th Conference of the ILA 1992, pp. 144–145. See also Report of the 64th Conference of the ILA 1990, p. 170. 128 Diederiks-Verschoor, according to ibid., p. 145. 129 Perek 2005, p. 589. 130 Sixth paragraph of the preamble.

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NPS considerable freedom of choice.131 Furthermore, principles adopted by a General Assembly resolution do not of course have the legally binding force of a convention, even when they are adopted without a vote.132 In the main, the NPS Principles reflect already well-accepted principles and rules of space law dealing with such matters as safe use, safety assessment, notification of re-entry, emergency assistance, responsibility, liability and compensation. However, they also contain some innovations. Principle 3 attempts to restrict the use of nuclear power in space by limiting it to “those space missions which cannot be operated by non-nuclear energy sources in a reasonable way”. The general goal is to “protect individuals, populations and the biosphere against radiological hazards”.133 Furthermore, the principle calls for the fuelling of on-board nuclear reactors by “highly enriched uranium 235” only.134 It also prescribes that “nuclear reactors shall not be made critical before they reach their operating orbit or interplanetary trajectory”.135 To this end, there is a further requirement that a nuclear reactor’s design and construction be such that it “cannot become critical before reaching the operating orbit during all possible events, including rocket explosion, re-entry, impact on ground or water, submersion in water or water intruding the core”.136 All such recommendations contribute to increased safety of space operations.137 Another innovative principle is Principle 2, which offers a definition of a launching state as “the State which exercises jurisdiction and control over a space object with nuclear power sources on board at a given point in time relevant to the principle concerned”.138 However, the NPS Principles still leave largely unresolved the question of the nature and status of the launching state where accountability for damage and harm in the case of an NPS incident is concerned. According to Principle 2.2, “[f ]or the purpose of principle 9 [on liability and compensation], the definition of the term ‘launching State’ as contained in that principle is applicable”; but Principle 9 only refers to the Outer See also Christol 1995, p. 266. Despite their generality, the NPS Principles may contradict some other existing norms concerning the use of NPS in space activities. Their conflict with the IADC Space Debris Guidelines will be examined below. 132 The UNCOPUOS has discussed the need for a possible revision of the NPS Principles, even “the elevation of the Principles to the level of international legal norms”. See, e.g., agenda item 9 “Review and possible revision of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space”, Report of the Legal Subcommittee on the work of its 43rd session 2004, paras. 60–66. 133 Principle 3.1.a. 134 Principle 3.2.c. 135 Principle 3.2.d. 136 Principle 3.2.e. 137 To guarantee complete safety in the use of NPS is, however, impossible; technology can always fail. 138 Para. 1. 131

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Space Treaty and the Liability Convention for a definition of launching state.139 It should be noted, however, that state responsibility and liability are very seldom referred to at all in non-binding UN resolutions, particularly in those relating to environmental issues.140 Accordingly, the provisions of the NPS Principles, although non-binding, are of special importance and show the seriousness of the intentions of the countries involved.141 3.3. The International Telecommunication Union The fundamental role of the UN space treaties and principles cannot be denied but, given their vagueness in terminology (and disagreement concerning interpretation of the provisions), the most important actor in the regulation of the international satellite sector in practice is the International Telecommunication Union (ITU). The ITU is a specialized organization of the UN. It was established back in 1865 for the purpose of facilitating telecommunications internationally. Of course, it was not initially involved in the use of outer space but it has been concerned with space radiocommunication since the late 1950s: as the telecommunication sector began to utilize satellites, the interests of the ITU expanded accordingly. Today, space applications play a prominent role in telecommunications and the ITU is very active in this field.142 The ITU has three major functions in regard to satellite communications: it regulates the use of the radio spectrum, sets international equipment and other standards for telecommunications, and has a focal role in the utilization of GEO.143 The major mechanisms for discharging these functions are the allocation of particular radio frequencies for particular uses in what are known as World Radio Conferences,144 the establishment of technical and operational standards, and the minimization of harmful interference through the monitoring and making public to other users of the assignment by states of particular frequencies to specific stations.145 Because all states use telecommunications, they share an interest in guaranteeing undisturbed telecommunication activities See also Christol 1995, pp. 271–272. Even international environmental agreements have until quite recently often sidestepped these questions. Since the 1990s, however, liability has been an issue (in one way or another) in the negotiations of nearly all multilateral environmental agreements. Brunnée 2004, p. 359. 141 Benkö et al. 1994, p. 238. 142 On the role of the ITU in the space sector in general, see, e.g., Noll 1999. 143 Lyall 1989, p. 311. 144 These conferences used to be called World Administrative Radio Conferences (WARC) until WARC-92. Since 1995, the name ‘World Radio Conference’ (WRC) has been used. 145 Lyall 1989, p. 345. 139 140

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and the need to cooperate in this area.146 At the time of writing, there are 191 member states in the ITU, i.e., virtually all existing states (and a number far higher than the number of states ratifying any of the UN space treaties).147 The basic legal instruments of the ITU are its Constitution and Convention. Administrative Radio Conferences, conducted on global, regional or more limited levels,148 produce supplementary agreements which have the technical status of binding international treaties between ITU member states. Collectively, these agreements form what are known as the Radio Regulations, which are negotiated and revised regularly in the ITU. The ITU has also issued numerous non-binding decisions and recommendations which are appended to Radio Regulations. The ITU procedures are by and large in tune with the UN space treaties, although the basic approach of the ITU is quite different. Furthermore, the ITU is clearly not an environmental organization. Nevertheless, its interest in guaranteeing undisturbed telecommunication activities in general and the effective use of GEO for satellite communications in particular have resulted in certain regulations also relevant to environmental aspects of space activities. The main concern of the ITU in space telecommunications has been to maximize effective use of the radio spectrum and to minimize radio frequency interference, for which purposes it is to effect allocation of bands of the radio-frequency spectrum, the allotment of radio frequencies and the registration of radio-frequency assignments and, for space activities, of any associated orbital position in the geostationary-satellite orbit or of any associated characteristics of satellites in other orbits.149

146

Military communications are left outside the Constitution of the ITU, yet even military radio installations must “so far as possible, observe statutory provisions relative to giving assistance in case of distress and to the measures to be taken to prevent harmful interference, and the provisions of the Administrative Regulations concerning the types of emission and the frequencies to be used, according to the nature of the service performed by such installations” (Art. 48.2). “Moreover, when these installations take part in the service of public correspondence or other services governed by the Administrative Regulations, they must, in general, comply with the regulatory provisions for the conduct of such services” (Art. 48.3). 147 The latest state to join the ITU is the Republic of Montenegro (21 June 2006). For the development of the ITU in more detail, see “International Telecommunication Union, History”. 148 World (Administrative) Radio Conferences (WARC/WRC); Regional Administrative Radio Conferences (RARC); Administrative Radio Conferences (ARC), respectively. Extraordinary Administrative Radio Conferences (EARC) may also be convened. 149 See Art. 1.2.a of the ITU Constitution. The more detailed instruments of the ITU aim at the same goal with provisions of more precision. For instance, regarding radio emission characteristics, the ITU has issued recommendations about antenna design which, among other things, aim at minimizing the power transmitted outside the service area of a given satellite. See, e.g., Recommendation of the International Telecommunica-

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Thus, the ITU registers physical GEO slots as well as corresponding radio frequencies for different services by geographical region. It also, i.a., “coordinate[s] efforts to eliminate harmful interference and to improve the use made of the radio-frequency spectrum for radiocommunication services and of the geostationary-satellite and other satellite orbits”.150 However, interference can never be completely eliminated because all communication systems radiate some energy outside the intended service areas and frequency bands. Hence efforts to eliminate all interference would unnecessarily limit radio communications. Accordingly, the goal of the ITU is to minimize harmful interference. Harmful interference is defined by the ITU as “interference which endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations”.151 The ITU Constitution requires that “[a]ll stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognized operating agencies”.152 While radio frequency interference can be considered an environmental problem of sorts (a problem space objects using telecommunications encounter in their immediate environment), more relevant for the present study is the regulation regarding the use of GEO as a physical orbit. The ITU has long been concerned over physical overcrowding of GEO by functional satellites as well as non-functional space objects. As early as in the beginning of the 1970s, the Union declared GEO to be a limited international natural resource to which all countries are entitled to equitable access.153 In the 1980s, the problem of spent satellites and collision risk in GEO was discussed in the WARC.154 The current Constitution and Convention of the ITU were adopted by the tion Union ITU-R S.672–4. Another way of avoiding frequency congestion is frequency re-use, which enables the assignment of the same frequency bands to satellites sharing the same orbital slot provided that their signals are polarized differently or their beams limited to different areas. Wilson 1998, p. 262. 150 ITU Constitution, Art. 1.2.b. 151 ITU Constitution, Annex. 152 Art. 45.1. 153 Pursuant to the 1973 International Telecommunication Convention, “[i]n using frequency bands for space radio services Members shall bear in mind that radio frequencies and the geostationary satellite orbit are limited natural resources, that they must be used efficiently and economically so that countries or groups of countries may have equitable access to both in conformity with the provisions of the Radio Regulations according to their needs and the technical facilities at their disposal” (Art. 33.2; emphasis added). 154 The ITU held in 1985 and 1988 the World Administrative Radio Conference on the Use of the Geostationary Satellite Orbit and the Planning of Space Services Utilizing It (WARC ORB). The 1985 session discussed the problem of space debris. Perek 2002, p. 126. However, no attempt to make any recommendation concerning re-orbiting of spent GEO satellites was made. Ibid., p. 134.

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Additional Plenipotentiary Conference in Geneva in 1992. Article 44.2 of the present Constitution provides that “Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be used rationally, efficiently and economically”. The same paragraph requires that the above use be such that “countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries”. Space debris not only threatens the safe operation of GEO satellites but can make access to the orbit more difficult and thus render the ITU’s stated aim of guaranteeing equitable access to GEO ineffective.155 In 1993, the ITU adopted a recommendation on environmental protection of GEO which, most significantly, calls upon states to ensure that geostationary satellites are transferred at the end of their lifetime to a “supersynchronous graveyard orbit” which does not intersect GEO.156 The transfer to a graveyard orbit should be carried out with particular caution in order to avoid radio frequency interference with active satellites.157 Other paragraphs of the recommendation require that “as little debris as possible should be released into the geostationary-satellite orbit … during the placement of a satellite in orbit”158 and that “every reasonable effort should be made to shorten the lifetime of debris in the transfer orbit”.159 These non-binding provisions adopted for the purpose of avoiding physical interference in the use of GEO remain far more modest that the ITU rules aimed at guaranteeing undisturbed radiocommunications. This disparity between the international regulation of physical and radio-frequency interference apparently results from the ITU’s interest in telecommunication: even where it is concerned with the positioning and functioning of objects in space, its prime interest is space radio stations, not the spacecraft on which these radio stations are installed.160 Moreover, despite the Union’s status as an international organization producing legally binding decisions, its role may be perceived more as that of a coordinator than a regulator. Accordingly, the ITU mechanism has been described Jahku 1992, p. 212. Recommendation of the International Telecommunication Union ITU-R S.1003, Point 3. In 2004, the ITU revised this recommendation to endorse use of the formula of the IADC Space Debris Mitigation Guidelines (Section 5.3.1) for calculating minimum disposal altitudes for GEO spacecraft (see below). Already the 1982 UN Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE II) had recommended that the ITU include in its regulation a stipulation that satellite owners should remove their satellites from GEO at the end of their operational lifetime. Perek 2002, p. 125. 157 Point 4. 158 Point 1. 159 Point 2. 160 Cosmic Study on Space Traffic Management 2006, p. 44. 155 156

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as a regime “less concerned with ‘rights and duties’, and more as providing a set of ground rules within which those with competence within radio communications can arrive at compromises and arrangements”. The ITU mechanism enables “engineers and technicians … [to] try to get international and national systems of telecommunications up and running with a minimum of problems of system interference and system incompatibility”. Politicians and lawyers are usually unskilled in such matters, whereby it seems preferable not to let them dominate the ITU process.161 However, this renders the ITU less important a forum from the point of view of international law. Furthermore, the safety of satellite operations and the preservation of the space environment face increasingly severe challenges, ones which can hardly be overcome by an organization whose primary goal is to guarantee interference-free telecommunications. Moreover, the ITU’s role even in its core area of operation has become increasingly demanding. Although it has no mechanism to enforce compliance (legal powers of enforcement), for a long time it has been relatively successful in minimizing interference—already for the simple reason that usually any interferer would also suffer interference.162 However, as competition for the spectrum/orbit resource has intensified, problems have multiplied. For instance, some actors have begun to file requests for satellite frequency bands and orbital positions prematurely or in excessive quantity, even for the purpose of subsequent resale. Until the late 1980s, most of the satellite systems filed with the ITU were designed to fly: states filed only for the capacity they really needed.163 The tiny nation of Tonga was the first to apply for clearly ‘speculative’ positions through the ITU allocation process in 1988. Instead of directly utilizing them itself, Tonga put the orbital slots and satellite frequency assignments it was awarded up for auction and began renting them out to other operators. Requests for the registration of desirable orbital positions and frequency bands that are not actually needed in order merely to reserve them for possible future use or commercial resale have since become a common phenomenon. As the filings have accumulated, even ‘innocent’ operators have been forced to over-file to get at least some orbital positions successfully coordinated.164 Such satellite over-filing is also called the ‘paper satellite problem’. The result of over-filing has been a considerable increase in the workload of the ITU, even to an extent which has begun to erode its effectiveness. According to the ITU, [w]hile the Union recognizes and upholds the right of all nations—rich and poor alike—to equitable and affordable access to the satellite orbit, there’s an urgent need to reconcile this with an effective way of reducing the mountain of casual 161 162 163 164

Lyall 1989, pp. 345–346. Williamson 2003, p. 51. See Cohen 2004, p. 144. Sung 2004.

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No matter how speculative, the ITU has to coordinate all registration requests. Each of them has to accommodate the frequency and positioning requirements posed by all systems previously approved (whether real or non-existent) in order to avoid potentially harmful interference. This is not easy, given also that new satellites use ever more complex technology. In practice, the consequence is a great deal of unnecessary work as well as increasing technical demands for the genuine satellite systems. Hence, paper satellites can add significantly to the costs of real systems and block access to spectrum and orbital resources. They result in a waste of resources on the part of satellite operators, national administrations and the ITU.166 Furthermore, paper satellites can undermine credibility and legitimacy of the entire ITU regime in space radio communications.167 In practice, over-filing has resulted in timeframes for ITU coordination running into as many as several years. Quite alarmingly, many operators have started to launch their satellites before the ITU has completed its coordination process.168 One attempt to alleviate the problem (and to cover the administrative costs of the ITU) has been the introduction of sliding-scale administration and processing fees to cover satellite applications in accordance with what is called the principle of cost recovery of the processing of satellite filings, adopted initially 165

“Paper Tigers: The scramble for space spectrum”. “Scrambling for Space in Space: ITU Plenipotentiary to tackle ‘paper satellite’ problem”. There are even over eight times as many filings as actual physical satellites. Consequently, a single registration request may need to be coordinated with as many as some 20 countries. Tanner 2003. 167 An alarming example of what kinds of conflicts may follow is the incident which took place in 1992. Tonga had registered a particular orbital slot but had not placed a satellite there. The Indonesian Pasifik Satellite Nusantara (PSN) company decided to launch its own satellite into the same GEO slot. The following year, Tonga leased out this slot to a US firm, which launched another satellite into the position. In 1996, Tonga leased the slot again, this time to a Chinese company. The PSN responded by jamming the satellite. Two years later, the conflict was resolved—but only due to financial crises at the PSN. What makes the episode particularly worrying is the fact that Indonesia (a member of the ITU since 1 January 1949) consistently refused to acknowledge the ITU regime for GEO slot allocation and the ITU was not capable of stopping the illegal actions of the PSN. Space Security 2004 (2005), p. 14. Another example of misuse of the ITU system for GEO is that at least Pakistan has evidently launched a satellite “essentially to occupy the orbital slot” assigned to the country. Ibid., p. 15. For similar examples, see also Supancana 1998, pp. 194–197. 168 The coordination of frequency filing requests is complicated enough even when all stakeholders play by the book. If there are, in addition, operators who compose their own rules, the system may soon end up in chaos, given particularly the need to place satellites within increasingly short distances from each other. Tanner 2003. 166

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by the 1998 ITU Minneapolis Plenipotentiary Conference.169 Filings can be cancelled due to non-payment of charges. Such fees have been opposed by both large satellite-operating countries and some developing countries. The former see them as an additional financial burden on the satellite industry. The latter are trying to defend their share of GEO (for use now or in the future); for them, the imposition of fees appears as a contravention of the international principle of fair and free access to orbital slots and the frequency spectrum (and thus a mechanism that favors rich over poor).170 Since their adoption, the ITU satellite filing fees have gradually been raised (in accordance with different kinds of formulas).171 The system remains disputed. Many states are increasingly skeptical about the justice of the fees.172 A worrisome consequence has been the increasing failure to pay fees and the resulting tension between the ITU and satellite operators.173 It has even been suggested that unless the cost recovery 169 Resolutions 88 and 91. The possibility of adopting financial requirements to deter over-filing had already been discussed the previous year. However, states regarded the idea with suspicion. They feared that it could create “a precedent for charging fees for spectrum use”. Instead, they adopted an administrative due diligence requirement urging that the names of the satellite manufacturer and launch vehicle provider, as well as the dates of satellite delivery and launch, be submitted at the time of filing. This did not prove very efficient in reducing speculative filing, however. The adoption of the cost recovery fee the next year was facilitated by the fact that it does not link the fee with spectrum usage. Sung 2004. 170 See “Paper Tigers: The scramble for space spectrum”; “Scrambling for Space in Space: ITU Plenipotentiary to tackle ‘paper satellite’ problem”; and “Plenipotentiary 2002: Stepping up the pace of change”. 171 See for more detail, Oberst 2005 and Sung 2004. For instance, average cost recovery fees rose from USD 1,126 in 2000 to as much as USD 31,277 in 2003. Ibid. ITU has also established an Ad Hoc Group on Cost Recovery for Satellite Network Filings to consider the filing charge methods and make recommendations to the ITU Council. See “International Telecommunication Union, Ad Hoc Group on Cost Recovery for Satellite Network Filings”. At the ITU Council meetings in July 2005, the cost recovery procedure was again modified, entailing, i.a., new cost recovery fees (effective 1 January 2006). The issue was left to be revisited at the 2006 Council meetings. Space Security 2005 Briefing Notes (2006), p. 7. 172 Initially, the fees were justified by the need to hire additional staff to process the satellite filing backlogs. However, the ITU has since begun to tap the revenues to supplement its general budget—despite the requirement of the Resolution 91 adopted by the Minneapolis Plenipotentiary Conference that cost-recovery charges cover “no more than the actual costs of providing products and services” to which they relate (Resolve 4.i) and the recognition that they not be used to generate revenue or profit. The same resolution also called for “open and transparent accounting for costs and receipts” (Resolve 4.ii), another requirement which does not exactly correspond to current ITU practice. Sung 2004. 173 If the fee is not paid, the filing is cancelled. What complicates the situation further is that although it is the satellite operator who should pay the fee, the

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fee disagreement is resolved, operators may develop alternative mechanisms to coordinate satellite networks outside the ITU.174 Furthermore, the increasingly intensive utilization of near-Earth outer space by LEO systems, for instance, essentially falls outside the scope of the existing ITU space regime. The rules of the ITU are primarily designed for GEO; it is the only orbit in which one can assign orbital positions in the first place. LEO activities are covered by ITU regulations only to the extent that they use radio frequencies, like any other radio transmission activities on Earth or in outer space. Many stakeholders share the concern about the overcrowding of GEO, yet they do not appear equally worried about the effect of satellite activities in LEO or MEO. A small step forward is that also other orbits than GEO have now been recognized by the ITU as constituting a “limited natural resource”.175 Nevertheless, beyond the standard regulations concerning the use of radio frequencies, international law currently has little to offer LEO- and MEObased satellite networks other than the modest, harmless-interference rule, i.e., the obligation set out in OST Article IX requiring a state party to undertake international consultations if a planned activity might cause potentially harmful interference with activities of other states parties. Otherwise, the assignment of positions remains free. With no obligation to notify the use of particular

Radiocommunication Bureau of the ITU has considered states as ultimately liable for the overdue invoices (since there is no legal relationship between the ITU and the operators). The Bureau has even suggested that unpaid invoices could lead to the loss of voting rights or even of the right to submit new satellite filings. The states with unpaid fees include most of the major satellite-launching countries. Additionally, some states have reduced their voluntary contributions to the ITU. Ibid. 174 Ibid. Recent initiatives concerning regional harmonization of frequency allocation seem to promise at least some help in alleviating the ITU’s filing backlog. Such initiatives have been taken in the Association of Southeast Asian Nations, the EU and the US. For a more detailed treatment, see Space Security 2005 Briefing Notes (2006), pp. 5–6. It has also been suggested that national authorities should require, i.a., submission of realistic business plans so as to ensure that they do not notify the ITU of systems that will never materialize. Cosmic Study on Space Traffic Management 2006, p. 74. 175 Pursuant to the current ITU Constitution “radio frequencies and any associated orbits, including [but not limited to] the geostationary-satellite orbit, are limited natural resources and they must be used rationally, efficiently and economically” (Art. 44.2; emphasis added). Under the 1973 and 1982 International Telecommunication Conventions, GEO was the only orbit defined as a limited natural resource: “[i]n using frequency bands for space radio services Members shall bear in mind that radio frequencies and the geostationary satellite orbit are limited natural resources, that they must be used efficiently and economically so that countries or groups of countries may have equitable access to both in conformity with the provisions of the Radio Regulations according to their needs and the technical facilities at their disposal” (Art. 33.2; emphasis added). The amendment to the 1992 ITU Constitution replacing “geostationary satellite orbit” with “any associated orbits” was made in 2001.

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non-GEO orbits, the planning of future activities in LEO and MEO is also becoming more challenging.176 Interestingly, given the inability of the international community to provide common rules, satellite operators have begun to act on their own to coordinate their procedures. They have established a Satellite Users Interference Reduction Group (SUIRG), which is comprised of representatives from both private industry and the public sector.177 SUIRG has worked for about a decade towards “identifying and mitigating the growing problem of satellite interference and the economic harm it inflicts on the industry”. It manages information on radio frequency interference and possible remedies. For instance, SUIRG has established a global database into which operators can enter frequency interference information. It also cooperates with the satellite industry to define equipment standards and facilitate better training for operators.178 Although SUIRG has not been trying to alleviate physical interference, there is no reason why this problem, like others, could not be dealt with by a nongovernmental industry organization.179 3.4. Developments within Certain Other International Organs 3.4.1. The Inter-Agency Space Debris Coordination Committee The IADC is an organization of national space agencies founded in 1993.180 It works on consensus, meaning that it can be demanding to reach agreement on common norms (even voluntary ones). Yet the attendant compromise has good prospects of satisfying most of the relevant stakeholders and hence of guaranteeing wide observance of the rules—considering, in particular, that members of the IADC are space agencies which directly carry out space activities in practice. The purpose of the IADC is to exchange information on 176

51.

See Cosmic Study on Space Traffic Management 2006, p. 72; Salin 2000, pp. 49–

SUIRG has over 30 members, including the founding members Intelsat, PanAmSat, Inmarsat, New Skies Satellites, QinetiQ, and Glowlink. 178 See Satellite Users Interference Reduction Group website; Bates 2005. 179 Cosmic Study on Space Traffic Management 2006, p. 75. 180 The members of the IADC are ESA and space agencies from ten countries: the Italian Space Agency, the British National Space Centre, Centre National d’Etudes Spatiales (CNES) from France, the China National Space Administration, Deutsches Zentrum für Luft- und Raumfahrt e.V., the Indian Space Research Organisation, the Japan Aerospace Exploration Agency (JAXA), NASA, the National Space Agency of the Ukraine, and the Russian Federal Space Agency. For more information about the IADC, see the Inter-Agency Space Debris Coordination Committee website. 177

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space debris research activities and facilitate cooperation in the area, to review ongoing cooperative activities, and to identify options for debris mitigation.181 For example, it has issued the IADC Space Debris Mitigation Guidelines. The UNCOPUOS asked the IADC to develop a set of such voluntary guidelines in 2001182 and they were submitted to the UNCOPUOS in late 2002183 for consideration at the 40th session of the Scientific and Technical Subcommittee in February 2003.184 The “orbits and protected regions” to which the IADC guidelines apply include GEO,185 the so-called Geosynchronous Region,186 Geostationary Transfer Orbits,187 and LEO.188 The guidelines aim to limit debris released during normal operations, to minimize the potential for on-orbit break-ups and collisions, and to facilitate removal of non-operational objects from the densely populated orbits. For instance, they urge depletion or passivation of on-board energy sources once they are no longer needed189 and avoidance of intentional destruction of space systems.190 They also call for post-mission disposal of spent spacecraft. The IADC guidelines require disposal of objects from GEO by re-orbiting them to an orbit above GEO (at a minimum altitude of 235 km plus a term depending on the spacecraft characteristics),191 and from LEO by

181 For more detail, see Terms of Reference for the Inter-Agency Space Debris Coordination Committee. 182 Report of the Scientific and Technical Subcommittee on its 38th session 2001, para. 130. 183 Inter-Agency Space Debris Coordination Committee Space Debris Mitigation Guidelines (UN Doc. A/AC.105/C.1/L.260). 184 See Report of the Scientific and Technical Subcommittee on its 40th session 2003, para. 121 et seq. For a treatment of the work of the UNCOPUOS on space debris, see below. 185 Section 3.3.3. 186 GEO +/- 200 km. Section 3.3.2(2). 187 Earth orbits which can be used to transfer space systems from lower orbits to GEO. Section 3.3.3. 188 Up to an altitude of 2000 km from the Earth’s surface. Section 3.3.2(1). 189 Section 5.2.1. 190 Section 5.2.3. 191 Section 5.3.1. The exact minimum altitude is calculated in accordance with a formula that depends on the ratio of the cross-sectional area to the mass of the satellite and on the solar radiation pressure coefficient. The formula generally results in disposal altitudes of 235 to 450 km above GEO. The aim is to guarantee that the disposed spacecraft will never return to within 200 km of GEO. Cosmic Study on Space Traffic Management 2006, p. 34. Apparently, many are of the opinion that “using a single number like 300 km” would be quite as efficient and much simpler than the IADC formula. Williamson 2006, p. 87. It has been defined to be the altitude where solar radiation pressure and other forces can no longer push the spacecraft back into the GEO area. “Space Debris Mitigation: the case for a code of conduct” 2005.

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de-orbiting.192 For the LEO region, the instrument further suggests a 25-year post-mission orbital lifetime limit.193 Hence the IADC guidelines constitute a considerable advancement in the sense that they attempt to regulate the use of LEO as well.194 Furthermore, there is a more informative IADC supporting document on mitigation practices (“Support to the IADC Space Debris Mitigation Guidelines”) that provides the rationale for the guidelines and technical information for their implementation. For the purpose of the document, all the issues dealt with by the IADC guidelines have been analyzed in view of the best debris mitigation practices of the space sector.195 The IADC guidelines provide only the fundamental standard practices, while more detailed technical issues and practical implementation will be addressed by lower-level documents.196 Moreover, the guidelines expressly provide for the option of updating them

Section 5.3.2. De-orbiting means a deceleration maneuver which results “either in an immediate atmospheric re-entry or in an orbit with limited residual lifetime” (moving a spacecraft to an orbit where the atmospheric drag accelerates its decay). In case of reorbiting, the spacecraft’s orbit is raised to an altitude where it causes no interference with the orbits of operational spacecraft. See “ESA, End of Life De-Orbit Strategies”. The latter is also referred to as a ‘graveyard orbit’. (The Scientific and Technical Subcommittee of the UNCOPUOS agreed in 1998 that ‘disposal orbit’ would be a preferable term. Report of the Scientific and Technical Subcommittee on the work of its 35th session 1998, para. 88.) In addition to placement in a higher Earth-orbit, re-orbiting may take place from Earth-orbit into a heliocentric orbit (see, e.g., the U.S. Government Orbital Debris Mitigation Standard Practices, 4–1.b.IV). De-orbiting is feasible for spacecraft in LEO but it remains too expensive for GEO satellites, for which the only available option is re-orbiting. However, this option solves the problem only partly, as a spacecraft which is sent to a graveyard orbit will remain there uncontrolled and hence constitutes a potential source of space debris in those particular orbits. In the future, technological development may make it possible to bring down spent spacecraft even from GEO; a promising example is the new ion-thrusting electric propulsion engine of ESA’s SMART1 satellite, which needs only about five per cent of the fuel of a traditional spacecraft engine. “Space Debris Mitigation: the case for a code of conduct” 2005. 193 Section 5.3.2. As will be examined below, several national space agencies also endorse this 25-year rule. 194 The debris mitigation guidelines of major national and regional space agencies (NASA, Rosaviakosmos, JAXA, ESA) also try to limit the presence of spent spacecraft in the LEO region. 195 Yakovlev 2005, p. 591. 196 At the moment, one such document has been issued, namely the IADC Recommendation on Re-orbit Procedure for GEO Preservation. Additionally, the IADC is planning a document “Assessment Procedure for Re-entry Safety”. “Report of the IADC Activities on IADC Space Debris Mitigation Guidelines & Supporting Document” 2003. 192

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in keeping with the development of space science.197 The IADC also has a regularly revised Protection Manual, which describes design measures to protect spacecraft against space debris.198 The manual is regularly updated in accordance with evolution of knowledge and experience in spacecraft protection.199 The IADC guidelines appear essentially as a codification of common practices of space agencies; they do not introduce major new innovations in the area of debris mitigation. Moreover, not all space activities are carried out by space agencies and the agencies’ norms in this area are largely recommendations only. The guidelines have been criticized for containing no advice as to their practical implementation and enforcement by states or how they are to be integrated into national processes of approving space launches.200 One doubts whether such voluntary guidelines could ever achieve the compliance required for solving the space debris problem, considering the competitive global market and the small profit margins afforded to space launch entrepreneurs.201 The IADC guidelines also contain no provisions for the protection of the environment as such.202 Despite their deficiencies, the guidelines constitute an important step towards more effective common regulation in environmental management.203 Furthermore, they are already widely used by national and regional space organizations when identifying their own standards for mission requirements and establishing norms of a more general nature, as well as in the development of new international standards, such as the space debris document of the UNCOPUOS.204 197 “These guidelines may be updated as new information becomes available regarding space activities and their influence on the space environment” (Section 6). 198 IADC Protection Manual 2004. For instance, the number of small parts released during operations can be reduced by new designs. 199 For a more detailed assessment of the Protection Manual, see Schäfer et al. 2005. 200 Hitchens 2004. 201 Walter Flury, according to Hitchens 2004. See also, e.g., The Ethics of Space Policy 2000, p. 22, where the UNESCO Working Group on the “Ethics of Outer Space” emphasizes the significant distorting effect debris mitigation measures have on competition and concludes that there is a need to have rules for the prevention of the debris problem to be “uniformly imposed on all users of space technology” and “embodied in international law”. It perceived the elaboration of an international legal instrument for the purpose as “a matter of priority”. Ibid., p. 26. 202 Cosmic Study on Space Traffic Management 2006, p. 12. It should be noted that when mentioning the lack of “provisions on the environment”, this study refers to rules concerning “avoidance of pollution of the atmosphere/troposphere” only, not preservation of the environment of outer space. Ibid. 203 The IADC guidelines have also been defined as the first international “rules of the road” document for space traffic management. Yakovlev 2005, p. 597. 204 Countries which directly use the IADC guidelines or have their own space debris mitigation guidelines and practices consistent with the IADC guidelines include at least the US, Japan, France, Italy and the UK. Report of the Scientific and Technical

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3.4.2. The United Nations Committee on the Peaceful Uses of Outer Space The principal international body in the development of the international law of outer space is the UNCOPUOS, which was established in the late 1950s.205 Despite the slowing down of the process during the past couple of decades, the UNCOPUOS is continuously working in trying to elaborate international space regulation. It has two subcommittees, the Legal Subcommittee and the Scientific and Technical Subcommittee. The UNCOPUOS and its subcommittees all operate on the basis of consensus.206 There are four principal steps in the process of developing space law in the UN. Firstly, the Legal Subcommittee of the UNCOPUOS examines and discusses proposals for new regulation in its annual meetings. The UNCOPUOS may also ask the Technical and Scientific Subcommittee to examine technical aspects of legal issues. The deliberations of the subcommittees are considered in the Committee proper. After the endorsement of the UNCOPUOS, the proposal is taken to the main committee of the UN General Assembly and, finally, to the General Assembly to be approved. The approval of the General Assembly takes the form of a resolution containing the text agreed upon by consensus in the UNCOPUOS. If the text adopted is a new treaty, for instance, states can (individually) decide whether they want to join the instrument (in accordance with the procedure set by the provisions of the treaty).207 The UNCOPUOS is one of the largest committees in the UN today: it has 67 member states as well as a number of international organizations that have Subcommittee on its 42nd session 2005, para. 91. Regulations of ESA are also congruent with the IADC guidelines. Even China and Malaysia have been reported to use IADC guidelines “as their reference in developing a national regulatory and licensing framework”. Report of the Committee on the Peaceful Uses of Outer Space 2005, para. 130. For a more detailed treatment of developments at the national and regional levels, see below. 205 The UN General Assembly first started it as an ad hoc committee in 1958 by UNGA Res. 1348(XIII). The next year the UNCOPUOS was established as a permanent body by UNGA Res. 1472(XIV). The Outer Space Affairs Division (later Office of Outer Space Affairs) was established to serve the needs of the UNCOPUOS and its subcommittees. 206 The consensus process was a compromise between majority voting and unanimity. It was put in practice in 1962 with a statement by the Chairman of the UNCOPUOS that the committee members have agreed through informal consultations that they aim to reach agreement in the work of the committee and its subcommittees without having to resort to voting. It was understood, however, that if consensus could not be achieved, the decision would be made by majority voting. See Galloway 1978, pp. 107–108. On decision-making in the UNCOPUOS, see also Christol 1981, pp. 568–571. 207 Jasentuliyana 1992, pp. 33–34. For a more detailed assessment, see ibid., or Jasentuliyana 1986, pp. 220–221.

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been granted observer status with the UNCOPUOS and its subcommittees. The widespread participation of spacefaring states in the work of the UNCOPUOS obviously constitutes a considerable advantage in pursuing UN-based solutions to the problems of the space sector. The complex challenges of today call for the participation of scientific, legal and technical experts, in addition to politicians, and the UNCOPUOS and its subcommittees provide a forum for such multifaceted discussions.208 Furthermore, the consensus approach is likely to result in relatively durable outcomes, once the often time-consuming process of finding a compromise acceptable to all has been successfully gone through.209 Currently, the environmentally most relevant questions the UNCOPUOS is working on are those concerning space debris and the use of NPS in space. After several years of discussions whether space debris should be put on the agenda of the Scientific and Technical Subcommittee or if this were premature, space debris has been included as a separate, annual agenda item since 1994.210 It has been suggested that space debris be placed on the agenda of the Legal Subcommittee as well, but no consensus on that has been reached yet.211 In 1999, the UNCOPUOS issued a “Technical Report on Space Debris”. The Scientific and Technical Subcommittee adopted its own space debris mitigation guidelines in 2007.212 This document is based on the IADC Space Debris Ibid., p. 222. Jasentuliyana 1983, p. 229. Consensus decision-making facilitates also further cooperation and compliance with commonly agreed standards. Galloway 1980, p. 165. 210 See Report of the Scientific and Technical Subcommittee on the work of its 31st session 1994, paras. 63–74. Previous attempts in the Scientific and Technical Subcommittee to include the issue of space debris on the agenda had failed mostly because of opposition on the part of some industrialized states. See Report of the 64th Conference of the ILA 1990, p. 156. For a summary of the discussion concerning space debris within the UN prior to its adoption as an agenda item of the Scientific and Technical Subcommittee, see Hacket 1994, pp. 201–204. 211 See, e.g., Report of the Legal Subcommittee on its 45th session 2006, paras. 150, 154. A proposal for an agenda item “Legal aspects of space debris” was made as early as in 1995. Report of the Legal Subcommittee on the work of its 34th Session 1995, para. 47. The inability of the UNCOPUOS to discuss the problem of space debris also in the Legal Subcommittee has been referred to as a factor slowing down “the technical and scientific research because no definition of space debris can be adopted without considering legal implications”. Perek 2002, p. 134. For an extensive assessment of the discussion concerning space debris in the UNCOPUOS (and within the UN more generally as well), see ibid. 212 Report of the Scientific and Technical Subcommittee on its 44th session 2007, para. 99. The Space Debris Mitigation Guidelines of the Scientific and Technical Subcommittee of the UNCOPUOS are contained in Annex IV to the report. Eventually, the aim is to have the guidelines adopted by the full UNCOPUOS. Report of the Scientific and Technical Subcommittee on its 43rd session 2006, paras. 102–103. Initially, it was expected the guidelines would be approved already in 2004. See Report of the 208 209

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Mitigation Guidelines. Given the evolving nature of space technology and debris mitigation practices, the Scientific and Technical Subcommittee might also periodically consult the IADC for the purpose of amending its guidelines in line with possible future revisions of the guidelines of the IADC.213 A report of the Working Group on Space Debris [of the Scientific and Technical Subcommittee] set the following frame for the guidelines document: a) It would use the technical content of the [IADC] space debris mitigation guidelines … as the basis; b) It would not be more technically stringent than the [IADC] space debris mitigation guidelines; c) It would not be legally binding under international law; d) The implementation of space debris mitigation remains voluntary and should be carried out through national mechanisms; e) It would recognize that exceptions might be justified; f ) It would be a living document that could be updated on a regular basis in accordance with evolving national and international practices on space debris mitigation and related research and technology developments; g) It would be applicable to mission planning, to the operation of newly designed spacecraft and orbital stages and, if possible, to existing ones; h) It would take into consideration the United Nations treaties and principles on outer space; i) The space debris mitigation document is planned to be a concise document containing high-level qualitative guidelines and making reference to the [IADC] space debris mitigation guidelines. The document will have annexes as decided by the Working Group during its work plan.214

The Scientific and Technical Subcommittee confirmed these basic conditions.215 Pursuant to the guidelines document adopted by it in 2007, “[t]he following guidelines should be considered for the mission planning, design, manufacture and operational … phases of spacecraft and launch vehicle orbital stages”:

Scientific and Technical Subcommittee on its 38th session 2001, para. 130. However, several states (Russia and India in particular) submitted comments asking for changes, which necessitated renewed discussions within the IADC. Hitchens 2004. 213 Report of the Scientific and Technical Subcommittee on its 44th session 2007, para. 89. 214 Report of the Scientific and Technical Subcommittee on its 42nd session 2005, Annex II, para. 5. 215 Report of the Scientific and Technical Subcommittee on its 44th session 2007, para. 92, and Annex IV.

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Chapter Three “Guideline 1: Limit debris released during normal operations”; “Guideline 2: Minimize the potential for break-ups during operational phases”; “Guideline 3: Limit the probability of accidental collision in orbit”; “Guideline 4: Avoid intentional destruction and other harmful activities”; “Guideline 5: Minimize potential for post-mission break-ups resulting from stored energy”; “Guideline 6: Limit the long-term presence of spacecraft and launch vehicle orbital stages in the … [LEO] region after the end of their mission”; and “Guideline 7: Limit the long-term interference of spacecraft and launch vehicle orbital stages with the … [GEO] region after the end of their mission”.216

Each guideline is followed by a short explanation of its meaning and significance. For instance, [s]pace systems should be designed not to release debris during normal operations. If this is not feasible, the effect of any release of debris on the outer space environment should be minimized. During the early decades of the space age, launch vehicle and spacecraft designers permitted the intentional release of numerous mission-related objects into Earth orbit, including, among other things, sensor covers, separation mechanisms and deployment articles. Dedicated design efforts, prompted by the recognition of the threat posed by such objects, have proved effective in reducing this source of space debris. (Guideline 1).

The fact that all major spacefaring countries take part in the work of the UNCOPUOS Scientific and Technical Subcommittee which, moreover, operates by consensus can optimally facilitate not only the adoption of a relatively feasible document but also its extensive approval and implementation on the national level. However, consensus negotiations can also be very timeconsuming and may result in a watered-down lowest-common-denominator outcome only.217 Particularly as the technical and legal complexity of the widening spectrum of space activities and relevant stakeholders constantly grows, the UNCOPUOS may find it increasingly difficult to reach consensus decisions.218 Ibid., Annex IV, para. 4. As one author put it when talking about the UNCOPUOS decision-making process, “lengthy negotiations and national policy rivalries often overshadow the critical issues”. Baker 1987, p. 165. 218 Jasentuliyana 2001, p. 369. This author expects “a divergence between emerging space technology and the ability of international space law to stay abreast of and provide for the necessary regulations for this sector”. Ibid. In many respects, this seems to be a valid statement of the situation already today. The same author also pointed out earlier that the quality of some national delegates to the UNCOPUOS may have decreased from what it was when the UN space treaties were drafted (he was referring primarily 216 217

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A deficiency in the UN process is the exclusion of private entities and space agencies from deliberations.219 Considering the prominent role of such actors in modern space activities, this might prove to be a severe handicap. As has been explained above, the problem of space debris is linked to that of the use of nuclear power in space activities. Although nuclear power sources as such constitute an environmental threat in outer space, the risks are multiplied by the presence of space debris which can cause collisions and, eventually, more radioactive space debris. At worst, radioactive debris can return to Earth. Accordingly, states have agreed on the importance of “pay[ing] more attention to the problem of the collision of space objects, including those with nuclear power sources on board, with space debris and to other aspects of space debris, as well as its re-entry into the atmosphere”.220 The use of NPS in outer space is also a separate agenda item of the Technical and Scientific Subcommittee of the UNCOPUOS.221 According to the current work plan of the subcommittee, the aim is to develop “an international technically based framework of goals and recommendations for the safety of nuclear power source applications in outer space”.222 As for the issue of space debris, the subcommittee has a special Working Group on Nuclear Power Sources in Space which has identified potential options for establishing such an international framework. Here, too, the idea is to develop a set of international, voluntary guidelines to promote safety in “the launch and operating life cycle of [NPS]”—including both “planned and currently foreseeable space [NPS] applications”. The planned guidelines are envisioned but not solely to the delegates of developing countries). Obviously, lack of such special expertise as is needed in the space sector is a factor which is likely to complicate and slow down any negotiations. See Jasentuliyana 1992, pp. 35–36; Jasentuliyana 1986, pp. 222– 223; also Zwaan 1988, p. 37. There is lesser homogeneity among UNCOPUOS members also for the simple reason that the number of states taking part in its work has increased considerably. Initially, the UN Ad Hoc Committee on the Peaceful Uses of Outer Space in the late 1950s consisted of 18 members only. Presently the number of UNCOPUOS members is nearly fourfold (67), yet the Committee continues to apply the same method of consensus in decision-making that was agreed upon in 1962. On decision-making and the development of membership in the UNCOPUOS, see Christol 1981, pp. 565–571. 219 Mirmina 2005, pp. 657–658. 220 Emphasis added. UNGA Res. 59/116, para. 25; Report of the Committee on the Peaceful Uses of Outer Space 2005, para. 125; Report of the Scientific and Technical Subcommittee on its 42nd session 2005, para. 90. Accordingly, also cooperation between the Scientific and Technical Subcommittee’s Working Group on NPS in Outer Space and that on Space Debris has been called for. Report of the Legal Subcommittee on its 44th session 2005, para. 78. 221 E.g., Report of the Scientific and Technical Subcommittee on its 43rd session 2006, paras. 115–129. 222 E.g., Report of the Scientific and Technical Subcommittee on its 42nd session 2005, Annex III.

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to “provide a technical foundation for the development of national standards and allow national programmes flexibility in adapting such standards to specific nuclear power source applications and national organizational structures”.223 The aim is to develop the framework in cooperation with the International Atomic Energy Agency (IAEA) in order to ensure its compliance with the procedures of the IAEA.224 The new framework could even replace the existing NPS principles.225 Such new guidelines could constitute a step forward also in the sense that they would apparently be applicable to the use of NPS not only for electricity generation but for propulsion purposes as well. 3.4.3. The International Law Association The International Law Association has also been working in the area of debris mitigation: it produced the ILA Draft Convention on Space Debris in 1994. This instrument attempts to address the issue in a comprehensive way in its 16 articles. Prior to the adoption of the draft convention, the ILA discussed the legal aspects of space debris for eight years.226 The ILA Draft Convention expressly states that its provisions should not be considered incompatible with the existing space treaties;227 instead, they have been aimed at “correct[ing] the lack of precision of the Space Treaties in force”.228 A number of the rules embodied in the draft convention have even been regarded as norms of customary international law and hence binding on states regardless of their approval of the instrument.229 The ILA Draft Convention on Space Debris applies to “space debris which causes or is likely to cause direct or indirect, instant or delayed damage to the 223

“Proposed outline of objectives, scope and attributes for an international technically based framework of goals and recommendations for the safety of planned and currently foreseeable nuclear power source applications in outer space” 2005, Annex, para. 2. 224 It has even been proposed that this framework be modeled “on the format and structure of the International Atomic Energy Agency (IAEA) Safety Fundamentals publication entitled ‘The safety of nuclear installations’ ”. Ibid., Annex, para. 5. The Scientific and Technical Subcommittee held a Joint Technical Workshop on the Objectives, Scope and General Attributes of a Potential Safety Framework for Nuclear Power Sources in Outer Space with the IAEA in February 2006. For more information, see Report of the Scientific and Technical Subcommittee on its 43rd session 2006, Appendix. 225 “Review of the use of nuclear power sources in space programmes and international cooperation” 2005, paras. 20–21. 226 The issue had been addressed in Reports of the ILA Conferences since the Seoul Conference of 1986. Additionally, special meetings concerning the matter were arranged in 1987 and 1988. See Report of the 66th Conference of the ILA 1994, pp. 8 and 306–307. 227 Art. 5. 228 Report of the 65th Conference of the ILA 1992, p. 143. 229 See ibid., p. 144.

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environment, or to persons or objects”.230 As the scope of application of the instrument thus includes even indirect damage, the concept of damage applied by it is wider than that embodied in the Liability Convention. Moreover, in addition to applying to existing damage, the ILA Draft Convention applies to situations where debris is likely to cause damage. Furthermore, the draft convention takes into account purely environmental damage; it even refers to such damage prior to mentioning damage to persons and objects. Hence, it clearly goes beyond the Liability Convention in many respects. What is more, the draft convention has no restrictions as regards the areas of outer space to which it applies.231 The draft convention also includes provisions on international responsibility and liability.232 Article 6 further specifies the application of the instrument in this respect by stating that its rules concerning responsibility and liability “apply to damage caused by space debris in the space environment and, in the absence of other international agreements on the matter, to damage caused to the Earth environment”.233 In addition to a general obligation of cooperation,234 the draft convention sets out a duty to cooperate in more detail: it contains specific obligations to “prevent, inform, consult, and negotiate in good faith”.235 These obligations concern prevention of environmental damage and dispute avoidance,236 development and exchange of technology for debris mitigation (in accordance with “national laws and practices”),237 information exchange,238 and consultations in the case of potential damage deriving from space debris.239 Moreover, there is an obligation to negotiate in good faith, which is specified to mean, i.a., “not only to hold 230 Art. 2. ‘Damage’ in this instrument means “loss of life, personal injury or other impairment of health, or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations, or any adverse modification of the environment of areas within or beyond national jurisdiction or control” (Art. 1.e). The wording is derived mostly from the Liability Convention (Art. 1.a)—with the obvious exception of the part concerning environmental damage. 231 Initially, the scope of the instrument was to be narrower: the early drafts were restricted to GEO and LEO only. Report of the 66th Conference of the ILA 1994, p. 311. 232 Arts. 7 and 8, respectively. 233 For a discussion concerning the question of responsibility and liability in the context of this instrument, see Report of the 66th Conference of the ILA 1994, pp. 311– 314. 234 Art. 3. 235 Art. 4. 236 Art. 4.a. 237 Art. 4.b. 238 Art. 4.c. 239 Pursuant to Art. 4.d, there is an obligation to hold consultations when there are “reasons to believe that activities carried out … or planned to be carried out, produce space debris that is likely to cause damage to the environment, or to persons or objects, or significant risk thereto”.

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consultations or talks but also to pursue them with a view of reaching a solution”.240 The needs of developing countries are to be given “special attention” in carrying out these obligations.241 The ILA Draft Convention also contains a review clause: pursuant to Article 14, the UN General Assembly is to consider ten years after the entry into force of the draft convention whether there is need for revision of the instrument “in the light of [its] past application”. Additionally, there is a possibility to convene a conference of the parties to review the draft convention once it has been in force for five years.242 3.5. Environmentally-oriented National and Regional Efforts In Europe, an ESA Space Debris Working Group prepared a study of space debris in 1988.243 The next year ESA adopted a resolution on space debris policy, where it noted that “the problem of space debris has become worldwide one of the major issues regarding the environmental protection of outer space and has reached a level which requires serious considerations especially for manned missions”.244 In 2000, it adopted another resolution245 which, i.a., invited ESA member states “to take measures in order that legal and economic aspects connected to space debris be studied in the most efficient ways”,246 “to coordinate the establishment and use of their space debris monitoring systems”,247 and “to expeditiously work … on the elaboration of technical standards for safety and debris prevention”.248 ESA has also a Space Debris Mitigation Handbook, issued initially in 1999,249 and 240 Art. 4.e. Pursuant to Art. 4.d, “refusal to hold consultations, or the breaking up of such without justification, shall be interpreted as bad faith”. Indeed, it has been suggested that a unilateral termination of negotiations without a sufficient cause is a breach of international law. See Report of the 65th Conference of the ILA 1992, p. 150. 241 Art. 4.f. 242 Art. 14. The ILA Draft Convention also contains an article (Article 9) on the settlement of disputes. The draft convention’s rules concerning resolution of disputes are not examined in detail here, however, as the subject of dispute settlement in space activities is treated more thoroughly later in this work. 243 The Report of the ESA Space Debris Working Group 1988. 244 Resolution for a European Policy on the Protection of the Space Environment from Debris, preamble. Note here the clearly anthropocentric bias: the resolution puts particular emphasis on human survival, since debris is considered detrimental above all as a threat to manned missions. See Covert 2002, p. 120. 245 Resolution for a European Policy on the Protection of the Space Environment from Debris. 246 Para. 7. 247 Para. 3. 248 Para. 4. 249 With revisions released in 2002 (see Klinkrad et al. 2002) and a second edition published in 2003.

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a European Space Debris Safety and Mitigation Standard, issued in 2002. The objectives of the standard are prevention of the generation of space debris and protection of space vehicles against space debris.250 It is based on the following principles: 1) avoidance of deliberate release of mission-related objects; 2) special protection of GEO and LEO; and 3) passivation (depletion of left-over on-board energy sources251) of satellites and launch vehicles at the end of their lifetime.252 It is one of the few space debris standards which concentrate on spacecraft protection in addition to debris mitigation.253 Furthermore, Europe’s Network of Centres on Space Debris (a grouping of Italian, British, French and German space agencies, and ESA) has prepared a voluntary “European Code of Conduct for Space Debris Mitigation”, which is being studied for final approval.254 It is consistent with the IADC guidelines (and the resolutions of ESA on its space debris policy) but more detailed. For instance, the European Code of Conduct not only recommends passivation of space systems at the end of their lifetime but also gives instructions applicable to situations where such passivation cannot be carried out.255 The code of conduct is to be applied by ESA, European national space agencies, The Standard has been developed from the 1999 CNES “Space Debris Safety Requirements” and is harmonized with the IADC Debris Mitigation Guidelines. “The ESA Space Debris Mitigation Handbook together with the European Space Debris Mitigation and Safety Standard shall jointly define the Agency’s policies and implementation concepts concerning space debris mitigation and collision risk reduction for any mission under ESA control.” See “ESA, Update of the ESA Space Debris Mitigation Handbook”. 251 One way to do this is to run the engine until any remaining fuel is depleted. Depletion by burning also makes it possible to change the orbit of the spacecraft at no extra cost. Another possibility is to vent the extra fuel into space. 252 Alby et al. 2002, p. 3. 253 Schäfer et al. 2005, p. 44. 254 France’s space agency CNES already signed this document in October 2004. It has since been applied to all new CNES projects. “Code of Conduct for Space Debris Mitigation” 2004. 255 Pursuant to Section 4.2.1, if the passivation requirements cannot be fulfilled, “the space system should comply with b) and c): b) When the residual pressure in propellant and pressurisation tanks cannot be removed, this pressure should be lower than 50 per cent of the critical pressure of the tank concerned. The critical pressure of a tank is the maximum pressure under which a penetrating impact does not cause an explosion, but will result in a leak. c) When the remaining propellants cannot be drained, the design should comply with all the following conditions: no explosive reaction of the propellant should occur as a result of a penetrating impact; no exothermal dissociation of the propellant should occur due to tank heating; no leak should occur that may cause the mixture of hypergolic propellants; design of tanks (for example, leak before burst design) and the efficiency of thermal protection should inhibit pressure build-up that may cause tank explosion”. 250

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as well as their contractors. Additionally, it should be followed in any other space project conducted in Europe or by a European entity (even outside Europe).256 The European Code of Conduct is accompanied by a “Support to Implementation” document which—as the name indicates—is designed to assist in the implementation of the code of conduct. Plans call for updating it “from time to time as needed”.257 Several states have been active in space debris mitigation also at the national level. The state with most advanced regulation of environmental aspects of space activities is the US.258 Initially, space debris was perceived by NASA mostly as a problem for the safety of human spaceflight at low altitudes. This conception changed quickly in the late 1970s and early 1980s, partly due to the explosion of a Delta launch vehicle second stage in 1981, the likely cause of which—as well as of many earlier incidents—was identified as residual propellants.259 In 1988, the national space policy of the Reagan Administration explicitly called for minimization of the creation of space debris.260 The next year, NASA and the US Department of Defense (DoD) began developing improved programs for monitoring the debris environment and the Bush Administration adopted orbital debris minimization as a formal goal of the national space policy (“consistent with mission requirements and cost effectiveness”). Additionally, the US announced its intention to “encourage other spacefaring nations to adopt policies and practices aimed at debris minimization”.261 NASA and the DoD thereafter adopted policies for orbital debris mitigation in all their space activities. The subsequent national space policies have since reaffirmed the earlier policies of the US government.262 In 1995, NASA was the first space agency globally to issue a comprehensive set of procedures for limiting orbital debris: the NASA Safety Standard 1740.14. In 1997, an interagency working group (led by NASA and the DoD) developed “U.S. Government Orbital Debris Mitigation Standard Practices”,263 based on the NASA Safety Standard. The Debris Mitigation Standard Practices are European Code of Conduct for Space Debris Mitigation, Section 2.2. Ibid., Foreword. 258 The US legislation is usually considered the most advanced among national legal frameworks governing space activities. Cosmic Study on Space Traffic Management 2006, p. 86. 259 Johnson 2005(b), p. 5. 260 “Presidential Directive on National Space Policy” 1988. 261 National Space Policy Directives and Executive Charter 1989. In the late 1980s and early 1990s, research on space debris, too, intensified in the US. Perek 2002, p. 127. A detailed Report on Orbital Debris was prepared by the US Interagency Group (Space) for the National Security Council in 1989, and in 1990 a study appeared by the US Congress entitled “Orbiting Debris: A Space Environmental Problem”. 262 See Second Quarter 2002 Quarterly Launch Report, pp. 9–10. 263 The Standard Practices were finalized in December 2000. 256 257

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intended for space systems (including satellites as well as launch vehicles) which are “government-operated or -produced”. In order to encourage voluntary compliance, the interagency working group has shared these guidelines with the aerospace industry.264 The standard practices have four objectives: 1) control of debris released during normal operations; 2) minimization of debris generated by accidental explosions (during and after missions); 3) selection of safe flight profile and operational configuration (to avoid collisions with man-made objects as well as meteoroids); and 4) post-mission disposal of space structures (either by re-orbiting, de-orbiting, or even by direct retrieval).265 For each objective there are mitigation standard practices.266 Furthermore, many government agencies in the US have in recent years developed additional guidelines and regulations pertaining to orbital debris production and mitigation in their respective areas.267 For instance, the agency responsible for regulating launch and re-entry (and 264

“NASA Orbital Debris Program Office, Orbital Debris Mitigation”. As concerns objectives 3 and 4, the standard practices state that “tether systems will be uniquely analyzed both for intact and severed conditions”. Such tethers are still in the stage of development only but they seem to promise a new, potentially relatively feasible way for the removal (re- or de-orbiting) of inactive space objects, for instance. Tethers “are essentially cables which contain conductive material, and are attached to a satellite while passing through the Earth’s magnetic field. The motion generates electric current along the tether, providing propulsion for orbital objects, like satellites. This propulsion provides thrust, which can be used to alter the satellite’s orbit”. Space Security 2005 Briefing Notes (2006). For a more detailed treatment of space tethers and their possibilities, see “NASA, Space Transportation with a Twist”. Other kinds of new techniques are also being examined, like “space-based lasers to slow then deorbit existing junk” and “grabbing objects with a huge sling”. Currently, however, there is no feasible way to retrieve space debris; even tethers remain too expensive to be practical. “Space Debris Mitigation: the case for a code of conduct” 2005. On innovative (yet not feasible) debris removal techniques such as robotic spacecraft, lasers, and “debris sweepers”, see also Cosmic Study on Space Traffic Management 2006, pp. 70–71. 266 For instance, as concerns the first objective, the mitigation standard practice (1–1.) is that “[i]n all operational orbit regimes … [s]pacecraft and upper stages should be designed to eliminate or minimize debris released during normal operations. Each instance of planned release of debris larger than 5 mm in any dimension that remains on orbit for more than 25 years should be evaluated and justified on the basis of cost effectiveness and mission requirements”. There also exists, i.a., a “NASA Policy for Limiting Orbital Debris Generation” which requires “formal assessment” on NASA programs of “[orbital] debris generation potential and debris mitigation options” (Art. 1.b). 267 Guidelines similar to the governmental Orbital Debris Mitigation Standard Practices are found at least in regulations given by the US Federal Communications Commission, the Department of Transportation, and the Department of Commerce. Johnson 2005(b), p. 9; Greenberg 2003, pp. 359–360, 390–391. Additionally, programspecific debris/meteoroid protection guidelines have been adopted at least for the Space Shuttle and the ISS. Schäfer et al. 2005, p. 44. 265

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related activities) is the Federal Aviation Administration (FAA). A launch license requires safety approval from the FAA. To obtain such approval, the applicant must demonstrate … that for all launch vehicle stages or components that reach earth orbit (a) There will be no unplanned physical contact between the vehicle or its components and the payload after payload separation; (b) Debris generation will not result from the conversion of energy sources into energy that fragments the vehicle or its components …; and (c) Stored energy will be removed by depleting residual fuel and leaving all fuel line valves open, venting any pressurized system, leaving all batteries in a permanent discharge state, and removing any remaining source of stored energy.268

A significant new step was taken in June 2004, when the US Federal Communications Commission (FCC), the agency responsible for licensing radio transmissions by private entities in the US and hence regulating, i.a., communication satellites, ordered a new comprehensive set of rules concerning mitigation of orbital debris.269 These rules essentially incorporate the recommendations of the IADC (and the ITU) concerning spacecraft disposal. They apply to licensing of commercial US satellites as well as to the use of non-US satellites when they provide service in the US.270 The FCC regulations include operational and disclosure requirements in basically three categories: avoidance of collisions with large objects during normal operations, post-mission disposal, and assessments and analyses for preventing a spacecraft from becoming a source of debris (including methods of shielding and explosion avoidance).271 They require, for instance, US-licensed GEO satellites to be put at the end of their lifetime into disposal orbits above GEO:272 a commitment to re-orbit satellites in accordance with these rules is a condition of receiving a license to provide 268 Commercial Space Transportation Licensing Regulations, Part 415.39. Apparently, these regulations do not really introduce anything new for the US launch industry; the debris remediation measures required by them are standard industry practice. Greenberg 2003, p. 360. 269 The title of the regulations is “Mitigation of Orbital Debris”. The FCC had proposed already in 1999, while developing rules for a new type of satellite service, that applicants (for authorizations in that service) be required to disclose debris mitigation plans. This proposal was adopted in 2000. Over the next three years, the FCC adopted the same requirement for most new services. The debris mitigation rules of 2004 thus largely consolidate practice that had already existed. However, they also provide more detailed guidance concerning the information to be submitted by the applicants and, for the first time, set out operational requirements for debris mitigation (regarding end-of-lifetime solutions in particular). Kensinger et al. 2005, pp. 571–572. 270 See Part III.D. 271 For a more detailed assessment of the FCC debris mitigation rules, see Kensinger et al. 2005, pp. 572–574. 272 The minimum disposal altitude required depends on the satellite’s size and other relevant factors; it is to be calculated in accordance with the formula of the IADC

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services in the US.273 The disposal requirement for GEO satellites was deemed necessary because the need to preserve a safe environment for satellite operations also in the future was not considered as an incentive sufficient enough to deter actors from environmentally harmful practices. Such incentives “may be countered by a more immediate incentive to obtain the most revenue from an operational satellite before decommissioning”.274 The effects of inadequate disposal can, moreover, impact quite a number of orbital locations and have detrimental effects far beyond the timeframe of the business activities of a single operator.275 Operators are also required, i.a., to submit an orbital debris mitigation disclosure, in which they confirm that the probability of accidental explosions during and after mission operations will be assessed and limited by, for instance, discharging stored energy sources on spacecraft at the end of its

Debris Mitigation Guidelines (para. 68). According to the same paragraph, the FCC’s reasoning behind the adoption of the IADC formula is the following: “We believe that application of this formula provides the best long-term protection to operational GEO spacecraft from orbital debris. Unlike the disposal practices for GEO spacecraft set forth by the U.S. Orbital Debris Mitigation Standard Practices (para. 4–1.b.III), the IADC formula takes into account the specific characteristics of individual spacecraft, such as its susceptibility to the effects of solar radiation pressure, which may cause a spacecraft eventually to drift back into GEO. Furthermore, use of the IADC formula establishes a 200-kilometer ‘protected region’ around GEO that provides protection to spacecraft that are operating above GEO either during normal station keeping operations or during transfer maneuvers … The IADC formula also represents an internationally developed consensus for disposal of GEO spacecraft, which has already been adopted into the revised ITU GEO disposal recommendation”. “We conclude that the use of the IADC formula for evaluating the post-mission disposal plans of GEO space stations is superior to other methods suggested by commentators” (para. 71). 273 This has been required of all satellites launched after 18 March 2002, which was when the FCC notified satellite operators of its plans to develop rules on the subject through the release of the Orbital Debris Notice (or “Mitigation of Orbital Debris, Notice of Proposed Rulemaking”). Satellites launched prior to this date are exempted from the new GEO disposal obligation (or “grandfathered”) because application of the IADC formula to satellites already in orbit was deemed to impose excessive additional costs on operators. See paras. 77–82. 274 Para. 72. The removal of a GEO spacecraft requires it to carry extra fuel specifically for this purpose, which of course adds to costs. Typically, the fuel needed for disposal of a GEO spacecraft equals the amount needed for two to three months of station-keeping. Hence, disposal reduces the operational lifetime by this amount of time. Another fact that can undermine proper disposal of spent GEO spacecraft is the operator’s wish to bring into use a certain orbital location in order to preserve its priority in the ITU system. Kensinger et al. 2005, p. 573. Similarly, requiring launch vehicle stages to re-enter the atmosphere and burn up within a specific period of time can affect payload delivery capability. See Greenberg 2003, p. 394. 275 Para. 73.

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operational lifetime.276 The new FCC regulation indicates that the FCC will examine the end-of-lifetime plans of non-GEO spacecraft as well in the light of the IADC recommendation that spent spacecraft remain in the LEO region for no more than 25 years.277 Given the focal role of the US in the space sector, the rules of the FCC provide a promising precedent internationally; as concerns the obligation to re-orbit spent GEO satellites, the new FCC regulation has even been described as a “regulatory standard that will be difficult for other nations to avoid”.278 On the other hand, considering in particular the highly competitive international setting in which the commercial space sector operates, unilateral application of debris mitigation measures can put private space industry in any country at a competitive disadvantage unless other states impose similar requirements on their firms.279 Promisingly, many other states worldwide have also issued or are currently developing debris mitigation guidelines. For instance, the Russian Federation,280 Japan, France, Italy, and the United Kingdom all have their own space debris guidelines.281 Due to the largely congruent interests of all operators and states in terms of debris mitigation, the various standards, handbooks and the like concerning this issue tend to be broadly consistent. Of course, there are some differences in detail but the fundamental principles are the same as those of the IADC guidelines both as regards—quite obviously—the antecedent debris mitigation norms, which provided a model for the IADC guidelines, as well as those instruments that have been developed subsequently. For instance, the national regulations all address debris minimization during normal operations. Typically, they also call for depletion or passivation of a spacecraft at the end of See paras. 29–33. Para. 84. 278 de Selding 2004. 279 See Greenberg 2003, pp. 382–383, 391–392. 280 The Federal Space Agency Standard “Space Technology Items. General Requirements for Mitigation of Space Debris Population” came into force in 2000. The Standard is obligatory when space vehicles are produced by the order of the Russian Space Agency, Rosaviakosmos. Other relevant documents include “Russian National Standard. Model of spatial—temporary distribution of density of Space Debris” from 2001 and “Space Technology Items. General Requirements on Spacecraft Shielding Against Space Debris and Meteoroids” from 2003. The development of “Russian National Standard on Space Debris Mitigation” is currently underway. Davidov 2006. 281 Report of the Scientific and Technical Subcommittee on its 42nd session 2005, para. 91. In addition to space agency regulation, states may also have environmental provisions in their national space legislation. For instance, Russian legislation states (albeit very vaguely) that space activity is to be conducted in accordance with the principle “provision of safety in space activity, including protection of the environment” (Law of the Russian Federation “About Space Activity”, Art. 4.1). It also prohibits the creation of “harmful contamination of outer space which leads to unfavorable changes of the environment”, including deliberate destruction of objects in space (Art. 4.2). 276 277

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its operational lifetime. Most of them require at least the assessment of collision risks to avoid breakups. Additionally, they recommend the re-orbiting of GEO spacecraft—typically to the altitude of 235 km above GEO—and the de-orbiting (removal) of spacecraft from LEO within 25 years.282 However, there are also differences. For instance, some debris mitigation systems allow waivers in case a mitigation practice is considered too expensive.283 3.6. Conclusion The attempts to control the various environmental risks of space activities by international regulation, let alone tangible results of such attempts, have thus far been relatively modest. The conclusion of the Outer Space Treaty was admittedly a big step forward in the international law of outer space, but its obligations remain very general, particularly with regard to environmental aspects. Moreover, the OST is clearly oriented towards the exploitation rather than conservation of space resources.284 What is more, the environmentally most fundamental article of the international law of outer space, Article IX of the OST, is mainly concerned with contamination that has the potential to cause harmful interference with human space activities or life on Earth; it is only in such cases that even the relatively insignificant prior consultation obligation applies. The motivation for the protection afforded by the OST seems to be safeguarding human activities rather than environmental concerns.285 282 For a comparison of the recommendations and requirements of different space organizations, see Support to the IADC Space Debris Mitigation Guidelines, p. 3 (Table 2.1–1 Recommendations / Requirements Specified in Major Debris Mitigation Standards). 283 Hitchens 2004. 284 In addition to the numerous references in the OST to “exploration and use of outer space”, one should notice already the very first preambular characterization of states parties to the treaty as “[i]nspired by the great prospects opening up before mankind as a result of man’s entry into outer space”. 285 It has been argued that the protection offered to outer space by Art. IX was never intended to extend to the space environment as such but was only meant to further scientific utility. Hence the environmental element in the OST remains modest. Baker 1987, pp. 163, 166–167. For a more detailed treatment of the negotiation history of Art. IX of the OST and the conflict between environmental and utility approaches, see, e.g., ibid. and Hacket 1994, pp. 104–120. On the other hand, it has been proposed that the obligation to avoid “harmful contamination” and “adverse changes” pursuant to Art. IX has even assumed a binding character as a general principle of customary international law. Matte 1989, p. 439. Considering the reality of space activities, however, this is an apparent overstatement to say the least (regardless of the function of protection). Even more far-fetched are proposals to the effect that the OST in its entirety be considered “as forming part of customary international law”. See Hacket 1994, pp. 137–138.

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Subsequent space law instruments have not managed to rectify the shortcomings of the OST. Accordingly, legal protection of the environment in space law still depends on the violation of certain goods valuable to humans, as specified in the Liability Convention. Damage which does not affect the property of any entity or human health falls outside the scope of the Liability Convention—and thereby of what is even somewhat effective regulation by the international law of outer space. Hence, launching states cannot be held liable for the mere presence in outer space of any form of pollution or even for damage the pollution may have caused to the environment outside the sovereign territory of states. If the interests of states are not affected, the outer space environment is without protection. On balance, UN space law provides little guidance in the environmental management of space activities. Concepts such as environmental protection, due regard, cooperation, prior consultation, and interests of all present and future generations are considered important in space law but, at the same time, the particular provisions implementing them are vague and leave considerable room for interpretation. Terms such as ‘harmful’, ‘contamination’, ‘appropriate’ and ‘interference’ would need further clarification. Space treaties do not even mention ‘space debris’. On the whole, the provisions of the space treaties imply that there can be changes in the environment of the Earth, outer space, or celestial bodies that are not “disruptive”286 or “harmful”.287 Also, contamination below the threshold of ‘harmfulness’ is permissible. Evaluation of the impact of a particular activity is largely left to the very state responsible for conducting that activity. The prevention of a potentially harmful activity on purely ecological grounds, as well as compensation for such harm, is practically out of the question in the context of the current international law of outer space. Space law also expressly permits states to conduct a wide range of potentially environmentally detrimental activities on celestial bodies and in other areas of outer space as long as they are peaceful and otherwise in accordance with international law. A common perception of outer space is that it provides a mere laboratory for scientific activity and a resource for human utilization, the preservation of which serves solely to further purposes beneficial to humankind.288 This ‘utility approach’ is obviously the reason why the international law of outer space is so weak in the field of environmental protection: a truly environmental perspective was never adopted in the process of drafting these instruments. Some of the environmental problems connected with space activities have been diminished by the UN space treaties and the regulations of the ITU, but many difficulties remain.289 Even the regimes created by the UN space treaties Moon Treaty, Art. 7.1. OST, Art. IX. 288 This has been called the “sci-lab perception”. For more detail, see Hacket 1994, pp. 104–110. 289 Interestingly, it was the ITU that took the lead in addressing the space debris 286 287

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and the ITU include discrepancies. For instance, the ITU calls for “economic and efficient use” and “equitable access”, whereas the UN space treaties speak about “benefit and interests of all countries” and outer space being free for use by all without discrimination of any kind (irrespective of the economic or scientific development of countries). A request for “equitable” treatment is usually understood by the ITU as a demand for fairness of treatment in light of the facts and circumstances of each case, not unqualified equal treatment in all situations.290 Another potential source of conflict is the coordination procedures established within the ITU framework, which require states to ensure interference-free operations. These may be contrary to the general principles of space law, as established in the OST, providing access and use of outer space by all states and banning national appropriation. According to the ITU, the frequency and orbit assignments do not provide any permanent priority. However, the Radio Regulations guarantee indefinite protection of registered geostationary satellite frequency and position assignments against interference from new systems as long as the frequency and position are continuously used. This seems problematic considering that satellite communication networks are generally intended for permanent use.291 Even if space structures in GEO comply with the various technical criteria to minimize interference and are able to function physically very close to each other, they might still constitute “quasi-permanent occupation” or de facto appropriation of GEO.292 Moreover, by selling a satellite occupying a particular GEO position, the ‘ownership’ of that position can also be tacitly sold.293 However, without the planning system of the ITU a mere ‘first come, first served’ rule would apply and appropriation of GEO would amount to a ‘survival of the fittest’.294

problem: the ITU recommendation “Environmental Protection of the Geostationary Satellite Orbit” calling for re-orbiting of GEO satellites at the end of their lifetime was adopted in 1993, whereas the Scientific and Technical Subcommittee of the UNCOPUOS only managed to agree on the inclusion of space debris as one of its agenda items the following year. See Perek 2002, p. 128. 290 Jasentuliyana 1999(a), p. 259. Further confusion may stem from the fact that the terms ‘efficiently’ or ‘economically’ are not defined by the ITU instruments in any way. 291 Ibid., pp. 257–258. 292 Courteix 1993, p. 274. “[GEO] presents the best example of how the use of outer space can amount to something, which at least resembles appropriation, in the sense that it may exclude the use of others of the same resource.” Metcalf 1999, p. 224. For a more general assessment of whether different types of space activities amount to appropriation of outer space, see ibid. 293 Williamson 2006, p. 43. 294 Courteix 1993, p. 274. However, the ITU regime for GEO is also in essence much of a ‘first come, first served’ system: once a state has been allocated a slot, the subsequent applicants for adjacent positions have to negotiate with those who already have secured

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More advanced norms for environmental purposes in the space sector have been proposed recently by other organs at the international level, such as the IADC and the ILA. In the main, these have been recommendations concerning mitigation of space debris. Even the UNCOPUOS has managed to discuss these issues with new effectiveness. Most importantly, the Scientific and Technical Subcommittee adopted its Space Debris Mitigation Guidelines in 2007. In addition, many space agencies have adopted a number of selfimposed guidelines, above all, for the purpose of debris mitigation.295 Although these instruments are mostly legally non-binding, recent developments seem to promise a possible shift towards more binding regulation. Above all, the decision of the Federal Communications Commission in the US to make a commitment to re-orbit GEO satellites at the end of their useful lifetime a condition of receiving a license to provide services seems like a very importance precedent for the entire space sector. Eventually, the international community may even be able to agree on binding obligations to the same end. On the other hand, debris mitigation efforts have already been taken for decades even without binding obligations to do so. The risks associated with space debris have been acknowledged within academia and the space industry long before the development of any mitigation policies or guidelines.296 Some launch vehicle developers began themselves to study possibilities to mitigate the hazard.297 For instance, passivation of US launch vehicles started back in the early 1960s. By now, such measures have become relatively common worldwide, which is hardly surprising considering that passivation is quite an effective way to prevent upper stage explosions yet typically entails relatively small costs when planned in the early design phase.298 Many spent launch vehicle upper stages their rights in order to reach a mutual agreement about frequency use. The rights of the ‘first come’ always prevail. 295 A notable exception is China. Despite being an increasingly important spacefaring nation (and a member of the IADC), China has no national debris mitigation standards. However, it has also been reported to be developing national regulation on the issue: “as a member of the IADC, the Chinese Government will undertake the study and development of Chinese design norms to mitigate space debris in conformity with the principles appearing in the space debris mitigation guidelines, developed by the Coordination Committee”. “511th Meeting of the UNCOPUOS” 2003, p. 5. See also Report of the Committee on the Peaceful Uses of Outer Space 2005, para. 130. Nevertheless, China carried out an anti-satellite test in January 2007 which created a large number of new pieces (approximately 300 000) of space debris. See, e.g., Covault 2007; Kaufman–Linzer 2007. 296 See, e.g., Perek 1978 for an assessment of potential problems related to the use of GEO, such as saturation of the orbits and the frequency spectrum (at a time when there were only about 100 satellites in GEO). 297 For a list of different kinds of techniques for reducing the creation of orbital debris, see Greenberg 2003, pp. 388–389. 298 Second Quarter 2002 Quarterly Launch Report, p. 12. The passivation of batteries,

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and satellites have also been removed from useful orbits: the first end-of-lifetime disposal of a satellite from GEO to a graveyard orbit was performed by Intelsat already in 1977.299 Quite obviously, in principle, it is in the satellite operators’ self-interest to preserve the environment where they are conducting their activities.300 In practice, however, the Earth orbits are not well-preserved, despite the considerable number of guidelines and the like, and the voluntary efforts of some satellite operators. Removal of inactive spacecraft, for example, is still far from being standard procedure. Currently, only about one out of three spent GEO spacecraft is reboosted to a disposal orbit at least 250 km above GEO, for instance. Another third of the spent GEO satellites are removed to a lower, insufficient altitude from where they will sooner or later interfere with functional GEO satellites. The remaining third are simply abandoned once they have run out of fuel and are no longer useful.301 Such is the trend despite the fact that even if no new satellites were placed in GEO, the debris there already—and further colliding with itself and functional spacecraft—would be enough to render the area hazardous and the long-term effects of inaction could be disastrous.302

for instance, is generally more expensive than the depletion or venting of extra fuel. “Space Debris Mitigation: the case for a code of conduct” 2005. However, although some measures may have little impact on mission costs if planned early enough, many debris mitigation procedures typically are costly. This is obviously a prohibitive factor considering, moreover, that many space programs are on tight budgets. See Brisibe– Pessoa-Lopes 2002, p. 314. 299 Jehn et al. 2005, p. 373. Both governmental and commercial satellites have been removed from useful orbits. For instance, in 2005 a total of seven US spacecraft were decommissioned and placed on disposal orbits above GEO: three of these were commercial, four governmental. Johnson 2006, p. 4. 300 It has been pointed out that the commercial space sector may in fact have even more incentives to act in a responsible manner than non-commercial operators, as the financing of the activities of the latter “may have little to do with the ability of the spacecraft to continue revenue-producing activity”. Mitigation of Orbital Debris 2004, para. 32. 301 Between 1997 and 2004, 117 GEO satellites reached the end of their life. Of these 39 were re-orbited in accordance with the IADC recommendations. Another 41 were re-orbited below the recommended minimum altitude, while the remaining 37 were abandoned with no disposal maneuvers. Jehn et al. 2005, p. 377. As regards the figures of the most recent of these years, five of the 13 GEO satellites which were retired in 2002 were moved to safe disposal orbits. In 2003, the figure was six out of 15. de Selding 2004. In 2004, it was five out of 13 (another five satellites were reboosted to insufficient altitudes and three just abandoned). Jehn et al. 2005, p. 376. 302 Flury 2000, p. 47. As regards variations of attitudes towards end-of-lifetime disposal strategies for GEO satellites, statistics show certain trends. As examples of more creditable operators in this respect one can mention Intelsat and Japan, which have re-orbited all of their GEO spacecraft within the period 1997–2004 (though some of the

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It is obvious that even self-imposed guidelines are in many instances not observed.303 Of course, technical malfunctions sometimes render even the most genuine attempts at proper end-of-lifetime disposal of spacecraft impossible. Often, however, there is not even any serious attempt to achieve best practices. Environmental considerations are compromised due to economic realities, which is not surprising given that debris mitigation measures can increase the costs of missions considerably. Understandably, commercial space activity is essentially based on financial motivations. As one author has put it, “safety is always expensive and there are very few fields of human activities which prefer safety to profit on a voluntary basis”.304 The problem is that debris mitigation policies, for instance, typically increase the short-term costs of space missions, as the losses resulting from debris impacts avoided generally become a considerable factor only over time. Although the reduction of mission costs in the long term could be significant, this alone is not capable of providing economic incentives to make environmentally more benign policies attractive enough: normal, prudent business decisions do not operate with such lengthy time spans.305 In addition, deficiencies in knowledge make it quite difficult to estimate the costs and benefits of different measures.306 Furthermore, objects launched into outer space before the importance of mitigation requirements was understood continue to contribute significantly to the generation of the debris population: the measures currently feasible for minimizing debris creation will at best only stabilize the growth of space debris at its present rate.307 Thus there is need for common international regulation to alleviate debrisrelated problems. What is more, many see it as a duty of the international orbits reached were too low). Another extreme would be Russia, where only three GEO satellites were re-orbited in compliance with international recommendations, another three were reboosted to too low disposal orbits, and a total of 26 GEO spacecraft were abandoned. The Chinese record is even worse: re-orbiting was attempted only once but the spacecraft did not reach a safe disposal orbit, and the four other Chinese GEO satellites that reached the end of their lifetime during the period performed no disposal maneuvers. Jehn et al. 2005, p. 377. The record of the US commercial satellite industry has also been reported to be not a very laudable one in this respect. Muir 2005. 303 Perek 2002, p. 132. 304 Ibid., p. 134. 305 Greenberg 2003, p. 381. 306 In particular, it is difficult to forecast developments over time. See ibid., pp. 382– 383, 385–386. The Scientific and Technical Subcommittee of the UNCOPUOS has also been discussing the question of the costs and benefits of debris mitigation measures and urging further research in the area. See, e.g., Reports of the Scientific and Technical Subcommittee on its 38th, 39th and 40th session (years 2001, 2002, and 2003). For an extensive attempt to develop a method to evaluate the economic impacts of orbital debris and mitigation options, see Greenberg 2003. 307 See Flury 2000, p. 47.

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community to act since the issue of space debris is essentially an inter- and intragenerational one.308 If there is renewed interest in using nuclear power sources for space missions and even for propulsion purposes, international rules for limiting hazards related to NPS will surely also be in demand. The efforts already taken by various stakeholders provide positive pointers to the existence of a common understanding on the need to adopt improved approaches to environmental management of space activities but these steps alone are not enough. Besides, there is no guarantee that any voluntary actions will be continued in the future.309 The diversity of the concerns and stakeholders involved and the need for longterm management call for persistent, extensive new environmental policies, which require international regulation. There might even be need for different regulatory regimes for different areas of outer space. In addition to GEO, another area specifically in need of improved environmental practices is LEO, as no particular UN- or ITUsponsored regulation has been adopted for LEO activities yet. Some initial attempts to protect this orbital area have been taken, however. For instance, the IADC Space Debris Mitigation Guidelines include LEO in the “orbits and protected regions” to which they apply. In a similar manner, the Draft European Space Debris Safety and Mitigation Standard uses the concept of protected region, which in the context of the instrument includes LEO.310 The Space Debris Mitigation Guidelines of the Scientific and Technical Subcommittee of the UNCOPUOS urge that [s]pacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the LEO region should be removed from orbit in a controlled fashion. If this is not possible, they should be disposed of in orbits that avoid their long-term presence in the LEO region.311

308

Accordingly, in the deliberations of UNISPACE III, many speakers referred to the need of the international community to urgently act for mitigation of the space debris problem. Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space 1999, para. 474. 309 Greenberg 2003, p. 395. 310 This region is “protected in relation to the generation of space debris” and the presence (permanent or periodic) there of space debris is limited to 25 years. Alby et al. 2004, pp. 1262–1263. 311 Guideline 6 [“Limit the long-term presence of spacecraft and launch vehicle orbital stages in the low-Earth orbit (LEO) region after the end of their mission”]. The guideline further provides that “[w]hen making determinations regarding potential solutions for removing objects from LEO, due consideration should be given to ensure that debris that survives to reach the surface of the Earth does not pose an undue risk to people or property, including through environmental pollution caused by hazardous substances”.

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However, these are only recommendations of a non-binding character; no international rules of a binding nature have been adopted that would facilitate environmental protection of LEO in particular. Given the explicit reference in the current ITU Constitution to all orbits associated with the use of radio frequencies as limited natural resources, the development of a legal regime also for LEO should be considered. Indeed, it seems quite realistic to expect such a regime to emerge eventually, considering that basically all of the better-elaborated environmental norms in the space sector are concerned with the protection of commercially valuable orbits. The prospects for improved environmental regulation for areas with little practical value for humans seem the least promising.

Chapter Four

International Environmental Law in the Space Sector The statistics concerning accumulation of space debris indisputably show that the preservation of outer space necessitates something more than what the existing UN space law and recommendations adopted by various organs can offer. Those Earth orbits that are economically the most valuable to humans and hence ought to generate the strongest incentives for responsible conduct are in fact the ones most degraded. There has been some significant progress recently at the national level (above all, the new FCC regulations in the US), but this is not enough for resolving this global—or, rather, universal—problem. Effective regulation requires compliance by all major spacefaring states on an equal-terms basis. Debris mitigation practices need to become an intrinsic element of all space operations. Attempts have already been made to draft a treaty that would be more effective in protecting the outer space environment.1 In all probability, this will be a very See, e.g., Hobe 1992. In addition to proposals inspired by environmental concerns, a more general review of the international space law has often been suggested. A common idea is that of a sixth, comprehensive UN space convention to “meet the legal challenges presented by modern space activities and [to] ensure that outer space [is] maintained exclusively for peaceful purposes”. Report of the Committee on the Peaceful Uses of Outer Space 2005, para. 31. See also, e.g., Report of the Legal Subcommittee on its 44th session 2005, para. 136: “Some delegations expressed the view that the present legal regime governing the activities of States in the exploration and use of outer space was not keeping in pace with existing scientific and technological developments … a universal convention should be developed in a balanced manner with the aim of finding solutions for existing issues, giving legal binding status to the principles of outer space and supplementing provisions of the existing United Nations treaties on outer space”. 1

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time-consuming process.2 The variety of problems related to the adoption of international instruments in space law and international environmental law in particular will be discussed in detail later in this work. Prospects for the utilization of other than purely legal instruments are also examined. Before the adoption of any such instrument or procedure in the space sector, there will still be a pressing need to rely on the existing rules for the environmental protection of outer space, however. Since the space treaties have proven highly inadequate for that task, we shall now turn to international environmental law for possible relief and study the applicability of its instruments in addressing environmental problems related to the use of outer space. Article III of the Outer Space Treaty provides that space activities are to be carried out “in accordance with international law, including the Charter of the United Nations, in the interest of … promoting international cooperation and understanding”, thus explicitly confirming the applicability of general international law and international environmental law to space activities.3

(On a proposal for the development of a “universal, comprehensive convention on space law”, see also para. 33). Some other delegations, however, found the current legal framework established by the UN treaties on outer space to be “coherent and useful for [the] increasingly widespread and complex activities in outer space carried out by both governmental and private entities” (para. 32) and it thus “adequately [meets] the needs of the international community”. What is more, “the consideration of a universal comprehensive convention with regard to outer space would hinder the work of the Legal Subcommittee and would create uncertainty on the status and validity of the existing outer space treaties and principles” (paras. 138–139). Moreover, the fear has been expressed that “[t]he effort needed to draft a new comprehensive convention … would considerably slow down the work of the [Legal] Subcommittee and would make less clear its message with regard to increasing the adherence to the existing outer space treaties and improving their implementation”. Report of the Legal Subcommittee on its 45th session 2006, para. 48. Instead of discussing a new comprehensive space convention, states should thus “commit themselves to adhering to the existing outer space treaties” in order to “[strengthen] the legal framework for global space activities” (para. 47). 2 Many are in fact quite pessimistic about an environmental space treaty. See, e.g., Perek 2005, pp. 587–588: “Expecting that a comprehensive treaty on space debris would be adopted any time soon is overly optimistic after ten years of discussions of space debris in the Scientific and Technical Subcommittee and still no consensus on starting discussions in the Legal Subcommittee. Moreover, the trend in COPUOS instruments has to be taken in account, too. More modest solutions, such as an adoption of recommended guidelines or of an agreed opinion are, let us hope, within possibilities.” By the “trend in COPUOS instruments” the author refers to the fact that no new space treaties have been adopted since 1979; instead, the UNCOPUOS has adopted sets of non-binding principles only. Ibid., p. 587. 3 Of course, international law is applicable to all international activities of states, space activities included, even without explicit reference to such applicability in space treaties.

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4.1. Treaties Even though the distinctively different characteristics of outer space and the terrestrial environment often urge different approaches, some treaties of international environmental law can contribute to the environmental protection of outer space. No doubt other instruments than those mentioned below may also have some relevance in this respect. However, their role in mitigating environmental degradation in the space sector remains so marginal that only the focal instruments will be discussed here, and even these only briefly. Among the relevant instruments in this respect are the Partial Test Ban Treaty of 1963 and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (the ENMOD Convention) of 1976. The Partial Test Ban Treaty prohibits nuclear explosions in the atmosphere, underwater and in outer space in order to prevent pollution by nuclear fallout.4 The ENMOD Convention has a more comprehensive objective, as it prohibits the “military or any other hostile use of environmental modification techniques having widespread, long lasting or severe effects”.5 Article 2 of the convention stipulates that the term “environmental modification techniques” refers to any techniques for “changing, through the deliberate manipulation of natural processes, the dynamics, composition or structure of the Earth … or of outer space”.6 However, the ENMOD Convention expressly allows the use of environmental modification techniques for peaceful purposes.7 Also applicable to space activities are the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, which were adopted by the IAEA in 1986.8 The Convention on Early Notification expressly covers “any nuclear reactor wherever located”9 and also “the use of radioisotopes for power generation in space objects”.10 It applies to any accidents involving facilities or activities “from

4 Art. I.1.a states: “Each of the Parties to this Treaty undertakes to prohibit, to prevent and not to carry out nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas”. 5 Art. 1. 6 Emphasis added. 7 In accordance with Art. 3, “[t]he provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes”. 8 The NPS Principles have been also described as a “supplement” to the two IAEA treaties (and hence they “should be transformed into formal legal instruments with full, binding force to provide a complete set of legal rules to prevent radiological pollution”). Qizhi 1992, p. 170. 9 Art. 1.2.a. 10 Art. 1.2.f.

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which a release of radioactive material occurs or is likely to occur and which has resulted or may result in an international transboundary release that could be of radiological safety significance for another State”.11 There is a possible exception to this applicability where the lunar surface is concerned, however: due to the ban on national appropriation on the Moon, states which may be physically affected should be few and “transboundary release” is hardly possible. The reference to an accident that “could be of radiological safety significance for another State” seems to limit the effectiveness of the instrument even further by leaving it largely for each state to determine whether ‘their’ accidents have the potential to be of such significance to other states.12 Furthermore, the IAEA Conventions in question only deal with measures to be taken after an accident has already happened, such as the duty to “forthwith notify, directly or through the [IAEA] … those States which are or may be physically affected … and the Agency of the nuclear accident, its nature, the time of its occurrence and its exact location where appropriate”13 and to provide the potentially affected states and the IAEA with “available information relevant to minimizing the radiological consequences”.14 The Convention on Assistance in the Case of a Nuclear Accident of Radiological Emergency further obligates the states parties to “cooperate between themselves and with the [IAEA] … to facilitate prompt assistance in the event of a nuclear accident or radiological emergency to minimize its consequences and to protect life, property and the environment from the effects of radioactive releases”.15 In addition to the Art. 1.1. See Sands 2003, p. 846. It is also disputable whether the convention applies to accidents resulting from nuclear weapons and their testing. For further criticism regarding the instrument, see ibid., pp. 846–847. 13 Art. 2 of the Convention on Early Notification. 14 Art. 5 of the Convention on Early Notification. 15 Art. 1.1. A state party in need of assistance “in the event of a nuclear accident or radiological emergency, whether or not such accident or emergency originates within its territory, jurisdiction or control … may call for such assistance from any other State Party, directly or through the Agency, and from the Agency, or, where appropriate, from other international intergovernmental organizations” (Art. 2.1). “A State Party requesting assistance shall specify the scope and type of assistance required and, where practicable, provide the assisting party with such information as may be necessary for that party to determine the extent to which it is able to meet the request” (Art. 2.2). “Each State Party to which a request for such assistance is directed shall promptly decide and notify the requesting State Party … whether it is in a position to render the assistance requested, and the scope and terms of the assistance that might be rendered” (Art. 2.3). “States Parties shall … identify and notify the Agency of experts, equipment and materials which could be made available for the provision of assistance … as well as the terms, especially financial, under which such assistance could be provided” (Art. 2.4). “Any State Party may request assistance relating to medical treatment or temporary relocation into the territory of another State Party of people involved in a nuclear accident or radiological 11 12

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problem of exclusively ‘subsequent’ application of the IAEA instruments, it could prove in many ways difficult to interpret these conventions in an actual accident involving a nuclear reactor in space. One may ask, for instance, whether the loss of radio contact with a satellite carrying NPS already constitutes an accident in the light of these conventions.16 As mentioned above, even the launching of space objects pollutes the atmosphere to an extent, whereby instruments concerned with atmospheric pollution have relevance in the space sector. The 1985 Vienna Convention for the Protection of the Ozone Layer requires states parties to “take appropriate measures … to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer”.17 The 1987 Montreal Protocol to the convention develops this precautionary approach further, particularly in its annexes, calling for the phase-out and reduction of certain ozone-harmful substances in a multiyear time frame.18

emergency” (Art. 2.5). “The Agency shall respond … to a requesting State Party’s or a Member State’s request for assistance in the event of a nuclear accident or radiological emergency by: a. making available appropriate resources allocated for this purpose; b. transmitting promptly the request to other States and international organizations which, according to the Agency’s information, may possess the necessary resources; and c. if so requested by the requesting State, coordinating the assistance at the international level which may thus become available” (Art. 2.6). 16 Courteix 1992, p. 118. For a more detailed account of the application of the IAEA Conventions to the space environment, see, e.g., Smith 1993, p. 316. Two other conventions have been identified as having potential relevance to the safety of NPS in space activities: Convention on Nuclear Safety and Convention on the Physical Protection of Nuclear Material. However, the latter convention applies to nuclear material used for peaceful purposes while in international transport from one state to another (Art. 2.1). Thus it can have relevance only in relation to the transportation of nuclear material on Earth; it is not applicable to NPS in outer space, not even to the launch of NPS. Moreover, it does not apply to most radioisotopes—including plutonium-238, the type typically used for space radioisotope power systems (Art. 1.a). International transportation of uranium-235, which has been used for space nuclear reactors, would, however, fall within the scope of this convention. Applicability of the Convention on Nuclear Safety in space activities is also limited: it is explicitly restricted to land-based civil nuclear power plants and associated activities (Art. 2). However, the “General Safety Considerations” section (Arts. 10–16) of the convention contains provisions concerning quality assurance (Art. 13), radiation protection (Art. 15), and emergency preparedness (Art. 16), for instance, most of which have been deemed as having potential relevance even to space nuclear power sources. Malysheva–Chebotaryov 2005, p. 485. 17 Art. 2.1. 18 The Montreal Protocol on Substances that Deplete the Ozone Layer has since been modified by the adjustments adopted in London (1990), Copenhagen (1992), Vienna

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Finally, an international agreement (albeit ‘only’ a bilateral one) that had some relevance in respect of environmental preservation of outer space was the Anti-Ballistic Missile (ABM) Treaty, concluded between the US and the Soviet Union in 1972.19 It prohibited the development, testing and deployment of “ABM systems or components, which are sea-based, air-based, space-based or mobile land-based”.20 However, the ABM Treaty expired on 13 June 2002, following its unilateral termination by the US Government. This left an international legal void which largely allows the weaponization of space again. Although the international law of outer space continues to ban the deployment of weapons of mass destruction (including nuclear weapons) in space,21 the possible use of space-based conventional weapons is worrisome enough. The termination of the ABM treaty permits, for instance, research, development, testing, manufacturing, production and deployment of space-based weapons—including spacebased components of the US National Missile Defense System—to go forward. Although the US ballistic missile defense system has encountered technological and budgetary obstacles,22 the country seems steadfast in its ‘star wars’ plans.23 This has provoked other states to take similar measures, which is no surprise considering the growing interest in space control of the US military doctrine, defined even as the freedom of action in space for the US (and possibly its allies) while denying its enemies access and use of outer space when necessary.24 (1995), Montreal (1997) and Beijing (1999), which have further strengthened the control provisions of the protocol. 19 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems. 20 Art. V.1 (emphasis added). 21 OST, Art. IV.1. 22 See, e.g., “Wishing Won’t Make Star Wars So” 2003; Crock 2003; “Missile Defense Test Failed As Support Arm In Silo Failed To Clear” 2005. 23 See, e.g., Zakaria 2003; Gilmore 2003. The US Missile Defense Agency is even planning the placement of a test-bed for missile interceptors in outer space by 2012. See “Missile Defense Agency, MDA Exhibit R-2 RDT&E Budget Item Justification” 2004. This “would constitute the first deployment of a weapons system in outer space”. Space Security 2004 (2005), pp. 140–141. 24 Ibid., p. 35. Such a policy obviously constitutes a drastic departure from the focal starting point of the UN space law, which considers space as “an environment open to all and belonging to none”. It also goes by the term ‘negation’. The US Space Command emphasized already in its “Long Range Plan” in 1998 the “control of space”, meaning “the ability to assure access to space, freedom of operations within the space medium, and an ability to deny others the use of space, if required ” (Chapter 5; emphasis added). Pursuant to this plan, “[n]egation is the ability to deny, disrupt, deceive, degrade, or destroy an adversary’s space systems and services. It involves military actions to target ground-support sites and infrastructure, ground-to-space links, or spacecraft” (Chapter 5). Another indicator of the direction of the US space security policy is the US Air Force document “Counterspace Operations” released in 2004. It also makes

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In fact, the US began the construction of a new missile interceptor facility in Alaska immediately after its withdrawal from the ABM Treaty.25 Russia has expressed its concern about weaponization of space in general and the US plans in particular.26 Nevertheless, the Russian Minister of Defense suggested very soon after the termination of the ABM Treaty that if the US proceeds with its plans, Russia could deploy its own response to the US space-based weapons system.27 As regards other states, China has emerged as a focal player in this respect, investing heavily in commercial uses of outer space lately. Accordingly, it has been suggested that as such peaceful activities require a framework of stability, the American military dominance in space might, at worst, force also China into an arms race.28 Furthermore, China has had military as well as space-related cooperation with Russia.29 On the other hand, Russia and China have proposed a global ban (a multilateral treaty) on the deployment of space arms.30 Nevertheless, and most alarmingly, China actually carried out an anti-satellite test in January 2007 by using a ground-based missile to destroy one of its old satellites. In addition to increasing military concerns, the test resulted in the creation of a large cloud of space debris (consisting of as many as 300 000 new pieces of debris). Many spacefaring nations have heavily criticized the test.31 Several other states as well are concerned with the use of outer space for furthering national security. For instance, some analysts fear that the US Star Wars scheme—however sluggish— may, quite contrary to the US hopes of having a deterrent effect, prompt “the North Koreans to speed up and expand their development of nuclear explicit mention of military operations “to deceive, disrupt, deny, degrade, or destroy adversary space capabilities” (pp. 2–4). Also, one of the goals stated in the White House document “U.S. Space-Based Positioning, Navigation and Timing Policy” of 2004 is the improvement of “capabilities to deny hostile use of any space-based positioning, navigation, and timing services” (p. 3). Other states may not have been equally explicit in this respect but it can be expected that also they want to guarantee the safety of their space operations and, if needed, even deny the benefits of space activities to their enemies, if possible. See Stibrany 1998, p. 133. 25 Williamson 2006, pp. 41, 250. 26 See, e.g., “Interview with Vladimir Putin” 2001. 27 “Canada Could Prevent Weaponization of Space” 2002. 28 See Carroll 2003. For a Chinese perspective on the issue, see, e.g., Zhang 2005. 29 See, e.g., “China Defends Sino-Russian Military Cooperation” 2000; “Russia To Help China’s Manned Program” 1999. 30 Russian-Chinese Joint Working Paper “Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects” 2002. For a discussion about the Russian-Chinese Working Paper and a possible space weapons ban, see, e.g., INESAP Information Bulletin 2002. See also “Russia Proposes Global Ban on Space Arms” 2003. 31 E.g., Covault 2007; Kaufman–Linzer 2007.

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weapons”32—a daunting prediction considering that North Korea has already performed a nuclear weapons test. Among other Asian states, India has been reported to have started working towards a space platform for nuclear weapons.33 It remains to be seen what kind of an arms race in space will ultimately follow. Obviously, any development of space weapons entails increasing environmental threats.34 Previously, at least at a rhetorical level, states seemed relatively unanimous in their desire to maintain outer space for peaceful activities only. Since 1981 the UN General Assembly has passed an annual resolution on “Prevention of an arms race in outer space” (known as the PAROS Resolution) urging all states to refrain from actions contrary to peaceful uses of outer space and inviting negotiations within the UN Conference on Disarmament on the further development of international law in this area for the purpose of adopting an international agreement on the issue, above all.35 The voting patterns concerning the PAROS Resolution were traditionally very much the same year after year, with a vast majority of states in favor and none against the resolution. However, in 2005, there were 180 states in favor, nine not voting, and two that actually voted ‘no’, i.e., Israel and the US.36 Considering this together with the US termination of the ABM Treaty and its subsequent pursuit of further militarization of outer space, as well as the more general growing focus on military space applications, the development is quite worrisome—and not merely (or even primarily) from an environmental point of view.

Crock 2003. Gilani 2003. 34 For instance, it has been stated that “to date, insufficient attention [has] been given to the creation of debris that future anti-satellite weapons would cause through kinetic impact or explosion damaging or destroying space assets”. Report of the Scientific and Technical Subcommittee on its 42nd session 2005, para. 107. 35 The Conference on Disarmament, which works on consensus decision-making, has been unable to negotiate any such new measures. It has even been unable to agree upon a plan of work since 1998 and hence to address the PAROS issue formally. A critical actor, the US, has declared that it is not even willing to negotiate on the issue: “We are not prepared to negotiate on the so-called arms race in outer space. We just don’t see that as a worthwhile enterprise”. Statement of John R. Bolton, “U.S. Department of State, G-8 Senior Group Meeting” 2004. Nevertheless, important discussions regarding the PAROS issue have been conducted between the Conference on Disarmament member states in informal sessions. For a more detailed account, see Space Security 2004 (2005), pp. 30–31. 36 UNGA Res. 60/54. Previously, Israel and the US used to abstain from voting. 32 33

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4.2. Principles Although playing important roles in their respective areas of regulation, the above-mentioned international conventions obviously do not provide enough help for environmental management of space activities. In order to enhance the possibilities of international law in this respect, more use could be made of certain general principles of law which are also a source of international law in accordance with Article 38.1 of the Statute of the International Court of Justice (ICJ).37 Above all, this would mean invoking general principles of international environmental law. In compliance with the notion of generality, such principles are potentially applicable to all states in respect of all kinds of activities and all types of environmental problems.38 General principles can be derived from conventions, international custom, juridical decisions, declarations, resolutions, and opinions.39 Some of them are embodied in international legal instruments, while others are based in customary law.40 Principles make it possible to take into account the evolving nature of international law as well as the varying needs of the world community.41 What makes the situation problematic is that although some principles of international law are already relatively well-established, many others are still only emergent. Additionally, principles tend to be rather vague, allowing for a number of interpretations. The status, content and effects of principles may vary according to geographical context and type of activities, for instance. Hence, the application of a certain principle to a certain situation must be considered on a case-by-case basis.42 The typical ambiguity in the legal status and content of international principles obviously impacts their usefulness in litigation in particular.43 However, even though invoking such general principles has often proven highly complicated, they may at least serve as a last resort in cases where the enactment of more specific norms is a question for the future, as in the regulation of space pollution. Moreover, principles influence environmental 37 This article of the ICJ’s Statute is generally considered an authoritative statement of the sources of international law. The sources listed in it are a) international conventions; b) international custom (“as evidence of a general practice accepted as law”); c) general principles of law; and d) “judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law” (emphasis added). 38 Sands 2003, p. 231. 39 See Rantala 1994, p. 99. 40 Training Manual on International Environmental Law 2006, p. 24. 41 Rantala 1994, p. 99. 42 See Sands 2003, pp. 231–232; Training Manual on International Environmental Law 2006, p. 24. 43 Brunnée 2004, p. 354.

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policy, offer important guidance in interpreting the existing rules and serve as starting points for developing the law further.44 Principles play a prominent role in environmental law—probably more so than in any other field of law. It has proven particularly complicated to agree on definite rules at the international level, making the role of principles focal in international environmental law.45 The 1972 Declaration of the United Nations Conference on the Human Environment (known as the Stockholm Declaration) was “the first elaborate document on principles of environmental law”.46 However, it took another two decades before the role of environmental principles was truly boosted by the 1992 Rio Conference,47 after which environmental treaties began to include references to principles with increasing frequency.48 The environmental principles which have gained the most significance are those included in the Rio Declaration on Environment and Development.49 The declaration constitutes an important step towards an approach which increasingly recognizes environmental concerns and on a global scale: it is essentially a package deal reflecting a real consensus of all states— regardless of their level of industrial development, for instance—on the need to elaborate international law on environmental protection.50 Accordingly, the Rio Declaration has contributed to the progressive development of environmental law ever since its adoption. Many treaties refer to the Rio principles in general,51 but there exist also numerous references to individual Rio principles in treaty provisions (in preambular paragraphs or in operative articles52). International tribunals have also increasingly discussed the role of environmental principles. 44 Other functions which principles may have include enhancement of the normative power of existing rules, as well as of legal certainty and legitimacy in decision-making. See Verschuuren 2003, pp. 38–41. 45 de Sadeleer 2002, p. 1. 46 Verschuuren 2003, p. 77. 47 United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992. 48 Only few treaties prior to the Rio Declaration make explicit reference to principles, one of these few being the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (see preamble and Art. 9). 49 Verschuuren 2003, p. 72. 50 Boyle–Freestone 1999, pp. 3–4. 51 See, e.g., preamble to the Convention on the Law of the Non-Navigational Uses of International Watercourses: “Recalling the principles and recommendations adopted by the United Nations Conference on Environment and Development of 1992 in the Rio Declaration and Agenda 21”. 52 Obviously, only those references which are made in operational articles have the potential to enable a principle to be used as a binding norm (provided that detailed enough obligations can be derived from it); preambular references affirm at most that a principle is available to be used in the interpretation of the more precise rules of the operational articles. See de Sadeleer 2002, p. 23.

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In the following, I shall introduce some of the focal principles of international environmental law and examine their particular applicability to the space sector. The general goal of sustainable development is of highest relevance for all human activities, space activities included. The other, more detailed environmental principles which provide further assistance in pursuing the goal of sustainable development include the principles of sic utere tuo and good neighborliness; due diligence; the precautionary principle; common but differentiated responsibilities; and the polluter-pays principle. Some of these principles illustrate the application of principles of general international law to environmental issues,53 whereas others are more specific to environmental law. Many of the principles have developed from principles and obligations regarding domestic or transboundary harm (between states), and their application has been gradually extended within the sphere of international environmental law. Moreover, there is widespread international acceptance today of the idea that states are required to protect the global commons (Antarctica, the high seas, the deep seabed and outer space).54 4.2.1. Sustainable Development 4.2.1.1. Components and Evolution The basic goal of the principle of sustainable development is to balance environmental protection and economic development in a way that is sustainable for both present generations and the future of humankind. In this sense, it is only partly an environmental principle, yet it strives towards a holistic approach to environmental problems. Hence, sustainable development can be seen as an ideal for environmental policy, an ideal which can hardly ever be fully realized and, moreover, needs to accommodate also many other than environmental aspirations.55 Considering the traditional domination of other 53 Above all, the principles of sic utere tuo, due diligence, and common but differentiated responsibilities. 54 See Boyle 1997, p. 86. 55 See Verschuuren 2003, pp. 20–25. The author argues that sustainable development is in fact a mere ideal (which thus precedes principles) and not a principle at all. According to his reasoning, principles are the first step to make ideals more concrete, whereas the practical application of a principle further necessitates the development of more specific rules. According to the same author, underlying ideals, such as that of sustainable development (“a prime example [of ideals behind principles] in the field of environmental law”), cannot be applied in concrete legal practice together with rules whereas principles can be used in this manner. See ibid., pp. 25–27. “The more concrete a principle is, the more it can be treated as a rule and the easier it is to directly apply it in a concrete case”. Ibid., p. 33. In the present work, however, sustainable development

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than environmental considerations, the principle of sustainable development serves in practice primarily to ensure that development decisions do not disregard environmental concerns. It can be seen as crucial for the development of global environmental responsibility, too.56 The concept of sustainable development was explicitly introduced in 1987 by the report of what was known as the Brundtland Commission,57 entitled “Our Common Future”. According to the well-known definition given to the principle in this report, sustainable development is development that “meets the needs of the present generation without compromising the ability of future generations to meet their own needs”.58 A few years later, the United Nations Environment Program (UNEP) extended the idea of sustainability to intragenerational and economic equity by stating that sustainable development requires use of the natural resource base in a way that underpins ecological resilience and economic growth as well as helps to achieve international equity.59 The Stockholm Declaration of 1972 frequently referred to such a balancing of interests in its 26 principles,60 and two decades later the 1992 Rio Declaration on Environment and Development set out the concept in more detail. The principle of sustainable development has been incorporated in various other international (and national) instruments, legally binding treaties included.61 It has attained

is considered a broad principle comprised of several inherent, at least somewhat more specific principles. It is also seen as potentially applicable in the day-to-day functioning of the legal system, capable of suggesting a course of action in situations where the more specific regulation does not provide detailed enough guidance as how to proceed. The current treatise does not consider it very relevant what the phenomenon of sustainable development is called (principle, ideal, or something else); what matters most is the practical effect it has. 56 See Birnie–Boyle 2002, p. 84. 57 World Commission on Environment and Development. 58 Section “From One Earth to One World”, para. 27. The report explained further that “[i]n essence, sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations”, Part I, Chapter 2 (“Towards Sustainable Development”), para. 15. 59 Birnie–Boyle 1992, p. 4. 60 See particularly Principles 2, 3, 4 and 7, and the preamble. Concern for environmental degradation constituting a hindrance to economic and social development had been expressed ‘officially’ even earlier, in the UNGA resolution convening the 1972 Stockholm Conference on the Human Environment, for instance. See UNGA Res. 2398(XXIII) 1968. It was, however, not until the Brundtland Report of 1987 that a truly sustainable approach was adopted; before that, developmental and environmental interests were treated separately in practice (mostly to the detriment of the latter). See Birnie–Boyle 2002, pp. 40–41. 61 The 1985 Agreement on the Conservation of Nature and Natural Resources

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widespread endorsement—especially after the Rio Conference—and influenced the policies of both international organizations and national governments. As a specific follow-up to the 1992 Rio Conference, the 2002 World Summit on Sustainable Development in Johannesburg undertook to set out ways to implement the goals agreed on ten years earlier. The most extensive document agreed to in Johannesburg was the over-60-page Plan of Implementation of the World Summit on Sustainable Development.62 The Johannesburg Summit proved to be a disappointment to many, however, as several of the goals discussed during the negotiations were eventually either dropped or at least scaled back substantially.63 The principle of sustainable development as formulated in the above instruments has been criticized for utilitarianism and anthropocentrism. In all of these formulations, the principle seems to be implicitly or explicitly based on the presumption that ‘development’ means economic growth. Unlimited economic growth is regarded not only as desirable but also possible, as long as it remains ‘sustainable’. Nevertheless, many argue that the entire idea of sustainability is incompatible with that of economic growth.64 On the other hand, the principle of sustainable development was never meant to serve merely (or even primarily) the needs of the environment. The Rio Declaration, for instance, never even purported to promote a policy of no growth. Quite the contrary, it affirmed the was among the very first treaties to refer to the concept. Subsequent instruments making express reference to the term ‘sustainable development’ include the 1992 United Nations Framework Convention on Climate Change (preamble and Arts. 2, 3, 4); the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (preamble); the 1992 Convention on Biological Diversity (e.g., preamble and Arts. 1, 6); and the 1994 United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (preamble and several articles). Other, related concepts used in recent treaties include ‘sustainable use’ (e.g., Art. 5 of the 1995 Agreement relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks) and ‘sustainable utilization’ (e.g., Art. 5 of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses). 62 In addition, the (much shorter) Johannesburg Declaration on Sustainable Development was adopted. 63 For instance, the initial proposal to adopt a specific numerical target for the amount of energy to be obtained from renewable sources was not accepted. Some time-bound targets were nevertheless agreed on, such as halving the proportion of people without access to safe drinking water and basic sanitation by 2015 (Plan of Implementation of the World Summit on Sustainable Development, paras. 8 and 25). 64 See, e.g., Chatterjee–Finger 1994, pp. 21–22. According to the authors, sustainable development is “just another word for an economic process that is drawing on society’s techno-economic capacities, rather than on the natural resource base”. Even more, it is “based on the idea that gradually a society can make itself become independent of nature” (emphasis added). Ibid., p. 27.

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sovereign right of states “to exploit their own resources pursuant to their own environmental and developmental policies”, albeit tempered by responsibility for transboundary environmental protection);65 refers to the right to development (subject to inter- and intra-generational equity);66 and demands a “supportive and open international economic system that would lead to economic growth and sustainable development in all countries”.67 Economic growth is not inevitably unsustainable, whereas even zero growth in some cases may be. What matters is the content of growth: economic development ensuing from increasingly efficient use of natural resources or energy should be far more desirable from the point of view of sustainability than lesser growth generated by environmentally more degrading activities.68 The integration of environmental and development considerations is in any case more likely to guarantee that environmental values are taken into account in decision-making than separation of the two aspects.69 Furthermore, the principle of sustainable development promotes other kinds of welfare than purely economic. This is evident in the Rio Declaration, whose very first principle says that humans are “entitled to a healthy and productive life in harmony with nature”.70 At the same time, however, the same Rio principle explicitly affirms the anthropocentrism of sustainable development by stating that “[h]uman beings are at the centre of concerns for sustainable development”.71 Nowhere in Principle 2: “States have … the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. 66 Principle 3: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”. Principle 4 emphasizes further the priority of development over environment by stating that “in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”. 67 Principle 12. The principle continues by demanding that “[t]rade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade”; “[u]nilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided”; and “[e]nvironmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus”. 68 Birnie–Boyle 2002, p. 44. 69 Boyle–Freestone 1999, p. 11. 70 In addition to health, such non-economic components of welfare include quality of the environment and preservation of culture and community. They are articulated in more detail in such international agreements as the 1972 Convention Concerning the Protection of World Cultural and National Heritage. Birnie–Boyle 2002, pp. 45–46. 71 Interestingly, the ‘predecessor’ of the Rio Declaration, the Stockholm Declaration of 1972, seems somewhat less explicit in its anthropocentric approach. It speaks, for 65

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the Rio Declaration is nature given a value independent of humanity; there is no explicit reference to the rights of animals, or the conservation of flora, fauna, and ecosystems, for instance.72 The presumptions underlying the concept of sustainable development essentially involve responsibilities among different groups of humans. Firstly, the environment is a resource to be used for stimulating economic development of current nations, particularly the less developed ones (responsibility of the more developed parts of humanity towards developing countries). Secondly, the environment and its resources must be used in such a manner as to preserve their potential use for future generations (responsibility of the present humankind towards our posterity). In both cases, activities must be undertaken in a manner which takes environmental considerations into account—but only because of the human interests involved. Obviously, environmental protection has positive spill-over effects to non-humans (nature itself ) regardless of its motives.73 In instance, about humankind’s “special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat” (Principle 4). Nevertheless, the Stockholm Declaration, too, proclaims that “[o]f all things in the world, people are the most precious” (preamble). 72 The Rio Declaration also does not refer to environmental crimes, for instance. As regards liability for environmental damage, it only advises states to develop the law further (Principle 13). See Birnie–Boyle 2002, pp. 83–84; also Boyle–Freestone 1999, p. 4. There are, however, other instruments in international law which seem to be at least somewhat more concerned with the value of nature as such. One example is the 1991 Protocol on Environmental Protection to the Antarctic Treaty. The Antarctic is designated a Special Conservation Area (see the preamble to the related agreement called “Agreed Measures for the Conservation of Antarctic Fauna and Flora” adopted as early as in 1964). The 1991 protocol acknowledges the “intrinsic value [of the Antarctic], including its wilderness and aesthetic values” (Art. 3). However, the notion of aesthetic values also suggests a role for humans, and the subsequent reference in the article to scientific research (and the better understanding of the global environment it contributes to) even more so. Another example is the 1992 Convention of Biological Diversity, the preamble of which starts with an explicit reference to the inherent value of nature: “Conscious of the intrinsic value of biological diversity”. However, already the very same sentence continues: “and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components”. Although the obligations of the Biodiversity Convention do not pertain to direct economic interests, its articles also evince a clear anthropocentric slant. In general, even a modest ‘ecocentric’ approach in international law remains rare. 73 See Verschuuren 2003, pp. 43–44. The author also argues that the idea of sustainable development is not as incompatible with considerations that nature is worthy of protection in its own right as many critics have asserted. An example of more specific principles which derive from the idea of sustainable development and can be used to advance even ecocentric approaches is the polluter-pays principle, which may be relevant to damage caused to nature even where no economic or other clearly humanrelated values are directly affected. Moreover, humans are an inseparable part of nature

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the face of the current global ecological crisis, however, such a narrow focus on humans alone seems rather imprudent.74 In addition to anthropocentrism, the principle of sustainable development has been criticized for vagueness and ambiguity, both being features that can easily undermine the authority of any principle. As mentioned above, it has even been disputed whether sustainable development is a principle at all or merely a general ideal of some sort. Although sustainable development is today a goal widely accepted on both the international and national levels, there is no consensus on its content, let alone on how the principle should be given practical effect. If it is not possible to identify at least a somewhat solid, commonly accepted core for a principle, states retain considerable discretion and are in practice free to determine its meaning as suits them best. Needless to say, this is likely to contribute to great divergence of policy and interpretation and render the principle in question little more than an empty shell.75 Considering the fundamental role of the principle of sustainable development in all environmental management currently, it seems infeasible to argue that it has no content, however.76 What is evident from the Rio Declaration is the goal of the principle to integrate the natural environment and economic growth in an optimal way: “[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”.77 Agenda 21, the (nonbinding) program of action adopted by the Rio Conference, along with various other national and international instruments, has been trying to achieve such integration.78 A compromise between environmental protection and economic development was also considered central in the Gabcikovo-Nagymaros case of the and hence dependent on it. Ibid., pp. 46–49. Besides—according to the author—there is even “a moral relationship between man and nature”, due to which sustainable use of nature “contributes to the virtue of man”. Ibid., p. 144. 74 See Chatterjee–Finger 1994, p. 50. 75 See Birnie–Boyle 2002, p. 45. 76 As one author put it: “the precautionary principle does have a conceptual core, and though its legal status is often contested, its essence should not [be]”. Cameron 2002, p. 116. 77 Principle 4. 78 See, e.g., Chapter 8 of Agenda 21, which deals with integration of the environment and development in decision-making in more detail. Relevant provisions of legally binding international instruments include Art. 3.4 of the 1992 UN Framework Convention on Climate Change; Art. 6.b of the 1992 Convention on Biological Diversity; Arts. 4.2.a and 4.2.c of the 1994 UN Convention to Combat Desertification. On the national level, the environmental legislation of the industrialized countries in particular endorses sustainable development relatively well already. Hence the principle of integration of development and environment can be seen as having its primary practical impact on developing countries who have not yet secured the role of the principle of sustainable development in their national legislation. Birnie–Boyle 2002, p. 87.

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ICJ.79 However, detailed parameters for combining the two competing values are difficult to discern from resolutions of international tribunals or instruments of international law. Moreover, such sources neither explain the ultimate objective of the integration or the nature of sustainability or development. The notion of the interests of future generations remains equally vague, albeit for far more obvious reasons.80 Nevertheless, the principle of sustainable development has been seen to encompass several inherent principles.81 Indeed, instead of defining the concept exhaustively, it seems easier to focus on its various components, many of which can be considered independent principles. For instance, in addition to the integration of environment and development, there is a significant emphasis on concerns of equity in Principle 3 of the Rio Declaration, as regards both equity between states (intra-generational equity), and consideration of the needs of future generations (inter-generational equity).82 Principle 3 was an important affirmation of the disputed concept of a ‘right to development’, advocated by developing countries above all. These countries emphasize their (economic) developmental needs, even if those needs sometimes conflict with environmental considerations. The right to development is by no means an absolute right, however. It needs to be integrated with the rest of international law, including provisions for the protection of environment.83 To this end, an 79

For more detail, see below. See Birnie–Boyle 2002, p. 45. 81 There are four such ‘sub-principles’ examined below, much in accordance with the treatment of the principle of sustainable development and its various elements in Sands 2003, pp. 252–266. Birnie and Boyle have broken down sustainable development further into two components: the right to development and the polluter-pays principle. In addition to these substantive elements, the latter two authors refer to the procedural elements of sustainable development, such as environmental impact assessment. See Birnie–Boyle 2002, pp. 84–95. (A similar division was already used in Boyle–Freestone 1999, pp. 9–16.) See also Lowe 1999, pp. 25–30. This treatise will examine the polluter-pays principle and environmental impact assessment later in separate chapters. 82 Consider also the Brundtland Report’s definition of sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Section “From One Earth to One World”, para. 27. 83 See, e.g., Declaration on the Right to Development, according to which “[t]he realization of the right to development requires full respect for the principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations” (Art. 3.2). Furthermore, “States have the duty to co-operate with each other in ensuring development and eliminating obstacles to development. States should realize their rights and fulfill their duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and co-operation among all States, as well as to encourage the observance and realization of human rights” (Art. 3.3). 80

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explicit counterweight to Principle 3 of the Rio Declaration is its Principle 4, which emphasizes the role of environmental protection as an “integral part of development processes”.84 Along with intra-generational aspects, considerations of inter-generational equity have been reflected in numerous international instruments for decades already.85 Natural environments should be managed in such a way as to conserve their capacity for sustainable use by future generations as well. It has been argued that both “the environment and the well-being of future generations have provided a unifying platform to countries with divergent social, economic, and political concerns”.86 Although the reach of this “unifying platform” may be arguable, international treaties increasingly aim at preserving particular natural resources and other environmental assets for the benefit of present as well as future generations. This is particularly evident in the instruments which require that irreversible harm to the environment be avoided or that resources be managed in a way which assures their sustainable productivity.87 The principle of inter-generational equity has also been referred to in proceedings of both domestic and international courts.88 Nevertheless, this concept, like many others, See Birnie–Boyle 2002, p. 87; Boyle–Freestone 1999, pp. 11–12. As early as in 1946, the International Convention for the Regulation of Whaling referred in its preambular paragraphs to safeguarding the resources for future generations. Principle 1 of the 1972 Stockholm Declaration speaks about a “solemn responsibility to protect and improve the environment for the benefit of present and future generations”. For similar notions on inter-generational equity (albeit two decades later), see, e.g., the 1992 Rio Declaration (Principle 3); the 1992 UN Framework Convention on Climate Change (Art. 3.1); the 1993 Vienna Declaration on Human Rights (also called the Vienna Declaration and Programme of Action; para. 11). 86 Dabholkar 1996, p. 130. 87 Consider, for instance, the Vienna Convention for the Protection of the Ozone Layer, the Convention on Biological Diversity, the Convention on Climate Change, and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; or international fisheries and whaling regimes; or the status of the entire Antarctic continent. All of these contribute in a significant manner to the interests of future generations. 88 The best-known example on the domestic level is the Minors Oposa v. Secretary of the Department of Environment and Natural Resources case, which concerned timber licenses. The Philippines Supreme Court considered the plaintiffs to have standing on behalf of themselves and their yet unborn posterity to invoke the right to a healthy environment. However, instead of the enforcement of a right of future generations, it was the duty of some members of the present generation that the decision strove to enforce (and at the instance of other members of the present generation). See Lowe 1999, p. 27. For a more detailed account of the Minors Oposa case, see, e.g., La Viña 1994. As regards proceedings before international tribunals, future generations are obviously not capable of having standing independently of states (or possibly, international institutions). Yet, some international legal cases have involved the question of generational responsibility, albeit not necessarily primarily that owed to the future members of humanity, but rather 84 85

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obviously remains on such an ambiguous level that it cannot be deemed to have a concrete normative status; hence, it hardly can serve as a norm for adjudication, for instance.89 One more element which has been deemed to be part of the core of the principle of sustainable development is the sustainable (non-exhaustive) use and conservation of natural resources. In accordance with the anthropocentric character of the Rio Declaration, it contains no explicit reference to nature conservation. Principle 8 comes closest to one by asking states to “reduce and eliminate unsustainable patterns of production and consumption”.90 Nevertheless, at least implicit concern for the rational use and conservation of natural resources is common to a number of international instruments, the Rio Declaration included. This concern can be framed in a variety of notions, such as ‘maximum sustainable yield’ or ‘optimum sustainable productivity’,91 or ‘sustainable utilization’ and ‘sustainable use’, the latter two often being used in more recent documents.92 The specific implications of this concern need to be

that for misdeeds of our antecedents towards the present generation. See, e.g., Certain Phosphate Lands in Nauru (ICJ 1992), and the Nuclear Tests cases (ICJ 1974). A more forward-looking decision in this respect was the advisory opinion in Legality of the Threat or Use of Nuclear Weapons (ICJ 1996), which made several explicit references to the rights of future generations (e.g., “the use of nuclear weapons would be a serious danger to future generations”, para 35; see also paras. 29 and 36). 89 See Schrijver 1997, p. 242. For a more detailed treatment of justice between generations, see, e.g., Weiss 1989, who elaborates the notion that inter-generational equity would be part of international law to the extent that future generations could actually hold justiciable rights to that effect. For a detailed treatment of the even more general concept of international fairness, see Franck 1995. 90 The precautionary principle (articulated in Rio Principle 15) also has a significant role in defining sustainable use. 91 See, e.g., Art. 2 of the 1958 Convention on Fishing and the Conservation of the Living Resources of the High Seas (“the expression ‘conservation of the living resources of the high seas’ means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products”); Principle I.4 of the 1982 World Charter for Nature (“resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity”); Art. 61.3 of the 1982 UNCLOS (“[conservation and management] measures shall … be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield ”) (all emphasis added). 92 See, e.g., the 1992 Convention on Biological Diversity, Arts. 6 and 10 (“sustainable use”); the 1994 UN Convention to Combat Desertification, Arts. 2 and 3 (“sustainable management”, “sustainable use”); the 1994 International Tropical Timber Agreement, Art. 1 (“sustainably managed sources”); the 1995 Agreement relating to the Conservation of Straddling and Highly Migratory Fish Stocks, Arts. 2 and 5 (“sustainable use”, “optimum utilization”, “maximum sustainable yield”); the 1997 Convention on the

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defined case by case, however.93 Although the extent of the legal obligation of conservation and sustainable use of nature and its resources remains unclear in international law, the increasing number of international treaty provisions to that effect suggests that such an obligation is constantly developing, at least on a sectoral basis. Such treaty commitments are particularly prominent in the regulation of common areas: Antarctica, the high seas, the deep seabed, and outer space. Even there, however, the normative content of the principle remains modest except in the relatively rare cases where specific international regimes have been developed, such as in the management of international water resources and fisheries.94 Obviously, sustainable development is an inherently complex concept but by no means an empty one. It allows for different interpretations which the more detailed instruments of international law specify to varying extents. Above all, international environmental treaties give the concept more concrete content, albeit still quite incomplete. In addition to hard-law initiatives, there exist numerous soft-law attempts at the international level to promote the principle of sustainable development and specify it.95 In defining sustainable development, one should bear in mind the interrelated nature of its components.96 On the other hand, trying to reach a more detailed definition of the principle easily proves frustrating: the normative implications of the elements of sustainable development remain blurred, as do their relation to each other (or to other components of the broader system of international law, such as human rights).97 As a matter of fact, it seems pointless to ever expect a perfectly complete, fixed definition of sustainable development to emerge. Rather, it can serve as a unifying concept in the integration of environment and development, an “umbrella

Law of the Non-Navigational Uses of International Watercourses, Art. 5.1 (“optimal and sustainable utilization”). 93 See Lowe 1999, p. 29. 94 Birnie–Boyle 2002, pp. 88–89. See also Sands 2003, p. 253. 95 For instance, the ILA has made an important attempt to elaborate the concept of sustainable development. In 2002, it adopted the New Delhi Declaration on Principles of International Law relating to Sustainable Development. This resolution includes a wide range of different kinds of principles (including the principle of common but differentiated responsibilities and the precautionary principle; paras. 3 and 4, respectively), derived from an analysis of international declarations and treaties, the work of jurists, case law and state practice. 96 This interrelatedness is particularly evident in the Rio Declaration, which was negotiated by consensus as a ‘package deal’ (resembling the negotiations leading to the adoption of the 1982 UNCLOS). One example of this is the conjunction of Principles 3 and 4, establishing the integration of economic development and environmental concerns. This inter-dependence is illustrated also by the ‘common but differentiated responsibilities’ approach of Principle 7. Birnie–Boyle 2002, p. 83. 97 Boyle–Freestone 1999, p. 7.

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term”98 whose implementation and elaboration international law should try to facilitate.99 Obviously, holding states internationally accountable for achieving sustainable development would necessitate sufficiently clear standards and criteria for measuring sustainability. At the moment, the legal nature and normative implications of this multifaceted principle remain questionable.100 The development of international law “in the field of sustainable development” is explicitly called for in the Rio Declaration and Agenda 21101 and the provisions of various international documents indicate a process of evolution and refinement of the principle. However, the materials produced by tribunals can accommodate for more detailed contemplations of the meaning of principles than, for instance, the provisions of international treaties typically can. Hence the impact of sustainable development on international law can also be observed particularly well in the proceedings of the relevant tribunals, in particular the International Court of Justice. The first time the ICJ referred to sustainable development was in the Case Concerning the Gabcikovo-Nagymaros Project between Hungary and Slovakia. This case dealt with a dispute arising out of interpretation of a treaty between Hungary and Czechoslovakia in 1977, which was concluded to govern the joint construction and operation of locks along the River Danube.102 Hungary unilaterally terminated the treaty in 1992. It asserted that the norms of customary international environmental law which had developed since the 1970s precluded performance of the 1977 treaty and required that the project be abandoned. As

See Lowe 1999, p. 26. See Birnie–Boyle 2002, p. 47. 100 See ibid., pp. 82–83, 85. There is a special international body, the United Nations Commission on Sustainable Development, established in 1992, for monitoring the implementation of sustainable development. Among its tasks is the assessment of national reports on the implementation of Agenda 21 (in accordance with Chapter 38.13 of Agenda 21 and para. 3.b of UNGA Res. 47/191). The commission does not, however, exist to determine whether a particular activity is in accordance with sustainable development, let alone to hold governments accountable for development which does not meet the standards of sustainability. For more information on the role of the commission, see Commission on Sustainable Development website. 101 According to Principle 27 of the Rio Declaration “States and people shall cooperate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development”. Chapter 39.1. of Agenda 21 refers to “[t]he further development of international law on sustainable development, giving special attention to the delicate balance between environmental and developmental concerns” as a “vital aspect of the universal, multilateral and bilateral treaty-making process”. 102 Treaty between the Hungarian People’s Republic and the Czechoslovak Socialist Republic Concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks. 98 99

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justifications, Hungary invoked, i.a., the precautionary principle103 and a state of ecological necessity,104 deeming the environmental risks involved in the project unacceptable.105 According to Hungary, the “previously existing obligation not to cause substantive damage to the territory of another State had … evolved into an erga omnes obligation of prevention of damage pursuant to the ‘precautionary principle’ ”.106 The concept of erga omnes obligations refers to legal obligations towards the entire international community (as distinct from obligations owed to another state), which can be enforced by or on behalf of that community.107 Prior to the Gabcikovo-Nagymaros case, the ICJ had referred to erga omnes obligations primarily in the context of human rights.108 It can be argued that obligations of international environmental law may also have an erga omnes character, especially those concerning protection of the global environment.109 This holds true in particular if the erga omnes character of obligations is not determined narrowly by whether all states have standing to bring proceedings before an international tribunal in the event of a breach, but on the basis of the right or ability of the international community to hold an individual state accountable for compliance with the obligations through other institutions, such as the Conference of the Parties set up by the UN Framework Convention on Climate Change in case

Para. 97. Para. 40. 105 Para. 35. 106 Para. 97. 107 The Latin expression erga omnes means ‘towards all’. The general rule in international law is that standing to bring claims is confined to ‘injured states’. See Draft Articles on Responsibility of States for Internationally Wrongful Acts by the International Law Commission (ILC), Art. 42. In contrast, Art. 48 of the draft articles explicitly recognizes that any state may bring an international claim in respect of a breach of an obligation owed to the international state community as a whole. For a thorough treatment of the concept of erga omnes, see Hannikainen 1988. 108 As an early example, see the classic Barcelona Traction case of 1970, where the Court stated that “an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; their obligations are erga omnes” (para. 33). This applies, for example, to the “outlawing of acts of aggression, and of genocide, as also [to obligations deriving] from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination” (para. 34). Another example is provided by the 1995 East Timor case, where the right of peoples to self-determination is likewise deemed as having “an erga omnes character” (para. 29). 109 The ICJ addressed the issue of erga omnes obligations in an environmental context in the 1974 Nuclear Tests cases. 103 104

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of climate change issues.110 Such accountability can be argued to derive from notions such as the ‘common concern of humankind’111 or that of ‘common heritage of mankind’, as used by the Moon Treaty and the UNCLOS.112 The decision of the ICJ in the Gabcikovo-Nagymaros case was, however, less approving of the conceptions put forward by Hungary, and was not even primarily an environmental one; the ICJ did not even mention the precautionary principle or other concepts of international environmental law, except sustainable development. Rather, the decision can be described as one based on the law of treaties and the law of state responsibility, in particular.113 The Court rejected Hungary’s “state of ecological necessity” argument; it accepted that a “grave and imminent” danger to the environment could constitute a state of necessity, but found no such danger to exist in this particular case.114 The 110 It has been considered unclear “whether and to what extent States are entitled to invoke the responsibility of another State when it violates obligations that are owed erga omnes or to a group of states”. Brunnée 2004, p. 353. 111 See, e.g., the preambles to the UN Framework Convention on Climate Change (“[a]cknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind”) and the Convention on Biological Diversity (“[a]ffirming that the conservation of biological diversity is a common concern of humankind”). 112 See Birnie–Boyle 2002, pp. 99–100. 113 See Kulovesi 2002, p. 16. 114 In making such a statement about the state of necessity, the ICJ referred to the ILC Draft Articles on International Responsibility of States, Art. 33 (paras. 50–58). The currently equivalent Art. 25 of the draft articles (as adopted in 2001) addresses ‘state of necessity’ in the following manner: “1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) The international obligation in question excludes the possibility of invoking necessity; or (b) The State has contributed to the situation of necessity.” The requirement of “a grave and imminent peril” was the most critical one as regards the Gabcikovo-Nagymaros case: the ICJ took the view that “serious though these uncertainties [as to the ecological impact of putting in practice the Gabcikovo-Nagymaros barrage system] might have been they could not, alone, establish the objective existence of a ‘peril’ in the sense of a component element of a state of necessity” (para. 54). The reasoning of the Court was the following: “The word ‘peril’ certainly evokes the idea of ‘risk’; that is precisely what distinguishes ‘peril’ from material damage. But a state of necessity could not exist without a ‘peril’ duly established at the relevant point in time; the mere apprehension of a possible ‘peril’ could not suffice in that respect. It could moreover hardly be otherwise, when the ‘peril’ constituting the state of necessity has at the same time to be ‘grave’ and ‘imminent’. ‘Imminence’ is synonymous with ‘immediacy’ or ‘proximity’ and goes far beyond the concept of ‘possibility’. As the ILC emphasized in its commentary [in the Yearbook of

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Court also rejected the claim that the 1977 treaty had terminated: it considered the treaty to be still in force, despite the deficiencies in its implementation over several years by both states.115 The arguments presented by Hungary concerning the role of the recently developed norms of international environmental law proved more successful, but only partly so. The Court agreed that the new norms were indeed relevant for the implementation of the disputed treaty and, moreover, not only with regard to new undertakings but also when continuing activities initiated earlier.116 The Court placed the disputing parties under an obligation to negotiate in good faith117 on how “the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled”.118 In particular, when evaluating the environmental risks of the project, “current standards” had to be taken into account.119 The Court continued by stressing the need to take account of the new norms and standards of international environmental law, in particular the principle of sustainable development: The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind—for present and future generations—of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and the International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 33], the ‘extremely grave and imminent’ peril must ‘have been a threat to the interest at the actual time’ ” (para. 54). 115 Paras. 132–133. 116 Para. 112. 117 Para. 142. 118 Para. 139. According to para. 141, “[i]t is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses”. This obligation proved less successful as the dispute was soon returned to the ICJ by Slovakia for an additional judgment after the parties had failed to reach an agreement. International Court of Justice, Press Release 1998. 119 Para. 140. This was not only allowed but even prescribed by the 1977 treaty. The ICJ did, however, leave it to the disputing parties to define in more detail what such current standards to be taken into account could be and how they would affect the implementation of the project. Kulovesi 2002, p. 17.

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such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.120 For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.121

Hence, the ICJ did not review national action in order to determine whether it was or was not sustainable.122 Instead, it chose to address questions such as allocation of water flow and the application of international standards in the operation of the Gabcikovo-Nagymaros dam system.123 Although the Court required the parties to the dispute to act in the interests of sustainable development by “looking afresh” at the environmental consequences of their actions and to carry out monitoring and abatement measures to contemporary standards set by international law, it did not accept the contention that international environmental law had invalidated the 1977 Treaty. Quite the contrary; the Court’s decision emphasizes the importance of respecting treaty obligations pursuant to the principle of pacta sunt servanda.124 It can be concluded that at the moment there is no international obligation that development be sustainable, nor even a plausible legal definition of sustainability.125 Nevertheless, it can be argued that international law contains 120

Emphasis added. Para. 140. 122 Due to the non-specific, non-normative nature of the principle of sustainable development and, hence, lack of justifiable standards for review, it is rather unlikely that other international tribunals would take up such a task any more readily in the near future. See Boyle–Freestone 1999, p. 16. 123 However, the former question relates to principles of equity and reasonable use of a resource (the international watercourse of the River Danube), which are components of sustainability. See para. 147 of the decision: “[r]e-establishment of the joint régime will also reflect in an optimal way the concept of common utilization of shared water resources”. 124 See especially paras. 114 and 142. For a more detailed account of the GabcikovoNagymaros case, see, e.g., Higgins 1999, pp. 104–111. For an interesting analysis of the traditional, modern and post-modern components of the decision in question, see Kuokkanen 2002, pp. 354–356. 125 This is the case, despite the fact that Judge Weeramantry in his dissent considered the principle of sustainable development to be “more than a mere concept … a principle with normative value” and “part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community”. Moreover, sustainable development is “not merely a principle of 121

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a requirement that development decisions must be made by a process which promotes sustainability. This requirement emphasizes the use of mechanisms such as environmental impact assessment in decision-making, the essential goal of which has been characterized as the allocation of resources in a way that balances sustainable development and protection of the environment.126 State practice supporting such a conclusion is ample: as will be discussed below, EIA is a tool very widely used today. The Gabcikovo-Nagymaros case demonstrates the significance of the decision-making process as an element of sustainable development: the ICJ required the disputing parties to cooperate in the joint management of the project and to carry out a continuous environmental protection and monitoring process.127 Hence, although the ICJ abstained from defining what is and what is not sustainable, it did strive to promote sustainability in the further actions of the disputing parties. This can be seen as the focal role of the principle of sustainable development today: to provide a goal which can significantly influence the interpretation, application and development of law— be it in national or international adjudication, or in the practices of states and international organizations.128 4.2.1.2. Sustainable Development and the Space Sector The principle of sustainable development is relevant in the space sector as well,129 but it has to be implemented within the context of the international law of outer space. Of the four main principles identified above as inherent to sustainable development, the integration of environment and development is an obvious basis for all concerns regarding the environmental repercussions of space activities. As discussed above, Article IX of the OST imposes a general duty to

modern international law but one of the most ancient of ideas in the human heritage” (Part A). For a more detailed treatment of the principle of sustainable development as regards its possible normative character, see Lowe 1999. The author clearly disagrees that the principle of sustainable development is a binding norm of international law in accordance with Art. 38.1. of the ICJ Statute; in his view, the abundant references to the principle merely evidence the frequent use of the term, not a general practice accepting it as law. Ibid., p. 24. Nevertheless, he concludes that the concept “exemplifies another species of normativity which is of great potential value in the handling of concepts of international environmental law”. Ibid., p. 21. It operates as a “modifying norm”, a metanorm of sorts, which can be used on the international level by both tribunals in the application of other (often competing) norms and states when negotiating on ways of reconciling overlapping rules and principles. Ibid., pp. 31–37. 126 Gilpin 1995, p. 35. 127 On the focal role of EIA in this context, see the separate opinion of Judge Weeramantry in particular. 128 Birnie–Boyle 2002, pp. 96–97; Boyle–Freestone 1999, pp. 16–18. 129 See, e.g., Williamson 2006, pp. 173–175.

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avoid harmful contamination of outer space. At least in principle, the necessity of an increasingly environmentalist approach also for this sector is widely recognized today. Although measures for mitigating the various environmental threats connected with the utilization of outer space are typically costly, many space agencies today try to mitigate the formation of space debris, for instance. However, the principal motive for such action is not their concern over the state of the space environment (or that of the Earth) as such, but rather the risks which deterioration of the environment poses to space activities. For instance, many satellite manufacturers try to avoid intentional generation of space debris simply because any debris created might remain in the vicinity of the satellite, posing a threat to the satellite itself.130 Similarly, the removal of spent communication satellites from useful orbital positions prevents them from harming ongoing business operations.131 The UN space treaties repeatedly refer to concepts such as ‘province of mankind’, ‘equitable use’, ‘benefit of all countries’, ‘common heritage of mankind’, ‘due regard’, as well as to the general ban on national appropriation of outer space. The common heritage of mankind principle, for instance, is said to imply, among other things, “non-appropriation, regulated access to resources, sharing of benefits, reservation for peaceful purposes, and due regard to the interests of future generations”.132 The Moon Treaty even explicitly says that “[d]ue regard shall be paid to the interests of present and future generations”.133 Hence, considerations of intra- and inter-generational equity, which are partly intertwined, can also be a factor contributing to increased environmental concern in space activities. Generally, intra-generational equity, i.e. equity within the present community of states and peoples, is taken to mean guaranteeing the same (or at least similar) opportunities to all states, even if some of these opportunities can be realized only at a later stage.134 This is particularly relevant in the space sector, because exploration and exploitation of outer space require very advanced technology, and the capacities of states in this respect vary widely. Those who do not yet See Support to the IADC Space Debris Mitigation Guidelines, p. 10. See Greenberg 2003, pp. 381–382. In particular, if not removed, the spent communication satellites belonging to larger constellations can remain in close proximity to the replacement satellites and thus cause an increased threat of collisions. See ibid., p. 385. 132 Schrijver 1997, p. 246. For a more thorough treatment of the concept of common heritage of mankind, see, e.g., Taylor 1998, pp. 258–322; Baslar 1998. The notions ‘province of all mankind’, ‘for the benefit and interests of all countries’, and ‘common heritage of mankind’ are also compared by Hacket 1994, pp. 75–86. 133 Art. 4.1. Accordingly, it was stated already a quarter of a century ago that “[w]e are, after all, merely guardians of the universe for future generations, and we have, therefore, an absolute obligation to utilize the heavens wisely”. Sterns–Tennen 1981, p. 116. 134 Uchitomi 2001, p. 76. 130 131

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possess space technologies that are developed enough to enable them to be players in the global space industry are understandably anxious to reserve their rights to enter the business in the future (and to safeguard their opportunities to do so, too). It has been suggested that deliberate degradation of outer space would be a violation of the Outer Space Treaty, as it infringes on equity and the interests of other states by diminishing the possibility to use outer space.135 It has also been proposed, for instance, that the Liability Convention be amended to include in its field of application damage to the environment of outer space as such (regardless of whether human values are affected by the damage) and, furthermore, that each state could “exercise an ecological right to ensure the preservation of outer space for future generations” by using its jurisdiction for awarding damages for harm to the space environment.136 Moreover, the idea of equity may necessitate assistance from industrialized states to the less developed countries to enable the latter to pursue sustainable development by both realizing their potential rights in outer space and protecting that environment. Such assistance may take the form of financial aid, transfer of environmentally sound technology, and cooperation through international organizations. The latest of the Declarations of Principles adopted by the UN General Assembly for the space sector, the 1996 Benefits Declaration, was intended to provide developing countries with precisely such tangible help for sharing space benefits. The developed states, however, dominated the negotiations to the extent that the declaration in fact largely renders hopes of practical assistance void in stating that “States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis”.137 In 1999, the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space138 adopted a legally non-binding document entitled “The Space Millennium: Vienna Declaration on Space and Human Development”. This declaration expressly states in several articles that sustainable development applies to space activities. Furthermore, it provides that the results of space 135 See, e.g., Hacket 1994, where he argues that use of outer space that causes “negative ecological effects directed against the benefit and interests of other States” constitutes a violation of OST Art. I.1 (pursuant to which space activities are to be carried out for the benefit and in the interests of all countries; pp. 72–74). The same author even goes as far as to declare that Art. I.1 in essence “asserts that new comers to outer space shall face the same environment as the space powers did in 1957”. Ibid., p. 114. For a treatment of the due-regard principle (inter- and intra-generational equity, in essence) in the space sector, see also ibid., pp. 99–103. 136 Baker 1988, pp. 205–206. If possible, the damages should cover the cost of returning the environment to its state prior to the damage. Ibid. 137 Para. 2. For a more thorough treatment of the declaration, see, e.g., Viikari 2002, pp. 124–130. 138 UNISPACE III.

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research should assist states, especially developing countries, to promote sustainable development for all of their people.139 However, such an approach is based essentially on the belief that technology is the means to achieve sustainable development.140 Obviously, the space sector today does not qualify as an outstanding example of an environment-friendly industry—owing to both technological deficiencies and attitudes. Improving the availability of existing space technology within the international community—by technology transfer, for instance—could easily do no more than increase the amount of environmentally harmful space activities. At least in the short run, a more efficient means for promoting sustainability in the space sector could be to amend the often environmentally harmful practices of the existing space industry. Above all, there is need for improved technology which would create as few environmental problems as possible and even help to alleviate the environmental harm already done. The development of environment-friendly technology and practices might well be the most effective strategy later, too, given that existing space debris constitutes a significant hazard and cannot be diminished by any other means than the use of better technologies. Unfortunately, while waiting for such improvements, deterioration of the outer space environment may create serious obstacles to all space activities even relatively soon in the form of space debris or nuclear contamination in particular. Even the mere congestion of the most valuable orbits by functional space objects may render meaningless the future plans of countries that for lack of resources can as yet only envision engaging in their fair share of these activities later. Unless the space environment is preserved, the less developed countries will never be able to exercise their right to utilize it.141 The notions of intra- and interArt. 1.a.vi. The previous UNISPACE Conference, UNISPACE II in 1982, also discussed some ethical and environmental concerns. Environmental aspects of space activities received, however, relatively little attention; the principal concern seemed to be how to share benefits of space technology equitably. Byerly 1986, pp. 72–73. 140 Accordingly, the Scientific and Technical Subcommittee of the UNCOPUOS has repeatedly emphasized the contributions space technology can make in achieving the objectives of UNISPACE III and the Johannesburg Declaration on Sustainable Development. For a review of the implementation of the recommendations of UNISPACE III, see “Review of the implementation of the recommendations of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space” 2004. See also “List of space-related initiatives and programmes carried out by member States of the Committee on the Peaceful Uses of Outer Space and within the United Nations system that respond to specific recommendations contained in the Johannesburg Plan of Implementation of the World Summit on Sustainable Development” 2006. 141 Accordingly, some states have expressed the opinion that all spacefaring nations should implement space debris mitigation measures as promptly as possible because space debris threatens equity by endangering unrestricted access to outer space. Those “responsible for the creation of the present situation and those having the capability to take action on space debris mitigation should take the lead in that area”. Report 139

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generational equity are mentioned much more frequently in the space treaties than specific environmental concerns are, yet the practical implementation of even the former provisions remains quite modest. The prospects for short-term environmental improvements by evoking equity thus do not seem promising. Nevertheless, positive indications can also be cited. In the future, the ‘common heritage of mankind’ principle and the entire idea of res communis may gain further relevance, namely, with regard to the protection and preservation of some kind of intrinsic value of outer space environment.142 Already now the numerous guidelines and other instruments prepared by various organs internationally and nationally and aimed at the mitigation of orbital debris contain at least occasional references to the need to preserve the outer space environment not only for the needs of humans—be they the present or future generations of humanity—but also for the sake of protection of that environment as such.143 For instance, the ILA Draft Convention on Space Debris from 1994 includes references to damage to the space environment. It declares that states are also liable for environmental damage, i.e., damage to the environment of outer space and the Earth, “within or beyond national jurisdiction”,144 caused by space debris which is created by their activities.145 The definition of damage in the draft convention includes “any adverse modification of the environment of areas within or beyond national jurisdiction or control”.146 Hence the draft convention extends the ‘polluter pays’ principle to ‘mere’ environmental damage.147 It has of the Scientific and Technical Subcommittee on its 42nd session 2005, paras. 97, 99. (The report of the following year adopted somewhat different wording, urging these states to “contribute to space debris mitigation efforts in a more significant manner than other states”. Report of the Scientific and Technical Subcommittee on its 43rd session 2006, para. 109.) On the other hand, it has also been proposed that ways and means of providing technical and economic support for commercial operators to help them bear the additional costs deriving from debris mitigation measures should be explored. Ibid., para. 113. The high costs of many debris mitigation procedures have also been found to entail restrictions on the abilities of emerging space actors to access and use outer space. Space Security 2004 (2005), p. 9. 142 See Schrijver 1997, p. 246. 143 See, e.g., IADC Protection Manual 2004, Part 6. 144 Art. 1.d. 145 Arts. 2, 8. 146 Pursuant to Art. 1.e, damage means “loss of life, personal injury or other impairment of health, or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations, or any adverse modification of the environment of areas within or beyond national jurisdiction or control”. 147 See Uchitomi 2001, p. 79. A tentative example of the acknowledgement of environmental values at the level of national space legislation is provided by the Law on Space Activity of Ukraine, which uses such terms as “incident” and “emergency”, both of which encompass, in addition to damage to persons or property, damage to environment (to qualify as an “emergency”, the damage must be “substantial”; Art. 1).

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even been argued that protection of the space environment is an obligation erga omnes.148 Finally, sustainable use as the non-exhaustion of natural resources is another highly relevant aspect in space activities. Outer space in general and the most valuable Earth orbits in particular are precious natural resources for humankind. As mentioned above, the space industry’s main concern in this respect has been the threat of deterioration of outer space to an extent which seriously hinders utilization activities. In particular, the increasing amount of space debris constitutes a major hazard from the point of view of the space industry. The orbits that are of most use for telecommunication activities are also the ones where most of the space debris resides, one obvious reason being that the debris originates from activities in these orbits. In the future, the utilization of other types of space resources, such as mining of minerals from the Moon and other celestial bodies, may become viable and such activities will necessitate caution in order to avoid environmental degradation and exhaustion of the resources.149 The actual environmental content of the legislation may not be very extensive, however. There is a general ban on the “violation of international norms and standards regarding pollution of outer space”, as well as on “presenting of a direct threat to the life and health of human beings and the causing of damage to the environment” (Art. 9). Art. 21 requires compliance with safety requirements concerning life, health and property, as well as protection of the environment, and provides that “[s]ubjects of space activity shall ensure that the necessary measures are taken in order to prevent environmental damage as the result of space activity in accordance with Ukrainian legislation currently in force”. Art. 22 is concerned with possible adverse impacts (“to the life or health of the population or to the environment”) of the transport of space technology (requiring special means of guarded transport). The law refers also to the existence of other regulations governing space activity, such as procedures for “Environmental Protection in the course of space activity” (Art. 8), but there is no further information available on those rules. Moreover, it remains unclear whether “environment” as referred to in the law encompasses also the environment of outer space or that of Earth only; nowhere does the law specifically mention the space environment. Pursuant to Art. 23, if space activities result in a “threat to the population of Ukraine or to its environment or to foreign States”, the national space agency is to “take the necessary measures to ensure public safety and the safety of the property of citizens, enterprises, institutions and organizations and of the environment”. There is no similar requirement to ensure the safety of environment outside the jurisdiction of any state (even on Earth), which might imply that the term “environment” in other provisions of the law also excludes the environment of outer space (or even global commons on Earth). 148 See Jaenicke 1990, p. 255. The author argues that as more precise environmental obligations are adopted for the space sector, not only the international community as a whole but also each state will have the right to claim the observance of such rules against other states as a member of the international community in the interest of which such rules have been established. 149 On the prospects of industrial development on the Moon and other celestial bodies, see Williamson 2006, pp. 137–141. It has also been suggested that the international

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Good neighborliness can be traced back to the well-established Roman law principle sic utere tuo, ut alienum non laedas or ‘use your own property in such a manner as not to injure that of another’. Although initially a principle guiding the activities of individual citizens, this maxim has become since Roman times far more wide-ranging in use. In the international context, the principle implies that states may not use their territory and the resources under their control in such a way as to cause significant harm to the environment of other states or even to areas beyond any national jurisdiction. This analogy has well-established roots in international law: the principle was referred to already in early cases such as the 1940s Trail Smelter arbitration,150 and the Corfu Channel case of the ICJ.151 It has also been codified in international documents such as the 1972 Stockholm Declaration on Human Environment, in which form it is widely regarded as representing even customary international law:152 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.153

community should formally adopt for space activities the principle of optimum sustainable yield, to be observed “in the use of living natural resources, if existing in outer space and on celestial bodies”. Cocca 1990, p. 122. 150 The arbitral tribunal in question concluded that “[u]nder the principles of international law … no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” This formulation has also been cited on several later occasions, for example, by Judge de Castro in his dissent in the ICJ Nuclear Tests case Australia v. France (1974), where he referred to it as “a general rule” (p. 389). 151 In the 1949 Corfu Channel case, the ICJ referred to “certain general and wellrecognized principles”, including “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (p. 22). The context of the obligation in this instance is quite different from that of international environmental law, however, as the case concerned Albania’s responsibility for incidents in which two British warships struck mines in Albanian waters and suffered serious damage because Albania had failed to warn them of the mines. Hence, the significance of the Corfu Channel decision “may be confined to a narrower point about warning other states of known dangers”. Birnie–Boyle 2002, p. 109. 152 This seems to be a perception commonly shared by scholars of international space law as well. See Report of the 64th Conference of the ILA 1990, p. 168. 153 Principle 21.

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Thus, Stockholm Principle 21 underscores a nation’s sovereign right to exploit its resources in accordance with its own environmental policies, as well as its duty not to cause damage to the environment or other states.154 As distinct from the earlier formulations of the principle, the Stockholm Declaration significantly refers also to “areas beyond the limits of national jurisdictions”, thereby expanding the application of sic utere tuo from mere transboundary incidents to harm affecting global commons, such as outer space. Furthermore, application of the principle extended to situations where the degradation of another state’s territory is caused by an activity taking place not within the territory of the polluting state, but merely under its control, e.g., a polluting ship—or spacecraft—registered in that state. Principle 2 of the Rio Declaration two decades later enshrined the same aspiration but with an additional reference to development policy.155 The principle of sic utere tuo as embodied in the Stockholm and Rio Declarations has served as the basis for several environmental protection treaties, such as the 1979 Convention on Long-Range Transboundary Air Pollution and the 1985 Vienna Convention for the Protection of the Ozone Layer. The 1982 UNCLOS enshrines this principle in the field of marine pollution, where it applies also to the area of the high seas beyond national jurisdictions.156 The 1992 Rio Conventions, i.e. the Convention on Biological Diversity and the Climate Change Convention, affirm that the principle is applicable also in their respective areas.157 The inclusion of the principle in instruments aimed at protection of the global environment further attest that a state’s obligation not 154 It has been argued that the reference in Principle 21 to states’ sovereign right to exploit their resources is something akin to unlimited sovereignty over each state’s environment. However, the rest of the principle, above all the reference to responsibility for environmental damage, works as a counter-balance; all the more so as such responsibility has been widely considered as reflecting customary international law. Birnie–Boyle 2002, pp. 109–110. 155 The principle reads: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction” (emphasis added). It is unclear, however, whether this environmental qualification constitutes much more than a textual change in the earlier formulation of the principle. See ibid., p. 110. 156 Arts. 192–194. 157 Article 3 of the Convention on Biological Diversity includes the Stockholm Principle 21 verbatim, whereas the preamble to the Climate Change Convention contains the formulation used by the Rio Declaration. The influence of Principle 2 of the Rio Declaration can be noted also in the 1993 Nuuk Declaration of Environment and Development in the Arctic and in the 1994 UN Convention to Combat Desertification (see the preambles to both conventions), for instance. For a more detailed account of the

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to use its territory or (other) resources under national control so as to contribute to harmful environmental effects outside its national jurisdiction has expanded from solely bilateral relations (transboundary harm) to the state’s relations with the international community as a whole.158 Furthermore, in the advisory opinion Legality of the Threat or Use of Nuclear Weapons of 1996 the ICJ confirmed that “[t]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”.159 The principle of sic utere tuo has been much favored by states apparently because of its vagueness. It recognizes the sovereign rights of states to utilize property and resources under their jurisdiction but requires that the exercise of those rights not significantly harm the rights of others. The ambiguous twofold principle largely allows each actor to establish its own interpretation of the kinds of activities that are permitted and the sort of responsibility that follows from them.160 It is an expression of a search for balance between conflicting interests, but determining the exact scope and implications of the principle is a very demanding task, for, obviously, not all cases of transboundary environmental damage (or damage to areas beyond national jurisdictions) can be prevented, nor deemed unlawful. Nevertheless, the principle is clearly not merely one that requires reparation for existing environmental damage; rather, it is, above all, an obligation for states to take suitable preventive measures to avoid environmental harm.161 The principle of sic utere tuo itself, however, offers little guidance on various international instruments with reference to the principle of sic utere tuo, see, e.g., Sands 2003, pp. 243–245. 158 Birnie–Boyle 2002, p. 111. These precedents also confirm that today the obligation of environmental protection extends beyond the scope of territorial integrity, i.e., to areas beyond the limits of national jurisdiction. Boyle 1991(a), p. 13. As regards the level of states, recognition of the principle of good neighborliness by national legal systems was described as “extensive” already a quarter of a century ago. See Hakapää 1981, p. 142. 159 Para. 29. 160 Kuusiniemi 1994, p. 125. 161 Birnie–Boyle 2002, p. 111. Already in the Trail Smelter case the arbitral tribunal ordered Canada to take measures to prevent future injury; thus the decision cannot be interpreted as merely an example of the polluter-pays principle, although Canada was required to make compensation for the transboundary harm caused by the smelter. As regards subsequent international environmental treaties, their primary purpose is increasingly harm prevention and control. An apt example is the UNCLOS, Art. 194, according to which “1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause

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what is required of states in each case; it needs something more for concrete content.162 Important criteria for evaluating the lawfulness of activities in this sense include the likelihood that the activity will cause harmful effects, the ratio between prevention costs and potential damage, the impact on other states’ capacity to use their national wealth in a similar way, and the health of the population of other states.163 In practice, conflicts stemming from the relationship between environmental responsibility and sovereign use of resources have typically been resolved through the creation of context-specific treaty regimes, which allow for context-specific balancing of the various relevant factors.164 Hence the principle of sic utere tuo takes different forms in different contexts. A related principle is that of good neighborliness. The term ‘good neighborliness’ has been embodied in treaty law, starting with the Charter of the United Nations.165 This principle has been described as a more concrete expression of the general principle of abuse of rights,166 in which light it would seem to better damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention” (emphasis added). In a similar manner, the 1991 Convention on Environmental Impact Assessment in a Transboundary Context requires that the parties take “either individually or jointly … all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities” (Art. 2.1; emphasis added). Art. 3 of the 2000 ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities provides that states should “take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof ”. See more about the related precautionary principle below. 162 See also Hacket 1994, pp. 150–151. 163 Schrijver 1997, p. 243. 164 Birnie–Boyle 2002, p. 110. 165 The preamble of the UN Charter refers to the determination of the peoples of the UN to “live together in peace with one another as good neighbours”. Art. 74 of the Charter, which deals with non-self-governing territories, exemplifies the same ideology: “Members of the [UN] also agree that their policy in respect of the [non-self-governing] territories … must be based on the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters”. 166 Brunnée 1988, p. 93. Abuse of rights has been defined, for instance, as “the exercise of a right for an end different from that for which the right was created, to the injury of another person or the community”. The doctrine admittedly appears disputable and vague, even incoherent, but it seems that at least a prohibition of deliberate and malicious ‘abuse of rights’ regularly figures in national legislation. Brubaker 1993, p. 64. One example of a treaty formulation of the doctrine of abuse of rights in international law is provided by the UNCLOS: pursuant to Art. 300 (entitled “Good faith and abuse of rights”), “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right”. For a detailed

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suit the management of shared (international) resources. The specific area where the principle first began to gain ground was international river law but its scope has since expanded significantly. As regards global environmental problems and common resources, all states can be seen as ‘neighbors’ to each other.167 Hence, when conducting activities that affect the global commons, states should use their right to utilize the resources and the environment—including the expressly guaranteed freedom of exploration and use of outer space—in such a way that other states can utilize them equally or at least obtain a reasonable and equitable share: in other words, “[a] state may not so use its rights that it causes damage to another state’s rights which is out of proportion to its own advantages”.168 Conversely, states have to tolerate proportionate interference deriving from other states’ use of their respective rights; again it is a matter of balancing legitimate but colliding interests.169 Such balancing necessitates coordination and cooperation between states, both for guaranteeing optimum use of resources and for preventing appreciable damage.170 A balancing approach is reflected to some extent in the UN space treaties, the OST in particular, which provides for “due regard to the corresponding interests of all other States Parties” and puts an emphasis on the principle of cooperation and mutual assistance.171 Virtually all international environmental instruments refer to the principle of cooperation in a way or another. On a general level, the requirement to cooperate is expressed, i.a., in the International Law Commission’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities of 2001, Article 4 of which says: “States concerned shall cooperate in good faith and, as necessary, seek the assistance of one or more competent international organizations in preventing significant transboundary harm or at any event in minimizing the risk thereof ”.172 Implementation of the general obligation of cooperation has been carried out through more specific techniques such as information sharing and environmental impact assessment.173 One focal assertion of the present work is that such techniques could provide feasible mechanisms for alleviating the environmental degradation of outer treatment of the concept of abuse of rights, see Hakapää 1981, pp. 138–141. An interesting examination of the doctrine and its development can also be found in Kuokkanen 2002, pp. 52–62. 167 See Hakapää 1981, p. 144. 168 Brunnée 1988, p. 93. 169 See also Kuokkanen 2002, pp. 58–60. The author refers to the doctrine of abuse of rights in terms of the notion of prohibition of “anti-social use of legal rights” and futher depicts it as a manifestation of the principle of good faith. 170 Schrijver 1997, pp. 243–244. 171 Art. IX. 172 Emphasis added. 173 For a more detailed treatment of the requirement of international cooperation in environmental matters in particular, see, e.g., Sands 2003, pp. 249–251.

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space, too. Accordingly, these techniques will be studied in more detail below with reference to their particular applicability to space activities. There is one more principle which seems to share much in common with the principles of sic utere tuo and good neighborliness: due diligence. The principle of due diligence regarding the environment and natural resources is among the most fundamental principles of international environmental law. Basically, it means the duty to protect the rights of other states and is concerned with unlawful failure to take precautions that would safeguard other states from damage resulting from the source state’s activities. The principle of due diligence indeed seems very similar to that of sic utere tuo: both are flexible standards of conduct requiring states to see to it that the territorial rights of other states are not violated by, i.a., inter-state pollution. The principles may also apply to impacts on international areas.174 At the core of the principle of due diligence is the recognition that state responsibility may arise indirectly from acts of individuals or non-state entities if they cause injury to the property or other interests of another state. In such a case the responsibility of a state depends on a failure to take reasonable care to control, i.e. failure to show due diligence.175 However, the principle of due diligence does not imply that any harm whatsoever is a breach of international law. The country causing the harm (or allowing it to be caused) fulfills its duties if it takes all due care—all measures expected from a ‘good government’ acting in consideration of its international responsibilities—not to cause (or to prevent) damage.176 Hence the principle of due diligence never makes a state an absolute guarantor of harm prevention.177 The particular measures required to observe 174

The distinction between the principles of sic utere tuo and due diligence is by no means unequivocal; it has been argued, for instance, that only the latter principle extends to activities taking place solely under national control but not within the territory of the state in question, as well as to pollution affecting international areas. See, e.g., Brunnée 1988, p. 95. This treatise, however, has not adopted such an approach. Besides, detailed distinctions between different principles are not necessarily even needed for present purposes. Considering that the aim is to identify tools which could help in combating environmental degradation in the space sector, possible overlaps between such tools should not be seen as a negative phenomenon; quite the contrary, it could even enhance their effectiveness. In other words, it seems more important to affirm that principles of international environmental law have the potential to provide such tools for the space sector than to be able to draw a clear distinction between them. 175 See Brownlie 1983, p. 45. 176 Brunnée 1988, p. 95. Furthermore, it can be difficult to prove lack of due diligence. Brownlie 1983, p. 172. 177 An illustrative example of the relativity of state responsibility under the standard of due diligence can be found in Annex III of the UNCLOS, where Art. 4.4 (dealing with utilization of the deep seabed and, in more detail, qualifications of applicants for such activities) provides that “[t]he sponsoring State or States shall … have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall

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due diligence obviously depend on the circumstances of each case. For instance, considerations of the resources available to a state, the factual effectiveness of its control, and the nature of the activities in question may justify differing degrees of diligence.178 The principle of due diligence may also appear quite similar to the principle of common but differentiated responsibilities (about which in more detail later), but while it allows for differentiated standards of conduct, it does not involve elements of conditionality and solidarity similar to those found in the latter.179 As regards international environmental law, both treaties and the work of the ILC increasingly promote application of the concept of due diligence.180 The ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts constitutes an important attempt to elaborate the principle as regards the management of transboundary risks.181 The focal elements of the ILC Draft Articles are 1) taking all appropriate measures to prevent and minimize the risk of significant transboundary harm;182 2) international cooperation for this purpose;183 3) implementation of the draft articles through “legislative, administrative or other action including the establishment of suitable monitoring mechanisms”;184 and 4) a system of prior authorization for relevant activities (and major changes thereto), based on prior assessment of the potential for transboundary harm.185 Accordingly, in the case of polluting activities, the principle of due diligence obligates the source state to take all due care to prevent and minimize pollution damage outside its jurisdiction. This may require, for instance, constant monitoring of potentially harmful activities and an assessment of the environmental carry out activities in the [deep seabed] in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction” (emphasis added). 178 In international environmental law, there is an abundance of examples where the level of states’ economic development has been used to justify the application of double standards. See, e.g., UNCLOS, Art. 194 (“the best practicable means at their disposal and in accordance with their capabilities”), or the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Art. 2 (“effective measures individually, according to their scientific, technical and economic capabilities”). 179 Birnie–Boyle 2002, p. 112. The concept of common but differentiated responsibilities is taken up in more detail below. 180 For a more detailed account of the work of the ILC from an environmental point of view, see Hafner–Pearson 2001. 181 See ibid., p. 113. 182 Art. 3. 183 Art. 4. 184 Art. 5. 185 Arts. 6 and 7.

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impact of proposed plans. In addition to national endeavors, international cooperation in many cases facilitates such efforts. If adverse effects nonetheless occur, there is an obligation to take reasonable abatement measures.186 The obligation to refrain from causing (or permitting) significant environmental harm is not primarily a rule entailing responsibility for injury but an obligation of diligent prevention and control.187 Devices such as those described in the ILC Draft Articles should be applied to space activities, too: pollution prevention by prior impact assessments, ongoing control and other means, as well as measures for mitigating existing negative consequences. As environmental harm caused by space activities is particularly difficult to remedy after the fact, the focus should clearly be on prevention. The need for and potential of various, above all preventive, mechanisms in space activities—the environmental impact assessment in particular—will be examined in more detail later in this work. 4.2.3. The Precautionary Principle 4.2.3.1. Components and Evolution In accordance with the preventive ideology, there is an increasing emphasis on the general duty of states to take preventive measures to protect the environment.188 This is evident, for instance, in the trend today of demanding that environmental impact assessment be seen as implying reasonable regard for the rights of other states. In a similar vein, the emergence of the idea of anticipatory preventive action, the ‘precautionary principle’, can be seen in multilateral treaty law since the 1980s.189 It first became popular in the field of marine pollution, See Schrijver 1997, p. 241. Birnie–Boyle 2002, p. 115. 188 For a more detailed treatment of the principle of prevention, see, e.g., de Sadeleer 2002, pp. 61–90. 189 To name but a few examples, see the 1982 UNCLOS (Arts. 145, 192, 204, 206) and Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Regulation 31); Agreement Relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks (Art. 6); and preambles to the 1985 Vienna Convention for the Protection of the Ozone Layer and its 1987 Montreal Protocol (and the subsequent amendments of the latter). Since 1990, the precautionary principle has been incorporated by a growing number of treaties, such as the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Art. 3.2); the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (Art. 2); the 1994 Convention on Cooperation for the Protection and Sustainable Use of the Danube River (Art. 2.4); and the 1992 Framework Convention on Climate Change (Art. 3.3), as well as in a number of treaty protocols (such as the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Art. 3). One example of the most recent developments is the Cartagena Protocol on Biosafety, 186 187

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from where it expanded during the 1990s to new domains, such as coastal and fisheries management. In addition to the ‘maritime’ developments, scientific uncertainty (and increasing acknowledgement of it) contributed to the adoption of the precautionary principle as early as in the 1980s as regards the problem of atmospheric pollution as well. After its inclusion in the Rio Declaration (Principle 15), the precautionary principle has rapidly become common in other areas of international environmental law.190 Furthermore, it plays a major role in European Union (EU) law191 and in the national legal systems of many states.192 The precautionary principle has been described as “the single most important environmental principle in the field of international environmental law after its inclusion in the Rio Declaration”193—even “to the point where it overshadows a number of other principles”.194 It obviously is a central element of sustainable development. As is the case with many principles in international environmental law, however, the hard core and exact requirements of the precautionary principle are still quite unclear. The role of the precautionary approach as a legal principle is particularly complicated, as its basis is not the need for certainty—a prominent element of legal systems in general—but quite the reverse: uncertainty.195 adopted under the auspices of the Convention on Biological Diversity in 2000. This protocol has been depicted as articulating “what may be the most advanced expression of the precautionary principle in any international agreement”. See de Sadeleer 2002, pp. 98–99. For a list including earlier treaties endorsing the preventive approach, see Sands 2003, pp. 248–249. 190 For a more detailed treatment of the historic evolution of the precautionary principle, see de Sadeleer 2002, pp. 94–100. 191 The Treaty Establishing the European Community was the earliest legally binding agreement that contained the principle of precaution in one of its operative provisions without defining it (presently Art. 174.2, which was introduced by the Treaty on European Union, Art. 130r.2). See Trouwborst 2006, pp. 24–25. In practice, Courts of the EC (the Court of Justice and the Court of First Instance) have employed a relatively broad (and highly anthropocentric) definition of the precautionary principle in their judgments: “where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent”. See, e.g., cases UK v. Commission of the EC (para. 99), and National Farmers’ Union and Others (para. 63) from 1998. The latest reference (at the time of writing) in the EC court practice to this particular formulation is in the judgment in the case Julia Abad Pérez and Others v. Council of the EU and Commission of the EC (13 December 2006), para. 80. As this definition indicates, the precautionary principle has been applied in the context of the EC sooner for purposes of health protection than in the area or environmental law. See de Sadeleer 2007, p. 384. 192 These areas cannot, however, be examined in this treatise in more detail. For a more thorough assessment of both, see de Sadeleer 2002, pp. 110–149. 193 Verschuuren 2003, p. 56. 194 de Sadeleer 2002, p. 93. 195 Ibid., p. 174. It has been suggested that the precautionary principle has, however,

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The general idea of the precautionary principle is to prevent environmental harm196 in advance, even when full scientific certainty about a threat does not exist. Hence a relevant (sufficiently foreseeable and serious) risk of harmful effects is enough to justify (and necessitate) a response—protective measures usually—even if there is as yet no proof of harm.197 For instance, according to Principle 15 of the Rio Declaration, [i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.198

The precautionary principle thus takes the idea of due diligence, and the more traditional ‘preventive’ approach it entails, a bit further yet is “far more than a simple variant”199 of the preventive approach. The crux of the principle is that it requires caution already when identifying relevant risks, not only in responding to them,200 thereby contributing significantly to risk reduction: “[t]he question is no longer merely how to prevent assessable, calculable, and certain risks, but rather how to anticipate risks suggested by possibility, contingency, plausibility, probability”.201 Moreover, the precautionary principle protects not only the interests of human entities potentially suffering from environmental harm but also the environment itself directly.202 Furthermore, as Rio Principle 15 stresses, the approach must be “widely applied by states according to their capabilities”. gained the status of a principle of customary international law, at least in a regional perspective: it has a particularly strong foothold in the Nordic countries. de Sadeleer 2007, p. 383. 196 On the concept of environmental harm, see Trouwborst 2006, pp. 37–42. 197 See, e.g., Sands 2003, pp. 267–277. On the concept of risk in general, see Trouwborst 2006, pp. 26–29. 198 Also Principle 19 of the Rio Declaration reflects the precautionary principle by requiring that “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith”. 199 de Sadeleer 2002, p. 222. 200 Birnie–Boyle 2002, p. 116. 201 de Sadeleer 2002, p. 91. As the same author has put it, “the precautionary principle transforms doubt into possible certainty and hence strengthens the action by the public authorities in the face of uncertainty”. Ibid., p. 222. 202 Earlier, the scope of the precautionary principle was significantly narrower. As articulated by the Trail Smelter case and early civil liability conventions, it encompassed only injury to persons or property, and mostly in the transboundary context. In contrast, the modern approach also recognizes environmental damage as a relevant, distinct interest. Accordingly, Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, for instance, explicitly refer to responsibility for controlling “damage to

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It is commonly understood that there are no limitations on the geographical application of the principle of precaution: it extends to threats of harm to the environment no matter where they are located, including transboundary risks, risks on the domestic level, and risks to the global commons, and it is deemed to deserve as wide application as possible. Hence its scope encompasses even activities taking place in outer space.203 Interestingly, the Rio Declaration refers to the ‘precautionary approach’, not the ‘precautionary principle’. Similar inconsistency in terminology can be observed when examining other instruments of international environmental law: some use the term ‘precautionary approach’, while others prefer ‘precautionary principle’.204 It has been proposed that the term ‘approach’ would entail greater flexibility than ‘principle’.205 Moreover, it has been suggested that ‘precautionary approach’ is more easily acceptable, whereas the image of ‘precautionary principle’ has a negative connotation to it. Indeed, international negotiations have shown that many states distinguish between the two terms and are less willing to use ‘precautionary principle’.206 However, the prevailing interpretation seems to be that the difference in terminology is not significant.207 At most, the choice of terms appears to relate to geography only: the general trend is that EU law and European treaties in general favor the term ‘precautionary principle’ whereas ‘precautionary approach’ is more commonly used in global agreements. ‘Precautionary approach’ seems to be preferred also by US policy-makers.208

the environment” and, moreover, regardless of where it is located. It remains, however, unclear in general to which extent purely environmental harm is to be compensated. Brunnée 2004, p. 353. 203 Trouwborst 2006, pp. 126–128. As the precautionary principle is to be “widely applied”, there are also no limitations of application as to issue areas and activities: what determines its application is whether there are threats of environmental harm. See ibid., pp. 128–131. 204 For instance, the 1995 Agreement Relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks uses the term ‘precautionary approach’ (Art. 6), whereas the Convention for the Protection of the Marine Environment of the North-East Atlantic (Art. 2.2.a), the Convention on Cooperation for the Protection and Sustainable Use of the Danube River (Art. 2.4), and the Treaty Establishing a Constitution for Europe (Art. III-233.2) prefer ‘precautionary principle’. 205 See, e.g., the Separate Opinion of Judge Laing in the Southern Bluefin Tuna cases: “the Tribunal has adopted the precautionary approach for the purposes of provisional measures in such a case as the present. In my view, adopting an approach, rather than a principle, appropriately imports a certain degree of flexibility and tends, though not dispositively, to underscore reticence about making premature pronouncements about desirable normative structures” (para. 19). 206 Henriksen 2007, pp. 155–156. 207 Trouwborst 2006, pp. 11–12. 208 de Sadeleer 2002, p. 92; Birnie–Boyle 2002, p. 116.

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Sometimes both terms are used even within the same instrument (apparently without any distinction between them).209 In this treatise, the terms are also used interchangeably. 4.2.3.2. Application The focal question in practical application of the precautionary principle is at what point the obligation to take precautionary measures arises. The early Trail Smelter case (1939/1941) implied that the threshold is where actual and serious harm is likely to occur, suggesting a relatively high limit. The only slightly more recent Corfu Channel case (1949) expanded the obligation to situations of known risk to other states. More recently, however, objective foreseeability of harm, i.e. the existence of some reasonable grounds for concern that harm may be caused, has usually been considered as an adequate limit to trigger states’ duty of preventive action. Obviously, the actual capabilities to foresee the harmful potential of an activity vary according to the state of knowledge at a given time.210 Another relevant factor in determining the threshold is the nature of the harm. It is usually understood that risks of minor or insignificant harm cannot trigger this obligation: some standard of severeness is required.211 The Trail Smelter case referred to the high threshold of “actual” and “serious” damage.212 In the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities the magnitude and probability of harm are considered equally relevant when making the assessment: “risk” is defined as including both “a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm”.213 The term ‘significant’ is widely used in international environmental law today. It has been defined as

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For instance, the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities makes several references to both the ‘precautionary principle’ and the ‘precautionary approach’ (see Arts. 104(b)(i), 118(b)(i), 124(b)(i); and Arts. 23(i), 24, 111(a), respectively). The 1991 Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa even uses both of the terms in the same provision (Art. 4.3.f ). 210 See Trouwborst 2006, pp. 99–117, and 131–147, where the author makes a detailed assessment of the threshold of proof. Political will and the capability to acknowledge scientific facts may also be highly relevant factors. See Birnie–Boyle 2002, p. 115. 211 Trouwborst 2006, p. 44. 212 More recently, the ITLOS, for instance, required a risk of “serious” harm for the application of the precautionary principle in the Southern Bluefin Tuna cases in 1999. Order of 27 August 1999, para. 77. Rio Principle 15 refers to “serious or irreversible” damage. 213 Art. 2.a.

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having to be not substantial but nevertheless “more than trivial”.214 Obviously, ‘serious’, ‘significant’ and like terms are highly subjective—all the more so when cumulative risks come into play.215 Some instruments ‘avert’ this problem (but generate many others) by excluding any reference to qualifications as regards the type and level of harm, or at least remain very vague in that respect.216 On the other hand, other instruments—particularly earlier ones—favor the more specific term ‘pollution’ instead of the broad notions ‘harm’, ‘damage’, ‘effect’ or ‘impact’. Pollution is indeed an important type of environmentally harmful effect and many international treaties are concerned mainly (or exclusively) with it.217 In one way or another, they refer to the introduction by humans of substances or energy into the environment with the result of detrimental alteration in quality, either as regards the quality of resources useful to humans or (in line with the more modern approach) broader environmental concerns. 214 Birnie–Boyle 2002, p. 123. Initially, the ILC used the term “appreciable” in its draft articles to describe the degree of harm. It was replaced by “significant” in 1994, in keeping with the numerous international treaties which favor this term. Ibid. For a more detailed treatment of the term ‘significant’ as the threshold of harm for application of the precautionary principle, see Trouwborst 2006, pp. 47–52. 215 de Sadeleer 2002, pp. 163–164. Most people might agree that at least the possibility of considerable, irreversible damage qualifies as significant enough to trigger application of the principle of precaution. On the other hand, this can be open to debate as not necessarily all damage which actually is irreversible and severe to its individual victims is considered very serious from the point of view of the majority. See ibid., p. 165. For more detail on the thresholds of ‘seriousness’ and ‘irreversibility’ and their relation to ‘significance’, see Trouwborst 2006, pp. 53–66. 216 Consider, for instance, Stockholm Principle 21 and Rio Principle 2, according to which “States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction” (emphasis added). Pursuant to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic, states parties are to apply a precautionary principle “when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects” (Art. 2.2.a; emphasis added). The vague approach with no actual threshold requirements is also applied in the 1994 Convention on Nuclear Safety, which speaks ambiguously about protection from “harmful effects” of radiation (Art. 1.i). Obviously, the notions of ‘damage’, ‘hazards’, or ‘harm’ alone are not very informative for defining the relevance of a harmful effect in a given case. For a list of formulations lacking a threshold of harm, see Trouwborst 2006, pp. 45–47. 217 For instance, the Convention on Long-Range Transboundary Air Pollution Control; the Convention for the Prevention of Marine Pollution from Land-Based Sources; the International Convention for the Prevention of Pollution from Ships; even the International Convention on Civil Liability for Oil Pollution Damage.

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What constitutes pollution within a particular treaty system may be limited further by reference to discharges of specific substances, often listed in separate annexes. This technique also allows states to redefine ‘pollution’ within the context of a specific instrument relatively easily by merely adding to or removing substances from such lists.218 In addition to specifying polluting substances, earlier instruments often also resorted to certain levels of seriousness of discharges for defining relevant pollution.219 Interestingly, many later treaties have adopted an approach of listing (in annexes, usually) those substances which are identified as harmless.220 Such ‘reverse listing’ combined with a permit system considers in effect all discharges as ‘pollution’ unless proved harmless. This epitomizes an enhanced precautionary approach in environmental management.221 However, it is not easy to define when a precautionary approach necessitates practical preventive action. In addition to the ambiguity created by the language of legal instruments, which always remains open to interpretations (to a lesser 218

As a result of such contractuality, there are, for instance, significant variations in the treaties on land-based sources of marine pollution in different sea areas with regard to which substances in what quantities of emissions constitute ‘pollution’. 219 For instance, the 1972 Stockholm Declaration refers to discharges of harmful substances “in such quantities or concentrations as to exceed the capacity of the environment to render them harmless” and, furthermore, sets a limit of irreversible damage (Principle 6). A more recent (and more specific) example of an instrument which uses both the types of substances and threshold levels is provided by the 1991 Espoo Convention on Transboundary Environmental Impact Assessment. It requires an EIA to be carried out prior to a decision to license or undertake certain activities that are considered environmentally harmful, provided that the activities are likely to cause a significant adverse transboundary impact (Art. 2.3); the activities are listed in Appendix I to the convention. For some categories of the listed activities, the instrument provides particular threshold levels. Some of these threshold are more specific than others; compare, e.g., the expression “crude oil refineries (excluding undertakings manufacturing only lubricants from crude oil) and installations for the gasification and liquefaction of 500 metric tons or more of coal or bituminous shale per day” (Appendix I, para. 1), and those of “large dams and reservoirs” (Appendix I, para. 11; emphasis added), “major storage facilities for petroleum, petrochemical and chemical products” (Appendix I, para. 16; emphasis added), or “deforestation of large areas” (Appendix I, para. 17; emphasis added). 220 An illustrative example is the system created by the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, which originally contained an Annex I that listed substances, the dumping of which was prohibited (additionally, the dumping of substances listed in Annex II or other matter required permits; Art. IV.1). The 1996 protocol, which was made to supersede the original 1972 Convention, employs the converse approach: Art. 4.1.1 prohibits the “dumping of any wastes or other matter with the exception of those listed in Annex 1” (emphasis added). Also the dumping of the substances listed in Annex 1 requires a permit (Art. 4.1.2). 221 See Birnie–Boyle 2002, pp. 123–125, also for a more detailed treatment of the subject.

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or greater extent), the concept of risk involves numerous variables on the basis of which the assessment of the need for preventive measures has to be made. This means judgments about the causes, probability, scale and long-term effects of harm which typically take place in a context of complicated processes and their interaction over time.222 It is not easy even for highly qualified scientific specialists to manage such variables, let alone for the politicians who usually make the decisions about practical responses to environmental threats. Furthermore, decisions often also need to be made in cases where the relevant scientific processes can be understood—if at all—only partly or after lengthy monitoring and research.223 In practice, scientific uncertainty relates to all environmental decision-making in a more or less significant manner. If the principle of precaution were to be applied strictly, the inevitable uncertainty of science would make it impossible to undertake activities if (and when) they entailed any—no matter how minor—possibility of environmental damage. In order to avoid this, at least purely hypothetical risks should be ignored, as well as minor damage of very low probability.224 In practice, if the lack of scientific certainty is too great and the risks thus very ambiguous, it is difficult to invoke the precautionary principle at all.225 In a setting where sufficiently convincing scientific evidence is not available, it is hard to define what is precautionary and whether the burden of proof should be in favor of exploitation or conservation.226 Even if there is agreement on the existence and severity of a certain problem, there might exist no consensus on what should or could be done about it. It is by no means uncommon that states invoke the inevitable scientific uncertainties related to global environmental processes as an excuse for taking no action in such cases.227 Considering that measures required for the abatement of global environmental problems typically entail significant costs, it is no surprise that states can hesitate when faced with the 222 For a thorough treatment of the concept of risk and its development, see de Sadeleer 2002, pp. 150–161. 223 See Birnie–Boyle 2002, p. 115. 224 de Sadeleer 2002, p. 173. “Interpreted in too radical a manner, the precautionary principle could sacrifice innovation to security.” Ibid., p. 222. 225 This has been a problem in the Antarctica, for instance. Article II of the Convention on the Conservation of Antarctic Marine Living Resources adopts a wide ecosystem approach to the Antarctic resource conservation and management (which the subsequent Environmental Protection Protocol to the Antarctic Treaty further affirmed). An essential part of this approach is the logical emphasis on precautionary methodology (Arts. II.3, XV.2, XX.4). In this context, lack of data (and the consequent scientific uncertainty) has been identified as a hindrance in the application of the precautionary approach to Antarctic fisheries management, above all. Redgwell 1999, pp. 216–217. 226 See Freestone 1999(a), p. 159. 227 Notorious examples of such an attitude include the numerous delays in the international negotiations concerning such global threats as ozone depletion and climate change.

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need to do something—and some more than others. However, if the threshold is set too high, serious or irreversible harm might occur before preventive action is even initiated.228 Hence, some international treaties attempt to give at least somewhat more detailed guidance as to what kind of a scientific basis for predicting a possibility of harmful effects is enough to necessitate action. For instance, the Convention for the Protection of the North-East Atlantic provides that “Contracting Parties shall apply … the precautionary principle … when there are reasonable grounds for concern that substances or energy introduced … into the marine environment may bring about [environmental or other] hazards”.229 Thus, the precautionary principle suffers from the same problems as the concepts of sic utere tuo, good neighborliness and due diligence: flexibility and generality. It is difficult to derive more specific obligations from them, especially ones with the potential of amounting to state responsibility. As regards the precautionary principle, one hardly can say anything more precise than that the factors to be taken into account when evaluating the need for its application to a planned activity include the probability of significant environmental damage and the relation of the expected benefits of the activity to the potential negative impacts involved. This implies a sort of balancing test: the greater the risk and the more adverse the potential consequences, the more likely preventive measures will be required. Depending on the costs and benefits and on their probability, different cases may require varying degrees of precaution. Hence, the meaning of the precautionary principle in effect varies according to the context. In any case, it is clearly a maxim of increasing importance. In order to make the principle of precaution, as well as the concepts of sic utere tuo, good neighborliness and due diligence, more concrete and predictable, states have in many instances agreed on certain international minimum standards, sometimes on a very detailed level. By living up to these ‘eco standards’, states can be certain that they are fulfilling the requirement of diligent conduct.230 An apt example of this technique is the MARPOL Convention, which contains detailed technical annexes for preventing and minimizing various kinds of pollution from ships.231 International fisheries regulation relies on a technique of slightly See Birnie–Boyle 2002, pp. 115–116. Art. 2.a (emphasis added). See also, e.g., the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Art. 3.1 (“when there is reason to believe”; emphasis added), and the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area, Art. 3.2 (“when there is reason to assume”; emphasis added). 230 Birnie–Boyle 2002, p. 113. 231 These annexes regulate different kinds of polluting substances: oil (Annex I); noxious liquid substances in bulk (Annex II); harmful substances carried by sea in packaged form (Annex III); sewage and garbage from ships (Annexes IV and V respectively); air pollution from ships (Annex VI). Of these, states parties have to 228 229

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less demanding type. Already the UNCLOS used the concept of maximum sustainable yield as a reference point for the management of fisheries;232 this was later retained in the Agreement on Straddling and Highly Migratory Fish Stocks where the level of adequate precautionary measures is concretized in terms of precautionary reference points,233 i.e., estimated values “derived through an agreed scientific procedure, which corresponds to the state of the resource and of the fishery, and which can be used as a guide for fisheries management”.234 Hence the reference points work as safety margins in the implementation of the precautionary principle.235 Pursuant to Paragraph 2 of Annex II to the agreement, [t]wo types of precautionary reference points should be used: [1] conservation, or limit, reference points and [2] management, or target, reference points. Limit reference points set boundaries which are intended to constrain harvesting within safe biological limits within which the stocks can produce maximum sustainable yield. Target reference points are intended to meet management objectives.

The agreement also provides for action to be taken even in the absence of sufficient data: according to Article 6.2, “States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures”.236 For such instances, Annex II accept the first two annexes; the others are optional. As mentioned above, the Espoo Convention on Transboundary EIA also lists for certain categories of activities detailed threshold levels which trigger the duty to carry out a prior EIA (Appendix I). 232 Pursuant to Art. 119.1, “[i]n determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield ” (emphasis added). The concept is, however, to be “qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global”. 233 Arts. 5.b, 6.3.b. 234 Annex II (Guidelines for Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks), para. 1. 235 Trouwborst 2006, pp. 169–170. The use of reference points is common in fisheries management. For a more detailed account, see ibid. 236 See also Arts. 6.3.c–d, as well as Art. 6.6. The latter provides that “[f ]or new or exploratory fisheries, States shall adopt as soon as possible cautious conservation and management measures … [which] shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks”.

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states that “provisional reference points” are to be set “by analogy to similar and better known stocks”.237 Fish stocks should be managed in a way which keeps their level consistent with the reference points; if these points are exceeded or risk of that exists, states are to take pre-agreed remedial conservation and management action.238 However, there is no automatic prohibition of fishing even if the reference points are reached. The approach also involves the idea of ongoing adjustment, if necessary, of the reference points in accordance with scientific development.239 Another, less exact technique in using standards for clarifying the requirements of due diligence and precaution is to employ references to the use of ‘best available technology’, ‘best scientific evidence available’, and the like.240 Obviously, the concept of ‘availability’ is a very flexible one (and so may be the notion of ‘best’), but at least such requirements are likely to ensure that decisions are based on some kind of assessment that takes account of recent scientifictechnological developments.241 The relevant factors in establishing whether a particular technology qualifies as ‘best available’ include at least the economic feasibility of that technology, as well as the nature and extent of the pollution in

237 Para. 6. Enhanced monitoring to enable revision of provisional reference points in accordance with improved information is also required. 238 Arts. 6.4 and 6.3.b; Annex II, paras. 4 and 5. 239 For a more detailed account of the precautionary management methodology applied in the agreement, see, e.g., Freestone 1999(a), pp. 160–162. For a general assessment of the use of reference points in fisheries management, see Caddy–Mahon 1995. 240 See, e.g., the Convention on Long-Range Transboundary Air Pollution, which refers to “best available technology which is economically feasible” (Art. 6; emphasis added), and the World Charter for Nature, according to which “best available technologies that minimize significant risks to nature or other adverse effects shall be used” (para. 11). Agreement Relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks requires that states adopt conservation and management measures which are based on “the best scientific evidence available” (Art. 5; emphasis added). The agreement also includes several references to “best scientific information available”, which is, for instance, to be used for determining “the stock-specific reference points and the action to be taken if they are exceeded” (Art. 6.3.b; emphasis added). See also Arts. 6.3.a, 6.7, 10.f, and 16.1 of the agreement, as well as Art. 119.1.a of the UNCLOS. Art. 194 of the UNCLOS obligates states parties to use “the best practicable means at their disposal and in accordance with their capabilities” for preventing, reducing and controlling marine pollution (emphasis added). One more related (and equally problematic) concept worth mentioning is “best environmental practice(s)”, used for instance by Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Art. 3.1.g and Annex II) and Convention for the Protection of the Marine Environment of the North-East Atlantic, which also applies the term “best available techniques” (Art. 2.3.b and Appedix I). 241 See Freestone 1999(a), p. 159.

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question.242 ‘Availability’ of knowledge may also be determined by, for instance, economic feasibility.243 There are environmental instruments which provide that when making a determination what in a concrete situation constitutes ‘best available’, the precautionary principle should be given “particular consideration”.244 Even explicit definitions of what constitutes ‘best available’ in the context of a particular instrument can be found in some international treaties.245 They may also contain references—of different degrees of obligation—to already established international standards246 or encourage the adoption of new ones.247 Furthermore, international standards may transform into customary international law, whereby they become binding on states regardless of whether they are included (or referred to) in legally binding instruments. Such standards then help in determining what is ‘best available’.248 On the other hand, it may be Kiss–Shelton 2000, p. 193. Trouwborst 2006, pp. 270–271. 244 See, e.g., the Convention on Cooperation for the Protection and Sustainable Use of the Danube (Annex I, Part 2.2), and the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Annex II, Regulations 2.2, 3.2). 245 One example is the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, which has an entire annex (Annex I, with only 2 articles, however) for defining ‘best available technology’. According to the annex, “[t]he term ‘best available technology’ is taken to mean the latest stage of development of processes, facilities or methods of operation which indicate the practical suitability of a particular measure for limiting discharges, emissions and waste” (Art. 1). 246 See, e.g., the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Art. 4.7.b, according to which states parties shall “[r]equire that hazardous wastes and other wastes that are to be the subject of a transboundary movement be packaged, labelled, and transported in conformity with generally accepted and recognized international rules and standards in the field of packaging, labeling, and transport, and that due account is taken of relevant internationally recognized practices” (emphasis added). A less demanding obligation to this effect is, for instance, Art. 207.1 of the UNCLOS, which only tells states to “tak[e] into account internationally agreed rules, standards and recommended practices and procedures” (emphasis added); the same wording is used in Art. 119.1.a of the UNCLOS cited above, as well as in the Fish Stocks Agreement, Art. 5.b, pursuant to which in adopting fisheries conservation and management measures states are to take into account “any generally recommended international minimum standards, whether subregional, regional or global” (emphasis added). Although only non-binding obligation, even such “taking account of ” international standards helps in defining the practical content of due diligence. See Birnie–Boyle 2002, p. 113. 247 E.g., UNCLOS, Art. 211.1: “States … shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels”. 248 It has been proposed that, for instance, the MARPOL Convention (and hence its standards of due diligence and precaution) might have gained the status of customary law. Ibid. 242 243

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the case that there is very little or even no scientific evidence available. If only ‘best available’ scientific information is required, the role of scientific knowledge in decision-making in such a case is in practice minor or even nil: with such requirements, decisions can be fully legitimately taken even without any scientific information.249 One more central aspect of the precautionary principle is the question who bears the burden of proof to show that a relevant risk exists. This also depends on the context. The precautionary principle can be used for requiring not only that scientific uncertainty serves as no justification for delaying the adoption of measures to protect the environment but even that no potentially adverse activities may be undertaken unless sufficient evidence of their safety is presented.250 Hence, although thus far exceptionally only, the precautionary principle may constitute a reversal of the burden of proof in that an actor is not allowed to carry out an activity unless it can be shown that the activity will not cause unacceptable environmental harm. Examples of such a reversal relate mainly to the use of global commons.251 This reversal of the burden of proof embodies the strongest formulation of the precautionary principle that still may allow some activities to be undertaken; the most extreme application of it would be a total ban on all activity, for instance, a moratorium on resource exploitation.252 Even where it does not entail a complete reversal of the burden of proof, let alone a moratorium, the precautionary principle may constitute a significant shift in this burden in favor of a conservationist approach to environmental management.253 At least, the more serious the threats in question are, the better scientific uncertainties should be taken into account so as to lower the standard of proof required for preventive action. As one author has Trouwborst 2006, pp. 143–144. See de Sadeleer 2002, pp. 202–203; Cameron 2002, pp. 120–121. 251 They typically concern dumping at sea and whaling, where the main effect of the precautionary principle has been that states have been made to submit proposed activities to international scrutiny for prior consent. For more detail, see Birnie–Boyle 2002, p. 118. Another example is the request by New Zealand in 1995 to reopen the 1974 case before the ICJ on French nuclear tests in the South Pacific Ocean. New Zealand held, i.a., that the precautionary principle (as a principle of customary international law and hence binding on France) put the burden of proof on France to show that no damage will occur from its planned testing activities (Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, para. 5). In a similar manner, Ireland claimed in the MOX Plant case of the ITLOS in 2001 that the precautionary principle obligated the UK to demonstrate that no harm would arise from discharges of the operations of the plant (Request for Provisional Measures and Statement of Case of Ireland, para. 147). 252 On the other hand, a moratorium can be argued to represent a preventive approach rather than a precautionary one. Freestone 1999(a), p. 160 fn. 119. 253 See, e.g., Art. 6 on the precautionary approach of the Agreement relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks. 249 250

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(optimistically) put it, “previously the polluter benefited from scientific doubt; henceforth doubt will work to the benefit of the environment”.254 Be it despite or because of the ambiguity inherent in the precautionary principle, it has been widely endorsed both in international treaties and at the domestic level. In international judicial practice, however, the principle has found less compelling support. For instance, although Hungary relied on the precautionary principle in the Gabcikovo-Nagymaros case,255 the ICJ made no reference to it—despite its avowed willingness to apply new norms of international environmental law. This may have been because the Court found the environmental risks concerned sufficiently certain as not to require any reliance on the precautionary principle; but the reason could also have been that it did not consider the principle to have a legal status.256 Although the dissenting opinions of judges of the ICJ in some cases suggest that at least some of them find the principle of precaution to have evolved into a principle which may be of legally binding nature, this is not yet enough to confer upon it the status of customary international law.257 Another relevant example is the so-called Beef Hormones dispute,258 where the Appellate Body of the World Trade Organization (WTO) considered the legal status of the precautionary principle in international law uncer254 de Sadeleer 2002, p. 203. For a more detailed account of the effect of the precautionary principle on the development of the (reversal of ) burden of proof in the regulation of environmental risks, see ibid., pp. 202–211; and Trouwborst 2006, pp. 193–227. The latter author concludes that there exists no general requirement in international law that the precautionary principle should cause the burden of proof to be automatically reversed, but that the precautionary principle has lowered the standard of proof. Ibid., pp. 226–227. 255 Para. 97. 256 Birnie–Boyle 2002, p. 118. 257 In addition to the Gabcikovo-Nagymaros dispute (see above), the Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case provides an example of a case where the ICJ’s order has been accompanied by several dissents that find it possible that the precautionary principle already constitutes a principle of customary international law. See the dissents of Judge Weeramantry, Judge Koroma, and Judge (ad hoc) Sir Geoffrey Palmer. (The Nuclear Tests cases will be studied in more detail in connection with EIA.) There are also authors who consider the precautionary principle to be (or at least to “reflect”) a rule of customary international law. E.g., Cameron 2002, pp. 121–133. 258 EC Measures Concerning Meat and Meat Products (Hormones). The dispute concerned a complaint by the US and Canada about a prohibition imposed by the EU on hormone beef. Following the WTO dispute settlement procedure, the complaints were first considered by a dispute settlement panel, which ruled in favor of Canada and US. However, all disputing parties appealed the panel decision and it was thus taken to the WTO Appellate Body.

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tain.259 In the Southern Bluefin Tuna cases regarding conservation and management of this highly migratory species (and a regional international convention to that effect),260 the International Tribunal for the Law of the Sea (ITLOS), on the other hand, referred to precaution in requiring the parties “in the circumstances [to] act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna”.261 Furthermore, the tribunal relied on scientific uncertainty regarding the conservation of tuna stocks and ordered measures to be taken “as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock”.262 Despite the references to preventive action and scientific uncertainty, the ITLOS made no explicit mention of the precautionary principle.263 A similar approach was taken later by the tribunal in the MOX Plant case.264 259 In its report, the Appellate Body stated the following: “The status of the precautionary principle in international law continues to be the subject of debate among academics, law practitioners, regulators and judges. The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear … We note that the Panel itself did not make any definitive finding with regard to the status of the precautionary principle in international law and that the precautionary principle, at least outside the field of international environmental law, still awaits authoritative formulation” (para. 123). It is not possible to study the case here in detail; for a more thorough assessment of this dispute and certain subsequent cases where decisions were based on the Beef Hormones case, see de Sadeleer 2002, pp. 103–108. The role of the precautionary principle in the Beef Hormones case has also been discussed in, e.g., Cameron 2002, pp. 136–140. 260 Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures. 261 Order of 27 August 1999, para. 77. 262 Paras. 79–80. Although this can be considered a genuine application of the precautionary approach, it may also derive indirectly from the fact that the UNCLOS requires a precautionary approach to fisheries conservation in general. See Separate Opinion of Judge Laing, paras. 16–18, and Separate Opinion of Judge Treves, para. 6. It should be noted, however, that the principal articles of the UNCLOS dealing with the conservation and management of living resources and migratory species (Arts. 64, 116–119) do not explicitly mention the precautionary principle, whereas many other provisions of the convention do. 263 For a more detailed account of the dispute and the role of the precautionary principle in it, see, e.g., Freestone 2000; Fabra 2000; Evans 2000; Johnston 2000. 264 The MOX Plant case of 2001 was a conflict where Ireland requested provisional measures to suspend the authorization of the MOX plant in the UK, because of potential pollution of the Irish Sea due to discharges of radioactive materials from the plant. Ireland invoked the precautionary principle to support its request. Although the ITLOS did not order the provisional measures requested by Ireland, it considered that “prudence and

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The European Court of Justice (ECJ) has also applied the precautionary principle.265 In sum, it is difficult to assess the status of the principle of precaution in international law. Moreover, the consequences of its application vary considerably. The principle of precaution is helpful when identifying whether a legally significant risk exists, for it acknowledges the uncertainties inherent in science. It is, however, far less useful when it comes to controlling risks through specific measures or deciding what level of risk is acceptable; these are questions of policy.266 The fact that the precautionary principle alone cannot dictate specific regulatory measures is evident in many international instruments which may, i.a., expect states to negotiate international standards for precautionary action or take precautionary measures but which give no further guidance as to what standards to adopt or measures to take.267 Thus the principle can be implemented in many different, yet equally ‘correct’ ways. Hence, states have applied the caution” required the two states to “cooperate in exchanging information concerning risks or effects of the operation of the MOX plant and in devising ways to deal with them, as appropriate” (para. 84 of the Order of 3 December 2001). Two of the judges went somewhat further in their considerations concerning the precautionary principle, taking into account the possibility that it might have become part of international customary law and could deserve to be applied to the case. See the separate opinions of Judge Wolfrum and Judge (ad hoc) Székely (para. 22). 265 See Judgments of the ECJ in cases The Queen v. Ministry of Agriculture, Fisheries and Food, and UK v. Commission of the EC, concerning the banning of export of beef during the ‘mad cow’ crisis: “At the time when the contested decision was adopted, there was great uncertainty as to the risks posed by live animals, bovine meat and derived products” (para. 62 / para. 98). “Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (para. 63 / para. 99). 266 As the precautionary principle nevertheless requires action to be taken even (and above all) in the face of uncertainty, it actually enhances the role of political decisionmaking. See de Sadeleer 2002, pp. 175–180. 267 For instance, the UN Framework Convention on Climate Change clearly obligates states to “take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”. Furthermore, it continues with specifying that “[w]here there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties” (Art. 3.3). Nevertheless, it has proven very challenging to get states to agree on the practical implementation of such obligations. Birnie–Boyle 2002, pp. 119–120.

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precautionary principle taking account of their own economic capabilities and political priorities. In their value judgments, they have been more precautionary about some activities than about others.268 On balance, there are numerous uncertainties related to the meaning, application and implications of the precautionary principle. Due to the principle’s ambiguous nature, international tribunals obviously are hesitant to rely on it. Yet, it clearly can affect the interpretation and application of treaties, all the more so as it is mentioned in them with an increasing frequency.269 Instead of providing a source of express rules, the precautionary principle has been defined as a “new lens” through which to view the world, as regards both the establishment of new obligations and the re-evaluation and implementation of existing ones.270 Although it is not possible to define the precautionary principle as a principle with specific normative implications, its widespread use both internationally and domestically suggests that it has some kind of a legal core on which there is international consensus.271 4.2.3.3. The Precautionary Principle and the Space Sector What might be the role of the precautionary principle in the use of outer space then? Obviously, the space sector is rife with uncertainties and risks of various kinds. This would seem to speak in favor of the application of the precautionary principle. Although space activities involve significant scientific uncertainties, they should not justify disregard of precautions. Quite the contrary; the great risks all space activities entail require caution to be exercised because they may result in very long-lasting or irreversible environmental damage, for instance. Despite the limits of our knowledge of outer space and the processes taking place there, it is obvious that restoring the space environment once it is damaged is extremely difficult. However, the fact that any activity taking place in outer space may be regarded as ultra-hazardous—although the environmental harms associated with these activities during normal operation are usually relatively 268 For instance, ocean dumping and whaling have typically been placed high on the ‘precautionary agendas’, while fishing and polluting industrial activities rank much lower on this list. Ibid., p. 120. It has also been assessed that “[i]n recent years, the [precautionary] principle has been used more as a weapon of political leverage in an economic context”. O’Riordan et al. 2002, p. 28. 269 There are, however, also relatively recent instruments where the precautionary principle has not been adopted. The 1994 Convention on Nuclear Safety does not incorporate the precautionary principle, although it states as one of its objectives the prevention of “accidents with radiological consequences” (Art. 1.iii). The principle is equally absent in the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses, for instance. 270 See Freestone 1999(a), p. 141. 271 For more detail, see Birnie–Boyle 2002, pp. 119–121.

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minor—renders the principles of due diligence and precaution somewhat less applicable. Obviously, banning all potentially harmful space activities would in practice mean banning all space activities, which of course is far from being a realistic option.272 A precedent from an analogical area of activity is the regulation of deep seabed mining in the “Area”, i.e. the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.273 There, too, activities are carried out in an international environment—which has even been proclaimed as the common heritage of mankind274—without anything close to full scientific certainty about the environmental consequences. Although the precautionary principle was not specifically mentioned in either the 1982 UNCLOS or the 1994 New York Agreement amending the rules concerning the Area, the principle has been explicitly incorporated into subsequent deep seabed regulation. For instance, pursuant to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (also called the “Mining Code”), which was adopted in 2000, [i]n order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration to such activities.275

On balance, implementing more caution in considering the actual need for certain missions, for example, the launching of cremated human remains into 272

An interesting example of the application of a precautionary approach in the space sector is the treatment of another type of (yet also in a way ‘environmental’) threat, namely, the possibility that the Earth is impacted by large near-Earth objects (asteroids or comets) which cause immense devastation. The likelihood of such an occurrence is very small but if it happens, the consequences can be extremely severe and extensive. The rationale of precautionary measures in this connection has been justified in the following manner, which illustrates the balancing of the gravity of harm and the probability of harm in order to establish whether there are ‘reasonable grounds for concern’: “If some day an asteroid does strike the Earth, killing not only the human race but millions of other species as well, and we could have prevented it but did not because of indecision, unbalanced priorities, imprecise risk definition and incomplete planning, then it will be the greatest abdication in all of human history not to use our gift of rational intellect and conscience to shepherd our own survival, and that of all life on Earth”. Responding to the Potential Threat of a Near-Earth-Object Impact 1995. 273 UNCLOS, Art. 1.1.1. 274 UNCLOS, Art. 136. 275 Regulation 31.2 (emphasis added). Inclusion of the precautionary principle in the Mining Code was, however, a subject of heated discussion; hence the compromise wording “precautionary approach, as reflected in Principle 15 of the Rio Declaration” instead of ‘precautionary principle’. See International Seabed Authority, Press Release 2000.

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Earth orbit, as well as in the operation of missions conducted would be welcome;276 such proposals encounter resistance in practice, however. In the case of the space debris problem, for instance, a more intensive application of the precautionary principle would lead to limitations on space activities or would at least require the application of much more advanced (and costly) technological solutions.277 This obviously makes the adoption of the principle as a legal obligation by spacefaring states a complicated endeavor.278 Among the different aspects of the precautionary principle, one that is particularly crucial for space activities is the possible shift in the burden of proof. An argument used in favor of the idea that the precautionary principle implies a reversal of the burden of proof has been the fact that very often the party which is planning the potentially harmful activity also is in the best position to produce the relevant information on its impacts.279 Another argument supporting the 276 It has been suggested that launching states should consider “the balance of benefits and detriments of planned missions and … take appropriate decision concerning the realization or modification of such missions” in view of environmental protection. “Missions of questionable benefit” might include, i.a., “commemorative missions by conspicuous space objects reflecting light” to draw the attention of the public, and satellites “illuminating fields during the night” to increase the yield of crops. Perek 2001, pp. 421–422. An early example of a mission whose usefulness was questionable (to say the least) was a US experiment in space communications, Project West Ford. The experiment involved “the ejection of a 35 kg canister containing 350 million hair-like copper dipoles, each 21 mm long”, from an early-warning satellite. The dipoles were expected to be slowly dispensed by the spinning canister after separation and to form an orbital belt at an altitude of 3220 km that would act as a reflector for relaying military communications. Two attempts to this end were made (in 1961 and 1963). The dipoles did not dispense as expected and many of them remained clumped together. The US stated that after the second try, communication was possible. The free dipoles decayed within a couple of years, as planned, but most of the dipole clumps still remain in orbit. The Soviet Union submitted a note of protest to the UN already in 1963 claiming that Project West Ford was dangerous because of the ensuing interference with communications to spacecraft and radioastronomy. See Space Law: basic legal documents, Vol. I, Part A. IX.1. 277 It has even been suggested that it be made an international requirement that “[e]very state that intends to perform activities in outer space or celestial bodies is obliged to have and apply the most developed technology for preserving the environment”. Cocca 1990, p. 122. 278 Uchitomi 2001, p. 77. On the other hand, environmental degradation in space activities could be diminished also by some quite simple means. For instance, it is possible that better coordination of launches on a global level could result in some reduction in the number of launches. The Report of the ESA Space Debris Working Group 1988, p. 67. 279 See, e.g., the Dissenting Opinion of Judge Weeramantry in the Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case: “Where a party complains to the Court of possible environmental damage of an irreversible nature

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same conclusion is that those expected to gain the main benefits of a planned activity should also be responsible for showing that it is not environmentally harmful.280 As mentioned above, examples of reversal of the burden of proof in international legal instruments relate mainly to the use of global commons. Thus it could seem justifiable to make it apply to the global common of outer space, too. In the space sector, it is very difficult indeed for third parties to prove that another country’s space activity—or that of a private entity falling under the jurisdiction of another or even the same country—has produced a harmful outcome, if only because of the practical difficulties involved in gaining the information needed. A requirement that an entity planning a potentially dangerous activity (any space mission, in principle) has to show that it will in all likelihood not cause excessive harm would prevent such complication at least to some extent. However, spacefaring nations would be likely to show little enthusiasm for such a shift of the burden of proof. The general lack of scientific certainty regarding many phenomena in outer space complicates the application of the precautionary principle further. Clearly, it would not be feasible to demand even close to complete proof of harmlessness under a reversed burden of proof, as that cannot realistically be achieved. Moreover, such a restrictive approach would severely hinder—if not completely prevent—the functioning and development of the space sector and hence of the modern technological society worldwide.281 Despite the difficulties related to the adoption of the precautionary principle in the space sector, there exist substantive examples of state practices that already implement this principle in the utilization of outer space. Article IX of the Outer Space Treaty provides for international consultations before a state may proceed with potentially harmful space activities. The threshold of relevant harm under the OST is difficult to establish, however, since the article itself gives no further guidance in this respect.282 Furthermore, the consultation requirement of this article only applies to harmfulness which is relevant from the point of view of human space activities. Nevertheless, some operators take measures voluntarily to avoid the generation of space debris. Many governments and space agencies have established space debris mitigation standards of their own, including precautionary measures. There even exists international cooperation which another party is committing or threatening to commit, the proof or disproof of the matter alleged may present difficulty to the claimant as the necessary information may largely be in the hands of the party causing or threatening the damage. The law cannot function in protection of the environment unless a legal principle is evolved to meet this evidentiary difficulty, and environmental law has responded with what has come to be described as the precautionary principle.” (p. 342). 280 Trouwborst 2006, pp. 198–200. 281 On the problems related to demanding extensive proof of harmlessness of planned activities, see also ibid., pp. 200–201. 282 For a discussion concerning the term ‘harmful’, see, e.g., Report of the 64th Conference of the ILA 1990, pp. 158–159.

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to that end. It seems that the principle of precaution is thus already helping to gradually change the traditional presumption of freedom of use of outer space into something less exploitative, possibly even conservation-oriented. Due to the practically irreversible nature of many forms of space pollution, it is obvious indeed that environmental protection in this sector cannot mean the mere diminishing of existing harmful consequences but quite the reverse, i.e., the exercise of greatest precaution—and also in respect of purely environmental harm.283 The existing strategies to combat space debris and other environmental harm in space activities are not enough, however. More stringent precautionary measures are needed. The most complete form of precaution, a moratorium on space activities, is not a feasible option. A more realistic tool to aid in alleviating environmental degradation of outer space could be the use of some kind of science-based proactive precautionary reference points that are capable of accommodating further scientific development. Reference points relevant for the space sector could be based on the rate of growth of the population of space debris, for instance.284 Such an approach would require states to conduct their activities in a manner likely to ensure that the fixed reference points are not exceeded; if they are, more substantive remedial action would be triggered. This action would be agreed on by the states themselves, preferably in advance. Regardless of the extent of these abatement measures, the methodology could, by the use of technically determined reference points, constitute a scientifically based management procedure. In light of the example of the Agreement Relating to the Conservation and Management of Straddling and Highly Migratory Fish 283

The importance of precaution in the space sector has been perceived at least by some from the very beginning of space activities. For instance, the CETEX Committee that was established in 1958 to study the issue of possible contamination caused by extraterrestrial exploration submitted in 1959 a report which, i.a., “urged that the nature of the Moon’s atmosphere be determined before it received the residue of the propelling gases involved in soft landings”, “recommended against nuclear tests on or near … celestial bodies”, and “called attention to the need to prevent earth-based organisms from being transmitted to Mars and Venus lest studies of extraterrestrial life might be placed in jeopardy”. Christol 1979, pp. 436–437. 284 The technical development of such reference points is best left in the hands of natural scientists, not lawyers. One should also learn from the lessons of the fisheries management sector in this respect: for instance, it has been argued that, to some extent at least, “the perception that fishery management must be based entirely on technically derived reference points has provided decision makers with an excuse to avoid difficult decisions”. Obviously, the management of any endangered resource by politicians alone may result in detrimental outcomes yet the reality of political decision-making cannot be avoided. See Caddy–Mahon 1995 (Chapter 5 “Discussion”). A system involving natural scientists, lawyers and politicians with complementary skills and powers would seem to provide the best opportunities for responding effectively to the potentially rapid developments in the space sector, too.

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Stocks, the method can also be made such as to provide for action to be taken even in the absence of sufficient data. Leaving to states themselves both the responsibility not to exceed the agreed reference points and to make decisions about the exact remedial activities to be taken if this should nevertheless happen, such an agreement could be sufficiently ‘non-demanding’ not to deter states from accepting it. It could also provide a feasible starting point or, rather, an intermediate jumping-off point for further development of more stringent obligations. Despite the significant potential of the precautionary principle in combating environmental degradation, one should keep in mind that it is not always the best (or even correct) tool to address environmentally harmful activities. The more traditional principle of prevention, applicable where the threats are already tangible, still retains an important role.285 For instance, many aspects of the environmental degradation caused by space utilization are already wellknown, in which case there is no need for precaution in the face of uncertainty but for self-evident preventive and corrective action. Space debris is one of the problems for which there exists by now quite plausible scientific evidence and where inaction in terms of preventive measures to avoid further generation of debris stems from partly—or even largely—sheer lack of political will.286 4.2.4. Common but Differentiated Responsibilities The principle of common but differentiated responsibilities derives from the idea of international equity.287 Instruments in all areas of international law tend to differentiate above all between industrialized and developing countries: different standards, delayed compliance timetables or less stringent commitments may be appropriate for different groups of countries. In international environmental law, the principle of common but differentiated responsibilities builds on the common responsibility of all states to protect the environment but, at the same time, takes into account the differences in their ability to do so. Accordingly, Principle 7 of the Rio Declaration, for instance, says that States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contribuSee de Sadeleer 2002, p. 223. For a more detailed account of the principle of prevention, see, e.g., Training Manual on International Environmental Law 2006, pp. 32– 33. 286 Obviously, the removal of existing pieces of debris is a task too demanding at least at the current level of our technical expertise. However, there is much we could do to prevent the generation of new space debris by removing inactive satellites to less hazardous orbits, for instance. 287 Sands 2003, p. 285. 285

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tions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.288

The rationale for such an approach is generally considered to be twofold. Firstly, it recognizes that environmental degradation today mostly originates in industrialized countries and that they should thus bear the main burden in combating the negative effects of pollution.289 These countries generally also possess greater capacities to respond to environmental degradation.290 Secondly, as developing countries need access to resources and technologies (which often result in more pollution) in order to be able to achieve sustainable development, industrialized countries should assist them in gaining such access. Moreover, the standards applied to developing countries cannot be the same as those for industrialized nations, hence the need for ‘double standards’ that are less demanding for less developed states.291 Double standards can establish different substantive rights and obligations or provide for differences in timing the implementation of substantive provisions.292 In assessing the application of differentiated standards, one should consider fairness and equity as well as the actual ability of an actor to prevent, control and reduce environmental harm.293 An apt example of common but differentiated responsibilities in international law is the 1992 United Nations Framework Convention on Climate Change, which commits industrialized countries to take stricter measures than those required of less developed countries. Article 3.1 of the convention states:

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For a more detailed assessment of Rio Principle 7, see Birnie–Boyle 2002, pp. 103–

Essentially, such responsibility is but one application of the polluter-pays principle. However, there have been very divergent opinions on whether the principle of common but differentiated responsibilities should be interpreted as merely an ability or actual (legal) responsibility of industrialized states to pay for environmental protection. For a more detailed treatment, see Mickelson 2001, pp. 69–77. 290 Unlike responsibility based on the principle of polluter pays, any responsibility deriving from the fact that developed countries are usually better equipped to abate environmental degradation can hardly be seen as anything more than responsibility of moral or political nature only. Matsui 2004, p. 80. 291 See Schrijver 1997, pp. 247–248. See also Birnie–Boyle 2002, pp. 101–102, where the principle is defined in a similar manner as an equitable balance in at least two respects: first, in setting lesser standards for developing states (“different responsibility”) and, secondly, making the performance of those standards dependent on the assistance given by developed states (“solidarity and conditionality”). 292 See Matsui 2004, pp. 81–84. 293 For more detail, see, e.g., Sands 2003, pp. 285–289.

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Article 4 continues by giving more detailed obligations for all states parties to undertake certain cooperative measures and information exchange,294 but only those states parties that are developed countries (or otherwise listed in Annex I) must commit themselves to take measures to deal more directly with greenhouse gasses.295 The convention also contains provisions regarding assistance to developing states in the form of access to new financial resources and technology transfer.296 Furthermore, it incorporates double standards concerning timing of obligations.297 An approach building on the common but differentiated responsibilities of states can be also seen in the Vienna Convention for the Protection of the Ozone Layer298 and the Convention on Biological Diversity,299 for instance.300 Para. 1. Para. 2. In addition to states falling clearly into the category of ‘developed countries’, Annex I includes states cast as “countries that are undergoing the process of transition to a market economy”, such as Rumania and Ukraine. The same distinction between countries is maintained in the subsequent 1997 Kyoto Protocol to the Climate Change Convention. 296 Art. 4, paras. 3–10. 297 Art. 12.5 requires the Annex I parties (mostly developed countries) to make their initial communication of information related to implementation of the convention requirements within six months of the convention coming into force for them. For other states parties, the time is at least three years (it can also depend on the availability of financial resources, and the least developed states may make their initial communication at their discretion). 298 Of particular significance in the ozone layer regime is Art. 5 of the Montreal Protocol to the Vienna Convention, which, i.a., gives developing states a longer timescale within which to phase out production and consumption of ozone-depleting substances. Arts. 10 and 10A deal in more detail with financial assistance (including a Multilateral Fund) and transfer of technology to developing states. For a more detailed treatment of the ozone regime, the Montreal Protocol in particular, from the point of view of common but differentiated responsibilities, see Mickelson 2001, pp. 72–73. 299 The convention does not explicitly use the term ‘common but differentiated responsibilities’ but frequently obligates countries to undertake activities only “as far as possible and as appropriate”. Art. 6 (“General Measures for Conservation and Sustainable Use”) allows, furthermore, the “particular conditions and capabilities” of contracting states to be taken into consideration. Arts. 16, 20 and 21 of the convention deal with technology transfer and financial assistance to developing states. 300 One more example of common but differentiated responsibilities is provided by the 1982 UNCLOS, Art. 194.1 of which obligates states to take “all measures consistent 294 295

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The general commitments of the above instruments obviously necessitate further elaboration by subsequent instruments but, with the exception of the ozone depletion regime, such efforts have been relatively modest. As regards transfer-of-technology obligations and access to additional funding in particular, developed states have been reluctant to agree to anything other than ambiguous and/or relatively irrelevant commitments.301 Nevertheless, the mere acceptance of the principle of common but differentiated responsibilities on a global level (as evidenced by the widespread ratification of the above-mentioned treaties) is already a step forward.302 Moreover, many instruments include provisions which make their implementation by developing countries conditional on the supply of technological and/or financial assistance, thereby also providing practical means to put pressure on industrialized countries.303 From a purely environmental with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities” (emphasis added). As concerns pollution from land-based sources in particular, the UNCLOS provides (even more explicitly) that “States … shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development” (Art. 207.4; emphasis added). Arts. 202 and 203 of the UNCLOS regulate “Scientific and technical assistance to developing States” and “Preferential treatment for developing States”, respectively. 301 See Art. 16 of the Convention on Biological Diversity, for instance, where the transfer of technology is mostly made dependent on mutual agreement of terms. Agreement is needed also for the operation of the financial mechanism under Art. 21 of the convention. For more detail, see, e.g., Birnie–Boyle 2002, pp. 568–588. The situation is similar as regards the ozone layer regime and the Framework Convention on Climate Change, as well as the UNCLOS system after the amendments introduced by the New York Agreement of 1994. For a more detailed treatment of the latter, see Viikari 2002, pp. 73–78. Apparently, common but differentiated responsibilities obligations have never actually extended to general assistance for sustainable development; rather, even at the most, they remain limited to assistance from industrialized countries to developing countries to secure compliance of the latter with commitments under specific international conventions. Matsui 2004, p. 88. 302 Birnie–Boyle 2002, pp. 100–101. 303 See, e.g., Art. 4.7 of the Framework Convention on Climate Change and Art. 20.4 of the Convention on Biological Diversity, according to both of which “[t]he extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation by developed country Parties of their commitments … related to financial resources and transfer of technology”. In a similar manner, Chapter 17.2 of Agenda 21, which deals with marine environment, provides that “[t]he implementation by developing countries of the activities set forth below shall be commensurate with their individual technological and financial capacities and priorities in allocating resources for development needs and ultimately depends on

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point of view, on the other hand, such conditionality and double standards are obviously not ideal. They can make the less developed states, who benefit from lower standards, more attractive for many industries, and as production moves to states with less demanding environmental regulation, the overall negative consequences of environmentally degrading activities are likely to increase. Hence double standards should be used as temporary measures only.304 The unique aspect of the space pollution problem vis-à-vis the principle of common but differentiated responsibilities is that industrialized countries have stronger immediate needs to develop their space activities—which is likely to contribute to further pollution of outer space—whereas developing countries often insist on protecting the space environment in order to guarantee their practical possibilities for space activities in the future. Consequently, developing countries sometimes appear to be the ones most concerned about the protection of outer space, a situation quite the opposite of that usually seen where sustainable development is at issue.305 Industrialized countries have often taken the view that the scientific uncertainty surrounding space pollution problems requires further research (although even they are facing increasing difficulties in finding persuasive excuses to postpone the legal study of space pollution much longer), whereas developing states insist that international regulation is indispensable because a failure to act now could lead to irreversible harm.306 For instance, the Legal Subcommittee of the UNCOPUOS has still not managed to agree even on the adoption of space debris as an agenda item.307 On the other hand, also spacefaring nations are very concerned about degradation of the space environment—although this may mainly be due to the threats to their own space activities. An optimistic view of the voluntary action taken by many states and space operators in debris mitigation, above

the technology transfer and financial resources required and made available to them”. See also the Montreal Protocol on the financial mechanism (including the ‘Multilateral Fund’), Art. 5.5 of which provides that the implementation of control measures by developing country parties “will depend upon the effective implementation” of financial cooperation and transfer of technology (pursuant to Arts. 10 and 10A). 304 See Matsui 2004, p. 84. 305 Uchitomi 2001, p. 77. 306 Ibid., p. 80 fn. 17. 307 In 2004 the US delegation to the Legal Subcommittee expressed the view that the space debris mitigation guidelines of the IADC were “preliminary in nature” and “further work would be needed before these proposals could be reviewed and finalized by the Subcommittee”. Consequently, in the opinion of the US, it was “premature for the Subcommittee to consider the legal aspects of space debris”. Report of the Legal Subcommittee on the work of its 43rd session 2004, para. 125. The scientific uncertainty (and hence the need for further research) concerning the technical aspects of space debris has been the primary basis for opposition to an international treaty on orbital debris as well. Mirmina 2005, p. 653.

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all, is that it epitomizes the responsibility to protect the environment of outer space. Quite understandably, non-spacefaring states in particular demand that those who have caused the current environmental degradation of the space environment, i.e. primarily the industrialized states, and have the capacity to do something to improve the situation—again the industrialized states—should take the lead.308 Indeed, there will necessarily be different responsibilities to at least some extent between developed and developing countries for the obvious reason that it is only the spacefaring nations who can actually take effective measures to solve the problem of space pollution.309 However, the observance of common standards has been regarded as essential in relation to ultra-hazardous activities; as a result the principle of common but differentiated responsibilities has not been adopted in the space treaties, nor in other treaties dealing with activities which entail equally significant risks.310 Nevertheless, the space sector might be more receptive to the principle of common but differentiated responsibilities in the future. It has been suggested that there exists an ongoing general process towards increasing multilateral accountability of a kind, considerably different from the traditional reciprocal state responsibility system.311 Despite the difficulties in the application of common but differentiated responsibilities in the relations between industrialized and less technologically developed states, there could be some room for this principle in inter-generational responsibility. The idea of a space fund, the monies of which could be used, i.a., for the benefit of future generations, is examined later in this study.312 Such a trust fund would in essence be an expression of the ideals of common but differentiated responsibilities and equity between (and possibly within) generations. It would be in line with the various proposals to make use of the idea of public trusteeship in intra- and inter-generational contexts that has been put forward in the international environmental sector in particular.313 308 See, e.g., Report of the Scientific and Technical Subcommittee on its 42nd session 2005, para. 99. 309 Uchitomi 2001, p. 77. 310 Other such examples are nuclear safety, pollution from ships, dumping at sea, trade in endangered species, and activities in the Antarctic and on the deep seabed. Birnie–Boyle 2002, p. 103. 311 Sand 2004, p. 30. 312 See the treatment of Differential Obligations below. 313 For a more detailed treatment and an extensive collection of examples of such an approach in relation to different types of elements of the environment, see Sand 2004, pp. 31–33. In addition to proposals concerning the adoption of new public trusts and the like, it has been proposed that the UN Trusteeship Council “be reconstituted as the forum through which Member States exercise their collective trusteeship for the integrity of the global environment and common areas such as the oceans, atmosphere and outer space” (emphasis added). Proposal by Secretary-General Kofi Annan in his report on UN reform (Renewing the United Nations 1997, para. 85). On the development of proposals concerning such a reform, see Sand 2004, pp. 34–35.

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The notion of states as trustees of common resources has also emerged in some cases before international tribunals.314 There should be no reason why it could not be applied in some form in the management of space activities as well. 4.2.5. The Polluter-Pays Principle 4.2.5.1. Components and Evolution The polluter-pays principle may appear relatively simple at first sight but it has a number of different meanings and functions. As the name indicates, it is a principle whereby a polluter should ‘pay’ for its polluting activities. This is also referred to as “the principle of compensation for the victims of environmental damage”, for instance.315 Initially, the discussion concerning the polluter-pays principle focused on purely economic aspects; it was developed within the realm of economic theories.316 Most countries have long recognized some kind of a duty of polluters to cover the costs of pollution damage.317 As an international environmental policy, the polluter-pays principle was initiated by a recommendation of the Organisation for Economic Co-operation and Development (OECD) in 1972.318 The core of the polluter-pays principle in this recommendation is the avoidance of distortions in international trade due to national subsidies to polluting industries.319 Since then, the polluter-pays

314 For instance, in the 1980s, the European Court of Justice referred to the member states as “trustees of the common interest” in two cases concerning the conservation of fisheries. European Commission v. UK, para. 30; Ireland v. Commission of the EC, para. 15. Later, Judge Weeramantry referred to a “principle of trusteeship of earth resources” as the first principle of modern environmental law in his separate opinion in the GabcikovoNagymaros dispute. Part A(e). 315 Schrijver 1997, p. 245. 316 See Bugge 1996, pp. 54–55. 317 Ibid., p. 58. 318 1972 Recommendation of the Council of OECD C(72)128. Two years later, the OECD Council adopted a further Recommendation on the Implementation of the Polluter-Pays Principle C(74)223. It referred to the polluter-pays principle as a “fundamental principle” (para. I.1). See also the more recent 1989 Recommendation on the Application of the Polluter-Pays Principle to Accidental Pollution C(89)88/Final and the 1991 Recommendation on the Uses of Economic Instruments in Environmental Policy C(90)177/Final. The OECD polluter-pays principle has been examined in more detail in Bugge 1996, pp. 75–79. For an assessment of the OECD recommendations, particularly of the development of their approach to the polluter-pays principle, see also de Sadeleer 2002, pp. 26–27. 319 Bugge 1996, p. 76. In addition to different types of direct economic subsidies, such undesirable financial support can be indirect, e.g., tax advantages. Ibid., p. 77.

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principle has been seen increasingly as a legal principle with environmental implications.320 The polluter-pays principle means that the costs of pollution—including those of pollution prevention and control—should be borne by those responsible for the pollution and that the polluter is thus under an obligation to make reparation for damage inflicted by its polluting activities. Reparation should be designed to restore previous conditions or, if this is not possible, to compensate for the damage caused. The polluter-pays principle is still wider in scope, however: it includes concepts such as internalization of environmental costs in the prices of goods and services whose production or consumption causes pollution. If the polluter does not take responsibility for all the costs arising from pollution, internalization remains incomplete.321 Implementation of even incomplete internalization schemes usually requires intervention by public authorities, typically by either taxation or regulatory standards to prohibit or limit the damage deriving from polluting activities.322 The salient idea is that a state should pass on the pollution control costs to the actual polluters rather than leaving them to be paid by the society at large.323 At the least states should not help polluters defray their environmental costs through subsidies, tax advantages or other such measures.324 Obviously, practical application of the polluter-pays principle is least complicated in a specific geographic region subject to uniform (environmental) legislation.325 In line with its historical starting point, the primary objective of the polluterpays principle appears to be economic, i.e., the allocation of the costs of pollution or other damage to the environment, rather than environmental. Accordingly, the principle has been criticized, among other things, for accepting environmental degradation by merely “attach[ing] a price to the right to pollute”, i.e., a supplementary environmental tax of sorts.326 As long as all polluting 320 See Bugge 1996, who divides the polluter-pays principle into several main principles: an economic principle of efficiency; a legal principle of just distribution of costs; a principle of harmonization of environmental policies at national level; and a principle of cost-allocation between states (p. 57). 321 The development of the polluter-pays principle shows increasing recognition of environmental concerns by a gradual shift from only partial internalization of pollution costs for preventing distortion of competition towards more extensive internalization of environmental costs. See de Sadeleer 2002, pp. 33–37. However, due to the application of different kinds of thresholds, limits and exceptions for liability, it is still often the case that not all costs of pollution are internalized. See Bugge 1996, pp. 71–75. 322 de Sadeleer 2002, p. 21. 323 Schrijver 1997, p. 245. 324 See, e.g., OECD Recommendation C(74)223, para. III.1. 325 Shelton–Kiss 2006, p. 23. In a globalized world, however, distortions in international trade and investment can be hard to avoid altogether unless application of internalization measures is near universal. Boyle 1991(b), p. 368. 326 de Sadeleer 2002, p. 35.

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activities are not categorically banned or polluters made to pay exceedingly high compensation for their pollution damage, both of which would be rather infeasible ideas, application of the polluter-pays principle alone obviously can prevent only a certain amount of environmental degradation. Even the legality of the polluter-pays principle has been deemed questionable in the sense that when it is applied on the basis of certain threshold levels of pollution, the particular threshold of harm (and thus the accepted level of pollution) is always determined by the authorities. The decision about whether the polluter actually has to pay may thus be little more than a political act.327 Nevertheless, the polluter-pays principle has obvious legal implications as regards liability for environmental damage. It has acquired some status within the EU,328 but there is less evidence of support for the principle outside Europe. It has gained some recognition in international law, although maybe not quite as much as one might expect, given the wealth of discussion regarding the principle. The Rio Declaration, for instance, incorporates the polluter-pays principle. Unlike with most of its other principles, however, the declaration seems to suggest a rather weak commitment as regards this particular principle, which is not expressed in obligatory terms: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.329

It can hardly be argued that a principle phrased in language this aspirational was intended as anything even close to a binding normative obligation.330 Boyle 1991(b), pp. 368–369. See, e.g., Art. 174.2 of the Treaty Establishing the European Community, according to which “Community policy on the environment … shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay” (emphasis added). Hence the principle has to be respected by all EC institutions and the European Court of Justice. The same provision is repeated in Art. III-233.2 of the Treaty Establishing a Constitution for Europe. For a more detailed account of the role of the polluter-pays principle within the EU, see de Sadeleer 2002, pp. 27–32. 329 Principle 16 (emphasis added). 330 Most of the Rio principles use the wording ‘States shall’, instead of the more aspirational injunction ‘States should’. Another ‘less obligatory’ principle is number 12, on trade policy. States’ commitment to these economic principles thus seems relatively weak, which is not surprising, however. See Boyle–Freestone 1999, p. 4. On the other hand, the Rio Declaration is an improvement if compared to the 1972 Stockholm Declaration, which did not specifically invoke the polluter-pays principle at all. On the contrary, in accordance with the ideology of common but differentiated responsibilities, Principle 12 of the Stockholm Declaration suggests that developed states should help 327 328

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Rio Principle 16 has in fact been considered far less progressive than the provisions in the earlier OECD and EC documents concerning the polluterpays principle. The reference to “public interest” dilutes it further by leaving room for considerable exceptions, for instance, governmental subsidies.331 The reference to international trade and investment has the same effect. In addition, Principle 16 only suggests that it is national authorities who should promote the polluter-pays principle, thus limiting its application in the international context.332 Nevertheless, the inclusion of the principle of polluter pays in the Rio Declaration enhances its significance in general;333 its inclusion can also support the assertion that the principle should be considered an element of the concept of sustainable development. Furthermore, some subsequent instruments explicitly require states to “apply the polluter-pays principle”.334 Some instruments even include an explication of what the principle means.335 However, the polluter-pays bear the additional costs of environmental protection measures taken by developing states. In this light, the fact that the Rio Declaration at least refers to the polluter-pays principle constitutes advancement, despite the expressions used. Of course, even the Rio principles which use the expression ‘shall’ remain on the formally non-binding level of the entire instrument. However, they can be seen as exemplifying an intention on the part of states to create an instrument that also initiates new rules of international law. Boyle 1999, p. 69. 331 Birnie–Boyle 2002, p. 93. 332 de Sadeleer 2002, p. 25. 333 In addition, Rio Principle 13 calls on states to “develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction”. Principle 22 of the Stockholm Declaration already proclaimed the need to develop international environmental liability. 334 See, e.g., Art. 2.2.b of the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic; Art. 3.4 of the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area; Art. 2.4 of the 1994 Convention on Cooperation for the Protection and Sustainable Use of the Danube River. For a list of other such instruments, see de Sadeleer 2002, pp. 23–24. 335 For instance, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes refers to the polluter-pays principle “by virtue of which costs of pollution prevention, control and reduction measures shall be borne by the polluter” (Art. 2.5.b). The 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter is even more specific in this respect, requiring that “[t]aking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest” (Art. 3.2).

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principle only appears in certain international conventions dealing primarily with international watercourses and marine pollution.336 Some treaties merely refer to it in their preambles, in which case the principle does not constitute an obligatory norm by itself but remains only a tool for interpreting the more precise, binding norms of the operative provisions of the instruments.337 Those instruments with explicit recognition of the polluter-pays principle typically are only regional in scope. Most of them are also relatively recent.338 Moreover, even where reference is made to the principle, it is often without any definition of what exactly is meant by it. Comparison of express definitions of the principle further shows that its meaning in international instruments varies.339 All this makes the role of the polluter-pays principle as a rule of customary international law debatable.340 The conflicting views and qualifications notwithstanding, the polluter-pays principle seems to be quite widely adopted in national environmental policies and legislation.341 Nevertheless, there exists no general pattern of state practice as regards either the adoption of the principle or its subsequent implementation.342 Hence, the polluter-pays principle is no rigid rule of universal and uniform application, but an approach which entails great flexibility and diversity. Instruments used for its implementation include taxation, charges to offset the costs of preventing or alleviating environmental damage, and even direct responsibility for conducting restoration activities. The effectiveness of such measures varies even on national level. Obviously, their application is far more challenging in the case of transboundary pollution and harm to areas beyond national jurisdictions. The establishment and enforcement of any international liability for environmental damage343 is very complicated. It is particularly demanding where liability based on negligence is concerned. A more viable 336 Birnie–Boyle 2002, p. 93. Additionally, some liability treaties can be seen as representing a polluter-pays approach. Verschuuren 2003, p. 68. See also de Sadeleer 2002, pp. 24–25. 337 Ibid., p. 23. The polluter-pays principle is expressly depicted as a “general principle of international environmental law” in the preambles of the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation; the 1992 UNECE Convention on the Transboundary Effects of Industrial Accidents; and the 1993 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, for instance. 338 de Sadeleer 2002, p. 25. 339 Bugge 1996, p. 56. 340 See de Sadeleer 2002, p. 25. 341 See in more detail, e.g., Sands 2003, pp. 279–285. 342 There are major differences both in the degree and the choice of methods of implementation. Birnie–Boyle 2002, p. 93. 343 For a more detailed treatment of international liability for environmental damage, see, e.g., Sands 2003, pp. 869–939; Training Manual on International Environmental Law 2006, pp. 51–64.

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form of liability in this respect is strict liability, especially if it does not involve upper limits for compensation amounts.344 Even then, a further complication is introduced by the fact that environmental losses tend to be difficult to quantify in monetary terms.345 Particularly where severe degradation of pristine nature or complete extinction of a certain species is concerned, this is quite impossible. Moreover, the polluter-pays principle does not, for instance, define who the responsible polluter is. International regimes may treat the operator or owner of a polluting installation as the liable ‘polluter’. Alternatively, liability may be shared between several operators in order to facilitate recovery by plaintiffs. Regimes may also combine elements of both approaches.346 The complexity obviously increases significantly in cases of diffuse pollution. Furthermore, an important concept complementary to the polluter-pays principle is the relatively recent ‘user pays’ approach, which acknowledges the fact that polluting activities are not the only obstacle to achieving sustainable development: continuously increasing consumption is also a very significant factor. Without demand, there would be no polluting industries.347 One more related approach is the ‘victimpays principle’. The victim of pollution may also be the user, in which case considerations of equity clearly call for shared responsibility. Even if this is not the case, the victim may be the one capable of avoiding the harm in the most economical and efficient way.348 In addition to the problem of which entity is liable to pay, the determination of the pollution damage that needs to be remedied is focal. There are two major approaches here. As already mentioned, it may be determined that pollution giving rise to liability exists when a threshold for accepted levels of emissions is violated; i.e. the definition of relevant pollution is connected to exceedance of certain standards set by the authorities. As long as such standards are respected, the polluter does not (in principle) have to pay, even if some damage in fact

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Strict liability with limits for the amount of compensation has been established in international regimes regarding oil pollution and nuclear damage. See International Convention on Civil Liability for Oil Pollution Damage, International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Convention on Third Party Liability in the Field of Nuclear Energy, and Vienna Convention on Civil Liability for Nuclear Damage (the nuclear liability regime will be examined in more detail below). 345 See Birnie–Boyle 2002, pp. 93–95. 346 As an example of a combined approach, see more about the Western European liability regime for nuclear damage below. 347 “[A]ny act of pollution is the result of the act of production … as well as of final consumption”. de Sadeleer 2002, p. 60. Accordingly, the OECD has increasingly promoted the idea that the ‘user-pays’ principle should complement the ‘polluter-pays’ approach. See, e.g., OECD Recommendation C(90)177/Final, which applies, i.a., to emission charges, user charges and product charges. See de Sadeleer 2002, p. 42. 348 Bugge 1996, pp. 62, 83.

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occurs. On the other hand, if a fixed threshold is violated, this may entail a duty to pay compensation without consideration of the actual impairment of the environment. The other—and in international law more common— approach is that liability follows from the mere presence of damage and its impact irrespective of administrative thresholds. An operator may thus be subject to the polluter-pays principle and liable to make reparation even in cases where no norms have been violated. This seems justified especially in light of the precautionary principle. The principle of precaution has influenced the application of the polluter-pays principle also in the sense that the latter seems to increasingly cover even the risk of damage. This is particularly useful in dealing with cumulative effects of pollution, which may still not be very well understood by science. Even the precautionary approach cannot solve the problems related to the definition of relevant pollution damage, however: what kind of pollution qualifies as damage from the point of view of liability tends to be very relative and must essentially follow from a legislative choice.349 As the discussion also within space law shows, the use of a very narrow definition can, i.a., completely prevent damage to environment itself from being compensated. 4.2.5.2. The Polluter-Pays Principle and the Space Sector Where space activities are concerned, strict liability is established by the Liability Convention for damage caused by a space object “on the surface of the Earth or to aircraft flight”.350 This is in line with the argument that an entity which undertakes an inherently ultra-hazardous activity (and eventually profits from it) should also bear the risk of any ensuing damage.351 On the other hand, the obligation to pay should not be triggered by harm that is deemed minor.352

de Sadeleer 2002, pp. 38–41. For a more detailed treatment of the questions “what is relevant pollution”; “who is the polluter who has to pay”, “how much the polluter must pay and for what”, see Bugge 1996, pp. 66–73. On the measures to be paid by the polluter, see also de Sadeleer 2002, pp. 42–44. 350 Art. II. 351 Strict liability in international law has been established only in cases of high-risk activities. It is debatable whether it is also a rule of customary law that such activities entail strict liability. Brunnée 2004, p. 354. In the Cosmos 954 case, Canada claimed that the application of “the principle of absolute liability” to activities which involve a high degree of risk has been accepted as a “general principle of international law”. Sands 2003, p. 881. 352 The Cosmos 954 case provides some pointers as to the seriousness of environmental damage relevant enough to trigger liability in the space sector: Canada referred in its claim to damage which made the contaminated land “unfit for use”. Hence, it seems that the environmental impact in case of space activities also needs to be at least more than nominal, if not considerable. Sands 2003, p. 879. 349

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For damage occurring in space, a fault liability regime applies.353 Liability is connected to the occurrence of damage, not to the violation of a set threshold of any kind. The problems of this regime have already been dealt with in some detail above. One factor which is clearly counter-productive from an environmental perspective in particular is the narrow definition of damage in the Liability Convention. Above all, it can hardly give rise to compensation in the case of purely environmental damage. Furthermore, as space activities mostly take place far away from the Earth and in a highly international operational environment, it can be very problematic to establish a causality chain and fault in the case of damage; without these determinations no compensation is available to any entity. Gaps in scientific knowledge of processes taking place in outer space obviously only increase problems related to evidentiary questions. Also, the mere technical complexity of the use of outer space may make it difficult to prove fault. Moreover, damage deriving from the ultra-hazardous space activities can easily exceed the financial resources of any entity to provide compensation. Despite all the above challenges, where liability can be established pursuant to the Liability Convention, Article V improves significantly the possibilities of a victim to obtain compensation as it makes all states launching a space object together jointly and severally liable for any damage caused by it. Joint liability for joint activities can be seen as an expression of the polluter-pays principle on a collective level. However, this approach may also be criticized on the grounds of the same principle. Its fairness can certainly be questioned due to the expansive definition of a ‘launching state’, which potentially encompasses nearly all states involved in a launch in any way.354 In many space missions, however, numerous ‘launching states’ may have no distinct say in mission design, let alone in its execution; needless to say, it does not appear fair to hold such states liable for possible damage. Also, from the perspective of prevention, it appears senseless to act against an entity that has no practical power to prevent damage.355 In principle, however, the joint and several liability of Article V should facilitate just allocation of liability for damages among the various responsible states. According to paragraph 2 of Article V, [a] launching State which has paid compensation for damage shall have the right to present a claim for indemnification to other participants in the joint launching. The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable. Such agreements shall be without prejudice to 353

Liability Convention, Art. III. According to Art. I.c “[t]he term ‘launching State’ means: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched”. 355 de Sadeleer 2002, p. 45. 354

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Nevertheless, no matter how effective it may be from the point of view of securing compensation, it is not fair to let the victims charge the state which is best placed to pay (but might not have caused the greatest damage). Even if the state which bears the primary liability can subsequently sue its fellow parties for restitution, it may ultimately never recover any compensation from them: they may be insolvent, unwilling to pay, or impossible to identify.356 In such situations involving collective responsibility, the polluter-pays principle appears particularly powerless, as it is not capable of determining the entity (or entities) which should bear the costs nor ensures a just process by which compensation for damage can be secured. Despite the deficiencies of the current international liability regime in the space sector, it would in all likelihood be very difficult to reach consensus on comprehensive application of the polluter-pays principle in the use of outer space (and the ensuing channeling of all liability to the operators of environmentally harmful activities). There are several reasons why complete internalization of environmental costs does not seem feasible. Firstly, in an area of activity as international as the space sector, it can already be a challenge to determine the most appropriate (or even any) liable entity or entities.357 Complex causation questions cannot be avoided; considering, for instance, the problems in attributing damage to particular pieces of debris and, moreover, the potential cumulative effects of damaging events. Even if these issues were resolved, there would be additional challenges in designing the liability system, including questions such as the determination of the relevant damage and appropriate time limits for liability given that the occurrence of damage in outer space may involve (very) long time lags. Furthermore, the adoption of even a somewhat strict polluter-pays approach to liability would directly raise the costs of space activities and thus limit the development of space industry. A straightforward application of the polluter-pays principle seems particularly unfeasible as the damaging potential of space activities exceeds the capacity of any single spacefaring entity to make reparation.358 In addition, absolute 356 See ibid., pp. 53–54. An alternative to avert such problems might be a system of mitigated joint and several liability, where each party would be liable for all damage only if it cannot prove that it caused only part of the damage (in which case its liability would be limited to that part only). Ibid., p. 54. 357 Additional problems may derive from the fact that, pursuant to the Liability Convention, there may be various ‘launching states’ equally liable for compensation, which can, i.a., result in overlapping insurance coverage. 358 The channeling of liability directly to the actual operators has encountered resistance also in other contexts. The 1993 Convention on Civil Liability for Damage

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and unlimited liability could render what are inherently highly hazardous activities uninsurable.359 The allocation of losses within a larger community of relevant entities to balance the competing concerns thus seems necessary in order to retain the economic viability of the space sector, yet still secure adequate indemnification for damages. On the one hand, compensation claims for damage resulting from particularly risky activities (even when undertaken with all due care) should be facilitated; on the other, operators of activities that are deemed necessary (or at least socially beneficial) yet entail high risks should be shielded from excessive claims.360 In analogous areas of human activities, liability has often been shared between the producer of damage and society according to different kinds of formulas.361 The setting in the space sector seems similar in particular to that in the Resulting from Activities Dangerous to the Environment (Lugano Convention), which was negotiated under the auspices of the Council of Europe, applies generally to all potentially environmentally harmful activities and envisages in principle strict, unlimited liability of operators (Chapter II; there are exemptions in Art. 8, though). In order to secure compensation, the Lugano Convention requires states to ensure that operators conducting dangerous activities in their territory have appropriate insurance or other financial security (Art. 12). This convention, however, has not managed to receive even the three ratifications required for it to enter into force (Art. 32.3). Initially, the idea was to develop a complementary instrument concerning an additional compensation fund (similar to the fund established for compensation for oil pollution damage, which will be discussed briefly below). However, due to the reluctance of states to adhere to the Lugano Convention, this plan has been put aside. Churchill 2003, pp. 27–28. Another example of a system of strict liability of the operator (combined with mandatory insurance requirements; Arts. 13–17) is that of the 1989 Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels. This convention provides for limits of liability, though (Arts. 9–12). Nevertheless, it has thus far only one state party (Liberia) and has thus also not entered into force. 359 Insurance already represents as much as approximately 15–25 per cent of the budget of a space mission. Ravillon 2003, p. 814. Nevertheless, the replacement of fault liability with absolute liability for any damage caused by space debris has also been proposed as essential for environmental protection of outer space “to limit the lobbying of private financiers trying to undermine efforts for the protection of the environment as private investors know that in case of damage caused by their object they will be held liable”. Hacket 1994, pp. 211–213. 360 Brunnée 2004, p. 357. 361 This is also called “socialization of risks”. Silva Soares–Vieira Vargas 2003, p. 74. For instance, limited liability for ship owners in maritime law has existed since at least the 17th century. Such treatment has been justified by the highly dangerous nature of maritime transport and its necessity for society. It has been argued, however, that in the modern world such special treatment of a particular industry constitutes no longer justifiable subsidies. Obviously, it at least goes against the polluter-pays principle. See Churchill 2003, pp. 35–36.

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use of nuclear power (also common in space activities), which also entails significant risks. There the solutions adopted include, i.a., a three-tiered system of compensation with absolute but limited liability of the operator of a nuclear installation, coupled with limited liability of the state in which the installation is located, and an international compensation fund.362 This is the system of liability sharing in Western Europe, which is embodied in several instruments, starting with the OECD’s Paris Convention on Third Party Liability in the Field of Nuclear Energy of 1960 and the IAEA’s Vienna Convention on Civil Liability for Nuclear Damage of 1963, the former of which was strengthened by the Brussels Supplementary Convention in 1963. These were the first treaties to facilitate international civil liability claims for environmentally harmful activities.363 Most Western European countries are parties to these conventions which were linked in 1988 by a Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention that combined the two into one expanded liability regime. In its first tier, this regime combines operator liability and insurance obligations. The system is based, at the first level, on strict (absolute) liability of the operator of a nuclear installation, whereby there is no need to prove fault or negligence.364 Although irrespective of fault, liability of the nuclear installation operator is qualified by limitations on the amount of compensation to be paid and time. According to the Vienna Convention, “[t]he liability of the operator may be limited by the Installation State to not less than US $ 5 million for any one nuclear incident”.365 Furthermore, the Paris Convention set a maximum liability of 15 million Special Drawing Rights (SDRs, as defined by the International Monetary Fund),366 which was increased by the Brussels Supplementary Convention up to 300 million SDRs.367 In order to secure 362 Another comparable area would be that of maritime transport of oil, as quite a similar pattern can be found in the regime created by the conventions governing civil liability for oil pollution. However, it would be excessive to study these systems in detail here. For an informative assessment of conventions concerning liability for pollution from ships, see ibid., pp. 15–22. 363 The Paris Convention is regional in scope, whereas the Vienna Convention is a global treaty. 364 Art. II of the Vienna Convention, Art. 3 of the Paris Convention. An exception to this is “damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, insurrection” or “a grave natural disaster of an exceptional character” (unless the law of the installation state provides to the contrary). Art. IV.3 of the Vienna Convention, Art. 9 of the Paris Convention. 365 Art. V. 366 States may also establish by national legislation greater or lesser amounts of operator liability (though not less than five million SDRs; Art. 7.b). Most states have set such national limits. Churchill 2003, p. 8 fn. 18. 367 Art. 3. 300 million SDRs is currently equal to about 470 million US dollars or 510 million euros. For more about the SDR, see “International Monetary Fund,

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indemnification for damages, the operator is required to maintain insurance (or other form of financial security) covering its liability.368 In addition to limitations on amount, the liability of a nuclear installation operator is limited in time: a general rule is that compensation rights are extinguished if damage claims are not instituted within ten years.369 On the second tier, the risks from the use of nuclear energy are borne by the state in which the nuclear installation is located: above the operator’s limit of liability, claims are covered by supplementary public funds of the installation state up to a total of 175 million SDRs.370 For damages exceeding this limit there is a further third tier, an international compensation fund to which the convention parties jointly contribute in proportion to their installed nuclear capacity and gross national product (GNP).371 The limit on damages which the international fund will cover is 125 million SDRs (thus the total compensation available from all sources is 300 million SDRs).372 This third tier is a form of international collective loss sharing which, by taking into account the amount of nuclear capacity of contracting states, partly also emphasizes the idea of making the polluter pay. The primary liability of the nuclear installation operator obviously derives from the same principle. Nevertheless, it has been asserted that the basic concept behind this liability regime is actually not that of the polluter-pays

Special Drawing Rights (SDRs)” 2006. For the daily USD value of an SDR, see “International Monetary Fund, SDR Valuation”. The 1997 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage also sets a 300-million-SDR limit on the operator’s liability (Art. 7). Although in force, this protocol has thus far gained only few members. 368 Art. 10 of the Paris Convention, Art. VII of the Vienna Convention. This has resulted in national insurance pools where several insurance companies contribute to cover a small part of the liability of an operator, as the capacity for individual insurers to cover nuclear risks is usually limited. For more details about the operation of such national insurance pools, see Vanden Borre 2002, p. 7. 369 Art. 8 of the Paris Convention, Art. VI of the Vienna Convention. The 10-year period was set because insurance usually is not available for longer. Churchill 2003, p. 9 fn. 23. The 1997 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage introduced an extended period of 30 years for presenting claims for death and personal injury (Art. 8). This seems quite reasonable, considering for instance that cancers may materialize relatively slowly after the actual exposure to radiation. Churchill 2003, p. 11. 370 Art. 3.b of the Brussels Supplementary Convention. 371 Under the Brussels Supplementary Convention, contributions to the international fund are based (50 per cent) on the ratio between the GNP of each states party and the total of the GNPs of all of them for the year preceding the nuclear incident, and (50 per cent) on the ratio between the thermal power of the reactors in the territory of each party and the total thermal power of the reactors sited in all of them (Art. 12.a). 372 Art. 3.b.iii of the Brussels Supplementary Convention.

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principle but rather an equitable sharing of the risk of ultra-hazardous activities, which also involves an element of state subsidy.373 The system of the Vienna and Paris Conventions met with criticism for its failure to cover purely environmental damage, for instance.374 A significant amendment to the system was introduced in 1997 by a Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage. Among other things, the protocol broadened the definition of nuclear damage to include environmental damage and preventive measures: the new definition refers specifically to economic loss, the cost of measures to reinstate a significantly impaired environment, loss of income resulting from that impaired environment and the cost of preventive measures375—all of which are likely to constitute major parts of damage resulting from a serious nuclear incident.376 The 1997 protocol also increased the limit of operator liability under the Vienna Convention to 300 million SDRs (of which a maximum of 150 million may be paid from public funds if the installation state so wishes) and simplified the procedure for amending the liability limits in the future.377 Moreover, the protocol extended the geographical scope of the Vienna Convention to “apply to nuclear damage wherever suffered”.378 In 1997, another instrument dealing with compensation, the Convention on Supplementary Compensation for Nuclear Damage was adopted. This freestanding treaty offers the possibility of a global nuclear regime in that it can be adhered to by all states regardless of whether they are parties to any existing nuclear treaties (or have nuclear installations on their territories).379 It presents, for instance, a new formula (building upon the 1963 Brussels Supplementary Convention) for joint state contributions to the retrospective international

See Birnie–Boyle 2002, p. 94. See Churchill 2003, pp. 10–11. 375 Art. 2.2. 376 “Background information note for the Press Communiqué on the revision of the Paris Convention on Nuclear Third Party Liability and of the Brussels Supplementary Convention” 2004. 377 Art. 7. 378 Art. 3. However, a state party may decide to exclude (by national legislation) from the application of the Vienna Convention “damage suffered … in the territory of a nonContracting State; or … in any maritime zones established by a non-Contracting State in accordance with the international law of the sea” provided that this non-Contracting State at the time of the nuclear incident “has a nuclear installation in its territory or in any maritime zones established by it in accordance with the international law of the sea; and … does not afford equivalent reciprocal benefits” (Art. 3). 379 However, a state not party to the Paris Convention or the Vienna Convention must have comparable national legislation. If a state has civilian nuclear power plants, it must also be a party to the Convention on Nuclear Safety. Arts. XVIII–XIX. 373 374

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fund for amending nuclear accidents.380 However, this convention is not yet in force.381 In 2004, the contracting parties to the Paris and Brussels Conventions signed protocols382 to amend the instruments which increased their compatibility with the IAEA Conventions amended/adopted in 1997. Like the Vienna Convention as amended by the 1997 protocol to it, the revised Paris Convention contains a detailed definition of “nuclear damage”, allowing for a broader range of damage to be compensated than the previously existing categories of personal injury and damage to property only.383 Equally important was the expansion of the geographical scope of the convention: the revision allows for victims in more countries to be compensated in case of a nuclear accident with transboundary implications.384 The most important change introduced by the amending protocol, however, was the substantial increase in the three tiers of compensation of the Brussels Supplementary Convention: the new limits of liability set by the protocol are a minimum of 700 million euros for the nuclear installation operator, a maximum of 500 million euros for the installation state, and a collective state contribution of at most 300 million euros.385

380 Pursuant to this formula, states would contribute funds in accordance with their nuclear capacity and an amout based on the ratio of their contributions to the UN budget (Art. IV.1). 381 It has gained only three ratifications (by Argentina, Morocco and Rumania). 382 “Protocol to amend the convention on third party liability in the field of nuclear energy of 29th July 1960, as amended by the additional protocol of 28th January 1964 and by the protocol of 16th November 1982” (Protocol to the Paris Convention), and “Protocol to amend the convention of 31st January 1963 Convention of 29th July 1960 on third party liability in the field of nuclear energy, as amended by the additional protocol of 28th January 1964 and by the protocol of 16th November 1982” (Protocol to the Brussels Supplementary Convention). 383 Art. I.a.vii. 384 Compare the original Art. 2 of the Paris Convention and the same article as amended by the protocol. 385 Art. 3, paras. a-b. The resulting total of 1.5 billion euros is a considerable increase over the previous SDR amounts established by the Brussels Supplementary Convention (approximating a total of 350 million euros only). Beyond this new available total compensation, it is at least tacitly assumed that the installation state will cover any damage in excess of the 1.5 billion euros. See “Civil Liability for Nuclear Damage” 2006. The 2004 protocol also changed the convention’s unit of account to euro, to avoid fluctuations in the value of the SDR (see “Background information note for the Press Communiqué on the revision of the Paris Convention on Nuclear Third Party Liability and of the Brussels Supplementary Convention” 2004). Furthermore, the protocol altered the shares which provide the basis of joint state contributions to the international fund: 65 per cent based on installed nuclear generating capacity and 35 per cent on the ratio between the GNP of each contracting party and the GNPs of all of them (Art. 12.a).

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In the space sector, given the potential for massive adverse impacts caused by the activities, feasible and functional risk management would also be needed. This should include, i.a., clear allocation of the burden of compensation between private and governmental stakeholders within a system where, moreover, the victim of harm can easily and without excessive cost identify the entity from which to demand reparation in the first instance. Obviously, compensation for the victims of accidents and other negative consequences of space activities (including reparation for environmental damage) cannot be guaranteed simply by making the immediate actor at fault pay. Instead, tiered systems and collective loss-sharing arrangements similar to those adopted in other fields of high-risk activities internationally could prove useful in channeling the risks and ensuring means for adequate compensation. One tool for achieving a balance between the polluter-pays principle and collective responsibility for ultra-hazardous activities might be an international ‘space damage fund’ or similar instrument that takes into account the extent of states’ space activities as well as their economic situation.386 When designing such a system, one needs to keep in mind, i.a., the developing countries’ demand that it is the spacefaring nations who should bear the environmental costs of their activities. At the national level as well, those gaining the economic benefits of space activities ought to bear the primary responsibility. Hence, a mechanism similar to the post-disaster compensation regime of the nuclear sector in Western Europe could be one option. The first tier would consist of strict operator/owner liability with compulsory insurance (or other financial security). It has been argued, however, that the common requirement in civil liability treaties of insurance coverage for the full limit of operator liability—even where this is restricted to a certain sum—may not necessarily be an advantageous one. At worst, it could in fact discourage damage prevention as liability is covered by insurance in any case. On the other hand, if the safety record and practices of operators affected the terms of insurance, this would encourage (or even require) them to act more cautiously.387 It has also been proposed that once risks related to space debris, for instance, stabilize, insurance rates may decrease. This should induce space operators to develop environmentally more benign technology and mission strategies.388 Hence, the introduction of absolute but limited operator liability with obligatory insurance could optimally prove quite useful for generating increasingly environmentally oriented practices within the space sector. Operator liability (and the insurance to cover it) would then be backed up by supplementary state liability and, ultimately, by an international joint state fund. The international fund could be financed by contributions based on economic

386 387 388

See also Uchitomi 2001, pp. 77–78. See Churchill 2003, p. 36. See Brisibe–Pessoa-Lopes 2002, pp. 315–316.

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factors as well as the amount of space activities. Such a system seems fair in many ways. It does not burden an individual operator with excessive liability, yet clearly directs liability towards it that is commensurate with its control over and benefits derived from the hazardous activities. At the same time, it secures compensation by resorting to the next tiers if needed. In addition, the level of state liability and the international fund would be constructed in a way that takes cognizance of states’ actual role in space activities as well as their economic capacity. In cases where the polluter remains unknown, the entire reparation for damage should come from the international fund.389 With the compensation fund as only the last resort, disadvantages related to such funds, e.g., a diminished preventive effect, are also minimized.390 In addition to state resources, the international fund could be augmented also by the space industry. This would even reflect somewhat better the polluter-pays principle, although any industry as a whole admittedly constitutes a very extensive definition ‘polluter’ in an individual case of damage.391 A precedent for contributions made by industry is provided by the liability system of the International Convention on Civil Liability for Oil Pollution Damage and the complementary International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, according to which supplementary funds are provided by the oil industry, i.e., all persons receiving oil by sea in contracting states.392 A related system is that established by the International Convention on Liability and Compensation for Damages in Connection with the Carriage of Hazardous and Noxious Substances by Sea, which establishes the “International Hazardous and Noxious

389

For a proposal for a fund which would cover damage caused by unknown debris, see Kerrest 2001, p. 870; Greenberg 2003, p. 395; Jasentuliyana 1999(b), p. 91. The establishment of an international fund to compensate victims of damage caused by space objects has also been suggested in Hurwitz 1992. Some decades ago, a proposal was made for a fund to cover only damage caused by re-entering, unidentifiable space objects impacting the Earth. See Dembling–Kalsi 1973, p. 145. 390 For an assessment of the potential disadvantages of compensation fund systems, see de Sadeleer 2002, p. 59; Boyle 1991(b), p. 363. It should be noted, moreover, that some states have abstained from ratifying the Vienna Convention and the Paris Convention examined above, because it may be possible to obtain greater compensation for nuclear damage outside this regime through national legislation. What is more, apparently neither of these two conventions has been used as a basis for an actual claim for compensation (with the exception of some national-level litigation). See Churchill 2003, pp. 9–10. 391 See ibid., p. 40. 392 Art. 10 et seq. Unlike in the context of nuclear liability, there have been many claims pursued under the international oil pollution liability regime, both against ship owners and the Fund. Churchill 2003, p. 19. For a more detailed treatment of international liability and the fund system in oil pollution, see, e.g., Sands 2003, pp. 912–923.

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Substances Fund”393 to provide compensation (up to 250 million SDR per incident) for damage which is not compensated in the first tier by ship owners.394 The fund is financed by contributions from the importers and receivers of cargo containing hazardous or noxious substances. The convention has not, however, received enough ratifications to enter into force.395 Another interesting example is the Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, which also has yet to enter into force.396 The system set out in the protocol includes a trust fund mechanism, the Technical Co-operation Trust Fund, which is maintained by voluntary contributions. It is, however, not a compensation fund for covering damage that exceeds the liability limits of the protocol;397 the protocol only provides that “[w]here compensation under the Protocol does not cover the costs of damage, additional and supplementary measures aimed at ensuring adequate and prompt compensation may be taken using existing mechanisms”,398 with these including the Technical Co-operation Trust Fund. The different kinds of civil liability treaties have been criticized for not providing compensation in cases of damage to non-economic components of the environment when restoration is not possible (irreparable ecological damage), Art. 13. Art. 14.5. In accordance with this system, liability is shared in the first tier between the ship owner and the receiver of the cargo (Art. 7). Insurance is compulsory (Art. 12). There are sliding-scale limits on liability, depending on the ship tonnage (Art. 9). 395 For a more detailed account of the convention, see, e.g., Churchill 2003, pp. 21–22; Silva Soares–Vieira Vargas 2003, pp. 82–84. 396 Again, there is strict liability, balanced by a liability ceiling (Arts. 4, 12; Annex B). Moreover, there is a time limit for claims, either ten years from the incident (Art. 13.1) or five years “from the date the claimant knew or ought reasonably to have known of the damage” (Art. 13.2). Fault liability applies when damage is caused by non-compliance with the Basel Convention or by “wrongful intentional, reckless or negligent acts or omissions” (Art. 4). In such cases also the liability ceilings of the system are not applicable (Art. 12.2). Insurance or other financial security is required (Art. 14). Another very similar system is that provided by the 2003 Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters (not yet in force), which provides for strict operator liability (Art. 4) with liability ceilings (Art. 9 and Annex II) and time-limits for claims (Art. 10), as well as fault liability in case of “wrongful intentional, reckless or negligent acts or omissions” (Art. 5). 397 The liability limits are in Annex B. 398 Art. 15.1. The second paragraph of the article further states that “[t]he Meeting of the Parties shall keep under review the need for and possibility of improving existing mechanisms or establishing new mechanisms”. During the negotiations, developing and developed states were very much in disagreement over the need to establish an international fund for complementing inadequate compensation. The outcome of the disagreement was the obscure Article 15. Silva Soares–Vieira Vargas 2003, p. 94. For a more detailed treatment of the history of the Basel Protocol, see ibid. 393 394

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for instance. Even where damage is in principle compensable, it may not be fully compensated, either due to limits of liability or because the funds available eventually prove insufficient. Another problem seems to be that many liability systems do not address adequately the problems in establishing a causal link between the damage and the harmful activity suspected of having caused it.399 Causality presents a considerable challenge for any space-related liability regime as well. Clearly, there are few other possibilities than international funds for providing even somewhat adequate compensation for damage in case of a major space accident. This limitation is obviously due to the extent of damage but also to the likely difficulties in even identifying the ‘polluter’, or the ‘launching state’ with substantial enough connection with the damage, and, moreover, establishing fault. A fund could be harnessed for providing compensation even in cases where the source of damage cannot be identified or fault established. The spacefaring nations might not be too receptive to such ideas, however, as they could be placed under an obligation to make available significant amounts of money for potential damage reparation. Considering the precedents from other areas of international activities, prospects for a ‘space damage fund’ seem increasingly bleak: most of the above-mentioned civil liability systems with compensation funds (with the exception of the oil pollution compensation mechanisms) have either not entered into force at all or have done so to a limited extent only.400 In practice, the industrialized states have succeeded in furthering their agendas while the priorities of less developed states have been largely ignored.401 Considering the less successful examples of international liability systems in gaining acceptance and functionality, the rationality of spending the limited negotiating resources on developing new liability regimes has been seriously questioned.402 Moreover, these mechanisms are retrospective: they are activated only when a damaging incident has already taken place. Especially in cases of major environmental disasters, this can easily lead to solutions that are ‘too little, too late’. Even if pure environmental damage were compensated in principle, the compensation would remain an extremely problematic question for various reasons, some beyond the sphere of international space law, not least the challenges related to calculating the value of such damage in monetary terms. Churchill 2003, pp. 34–35, 37–38. They may be in force on a low level of commitment or just between few or relatively irrelevant contracting states. Ibid., p. 32. 401 One example is the negotiations concerning the 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, where private economic interests prevailed over the demands of developing countries concerning a global fund to assist in cleaning waste spills where reparation cannot be obtained from any other entity. See Silva Soares–Vieira Vargas 2003, pp. 103–104. 402 See, e.g., Churchill 2003, p. 32; Brunnée 2004, p. 351. 399 400

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The difficulties in addressing and evaluating cumulative effects of space pollution would complicate the situation further.403 It would clearly be far more effective to prevent damage altogether, all the more so as there does not (at least as yet) even exist sufficient technology for eradicating the space debris already generated, for instance. Obviously, ‘restitution in kind’ is in most cases practically impossible where degradation of outer space is concerned.404 Hence, a more feasible system could be an international fund that also supports preventive measures. Such a fund could be put in action in a preventive sense at least as concerns harm prevention in cases where a potentially damaging incident has already taken place or where there is a substantial threat of such an incident. An even more advanced preventive mechanism would be one where an international fund is harnessed to provide deterrent support for complying with space debris mitigation measures, i.e., prior to the actual occurrence of any foreseeable damage.405 A fund mechanism seems practical also because it could provide a relatively effective anticipatory way to secure the availability of assets when needed.406 However, it might not be realistic to expect the space sector to endorse such a progressive approach as a fund mechanism for the prevention of environmental degradation in the very near future. The application of economic mechanisms for controlling space activities might also prove infeasible due to the fact that the activities do not completely fit into the framework of realities and rationality on which economic mechanisms are typically built. For instance, the presumption behind the polluter-pays principle is that the charges related to polluting activities increase in proportion to the seriousness of pollution. Hence it should be in the interest of the polluters to reduce environmental degradation emanating 403

The challenges in valuing damage seem to become even more problematic if viewed from the perspective of the insurance industry. See, e.g., Report of the 64th Conference of the ILA 1990, pp. 178–179. These complex concerns merit a study of their own, however, and are hence not discussed in more detail in this work. 404 See also Hacket 1994, pp. 173–174. The author concludes that where the creation of considerable amounts of space debris is concerned, the only feasible remedy is financial compensation. Compensatory payments should be made to those states which “have a vital interest in the contaminated orbital regions”, i.e., states whose existing space activities or those under preparation are hampered by the space debris. Ibid., p. 174. 405 It has been proposed in the discussions of the UNCOPUOS that “ways and means to provide technical and economic support” should be explored to alleviate the cost impact that compliance with space debris mitigation measures inevitably has on space operations. E.g., Report of the Scientific and Technical Subcommittee on its 43rd session 2006, para. 113. A fund mechanism applicable for preventive purposes could be one option to create such support. A fund system has been proposed also for the removal of obsolete space objects. Report of the 64th Conference of the ILA 1990, pp. 176, 178. The costs of such removal are still quite prohibitive, however. 406 See Williamson 2006, p. 270. See also the discussion concerning fund mechanisms below (in Chapter 5.2.3 “Differential Obligations”).

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from their activities.407 This obviously requires that the charges are set at a level adequate for generating such a preventive effect. In the space sector, this level would typically need to be quite high, considering how expensive space activities are in the first place. Furthermore, economic instruments may even be used for penalizing undesirable behavior by levying charges which are substantially higher than the environmental costs that the behavior actually results in. This should further increase the preventive function of such instruments, but for space activities it would easily entail exorbitant costs. On the other hand, despite the extreme expenses involved, economic considerations do not necessarily always play the most prominent role in space mission design and operation; this is most definitely the case where national security interests are at stake. Hence, even if an international consensus emerged on the application of the polluter-pays principle in the space sector and states managed to create a tangible mechanism for its implementation, this might nevertheless prove ineffective in alleviating environmental degradation in practice. 4.3. Conclusion The fundamental problem with the UN-sponsored space law is that it sets out a variety of principles and rules which are expressed in very general terms. Consequently, support for (or at least acceptance of ) nearly any kind of peaceful activity in outer space can be derived from the UN space treaties. A normative structure so general is not enough for the needs of the modern space sector— definitely not where environmental aspects of space activities are concerned. One potential source of more detailed norms could be other instruments of international law. In principle, resorting to such instruments should be no problem, because space activities are one sector of international operations today. However, the non-space conventions of international law do not provide much additional guidance regarding environmental aspects of space activities. They are rather limited in scope and furthermore—in accordance with the fundamental rules of international law—apply to states parties only.408 As they may have initially been drafted with primarily (or solely) terrestrial applications in mind, their wordings may occasionally also raise questions as to their applicability to outer space or celestial bodies even where it is clear that the intention has not been to knowingly exclude space activities. Another possible source of help is the principles behind the more detailed instruments, such as principles of international environmental law. However, as the notion ‘principle’ indicates, they are mostly expressed in vague terms, due to their inherent character as tools for balancing different interests. Their

407 408

de Sadeleer 2002, p. 36. Art. 26 of the Vienna Convention on the Law of Treaties.

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status and content is always open to debate. The fact that principles permit various interpretations makes it difficult to establish any specific obligations based on them and they thus tend to leave ample scope for subjective judgments concerning priorities. Accordingly, the meaning of environmental principles often raises serious controversy, particularly as regards determining when environmental harm becomes disproportionate. The consequence is practical difficulties in invoking principles of international environmental law against a polluting state in a legally binding way without the existence of a particular convention (binding on that state) implementing those principles. The upshot of these difficulties is that transboundary environmental harm and harm to the global commons have become ordinary occurrences. Obviously, neither international non-space conventions nor principles of international environmental law alone are able to provide predictable enough standards for controlling environmentally harmful space activities. Non-space conventions impose few substantial limits on the space sector, international environmental principles even fewer. The implementation of principles can be secured only by the negotiation of more detailed standards that give content and effect to them. Indeed, the faster the complexity and urgency of the environmental challenges faced by the international system have increased, the more reliant states have become upon multilateral agreements to tackle these challenges. On the other hand, the relatively rapid emergence of numerous multilateral environmental agreements with a variety of institutional arrangements established by them has raised concerns about a failure to achieve coherency in the way global environmental problems are addressed.409 Hence, despite their shortcomings, the established principles of international environmental law remain an important common footing on which more detailed rules can be based. They also apply in a blanket-like manner to all parts of the human environment—outer space included. Accordingly, international environmental principles can and should serve as basic rules providing direction in attempts to modify the outdated law of outer space from an environmental point of view. They are an equally essential tool in filling the gaps in the space treaties as well as in addressing the various problems evident in interpretation of the existing provisions of space law. Hence, international environmental principles should be consulted to the greatest extent possible, while nevertheless taking into account the special features of space activities. However, the variety of interests that need to be reconciled in the space sector can make the application of such principles complicated. Above all, the economic and security-related stakes involved are very high. Furthermore, we still know relatively little about the processes taking place in the space environment and even the noblest attempt to promote environmental ideals in space activities can thus prove less beneficial, even counterproductive at worst. 409

See, e.g., Desai 2004, pp. 43–44.

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Yet, if we cannot even agree on the need to conduct activities in the space sector in accordance with generally accepted environmental principles, the future of this environment—and hence that of human space activities as well—does not appear very promising. For practical implementation of the various principles of international environmental law, analogies available from similar areas should be carefully studied. In particular, challenges encountered in the management of the deep seabed appear in many respects similar to those which the space sector is facing. Analogies between the deep seabed and outer space have a long history, too.410 Among the focal issues that have had to be considered with respect to the international regime for utilization of the deep seabed are its status as the common heritage of mankind and an area of international commons;411 the requirement that deep seabed activities be carried out for the benefit of mankind412 and for peaceful purposes only;413 responsibility and liability;414 sustainable use415 and protection of the deep sea environment in accordance with a precautionary approach;416 and transfer of technology.417 All these are substantive issues in the space sector as well. Although some details may be different and the commercially profitable exploitation of natural resources in the deep seabed is not yet feasible (unlike in the case of Earth orbits), the legal regimes in both sectors have to be able to accommodate very similar concerns regarding sustainability and equity, for instance. Also, stakeholders in the private sector are demanding a role commensurate with their significance in both domains. Hence, the decision-making processes in the management of the deep seabed, for instance, can provide guidance as to how similar issues could be approached in the space sector. Other sources of potentially fruitful analogies

410 Some instruments concerning these areas even use exactly the same wordings. Compare, for instance, Principle 9 of UN General Assembly Resolution 2749(XXV) “Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction” from 1970 and Article 11.7 of the Moon Treaty (1979), both of which state as purposes for the establishment of an international resource management regime in their respective areas the orderly and safe development and rational management of the natural resources, the expansion of opportunities in their use, as well as equitable sharing in the benefits derived from the resources. 411 UNCLOS, Arts. 136–137. 412 UNCLOS, Art. 140. 413 UNCLOS, Art. 141. 414 UNCLOS, Art. 139. 415 UNCLOS, Section 3. 416 UNCLOS, Art. 145; Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, Regulation 31. 417 UNCLOS, Art. 144; Agreement on the Implementation of Part XI of the 1982 Law of the Sea Convention, Annex, Section 5.

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are air law,418 the use of high seas, and activities in the Antarctica. Whatever the particular solutions are that are adopted for environmental management in any area of human activity internationally, they all need to respect the fundamental principles of international environmental law.

418

Apparently, many have anticipated that space traffic management might be organized within the next couple of decades in accordance with a set of binding rules and an organizational structure quite similar to that currently in use in the air traffic sector. See Perek 2002, pp. 133–134.

Chapter Five

From General Principles to Practicable Rules International agreement is very often difficult to achieve. It is particularly challenging in the case of issues regarding the use of the global commons, which require a constant, intricate balancing between an ideology of apparent fairness and equity on the one hand, and the utilitarian endeavors of (often competing) states and other entities on the other. Treaty regimes tend to operate more effectively if their membership is restricted to those with distinct interests in and control over the relevant issues.1 In the case of common resources, however, ‘everyone’ has an interest, yet very often only some are capable of independent utilization. An apt example is the use of outer space, which combines a high degree of scientific and technological complexity with politics, economics and the activism of various stakeholder groups. In such a setting, the processes which are used to negotiate global rules and the mechanisms in which these rules are embedded are every bit as important as technical capabilities and scientific knowledge. Even where the two latter factors would present no practical obstacles to effective new norms, cultural, ideological and political differences may prove too grave to overcome.2 This seems to be the problem with many topical questions in space activities, including those regarding environmental degradation of outer space. Of course, scientific uncertainty and technical challenges also constitute considerable hindrances in the regulation of space activities, yet particularly where environmental degradation is concerned, the other obstacles to achieving international agreement on common rules are at least equally salient.

1 2

Vogler 2000, p. 158. Susskind 1994, p. 7.

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International negotiations have been described as increasingly time-consuming, yet no more effective than before.3 At the same time, however, the precautionary approach calls for efficient action to be taken for combating environmental degradation earlier than ever. It also necessitates continuous adaptation of the decision-making process to additional (and re-assessed) scientific knowledge.4 Different strategies exist to address this problem, i.e., to make the formation and adjustment of international agreements smoother, and to improve the sophistication and effectiveness of treaty provisions. Many strategies give prominence to another time-related feature of multilateral negotiations today: their ongoing nature. The outcomes of treaty negotiations are often not final, in the sense that the agreement reached is actually only the beginning of a dialogue. Within this dialogue, the initial agreement and its implementation can be further developed, taking into account the emergence of new scientific information, for instance.5 Moreover, the subsequent dialogue involves not only—or even primarily—governmental diplomats but also scientific experts. The salience of the precautionary principle “requires [scientific expertise and political decision-making] to interact in order to master the challenges posed by the risks they must assess and manage”.6 Also, the role of the nongovernmental sector has strengthened, with international negotiations being described increasingly as a continuous, less formal activity which produces recommendations as to what governments could do to promote their own and the common good in the interrelated world.7 One of the most obvious manifestations of the ongoing nature of multilateral negotiations is the framework convention–protocol approach, in which states first sign a treaty providing a general policy framework on a given subject. Only after that do they begin negotiations on more detailed instruments (often called ‘protocols’) to give substance to the framework convention through concrete solutions to the problems identified in it. This mechanism has been commonly applied, particularly in recent international environmental treaty negotiations. However, the convention-protocol process also tends to be time-consuming and can easily lead to a situation where the parties find it very difficult to reach agreement on the more specific follow-up protocols. In the following, I will first discuss the difficulties evident in creating international norms using the conventional techniques in treaty-making. Traditionally, international rules have been established through the adoption of legally binding agreements by states; the five UN space treaties from the 1960s and 1970s are no exception. The more recent proposals for overcoming problems related to the management of space activities have also often envisioned the conclusion of 3 4 5 6 7

Kremenyuk 2002, p. 23. See de Sadeleer 2002, pp. 179–180, 197–199. Chasek 2001, p. 30. de Sadeleer 2002, p. 181. Kremenyuk 2002, p. 37.

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new treaties, even a general convention, on space law. However, the process of setting norms through international treaties has certain severe weaknesses, ones affecting space law as much as, if not more than, other fields. These include the lamentably common time lag between the drafting, adoption, and entry into force of international standards. Even if states manage to agree on certain provisions, by the time the agreements are implemented, the problems in question may have reached entirely new and different proportions, and strategies that made sense when first proposed are already ‘too little, too late’. The chapter continues with the framework convention approach (and its variations) and the potential of the approach in the regulation of space activities in particular. Given the salient similarities between the framework convention approach and developments within the law of outer space, studying the strategies applied in combating problems related to the use of framework conventions may yield beneficial lessons for the future of space law negotiations. Of focal interest is the question how to overcome what is known as lowest-common-denominator problem, meaning that where consensus is required, the possibility of agreement is restricted to the commitment that the least willing party is prepared to make. While it should avoid the lowest-common-denominator, the negotiation process should also enable all nations interested to be involved in the negotiations and, most importantly, assume roles which are truly meaningful. Considering the constant increase in the number of spacefaring countries, it seems of utmost importance to secure wide support for any new legal arrangements in the international law of outer space. However, the interests even of states active in the space sector may vary considerably, and finding agreement on many issues among the still far wider community of states with interests in this area can be very challenging. There are different ways to promote the achievement of a common understanding. In general, reluctant negotiating parties can be persuaded to modify their positions through side-payments or political pressure. Experience of international negotiations has shown that, apart from outright political coercion, the most successful tools for making more demanding options attractive to states include the use of selective incentives, differential obligations, and the promotion of ‘over-achievement’ by the lead countries.8 There are also other possibilities to diminish the ‘too little, too late’ problem in international norm-setting, such as interim agreements, common rules of conduct, and international standards. These tools will be examined in more detail below, especially with regard to their aptitude for the modern space sector. Additionally, techniques which provide opportunities to sidestep the demand for state consent are discussed: the delegation of powers to a special supranational body to make amendments by adopting sufficiently detailed technical standards and what are known as ‘self-correcting’ treaty provisions. 8

See, e.g., Sand 1990, p. 6.

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One additional promising mechanism will be studied: environmental impact assessment (EIA). EIA contributes to the ongoing nature of international environmental management through the continuous accumulation of knowledge concerning the potential environmental impacts of a particular plan concurrently with the process of project planning.9 Hence EIA is a tool primarily concerned with decision-making at the level of individual projects. Treaty provisions requiring such prior environmental assessments could also provide the international regulation of space activities with enhanced legitimacy and broader acceptance while giving the variety of stakeholder groups a better say in the planning of operations. This should be welcomed even by states, considering the current legitimacy crisis of the space sector in many countries, not least the US. Finally, a highly relevant aspect that will be examined is dispute settlement. Although most international environmental disputes, as well as disputes that have arisen in the space sector, have thus far been resolved through negotiation or the adoption of an ad hoc agreement,10 it would seem beneficial to have a set of better-defined rules for dispute resolution in the space sector; these are needed for not only environmental but also other types of disputes, whose number is likely to increase sharply with the growth in all space activities. Therefore this study examines dispute resolution not merely as it applies to environmental controversies but from the wider perspective of all space activities as well. 5.1. Complications of Traditional International Treaty-making Multilateral negotiations are typically initiated by international organizations, such as the United Nations (including its suborgans). In the space sector, the most obvious initiator of negotiations for a new international treaty is the UNCOPUOS and in particular its Legal Subcommittee. Procedural rules are usually formulated at the beginning of the treaty-making process. Global agreements are negotiated mainly in accordance with the formal rules and informal practices developed within the UN and its sister organizations.11 However, these rules do not necessarily always accommodate the particulars of multi-issue, multi-stage, multi-party negotiation as well as they might.12 There are a number of reasons for this shortcoming. International negotiations have proliferated within the past few decades. Furthermore, they are increasingly See Haas–Sundgren 1993, p. 417. See Brunnée 2004, p. 353; Supancana 1998, pp. 194–197, 275. 11 See Susskind 1994, p. 25. The Vienna Convention on the Law of Treaties does not specify who should initiate treaty-making efforts, which countries should participate and how the process should proceed; it only says that adoption of the text of a treaty requires “a vote of two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule” (Art. 9.2). 12 Ibid., p. 6. 9

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complex both technically and politically. At the same time, the interdependence of states has grown along several dimensions. Traditional international normmaking, which relies significantly on traditional state sovereignty, has had considerable difficulties in keeping up with these developments.13 The negotiation phase alone can take years, particularly when trying to negotiate multilateral agreements on issues where scientific evidence plays a major role. On the one hand, negotiators must be given the time to obtain sufficient information for understanding a problem and come up with effective solutions; on the other, they may have to respond very quickly in order not to let a problem worsen or even become irreversible. Scientific evidence is always (to a greater or lesser extent) uncertain and scientific research expensive and time consuming. In practice, states need to act despite such uncertainty if they want to conclude an agreement. However, states reluctant to agree on something may always invoke the argument that the scientific evidence available is not adequate and/or acquiring more accurate information is not economically feasible.14 Unfortunately, despite the now commonly promoted ideology of the precautionary approach, lack of scientific evidence remains a popular excuse for refraining from adopting norms which could contribute to environmental protection.15 Moreover, in keeping with the doctrine of state sovereignty, international norms cannot, as a rule, be forced on states; accordingly, treaty negotiations are based essentially on consensus or the unanimity of all participants, excluding those who decide to opt out completely at some point as a result of voting or otherwise. There may, however, be major differences in the needs and priorities of the negotiating parties. At worst, a consensus approach does no more than hide dissenting views16 and countries later may be unwilling to make sufficient practical commitments to the intended objectives. Furthermore, in order to avoid voting and/or the withdrawal of important states, the measures adopted easily become limited to those acceptable to the least enthusiastic party (or to the largest number of actors), resulting in “halfway agreements” too poorly designed to achieve the objectives set. This problem is commonly referred to as the lowest-common-denominator approach.17

For a more detailed account of the problem, see Kremenyuk 2002. Chasek 2001, pp. 29–30. 15 Vogler 2000, pp. 38–39. The example mentioned above concerning the space sector is the opinion expressed by, above all, some industrialized countries, that the scientific uncertainty surrounding space pollution problems necessitates further research before the adoption of international rules for the mitigation of the problem. See Uchitomi 2001, p. 80 fn. 17; Mirmina 2005, p. 653; Report of the Legal Subcommittee on the work of its 43rd session 2004, para. 125. 16 See Cede 2002, p. 151. 17 Susskind 1994, p. 14. 13 14

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Once adopted, an international agreement still has to undergo the ratification process in each signatory country, with a specified number of ratifications then needed for it to become effective. This takes time. It may also be that the instrument never gains enough ratifications to enter into force. Moreover, an international convention in force sometimes remains ineffective in practice. This occurs, for example, when the adherents it has managed to gain are not significant enough in number or status vis-à-vis the type of activity regulated by the instrument. States’ reluctance to ratify an already negotiated and even signed agreement often stems from the fact that the instrument is nevertheless regarded unjust or unbalanced, or undesirable for some other reason. The inadequacy of agreements caused by the lowest-common-denominator problem makes them increasingly susceptible to criticism and rejection.18 Furthermore, the individual provisions of an instrument may ‘go bad’ over time by becoming obsolete due to changes of circumstances and/or technological or scientific development, for instance. At worst, the lengthiness of the negotiation process can ultimately undermine the entire purpose of an agreement. Moreover, the lowest-common-denominator problem easily results in treaty provisions which remain on such a general level that the instrument in question can be considered ineffective even if all its obligations are duly implemented. Hence even a widely ratified treaty may be quite futile: if it is flawed by insufficient obligations from the very outset, it can only remain insufficient regardless of the number of ratifications it gains—unless, of course, states manage to amend the treaty by more effective rules. At worst, generality in formulations can make it difficult to ascertain the exact meaning of agreed treaty provisions.19 The typically protracted nature of international negotiations, coupled with scientific uncertainty, is thus a principal reason for the failure of not only treaty negotiations but also already negotiated and signed agreements.20 The space sector is no different from other fields of international law as regards challenges in international norm-making. In the early phase of the development of the international law of outer space, the UNCOPUOS was capable of negotiating four space treaties by consensus which entered into force within a mere decade.21 However, the rate soon became less impressive. In space law, the time lag problem noted above is best illustrated by the last of the UN space treaties, the 1979 Moon Treaty. Negotiations for this treaty lasted for nearly a decade. It then took an additional five years for the treaty to gain

Kremenyuk 2002, pp. 23, 28–30. Cede 2002, p. 157. 20 See Susskind 1994, p. 14. 21 The text of the Outer Space Treaty was adopted in 1967 and the fourth UN space treaty, the Registration Convention, entered into force in 1976. 18 19

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the five ratifications required for it to enter into force.22 To date it has still not received enough (relevant) adherents to gain real importance in regulating the activities of the spacefaring community. The challenges in norm-making have become even more critical since the Moon Treaty and no new UN space treaties have been negotiated. The reasons for the failure of the Moon Treaty are manifold and will not be examined here in detail.23 However, many of them relate, in one way or another, to time. Similar problems with regard to future attempts to develop new norms are to be expected in any treaty negotiations in the field of international space law. While international treaty negotiations in general tend to be time-consuming, space law negotiations in particular have the potential to occasion all the specific time-related problems described above: space activities rely heavily on science and technology; they may involve unforeseeable changes of circumstances; and continuous scientific-technological development frequently changes our view of outer space and the possibilities of utilizing it. There are also major differences in financial and technical capabilities between the states which take part in space activities. The increasing globalization, privatization and commercialization of the space sector complicate the situation further.24 The Moon Treaty provides apt evidence of the fact that avoidance of conflicting positions through vagueness and ambiguity is by no means unfamiliar in space law either. Space activities are inherently international, which requires that rules be widely accepted among the global community to be effective. However, broadening the scope of an international regime usually means lowering its common denominator. It is obvious that the legal standards agreed upon for space activities to date have largely been based on the lowest-commondenominator and the compromise approaches, resulting in little more than

22

The first five states to ratify the treaty were Chile, the Philippines, Uruguay, the Netherlands, and Austria. The last lodged the fifth instrument of ratification with the UN Secretary-General on 11 July 1984. (A comprehensive list of the current ratifying and signatory states of the Moon Treaty has been presented above.) 23 For a more detailed treatment of the subject, see Viikari 2002, pp. 87–124. 24 For instance, the time lag between the scientific discovery of facts and the reaction of the international community has been referred to as the “main feature of the problem of space debris”—the most prominent of the environmental problems in the space sector today. Perek 2002, p. 134. Interestingly, it was still suggested as recently as in the late 1970s that the consensus method was particularly suitable for the development of space law exactly due to its drawn-out nature: “[i]t takes time to figure out how best to handle such [multidisciplinary] problems [involving the integrated analysis of scientific, technological, political, economic, legal and cultural factors which could be identified as likely to arise in the future in the space sector] and the process of consensus is attuned to time-consuming analysis”. Galloway 1978, p. 110. Obviously, lengthy negotiation processes do not appear so beneficial in the space sector any longer.

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general principles.25 Of course, this is no problem if the aim is the elaboration of general principles capable of achieving wide acceptance.26 In the space sector, such principles have, however, already been developed and now the increasingly sophisticated needs of the various stakeholders call for rules of far greater precision.27 Indeed, traditional treaty-making techniques do not seem very suitable for the governance of space activities today. While these tools allow declaratory standards and suggestions to be adopted quite easily, they are likely to fail when it comes to creating effective rules that produce tangible positive results. It is no great surprise that the efforts to create new space treaties (after the Moon Treaty) have already failed when setting the agenda. Effective solutions to the topical challenges in the utilization of outer space would obviously necessitate new, innovative mechanisms for international standard-setting. One particularly focal challenge is environmental degradation. Using the traditional methods of international treaty-making that have previously been applied in the space sector would even at best in all likelihood result in rules centering on technical issues, with actual problem-solving, i.e., alleviation of space-related environmental degradation, remaining secondary. However, considering the fundamental status of the doctrine of state sovereignty and the institutionalized nature of international law and the international law-making system, the traditional treaty process can hardly be renewed completely in the space sector either. Rather, the process needs to be made receptive to modifications that help overcome its major shortcomings. These modifications could be similar to those applied in other fields of international law that have enabled the negotiators of global treaties to surmount the lowest-common-denominator problem and better take into consideration the needs of all countries.

25 Furthermore, it was suggested even before the adoption of the Moon Treaty that the consensus required for the adoption of the OST and the Liability Convention was possible only because many states “did not realize the full extent of their own interests in that field”. Böckstiegel 1978, p. 3. 26 Jasentuliyana 1999(b), pp. 93–94. 27 One author argued in the late 1970s that “[t]he use of consensus in the United Nations negotiations of the texts of space treaties did not result in adoption of the least common denominator on which agreement could be reached; that is, on insignificant matters of low-level concern. Instead, we find that the most important issues have been decided and made part of international law.” Galloway 1978, p. 109. Irrespective of whether this was an accurate statement in the 1970s, the provisions of the UN space treaties have at least by now proven to be quite behind the times with respect to their sophistication.

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5.2. Improved Norm-setting Strategies 5.2.1. The Framework Convention Approach Certain modern trends can be observed in the creation of international legal arrangements. These include the convention-plus-annex, the protocol-plusdeclaration and the convention-plus-protocol approaches.28 In particular, the (framework) convention–(adjustable) protocol approach has been commonly applied in international environmental law lately. Most negotiations aiming at the adoption of new international environmental regulation have been organized such that meetings are first held to review scientific evidence and draft a framework convention as a basis for more detailed agreements by all or some of the states parties.29 An essential aspect of the framework convention approach is the process that has been called ‘a political slippery slope’. This refers to the phenomenon whereby states begin negotiations on relatively uncontroversial questions and only gradually progress towards more contentious issue areas.30 Interestingly, the framework convention approach resembles the procedure used for the adoption of UN space treaties and subsequent sets of declarations of space principles, albeit not legally binding ones. The UN space treaties from the 1960s and 1970s are relatively non-specific and provide little more than general principles and vague guidelines—like framework conventions. Today, the needs of the spacefaring community are far more complex and the existing law of outer space often remains unable to give sufficient guidance in the situations Kütting 2000, p. 16. This has also been described as an ‘umbrella’ structure, where the framework convention constitutes the ‘pole’ and the one or more subsequent instruments dealing with specific issues are the ‘ribs’. See, e.g., Birnie–Boyle 2002, p. 14; Training Manual on International Environmental Law 2006, pp. 3–4. According to the United Nations Treaty Collection Treaty Reference Guide 1999, ‘protocol’ refers to “agreements less formal than those entitled ‘treaty’ or ‘convention’ ”. Among the various types of instruments called ‘protocol’ which the guide mentions is the “protocol based on a framework treaty” (c). It is defined as “an instrument with specific substantive obligations that implements the general objectives of a previous framework or umbrella convention. Such protocols ensure a more simplified and accelerated treaty-making process and have been used particularly in the field of international environmental law”. Also relevant for the current treatise are “a protocol to amend”, which is defined as “an instrument that contains provisions that amend one or various former treaties, such as the Protocol of 1946 amending the Agreements, Conventions and Protocols on Narcotic Drugs” (d), and “a protocol as a supplementary treaty”, i.e., “an instrument which contains supplementary provisions to a previous treaty, e.g., the 1967 Protocol relating to the Status of Refugees to the 1951 Convention relating to the Status of Refugees” (e). 30 See Haas–Sundgren 1993, pp. 416–417. 28 29

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that emerge in space utilization. The world community has only been able to partially fill this legal vacuum by some sets of principles (UN General Assembly space principles declarations), which are somewhat similar to protocols adopted on the basis of framework conventions. In a way, the framework convention approach even resembles the procedure of the adoption of the UN space treaty system itself: the Outer Space Treaty being the most general of these five treaties and the others building on its principles in their respective areas (albeit in a very general manner only). It is obvious that to have any effectiveness and practical meaning, very skeletal conventions not only allow but require the conclusion of more specific agreements, either as annexes or protocols to the initial instrument or as nonbinding documents, such as guidelines and recommendations.31 In practice, there may not be that much difference between the various types of successive instruments. What is more, the extent to which they are legally binding varies greatly irrespective of their designation. A feature common to these instruments is that they contain more detailed operational rules or technical standards, which have thus been separated from the general provisions of the main convention. A focal innovation is that the requirements for the revision of the subsequent agreements are typically made less stringent than those for the main instrument. As scientific knowledge and regulatory priorities change, this mechanism is expected to allow for easier amendments by the negotiation of protocols, annexes and the like to add to or revise the initial convention. Hence the use of framework conventions has introduced a new dynamic, progressive character into treaty-making. An apt example within international environmental law of a rather austere convention developing into a complex regulatory regime with its own institutional machinery is the 1985 Vienna Convention for the Protection of the Ozone Layer and the successive 1987 Montreal Protocol and its subsequent adjustments, which have been adopted on the basis of Articles 2, 8 and 9 of the initial convention.32 The use of a protocol (or

31 Sometimes the successive instruments may also be called ‘schedules’, as was done in the case of the 1946 International Convention for the Regulation of Whaling (which has a schedule and a protocol). Another example is the 1991 Protocol on Environmental Protection to the Antarctic Treaty, which itself has a schedule concerning arbitration (and several annexes). 32 See Birnie–Boyle 2002, pp. 10–11. On the regional level, the method was used already with the 1976 Convention for the Protection of the Mediterranean Sea Against Pollution, which has two protocols (one “Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency”, the other “for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft”). The later regional seas conventions also typically establish only the basic principles to be used, while more detailed rules are set out by additional protocols, adopted either subsequently or at the same time as the framework convention. Among the early examples of instruments of geographically wider

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protocols) to flesh out and/or amend the UN space treaties is also an idea often presented.33 The framework convention approach necessitates some caution, however. Clearly, it tends to yield (at least in its first stage) only lowest-commondenominator agreements, which incorporate (excessively) vague language and provide relatively little in the way of substance. The great generality at the convention-writing level guarantees that the parties are at least able to agree that a problem exists and ‘something should be done’, making it possible for even reluctant countries to sign. However, the vagueness in terminology and criteria undermines the chances of successful implementation.34 At worst, the provisions of framework conventions may lack clarity, specificity and elaborateness to the extent that it is difficult to enact them into national legislation in any meaningful way. This is a risk with many environmental treaties, too.35 In this respect, framework conventions do not necessarily constitute much improvement over the traditional treaty mechanism. Of course, the framework convention approach builds essentially on the idea that more specific instruments to flesh out the framework document are to follow. However, while framework conventions may serve as reassuring proof that further action is required and, where successful, generate that action, the approach allows countries to join conventions at a stage where there is not yet any agreement on the specific measures that should eventually be taken. For instance, the subsequent timetables and procedures, as well as the content of further steps, may still be left open.36 In some instances, these actions can be carried out relatively easily. This could be the case when, for instance, the scientific evidence is convincing enough to show that abatement measures are absolutely essential or when world or domestic opinion otherwise unequivocally necessitates such actions. Often, however, the process is time-consuming and can

application, one should mention the 1979 Convention on Long-Range Transboundary Air Pollution, which has later been completed with a number of more detailed protocols (at this writing, eight protocols). Kiss–Shelton 2000, p. 39. 33 See, e.g., Cocca 1990, p. 121. 34 Susskind 1994, p. 32. 35 Birnie–Boyle 2002, p. 14. 36 For example, the Vienna Convention for the Protection of the Ozone Layer is not very informative for the purpose of defining the exact content of the further measures to be taken with its general requirement that “[t]he Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer” (Art. 2.1; emphasis added). The elaboration of this requirement in the next paragraph still remains quite vague, with its references to the adoption of “appropriate legislative or administrative measures” (Art. 2.2.b) and general requirements of cooperation, for instance.

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easily lead to a situation where countries find it very difficult to reach agreement on the more specific follow-up instruments. In the meanwhile, the problems which the framework convention aims at curbing usually only worsen.37 Even where agreement on a particular measure is possible, taking the measure may still prove too cumbersome to allow timely reaction to the practical needs. In particular, multilateral treaties in areas where natural phenomena and scientific progress play an important role—such as space law—often need to be adapted in an expeditious manner to reflect these developments. Sometimes, political considerations overshadow available scientific and technical information to the extent that international instruments turn out to be infeasible, internally inconsistent or even counterproductive. Science rarely is unambiguous and countries tend to rely on scientific evidence and selective arguments that legitimize the particular policies they prefer.38 At worst, science can become but one tool for pursuing political goals.39 This constitutes a particular threat in the case of the convention-protocol approach, where implications of the policies adopted at the time of drafting the framework convention need only be confronted later, in the subsequent protocol design phase. In this sense, a framework convention may even be worse than a traditional treaty: when negotiating traditional treaties, it at least is clear to everyone that everything to be agreed on must be included in that same instrument and actual decision-making cannot be postponed to some later stage. At worst, a framework convention may set terms which eventually get in the way of producing technically appropriate agreements at the protocol adoption-phase.40 Furthermore, the ad hoc convention-protocol approach may encourage countries to resort to ‘hard-bargaining’ strategies and to focus on short-term interests. Positional bargaining is particularly disadvantageous in areas where the same actors need to deal with each other on a continuing basis and in the context of various issues (as is the case in the space sector). The negotiators may exaggerate or misrepresent their real needs, which obviously diminishes the possibilities of achieving functional agreements. In practice, the convention-protocol process easily enables the most powerful negotiators—in terms of financial, military or research resources, for instance—to dominate the negotiation process, starting from setting the agenda, writing the rules of procedure and even controlling the dissemination of technical information.41 The possibilities of states with modest assets are easily diminished already by their lesser capabilities to send competent delegations to international negotiations. Susskind 1994, p. 31. Underdal 2000, p. 6; Training Manual on International Environmental Law 2006, p. 10. For a more detailed assessment of the relationship of science and politics and the role of science in political decision-making, see Skodvin–Underdal 2000. 39 Ibid., p. 28. 40 Susskind 1994, p. 33. 41 Ibid., pp. 33–34. 37 38

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Particularly where negotiating processes are lengthy, the cost of participation can be prohibitive for many countries.42 Serious involvement in technical discussions may prove especially difficult as it necessitates adequate numbers of trained and experienced personnel. For instance, although the ITU enjoys near universal membership, the fact that many of its negotiations are comprehensible to qualified radio engineers only makes effective participation demanding for many states.43 Obviously, lack of legal expertise may also hinder the possibilities of less developed states to engage in meaningful international negotiations.44 Yet even states with modest capacities can play a significant role in treaty negotiations provided that they are able to maintain sufficient cohesion within their ranks.45 Pinto 2004, p. 46. The cost of participation can in practice also influence the preferences of economically poor countries as the result of support by some betteroff states to enable their participation in international negotiations. Ibid. In order to facilitate the participation of developing countries in international environmental law negotiations, the UN General Assembly has established a voluntary fund to provided financial assistance to them for participating in the United Nations Conference on Environment and Development (UNGA Res. 44/228, Part II, para. 15). Such assistance has been used at least in relation to the negotiating processes of the UN Framework Convention on Climate Change, the Convention on Biological Diversity, the UN Convention to Combat Desertification, and the Agreement on Straddling Fish Stocks. Matsui 2004, pp. 76–77. The assistance given has, however, been deemed insufficient (see Overall Progress Achieved since the United Nations Conference on Environment and Development, paras. 20–12) but at least this practice can serve as an example to be used (and developed further) in future environmental negotiations. Matsui 2004, p. 77. 43 Vogler 2000, p. 156. 44 Such problems were evident in the negotiations of the 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, for instance. Silva Soares–Vieira Vargas 2003, pp. 99. Not surprisingly, developing countries have been found to be underrepresented in international environmental agreements dealing with ‘operational’ rather than ‘declaratory’ issues. See Vogler 2000, p. 158. One very practical example of the difficulties many states have in taking part in all relevant negotiations was the concern expressed at the session of the UNCOPUOS in June 2005 that the meetings of the Working Group on the Use of Nuclear Power Sources in Outer Space were held in parallel with the plenary sessions of the Committee. This was considered problematic because “developing countries could not support the presence of more than one or two delegates to participate in simultaneous meetings”. Report of the Committee on the Peaceful Uses of Outer Space 2005, para. 144. No doubt the lack of financial and human resources is a significant factor contributing to the overall low participation of some states in the work of the UNCOPUOS and its subcommittees (as well as in the UN space treaties). See Report of the Legal Subcommittee on its 44th session 2005, para. 37. 45 An apt example of the need for coherence within the group of developing states in particular is provided by the negotiations leading to the adoption of the 1982 UNCLOS. On many of the law of the sea matters, the developing states did not share common interests due to differences in their geographical positions, among other reasons. 42

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If not, the agreements that emerge may well be no more than a compromise among a few powerful states. Moreover, the negotiators of these powerful few can more easily fail to explore the full range of possibilities, getting locked into a battle over a small number of (not necessarily optimal) options instead. If a more diverse group of states were engaged in the process, the results could better reflect creative brain-storming and the resolution of substantive differences.46 Clearly, one of the most relevant factors determining the success of subsequent agreements is the way they are adopted. The process is usually prescribed by the framework convention. In accordance with the traditional doctrine of absolute state sovereignty,47 this would require the express consent of all states parties (or at least of those affected by the amendments). The more parties there are to a treaty regime, the more challenges the normal unanimity rule in international treatymaking entails. Consequently, many modern international treaties contain provisions which stipulate that revision is possible by a qualified—in some cases even simple—majority of the states parties48 or by a decision of an intergovernmental body of some sort.49 As in any international norm-making, however, majority voting may result in agreements which are rendered quite meaningless by the absence of the most relevant stakeholders. In order to avoid this, the revision or adoption of instruments can be made subject to mechanisms that rely on allocated voting. The decisive criteria in defining voting quotas can be, for instance, financial contributions or the involvement of states in particular Consequently, they often were not very effective in taking united stands. Nevertheless, on matters directly connected with ‘have’ and ‘have-not’ issues, such as management of the international seabed area, they gained a strong position thanks to the combined voting strength (whether it was needed in practice or not) provided by significant group solidarity. Koh–Jayakumar 1985, p. 18. See also Brown 1994, pp. 8–9. 46 See Susskind 1994, pp. 34–35. The result may be similarly restricted, at least to some extent, even in large multilateral negotiations, however. This could be the case where the negotiating parties are so polarized into two coalitions that the process becomes, in effect, a bilateral encounter. 47 For a more detailed account of the doctrine of state sovereignty, see, e.g., Cassese 2005, pp. 48–53. 48 For instance, the 1985 Vienna Convention for the Protection of the Ozone Layer includes rules for the amendment of both the main instrument itself and its protocols. It prescribes that “Parties shall make every effort to reach agreement on any proposed amendment to this Convention [as well as on amendment to any protocols] by consensus” (Art. 9.3; emphasis added). As a last resort, if they do not manage to reach a consensus agreement, amendments to the convention may be adopted by a “three-fourth majority vote of the Parties present and voting at the meeting”, whereas amendments to any protocol require a mere “two-thirds majority of the Parties to that protocol present and voting” (Art. 9.3–9.4; emphasis added). Occasionally, amendments to the framework instrument may also be made informally, by oral or even tacit agreement of the parties. See Sands 2003, pp. 138–139. 49 See, e.g., Reuter 1995, pp. 134–135.

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activities,50 although such intricate requirements may complicate the adoption of new norms significantly. Furthermore, even when agreement on successive protocols or annexes can be reached, the instruments may not be binding on all the parties to the treaty system. Much as the traditional unanimity-based norm-setting system in international law in general is tempered by permitting reservations,51 sometimes states are allowed to opt out of protocols or annexes (or their amendments) by objecting within a set time-limit or even any time subsequently.52 The potential in the space sector of the technique of delegated decision-making powers (combined with opt-out options) will be examined in more detail below. 50

Qualified voting has been presented as one option available for streamlining decision-making also in the UNCOPUOS. Jasentuliyana 1986, p. 224. A prominent example of complex voting arrangements seeking to protect the interests of various groups is the set of provisions concerning voting in the Council of the International Sea-Bed Authority under the UNCLOS. There the relevant factors include, i.a., the amount of consumption and imports, as well as production and exports, of the minerals in question by a state; national investments in seabed activities; and the politicogeographical categorization of a state (Arts. 161–162.) The international ozone regime also provides an example: the Montreal Protocol, if consensus cannot be reached, subjects the “adjustments” and “reductions” to the ozone-depleting potential, production, or consumption levels of controlled substances (identified in annexes of the protocol) to voting requirements which are based on a qualified majority (two-thirds of parties present and voting) and the national level of consumption of the controlled substances (Arts. 2.9.a, 2.9.c, 5.1). Parties can also add and remove substances from the protocol annexes, as well as decide on the mechanism, scope and timing of control measures applicable to the substances in question pursuant to this decision-making procedure (Art. 2.10.a). Unless otherwise provided in the decisions, they are binding on all states parties (Art. 2.9.d). 51 Vienna Convention on the Law of Treaties, Part. II, Section 2. For a more detailed account of reservations, see, e.g., Cassese 2005, pp. 173–175. On the other hand, the existence of a reservations procedure does not necessarily make the adoption of international norms that much easier, an apt example being the ITU, where states have been quite eager to make reservations but the adoption of new instruments has nevertheless often proven less than prompt. For instance, at the 1989 Plenipotentiary Conference (a meeting of ITU member state delegations, held every four years to determine the policies of the organization, its structure and activities), the reservations procedure was used as often as 118 times. Vogler 2000, p. 159. The subsequent 1992 Constitution of the ITU provided that the new convention and constitution of the organization would enter into force between the ratifying member states (ITU Constitution, Art. 58.1). An incentive to ratify was the threat that after two years from the date of entry into force, states still failing to ratify would lose their voting rights (ITU Constitution, Art. 52.2.2). 52 Birnie–Boyle 2002, pp. 14–15. For instance, the 1985 Vienna Convention for the Protection of the Ozone Layer provides that the entry into force of amendments to annexes of the convention or the protocol is dependent on whether a state party has notified the depositary of the convention within six months of the adoption of the

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The term ‘selective incentives’ refers to fringe benefits or special favors which may persuade a party to participate in collective action that it would otherwise find unattractive. Such clauses to accommodate special interests are quite common in international agreements. For instance, they can provide technologically less developed countries with benefits and aid—technology transfer, for instance— from industrialized states, hence making the planned system more inviting for the beneficiaries of such measures. Of course, selective incentives can be used to the benefit of industrialized states as well. Such compromises may detract from the optimal effectiveness of the focal instrument, yet they are often essential in attracting important signatories without whom the ensuing agreement could be far less effective, or even useless. Sometimes, without such clauses agreement might even have been possible only on a much lower level of collective commitment. Thus, selective incentives may improve the overall standard of obligations, raising it above the predictable lowest common denominator. Commonly used selective incentives in the environmental sector involve access to funding, resources, markets and technology.53 In the space sector, there is obvious demand for enhanced access to technical or financial assistance, for instance, including preferential acquisition of new technology. In exchange, less developed states could accept selective incentives benefiting industrialized states, such as preferential access to the natural resources of outer space. On the other hand, such incentives would enable new actors to take part in space activities and promote more extensive utilization of outer space—with the likely consequence of increased environmental degradation

amendment that it objects to it and opts out (Art. 10.2). After the six-month period the amendment is binding on all states which have failed to make such a notification (Art. 10.2). 53 Sand 1990, pp. 6–7. For instance, the deep seabed regime of the UNCLOS exemplifies a selective incentives approach by allowing access to international mineral resources in exchange for environmental restrictions (Part XI). Similarly, many regional fisheries agreements establish catch quotas in return for conservation measures. A prominent example of preferential access to funding is provided by the Convention for the Protection of the World Cultural and Natural Heritage, under which states parties can receive financial assistance from a special World Heritage Fund to support conservation of (cultural and natural) sites included in the UNESCO World Heritage List (Arts. 13 and 19). Access to the global market for wildlife and wildlife products has been the incentive for many countries to agree to observe the conservation standards established by the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Technology transfer provisions can be found, for example, in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Arts. 10.2.d and 14.1). For other examples, see ibid., p. 7.

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of the environment. However, selective incentives could also mean financial support for the construction of environmentally safer space objects (using safer power supplies, for instance) and encourage more sustainable practices in space policies. Rights to more extensive natural resource utilization could also be contingent on more stringent demands concerning environmental precautions and the use of environment-friendly technology. Ideally, the benefits could outweigh the potential adverse effects of the increase in space activities. Moreover, technology transfer and financial assistance constitute a way to increase justice in the allocation of space benefits, in accordance with the fundamental benefit-of-all ideology of UN space law. Yet, despite the notion ‘province of all mankind’ and similar rhetoric so widely applied by the UN space treaties, real obligations for technology transfer or financial assistance to the less developed states do not exist in the current international law of outer space. The United Nations Programme on Space Applications (PSA; established in 1971) was initially envisioned to provide a mechanism for, i.a., technology transfer, its mission being to “[e]nhance the understanding and subsequent use of space technology for peaceful purposes in general, and for national development, in particular, in response to expressed needs in different geographic regions of the world”.54 Funding for the PSA is organized partly through the Trust Fund for the United Nations Programme on Space Applications, established in 1982.55 However, the PSA has suffered from lack of funding.56 Instead of promoting tangible transfer of space technology, for instance, it has made contributions mostly to education and training 54 See “United Nations Office for Outer Space Affairs, United Nations Programme on Space Applications”. 55 UNGA Res. 37/90. According to a recommendation of UNISPACE III in 1999, states should “establish a special voluntary United Nations fund for the purpose of implementing the recommendations of UNISPACE III” and “all States should be invited to support the fund financially or in kind”. The Space Millennium: Vienna Declaration on Space and Human Development 1999, para. 1.f.ii (Recommendation 31). Consequently, the terms of reference for the PSA Trust Fund were revised so as to include new activities to implement also the UNISPACE III recommendations. UNGA Res. 54/68, para. 8. 56 The Trust Fund has recently covered about one-third of the costs involved in organizing the activities of the PSA; another third has been covered by the regular budget of the UNOOSA, and the rest by the countries hosting activities (many of which have been developing states). “Draft report of the Committee on the Peaceful Uses of Outer Space on the implementation of the recommendations of the UNISPACE III” 2004, para. 18. Lack of funding is a continuous problem for the PSA; in its report from 2006, the UNCOPUOS Scientific and Technical Subcommittee “expressed its concern over the still limited financial resources available for carrying out the [UN PSA] and appealed to Member States to support the Programme through voluntary contributions” (emphasis added). Report of the Scientific and Technical Subcommittee on its 43rd session 2006, para. 37.

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for capacity-building through meetings, workshops, seminars, symposia and training courses, organized by the UNOOSA.57 The aim of the drafters of the Space Benefits Declaration of 1996 was to provide a remedy for the deficiency of norms providing for technology transfer in the space sector, albeit on a legally non-binding level only.58 The declaration was initiated by the developing countries but the industrialized states ultimately dominated the negotiations. Consequently, the declaration had an effect quite the reverse of the aspirations of its initiators: it essentially affirms that no requirements of a legal nature can be derived from the fundamental Article I of the Outer Space Treaty, according to which exploration and utilization of outer space is to be for the benefit and in the interests of all countries. The less developed countries would understandably like to argue that Article I establishes rights which cannot be realized without the help of the industrialized states and that it thus entails obligations of technology transfer, for instance. However, in establishing that states are free to determine all aspects of their participation in international cooperation in space activities,59 the Space Benefits Declaration’s authoritative, current interpretation of the cooperation principle of OST Article I effectively eliminated hopes of obligatory transfer of financial and technological resources from the industrialized states to technologically less developed countries.60 Experiences of an analogous area of international law, the regime to govern the utilization of the deep seabed, show similar tendencies. Provisions to facilitate technology transfer were initially adopted for the deep seabed mining regime established by the 1982 United Nations Convention on the Law of the Sea. This system would have guaranteed substantial technology transfer benefits from the industrialized world to less developed countries. In 1994, however, the system was altered dramatically by modifications introduced by what is known as the New York Agreement61 which, i.a., abandoned all mandatory technology transfer obligations.62 Considering this development and the 1996 Space Benefits Declaration together, it does not seem very likely that industrialized countries 57 For a more detailed account of the activities undertaken by the PSA, see, e.g., “United Nations Office for Outer Space Affairs, United Nations Programme on Space Applications Activities Schedule: 2007”. Also the activities schedules of some previous years are available at the United Nations Programme on Space Applications website. 58 Benkö–Schrogl 1997, pp. 139–140. 59 Point 2. 60 In essence, the Benefits Declaration aims at strengthening the status quo in international space cooperation, which does not serve the ideology of the ‘common heritage of mankind’ but, increasingly, the needs of commercial activity. See Goldman 2002, pp. 172–176. 61 Agreement on the Implementation of Part XI of the 1982 Law of the Sea Convention. 62 Annex, Section 5.

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will agree to adopt far-reaching technology transfer obligations in the very near future for the space sector.63 On the other hand, commitments concerning transfer of technology used to be equally vague and of little practical value in international environmental law, too, but today environmental treaties increasingly include provisions with enhanced significance in this respect.64 In light of this development, the prospects that transfer-of-technology requirements will gain renewed relevance in the space sector seem somewhat better. 5.2.3. Differential Obligations The selective incentives approach purports to treat states more or less equally and is based on a system of reciprocal rights and obligations, yet in practice it results in special treatment for selected parties. Such discrimination can seriously undermine the credibility (and acceptability) of an agreement. A more straightforward approach is to have an asymmetrical regime from the very outset with different treaty obligations being applied according to each party’s special (economic, technological, etc.) circumstances.65 Such a solution builds explicitly on the concept of common but differentiated responsibilities and the double standards this principle entails. As discussed above, a differential obligations approach has been adopted in many environmental instruments with those then incorporating country-by-country time plans, differential assessment scales and weighted contributions, for instance. Obviously, it is not always easy to separate ‘selective incentives’ from ‘differential obligations’. For instance, a provision allowing technologically less developed countries to adhere to a certain instrument by postponing compliance with standards which they would otherwise find too stringent can be seen both as a selective incentive and a differential obligation. On the other hand, it may not be necessary to tell the two concepts apart. For instance, international fund mechanisms can be seen both as examples of a differential obligations approach and as instruments for the implementation of technology transfer or financial assistance, i.e., selective incentives; consider, for example, the various UN trust funds to finance joint programs. The current international funds serving as mechanisms to provide financial assistance for global environmental objectives— For a more detailed account, see Viikari 2002. See, e.g., Sands 2003, p. 1038. Already the 1972 Stockholm Declaration referred to the need for international technology transfer (Principles 12 and 20). More concrete provisions to this end were later included in the 1985 Vienna Convention for the Protection of the Ozone Layer and the 1987 Montreal Protocol (and its amendments); the 1992 Convention on Biodiversity; the 1992 Framework Convention on Climate Change and the 1997 Kyoto Protocol, for instance. For more details on the transfer of technology provisions in international environmental law, see ibid., pp. 1037–1043. 65 Sand 1990, p. 8. 63 64

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in particular for the implementation of internationally agreed environmental rules and standards—include the Global Environmental Facility (GEF),66 the Montreal Protocol Multilateral Fund67 and the Wetland Conservation Fund,68 as well as other mechanisms such as the World Heritage Fund69 and the UNEP Environment Fund.70 Some of these have proven more successful than others.71 For space activities, a differential obligations approach could propose, in a similar manner, a trust fund based on weighted contributions to compensate for the financial burden of the additional costs deriving from better environmental management of space activities. As mentioned above, there is one international trust fund in the space sector, namely the Trust Fund for the United Nations Programme on Space Applications. It has been given the task of helping to implement the recommendations of UNISPACE III, including, i.a., action 66 Established in 1991; for more detail, see the Global Environmental Facility website; Training Manual on International Environmental Law 2006, pp. 65–78. 67 Established under the 1990 amendments to the 1987 Montreal Protocol (Art. 10, paras. 1–3). Significantly, the ‘Financial Mechanism’, which includes the Multilateral Fund, is to “meet all agreed incremental costs” (Art. 10.1) of developing countries (as defined in Art. 5.1) to enable their compliance with the control measures of Arts. 2A–2E of the protocol. The fund shall “[m]eet, on a grant or concessional basis as appropriate, and according to criteria to be decided upon by the Parties, the agreed incremental costs” (Art. 10.3.a); to finance clearing-house functions related to, i.a., identifying needs for and facilitating cooperation (Art. 10.3.b); and to finance secretarial services of the fund (Art. 10.3.c). The Multilateral Fund is financed by “contributions from Parties not operating under [Art. 5.1] in convertible currency … in kind and/or in national currency, on the basis of the United Nations scale of assessments”. Also bilateral and regional cooperation in financing can be accepted in certain circumstances. Art. 10.6. 68 Established in 1990 by the conference of the parties to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (the Ramsar Convention) in 1971 (Resolution 4.3). By a decision (Resolution VI.6) in 1996, the Wetland Conservation Fund was renamed the Ramsar Small Grants Fund. In 1997, the Ramsar Secretariat and the US established another fund, a Wetlands for the Future Fund. Memorandum of Understanding on the “Wetlands for the Future Program”. 69 Established by Art. 15 of the Convention Concerning the Protection of the World Cultural and Natural Heritage in 1972. 70 Established in 1972 by UNGA Res. 2997(XXVII). 71 For instance, the UNEP Environment Fund, which is meant to provide for UNEP’s operational program costs and program support from voluntary contributions made by states, experienced a drastic erosion of its funding base around the turn of the century: both the number of countries making contributions as well as the amount of funds available declined considerably. In addition to the obvious challenges this poses to the operations of UNEP, it has lead to increased dependency of the organization on the ever-smaller number of countries that contribute the bulk of the fund’s resources. For an assessment of this development in more detail, see Desai 2004, pp. 47–50. For a more detailed account of different kinds of international environmental funds, see Sands 2003, pp. 1029–1037.

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“[t]o assist States … in applying the results of space research with a view to promoting the sustainable development of all peoples”;72 “[t]o improve the protection of the near-Earth space and outer space environments through further research in and implementation of mitigation measures for space debris”;73 and “[t]o protect the near and outer space environments through further research on designs, safety measures and procedures associated with the use of nuclear power sources in outer space”.74

Hence, in principle, there already exists an international fund mechanism for the environmental management of the space sector. In practice, however, the capacity of the PSA Trust Fund does not allow for very extensive activities. The need remains to consider more developed trust fund and other mechanisms for the purpose of environmental protection of outer space. Setting up an international trust fund is no simple task, however. One critical issue is control of the trust fund. Valuable lessons to this end can be derived from experiences of the institutional frameworks adopted for the management of the above-mentioned global environmental funds already in use.75 Another complicated question is how to raise money for an international fund. Voluntary contributions are widely used in many of the existing environmental funds, but the willingness of states to make such contributions varies and it may be difficult to secure sufficient funding for long-span planning and management. In particular, such a funding formula could hardly be enough in itself for the extremely costly operations required to alleviate environmental degradation of outer space. Accordingly, a more secure, tax-like mechanism would seem Recommendation 11 (The Space Millennium: Vienna Declaration on Space and Human Development 1999, para. 1.b.vi). 73 Recommendation 14 (The Space Millennium: Vienna Declaration on Space and Human Development 1999, para. 1.c.iii). 74 Recommendation 15 (The Space Millennium: Vienna Declaration on Space and Human Development 1999, para. 1.c.iv). 75 See also Weiss 1989, pp. 156–157. For instance, the GEF provides an interesting example as concerns decision-making: where consensus cannot be reached, the system mixes the traditional ‘one-state, one-vote’ model with one that takes into account the contributions states have made. The main governing body of the GEF is the Council, which is composed of 32 members: 16 from developing countries, 14 from developed countries and 2 from countries with economies in transition (Instrument for the Establishment of the Restructured Global Environmental Facility, para. 16). Decisions in the Council are taken by consensus (para. 25.b). Where this is not attainable, the system offers the method of a ‘double weighted majority’: an affirmative vote representing both a 60 percent majority of the participants and a 60 percent majority of the total contributions (para. 25.c.i). The mechanism attempts to improve the possibilities of developing countries to participate effectively in decision-making. However, it has encountered severe criticism, even after the 1994 reform for increasing democracy in the system. Matsui 2004, pp. 90–92. 72

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necessary; that is, contributions to the fund could be raised through some sort of (mandatory and automatic) international ‘environmental space tax’. On which basis could such a ‘tax’ or any other mandatory financial charge be imposed? Considering the different capabilities and roles of states in the use of outer space, a ‘flat fee’ system would not appear acceptable. Instead, there should be some way to distinguish between different kinds of countries. In light of the principle of equality and the idea of outer space being the province of all mankind, a suitable criterion for dividing countries into groups could be their level of technological and economic development. The linkage of levies to each nation’s wealth per se would hardly be acceptable to the industrialized states, however, particularly considering the significant role of many of the less developed states in the modern space sector. The weighting of contributions in accordance with the amount and type of states’ space activities would sound fairer.76 A practical way to put substantial economic responsibility on the major users of outer space would be the levying of a ‘tax’—essentially a user’s fee—on each launch77 that in some way also takes into consideration the environmental precautions applied with each mission, however. Such a tangible financial incentive would also encourage more ecological launch practices. For missions using nuclear energy, the fee could be higher because of the higher risks of long-term environmental degradation involved. Any incentive system should also consider the ‘taxability’ of the potential future uses of outer space as a source of natural resources, for example, and do so at the latest when such activities become feasible.78 One more proposal has been the imposition of a ‘resource utilization fee’ for the use of the radio spectrum and orbital positions of GEO.79 Obviously, designing any mechanism for international ‘space taxation’ or the like is a highly complex task.80 76 See also the reasoning behind a proposal for a “Global Commons Trust Fund” in Stone 1996, pp. 94–96. Interestingly, the idea of a toll on the use of the global commons was discussed already in the Stockholm Conference on the Human Environment in 1972, with the consideration of a toll on international oil transport. Weiss 1989, p. 156. 77 It has been proposed that launch providers and satellite operators could be taxed for the purpose of creating a compensation fund in proportion to delivery capability or payload mass, for instance. Greenberg 2003, p. 395. 78 Analogous mechanisms are in use on the national level in some countries, in the form of severance taxes on natural resource extractions (of minerals and timber, for instance). Such taxes (or at least a part of them) may then be dedicated to a trust fund, for the purpose of helping future generations to cope with the effects of the current natural resources activities. See Weiss 1989, pp. 155–156. 79 Lyall 2001, pp. 390–393. The author suggests that “ ‘fee’ is not excluded by the word ‘free’ ” (referring to the fundamental freedom-of-use rule of international space law). As the basis of assessment, he proposes a “calculation based on the number of satellites in a system, their individual cost, the extent of the spectrum band used, and a flat rate per 1000 MHz”. Ibid., p. 392. 80 A registration fee intended to cover the administrative costs of the ITU in the

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One more challenge would be the allocation of the funds raised. An environmental space fund could be utilized to cover the additional costs required to ensure environmentally safer operation of space objects. This could also serve as a way to flesh out the general references to technology transfer in UN space law. The already mentioned idea of a fund for alleviating environmental damage already caused by space activities is another option where the mechanism could prove useful.81 Also worth considering is some sort of an intergovernmental space management authority,82 the formation and operation of which could be financed through an international fund. Such an authority could also administer any international space fund. There is no reason why a single fund could not coordination of satellite frequency bands and orbital slots is already in use. Although the system of the ITU is only supposed to cover the actual costs involved, it has been continuously criticized and—despite several reforms since its adoption in 1989— continues to be disputed. See Oberst 2005. Any environmental fee system for the space sector would be likely to encounter even far sharper criticism. 81 See Uchitomi 2001, pp. 77–78. It has been proposed that one could establish an international fund to cover damage caused by unknown space debris, for instance. It could be supported by contributions determined in accordance with “the creation of space debris” to provide also “a good incentive to mitigate their creation”. Kerrest 2001, p. 870. The elaboration of the exact formula according to which such contributions would be made (and put to use) obviously remains quite a demanding task, however. 82 Usually, suggestions for a global space agency envision an organization with a mandate relating to space activities in general. However, the idea of an international environmental space organization has also been mooted as one option. Williamson 2006, p. 174. For a relatively detailed draft for a new global space agency, see Doyle 1995. The organization envisioned by Doyle would have tasks in, i.a., management of resource exploitation and standardization of contamination controls for space missions. Ibid., pp. 54–56. The funding schemes considered by the author include, firstly, “allocation of costs among [UN] member nations in proportion to each nation’s allocated portion of the UN General Budget”. The rationale behind this is that the World Space Agency would be “global in concern”, “global in representation and global in effect”; “[e]very nation, active in spaceflight or not, will be imfluenced [sic] or affected, directly or indirectly, by the actions and standards of the new agency”. Another possible method could be one “based upon the total tonnage launched per year or per annual quarter by the signatory nations”. These are the nations whose immediate needs the organization would serve, whereby such a funding method could be applied at least to a part of the budget of the World Space Agency. A variation of the system would be the assessment of the costs to owners of payloads, possibly in proportion to derivation of revenue and/or weight of the payload, for instance. Ibid., p. 60. For an assessment of prospects for a ‘World Space Agency’, see, e.g., Pedersen 1993 and Yakovenko 1999. The former author is quite pessimistic about proposals to such an end. Indeed, considering the problems related to the operation of the UNCOPUOS, it is somewhat difficult to see how a global space organization could be more successful without considerable innovations, such as the involvement of other than governmental participants as well. Most likely it would, moreover, not be feasible to expect the existing international organizations in the

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be used for all of these purposes.83 Considering, however, that (at least at the moment) a precautionary approach is clearly the most effective way to diminish environmental degradation of outer space, funds should be primarily geared to guaranteeing environmentally safer space operations. Besides, even if the technology existed, the amount of money needed to clean polluted areas of outer space would in all likelihood be far larger than that required to prevent such detrimental effects in the first place (although this, too, is costly). Moreover, the compensation of victims of such pollution can be very costly. Ironically, the spacefaring nations might be more inclined to accept a system that concentrates on the reparation of existing environmental damage (caused largely by them) than on making all space activities environmentally safer, as the latter would easily call for re-allocation of funds to less developed states by the transfer of environmentbenign technologies, for instance. Consequently, an ‘international space tax’ for pollution clean-up and compensation of other damages—if levied in proportion to the anticipated need for funds—might have to be significantly higher than the cost of preventing environmentally detrimental effects of space activities. Regardless of how the monies would be used, all types of space funds would at least contribute to inter-generational equity by diminishing (more or less effectively) the environmental degradation that the future users of outer space will suffer due to the operations of the present generation. Additionally, the trust fund mechanism could be used more explicitly for the benefit of future generations by actually reserving some funds for them to use to deal with the environmental impacts we are passing on to posterity. This would seem particularly appropriate as regards activities which pose potentially significant, perhaps as yet unpredictable threats to future generations—such as space activities. The funds raised now could be used for cleaning up longterm environmental damage in the most practicable manner then or even for compensating individual future victims of present activities.84 Monies collected from the ‘taxation’ of specific types of activities, such as the use of nuclear power, could even be targeted for environmental restoration costs in that particular field, including the management of hazardous wastes. As regards potential new types of space utilization, such as celestial mining, the fees derived from these activities could be used for maintaining the resources in question or compensating for their depletion, for instance.85 space sector to hand over their tasks to a new organ, considering, for instance, the focal and well-established role of the ITU in space telecommunications. See Pedersen 1993, pp. 92–94. 83 As regards the above-mentioned proposal for a utilization fee for GEO activities, it has been suggested that the income could also be used for non-space related purposes, such as for the work of the UN in fostering development, helping refugees or world health issues. Lyall 2001, p. 393. 84 Weiss 1989, p. 154. 85 For a more detailed treatment of trust funds as a mechanism to compensate

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5.2.4. Promotion of Over-achievement One additional strategy for alleviating the lowest-common-denominator problem is the promotion of over-achievement of treaty obligations. Many environmental agreements, for instance, expressly confirm the right of parties to take— individually or collectively—measures more stringent than those required by the agreement itself.86 Even where treaties do not give explicit permission to ‘over-achieve’ the goals they set, they usually do not prevent additional action or stricter requirements, provided that these are non-discriminatory. The willingness of countries to take action unilaterally and adopt timetables and targets that affect only themselves can hardly be enough to combat wide-scale adverse effects. Nevertheless, over-achievement provisions may contribute to at least somewhat improved environmental practices by some states. Furthermore, they can provide incentive and a starting point for subsequent negotiations in wider international arenas. When taken by only some countries within a larger group of nations such initiative has in fact often “played a pilot role” in more general target-setting and encouraged other states to act likewise.87 If the state that takes unilateral action is a significant enough player in the sector in question, even its activities alone can have considerable importance. At the same time, however, unilateral standards may give the countries who first apply them a dominant future generations for the costs that the earlier generations are causing them, see ibid., pp. 152–159. 86 According to Art. 2.3 of the Vienna Convention on the Protection of the Ozone Layer, for instance, “[t]he provisions of this Convention shall in no way affect the right of Parties to adopt … domestic measures additional to those referred to in paragraphs 1 and 2 above, nor shall they affect additional domestic measures already taken by a Party, provided that these measures are not incompatible with their obligations under this Convention” (emphasis added). In a similar manner, the Montreal Protocol to the convention provides that “[n]ot-withstanding the provisions contained in this Article and Articles 2A to 2I Parties may take more stringent measures than those required by this Article and Articles 2A to 2I” (Art. 2.11; emphasis added). Other examples include the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Art. 11 of which states that “Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention” (emphasis added). 87 For instance, both as regards the Convention on Long-Range Transboundary Air Pollution and the Montreal Protocol on Substances that Deplete the Ozone Layer, some countries have applied voluntary additional reductions of harmful substances which have later been accepted by many other states parties as well. See Sand 1990, p. 12.

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position in subsequent negotiations, where they might demand that those standards be made the norm.88 In addition to a genuine will to alleviate the harmful effects of their activities and to (possibly) create somewhat better chances to affect future developments in international target-setting, a distinct reason for states to over-achieve common goals (at least in cases where the price to be paid for that is relatively low) is the simple fact that it often pays political dividends in terms of public attention and recognition. With many international accords, national achievements and pledges are recorded and compared annually; media coverage and international publicity should not be underestimated as influential incentives for states to act in a certain manner.89 Framework conventions, which are originally meant as a framework for further action with additional but optional protocols concluded between (usually only some) parties, constitute a special case where over-achievement is concerned.90 Similarly, the sets of principles for the management of space activities adopted by the UN General Assembly can be seen as promoting over-fulfillment of the vague obligations provided by the original space treaties and encouraging subsequent legally binding agreement on more detailed obligations (although no such successive instruments have been adopted at the international level as of yet). The same applies to the numerous non-binding instruments adopted by the ITU in relation to both UN space treaties and the ITU Convention and Constitution. All these non-binding documents provide authoritative guidance on international preferred practices. Even declaratory instruments by prestigious nongovernmental expert groups may gain influential status, such as the work of the ILA on several legal issues,91 e.g., the ILA Draft Convention on Space Debris from 1994. The other ILA draft convention important for the space sector is that entitled “ILA Draft Convention on the Settlement of Space Law Disputes”, which will be studied in more detail later. As regards the space debris problem, the guidelines of the IADC, above all, are of major significance, as discussed above. These measures and the voluntary compliance of states and other relevant entities with them can be considered as encouragement for the adoption of further instruments urging such procedures. An important recent example of unilateral action in compliance with the standards of the IADC Space Debris Guidelines is the 2004 US decision—examined above—to make re-orbiting of US-licensed GEO satellites at the end of their lifetime mandatory. The UNCOPUOS can serve an important role in advancing international publicity of national activities, including those relevant for preservation of the space environment. For instance, the Scientific and Technical Subcommittee has Susskind 1994, p. 31. Sand 1990, pp. 12–13. This also partly explains why states tend to comply with international norms of even a legally non-binding nature quite well. 90 Ibid., p. 12. 91 See ibid., p. 16. 88 89

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invited states to annually submit reports of national space activities.92 The Legal Subcommittee considers the practice of states and international organizations in registering space objects; this registration may have environmental relevance.93 Such public reporting requests exert pressure on states to comply with generally accepted minimum standards of behavior even if they are not legally binding. On the other hand, the economic and other interests at stake are so significant that ‘naming and shaming’ alone can hardly provide a tool efficient enough to make states inclined towards environmentally more benign space activities where other factors do not support such action. 5.2.5. Delegated Decision-making Powers and Self-correcting Treaties Traditionally, international bodies seldom have been authorized to adopt legally binding texts.94 One more opportunity to sidestep the traditional consent requirement—and the lowest-common-denominator problem it entails—is to expressly delegate powers to adopt and regularly amend or supplement ‘technical standards’ (typically contained in technical annexes) to a specialized intergovernmental body where these amendments do not require state ratification. This kind of approach has been used extensively in the field of environmental standard-setting in both global agreements and regional arrangements.95 It has also been proposed as a model for environmental governance in the space sector.96 Although it is not likely that states would acquiesce to full-fledged 92 See, e.g., the document “International cooperation in the peaceful uses of outer space: activities of Member States” and Addenda 1–4. 93 See, e.g., “Practice of States and international organizations in registering space objects” 2005. 94 Even fewer are examples of international organizations which have such powers and, moreover, can have some practical relevance in environmental protection: the UN Security Council (in cases of grave environmental threats such as those connected with the Iraqi invasion of Kuwait) and, above all, the European Community. Also worth mentioning is the OECD. See Kiss–Shelton 2000, pp. 47–48. The governing body of the OECD, its Council, can adopt what are commonly referred to as the OECD Acts. The OECD Council can take decisions which are legally binding on member states unless they have abstained at the time a decision is adopted. Environment-related decisions of the OECD Council concern the control of movements of wastes, for instance. See OECD Council Decisions C(2001)107 and C(88)90. 95 Sand 1990, p. 17. A similar approach featuring a set of norms which cannot be changed easily combined with technical annexes which can be adapted to changes in circumstances with far less effort has been applied in the work of ICAO, IMO and WTO, for instance. 96 See, e.g., Jaenicke 1990, pp. 252–254. The author suggests the adoption of a new space convention to “deal exclusively with the protection of the environment of outer space against the risks of space activities”. Pursuant to this idea, the convention

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supranational bodies in the management of space activities, such a mechanism (albeit on a limited scale) is already familiar in space utilization, namely, in the work of the ITU. The ITU has a Constitution and a Convention, which contain the main treaty provisions, the amendments to which require state ratification. However, the more specific international standards of the ITU are placed in separate ‘technical annexes’ and ‘regulations’ that are periodically revised in intergovernmental meetings without having to be ratified by member states. Yet, bypassing ratification—and other domestic approval procedures—to expedite transnational decision-making through delegated standard-setting also means bypassing traditional parliamentary controls. This may seem somewhat undemocratic.97 One way to remedy the situation is to entrust the functions to a ‘supranational’ parliamentary body, such as the European Parliament within the EU system.98 An alternative solution is that even when full ratification by states is not required, new international standards might still be made subject to some kind of national endorsement, either through explicit acceptance by state governments or by reserving a possibility for states to ‘opt out’ of a standard (or

would authorize either all of the contracting states or a council composed of some of them to adopt operational standards and measures in accordance with scientific development. Furthermore, the author envisions a “committee of independent experts” a recommendation from whom would be a prerequisite for the adoption of any standards, in order to minimize the political influence in decision-making (apparently, in practice, it would be this committee that actually devises the standards). It is also hoped that the weight of the opinion of the committee would help secure general acceptance of the suggested measures. Measures entailing restrictions on space activities would, pursuant to this system, have to be decided by consensus or, alternatively, states could opt out from them (within a certain time-limit). Ibid. 97 Leaving aside the discussion concerning the meaning of the concept of democracy, it should be noted that all law-making at the international level can be deemed undemocratic in a sense. Firstly, representation of citizens through their parliaments in international processes is quite indirect, considering, above all, that parliamentary controls essentially come into play only after the adoption of international treaties. At this point the parliaments can do little else than accept or reject the instrument; the contents of the obligations have been already set by governmental negotiators, whereby the representatives of the citizens of a particular country no longer have a say in that (most focal) part of the decision-making process. A second, in another way undemocratic aspect of international law-making is the basic principle of sovereign equality of states. In practice, the ‘one-state, one-vote’ system this entails gives the citizens of countries with small populations greater influence. Furthermore, it can be said that there is a democratic deficit because in certain areas (international monetary and development law, above all) industrialized states tend to be more powerful than states with less strong economies. See Fuentes 2004, pp. 12–14. 98 On the role of the European Parliament in more detail, see the European Parliament website.

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amendment) by a specific date.99 This approach could provide a starting-point for space law regimes also in cases where the ITU-type ‘supranational’ regulation does not seem acceptable to the international community.100 An example of delegated decision-making powers combined with an opting-out procedure can be found in a space-related area, namely, aviation. The 1944 Convention on International Civil Aviation provides that the Council of ICAO may adopt global standards and recommended practices dealing with matters concerning “the safety, regularity, and efficiency of air navigation” which are annexed to the convention.101 Once adopted by a two-thirds majority vote, an annex becomes effective (without ratification) unless a majority of member states “register their Sand 1990, pp. 17–18. For instance, a 32-member Commission for the Conservation of Antarctic Marine Living Resources can adopt by consensus decisions on conservation measures for the implementation of Art. II of the Convention on the Conservation of Antarctic Marine Living Resources. Such measures are, however, subject to an objection or opt-out program: pursuant to Art. IX.6, subparas. b-c, conservation measures adopted by the Commission “shall become binding upon all Members of the Commission 180 days after [their] notification [to the Members], except … if a Member of the Commission, within ninety days following the notification … notifies the Commission that it is unable to accept the conservation measure, in whole or in part”. In such a case, “the measure shall not, to the extent stated, be binding upon that Member of the Commission”. The Commission can then, at the request of any member, review the conservation measure and “[a]t the time of such meeting and within thirty days following the meeting, any Member of the Commission shall have the right to declare that it is no longer able to accept the conservation measure, in which case the Member shall no longer be bound by such measure” (Art. IX.6.d). 100 It has been suggested that the Legal Subcommittee of the UNCOPUOS, for instance, could be given the task of establishing such international standards. The system could be constructed, for instance, so that a two-thirds majority is enough for the adoption of an international standard. Such standards would be binding, with the exception that a state may opt out of them, provided, however, that it presents “alternative standards within the range of 60–90 days”. The rationale behind this is that states might rather accept the standard along with other states than be willing to make the effort to develop a new standard of their own against the two-thirds majority. Furthermore, as regards some activities, absolute liability could even be applied to states opting out of international standards. For standards of a more recommendatory character, compliance could be encouraged by requiring states to submit reports concerning compliance with them. This could involve inspection and publication of the reports. Jasentuliyana 2001, pp. 369–370. The same author has also proposed a mechanism where the role of the UNCOPUOS and its subcommittees would be to draft a more general enabling framework (convention) within which a regulatory body consisting of “experts from Member States” would be responsible for developing more detailed standards. Jasentuliyana 1998, pp. 161–162. For a proposal to create a specialized, independent World Space Organization for, i.a., making technical regulations for the needs of the space sector, see Kerrest 1999, pp. 259, 263; Yakovenko 1999, pp. 372–374. 101 Arts. 37.2 and 54.l. 99

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disapproval with the Council … within three months after [the] submission [of the standard] to the contracting States or at the end of such longer period of time as the Council may prescribe”.102 In accordance with these provisions, ICAO has laid down standards on, i.a., aircraft noise and engine emissions.103 Interestingly, the UN space treaties allow for amendments to them to be made in accordance with a somewhat similar procedure: any state party can propose amendments, which “shall enter into force for each State Party … accepting the amendments upon their acceptance by a majority of the States Parties” to the instrument.104 However, such amendments create dual standards: one for those accepting the amendment, another for those rejecting it.105 Considering the significant uncertainties related to space activities—both in terms of natural phenomena and technological developments—space law could even benefit from the example of what are known as ‘self-correcting’ treaties. The term refers to treaties with open-ended commitments in the form of ‘selfadjusting’ treaty provisions able to incorporate new scientific knowledge as it emerges. In addition to accommodating progress in science, such flexibility is essential for responding to new political priorities and possible rapid changes in the circumstances of individual states. The traditional international treaty obviously does not have the capacity to respond to such changes at an adequate pace. Interesting and potentially effective practices to this end can be found— again—in international environmental law, where many instruments include built-in review schedules, facilitating openness and adaptability to change.106 For instance, the 1987 Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer provides regarding “assessment and review of control measures” that “at least every four years … the Parties shall assess the control measures … on the basis of available scientific, environmental, technical and economic information”.107 Another example is the 1988 Sofia Protocol to the Convention on Long-Range Transboundary Air Pollution, which requires Arts. 38 and 90. For a more detailed treatment of the procedure, see “ICAO, Making an ICAO Standard”. 103 Annex 16 to the Convention on International Civil Aviation, Vol. I (Aircraft Noise), Vol. II (Aircraft Engine Emissions). For a more detailed account of ICAO’s work on these issues, see “ICAO Air Transport Bureau, Environmental Protection, Aircraft Noise” and “ICAO Air Transport Bureau, Environmental Protection, Aircraft Engine Emissions”. 104 All UN space treaties contain the same provision (the only difference being whether the article in question uses the word ‘Agreement’ or ‘Convention’): OST, Art. XV; Rescue Agreement, Art. 8; Liability Convention, Art. XXV; Registration Convention, Art. IX; Moon Treaty, Art. 17. 105 The result can be, at worst, that the states which are against the amendments even abandon the entire convention. Kopal 2001, p. 383. 106 See Sand 1990, pp. 35–36. 107 Art. 6. 102

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regular reviews of the protocol (starting one year after the entry into force of the protocol at the latest), “taking into account the best available scientific substantiation and technological development”.108 Furthermore, it stipulates that negotiations on further steps to reduce national annual emissions of nitrogen oxides or transboundary fluxes of such emissions, taking into account the best available scientific and technological developments, internationally accepted critical loads and other elements resulting from the work programme undertaken under article 6

must start six months after the entry into force of the protocol at the latest.109 Similarly, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal calls for the Conference of the Parties … [to] undertake three years after the entry into force of this Convention, and at least every six years thereafter, an evaluation of its effectiveness and, if deemed necessary, to consider the adoption of a complete or partial ban of transboundary movements of hazardous wastes and other wastes in light of the latest scientific, environmental, technical and economic information.110

Instead of confining themselves to routine inspection of the instruments, such review clauses enable policy re-orientation and even institutional change in the light of knowledge and experience to be gained in the future. Such an approach seems to foreshadow also a more general trend of increasingly ‘fluid’ regimes capable of responding quickly to growing scientific understanding and progress.111 In the space sector, a similar example is provided by the IADC Space Debris Mitigation Guidelines, which expressly leave open the option of updating them in keeping with developments in science: according to Guideline 6, the instrument “may be updated as new information becomes available regarding space activities and their influence on the space environment”.112

Art. 5. Art. 2.3. 110 Art. 15.7. 111 See Sand 1990, pp. 35–36. 112 In a similar manner, the Space Debris Mitigation Guidelines of the Scientific and Technical Subcommittee of the UNCOPUOS provide that “[r]esearch by Member States and international organizations in the area of space debris should continue in a spirit of international cooperation to maximize the benefits of space debris mitigation initiatives. This document will be reviewed and may be revised, as warranted, in the light of new findings” Para. 5 (emphasis added). 108 109

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Delays in the ratification process may prove detrimental to the effectiveness of a treaty even in cases where there is no doubt about the wide acceptance of the rules as such.113 This is particularly true when there exists an immediate threat of potentially irreversible environmental damage, for instance. If the environment to be protected suffers irreparable damage, there is nothing any treaty can do to amend it afterwards. Effective action to combat environmental degradation pending the entry into force of treaty obligations for the purpose (and even without any expectation of such new rules if the threats are serious enough) is, in principle, required by the precautionary principle.114 States may also formally agree, usually in the treaty itself or in an annexed agreement, to bring an international treaty into operation (in full or in part) on an interim basis, prior to its formal entry into force.115 Such provisional application is a recognized procedure under the Vienna Convention on the Law of Treaties, Article 25.1 of which states that “[a] treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed”. It is thus possible that a treaty itself provides a mechanism for its provisional entry into force. Even without such a clause, all or some states parties may decide to apply treaty provisions as if they were in force. Once a treaty has entered into force provisionally, it is binding on those states who have agreed to provisional application. Hence also legal obligations deriving from the treaty appear to be the same as those of a treaty for which the formal criteria for entry into force have already been met. Provisional application is also possible in the case of a treaty which has entered into force (between some states): a (new) state intending to ratify it can decide to give effect to obligations of the treaty already before its domestic procedures for ratification have been completed.116 Such an undertaking may, however, be denounced (“[u]nless the treaty otherwise provides or the negotiating States have otherwise agreed”) if a “State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty”.117 Sand 1990, p. 15. See de Sadeleer 2002, pp. 198–199. 115 See, e.g., Reuter 1995, p. 68. 116 See the United Nations Treaty Collection Treaty Reference Guide 1999 under the heading “Provisional Application and Provisional Entry into Force of Treaties”. 117 Vienna Convention on the Law of Treaties, Art. 25.2. Even when there is no agreement to bring treaty provisions into operation on an interim basis, there exists the (less demanding) duty of loyalty the negotiating states owe each other according to Art. 18 of the Vienna Convention on the Law of Treaties “to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or 113 114

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In essence, the purpose of such interim agreements is to advance the application of agreed norms where a slow ratification process works to the detriment of this goal. Another way to address the problem is to exercise increased caution in defining the number of ratifications needed for an agreement to come into force. Ratification limits vary widely depending partly on the type of issues an agreement is meant to deal with and partly on the potential states parties, for example. In the case of bilateral treaties or other agreements where the states parties are already relatively clearly defined in the negotiation phase, the situation is fairly unproblematic. The setting changes altogether with agreements that aim to curb global environmental problems and require the acceptance by numerous states of issues that are likely to generate serious controversies. The more diversity and tension there is with regard to the questions that the instrument regulates, the more complex it is to define a ratification target that is small enough to promote early entry into force of the instrument but does not allow the regime to come into effect without the consent and involvement of the states which would be the most relevant participants.118 The 1982 UNCLOS provides an example of an international agreement which took a while to gain the necessary ratifications for entry into force. The final text of the convention was adopted in 1982, after difficult and protracted negotiations lasting nearly a decade. When opened for signature later the same year, the UNCLOS was signed immediately by 117 nations. By the time it had closed for signature in 1984, a total of 159 states and other entities had signed the convention. Despite its immediate success, the threshold of 60 ratifications required for it to enter into force119 was not crossed until late 1993. The entry into force was set to follow 12 months thereafter. However, 59 of the ratifying states were developing countries that together contributed less than five per cent of the UN budget.120 It was obvious that they would and could not finance the operations of the International Sea-Bed Authority set up by the UNCLOS to govern utilization of the international deep seabed.121 The option that the UNCLOS would enter into force without the participation of the major industrialized countries was hardly attractive to anyone, whereupon states hurried to negotiate an agreement that would

has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed”. Such a state is governed by the rules on withdrawal specified in the treaty concerned (Arts. 54 and 56 of the Vienna Convention). 118 Vogler 2000, p. 159. 119 Art. 308. 120 Brown 1994, p. 445. 121 Churchill–Lowe 1999, p. 237.

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introduce sufficient amendments to the contentious regime for deep seabed mining so that also industrialized countries would accept it. The result was the Agreement relating to the implementation of Part XI of the UNCLOS (known as the New York Agreement), which the UN General Assembly adopted shortly before the entry into force of the UNCLOS in 1994.122 Since then, the international community has endeavored to prevent similar difficulties by more sophisticated entry-into-force requirements. An apt example is the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer, the entry into force clause of which required 11 ratifications by nations accounting for two-thirds of global consumption of the substances controlled by the regime.123 An obvious precedent in the law of outer space is the Moon Treaty, where the ratification limit was set at a mere five states but it took five years before the instrument gained even those. Furthermore, the number of ratifications to the treaty still remains very low and includes no states currently playing a major role in the space sector. Thus, although in force, the Moon Treaty has been rendered practically impotent. The failure of the treaty resulted mostly from the fact that perceptions of the possibilities to utilize the Moon changed during the negotiation process, whereby many states ultimately found the agreement no longer favorable to their interests. Today, most states readily agree on the need to combat the highly topical problem of space debris, yet a treaty on such a problem where high stakes are involved is likely to be contentious and to need some time to gain the necessary ratifications to enter into force (unless its obligations remain on a very general—and hence ineffective—level). Thus, should states manage to negotiate an agreement for the abatement of space debris—or any other new international instrument for the regulation of space activities—careful discretion should be exercised as to the ratification targets needed to secure enough ratifications from relevant states without postponing the entry into force of the agreement unnecessarily. Secondly, considering the seriousness of the space debris problem, for instance, it could be well-founded to advance the efficacy of a possible new instrument by an interim agreement providing for its operation pending formal entry into force, if possible.

For a more detailed treatment of the subject, see, e.g., Viikari 2002, pp. 68–78. The text of the UNCLOS was adopted 30 April 1982. It remained open for signature from 10 December 1982, to 9 December 1984. The 60th ratification was deposited by Guyana on 16 November 1993; thus the UNCLOS was to enter in force 16 November 1994. The Agreement on the Implementation of Part XI of the UNCLOS was adopted on 28 July 1994, and came into force immediately. 123 Art. 16. 122

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5.2.7. Common Rules of Conduct One more option is that states desist from treaty-making altogether and recommend some sort of common rules of conduct instead. These may be called recommendations, resolutions, declarations, codes of practice, guidelines—to name but a few. They all fall into the category of ‘soft law’. Such documents may be issued by conferences or international organizations, for instance. Softlaw instruments are common both in international environmental law and in the space sector; the number of declarations of the UN General Assembly alone in both of these areas is substantial. By adopting declaratory instruments instead of legally binding ones, states can avoid (or at least diminish) many domestic legal and political obstacles. Their obvious advantage is that since these instruments require no national ratification and can thus take effect immediately, the process leading to their adoption usually is far less painful and faster than that needed in the case of international treaties.124 This can be of major significance, especially as regards problems of urgent importance whose abatement requires widespread consent within the state community, among these many current and potential future problems related to global environmental management and the use of outer space where traditional treaty-making can easily prove to be ‘too little, too late’.125 Other benefits of the soft-law approach include its capacity to more readily accommodate also non-state actors and international institutions. Where the aim is to establish general guidelines, principles and the like, a non-binding instrument often even seems more appropriate to the substance than a binding convention. The same applies to problems which are not yet very well defined, where appropriate solutions remain unclear, or which have traditionally not been the dealt with by means of international cooperation.126 The soft-law approach enables collective treatment of a problem already at a time when states would not be willing to restrict their freedom of action by a binding treaty. On the other hand, the fact that soft law instruments are relatively easy to make and are generally considered legally non-binding127 introduces significant risks: the lack of formality makes them an attractive short-cut with possibly very Kiss–Shelton 2000, p. 51. The establishment of international norms through the other conventional process, the creation of international customary law, would be even more difficult (practically impossible) in cases which require speedy action and precise regulation. Birnie–Boyle 2002, p. 25. 126 Kiss–Shelton 2000, p. 52. 127 According to Birnie and Boyle “[t]here is also much soft law, whose legal status varies, but which is not necessarily non-binding in all cases”. Birnie–Boyle 2002, p. 80. About the disputed distinction between international norms of hard- and soft-law status, see, e.g., Koivurova 2002. 124 125

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little practical effect.128 States may in reality lack the will or economic means, for instance, to make the commitments expected. At the time of negotiations, some states may not even be aware of their actual capacity to comply with the obligations set out by the negotiated instruments. Non-binding texts of course also allow considerable discretion in interpretation, and participants are in principle free to decide how—if at all—to conform to their requirements.129 Generally, enforcement measures and (other than moral) sanctions for noncompliance, or specific dispute-resolution mechanisms, are not available in the case of non-binding instruments even to the limited extent that they can be applied in international law in general. Even moral sanctions are typically weaker where formally non-binding obligations are concerned and particularly if they are expressed in ambiguous language. Nevertheless, states have often treated non-treaty arrangements with the utmost seriousness.130 Even the negotiations aiming at the adoption of a ‘mere’ soft-law instrument can be difficult and protracted, and the instrument finally adopted may resemble a well-formulated international treaty in completeness, detail and complexity. The advantage of all soft-law regulation is that if and when it remains non-binding, states may be willing to agree even on quite restrictive, precise norms.131 This is quite remarkable, considering that there seems to be no significant difference in the extent to which treaties and non-treaty arrangements are eventually complied with in practice.132 Soft-law instruments may be drafted to resemble treaties also by being designed as tentative flexible regimes similar to framework conventions, which provide for their own development in stages.133 Compliance with the provisions of a code of conduct or other non-binding instrument can be made mandatory by a clause in an international treaty. Even where this is not the case, a non-binding code can facilitate negotiations concerning subsequent international agreements and hence ‘evolve into’ legally binding regulation.134 The mere existence of such instruments is likely to encourage further action, including the evolution of more stringent norms, and thus they have been described as “half-way stages in the law-making process”. Hence, recommendations by the UN General Assembly (such as the sets of space principles adopted by UNGA resolutions) and instruments adopted by other prestigious international organizations or major global conferences can become Sand 1990, p. 16. Birnie–Boyle 2002, p. 26. 130 See, e.g., Hillgenberg 1999, p. 499. 131 See ibid., pp. 506–507; Birnie–Boyle 2002, pp. 25–26. “Governments are more willing to be innovative when the text is not legally binding”. Kiss–Shelton 2000, p. 51. 132 Hillgenberg 1999, p. 502; Lowe 1999, p. 30. One example of wide, if not universal, observation of legally non-binding norms is provided by the recommendations of the Antarctic Treaty Parties. Vogler 2000, p. 160. 133 Hillgenberg 1999, p. 501. 134 See Mirmina 2005, p. 659. 128 129

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‘consolidated’ by later international practice, or at least play a major role in the development of subsequent legal rules. For instance, most of the principles which have first appeared in international environmental declarations have later been incorporated in one form or another in legally binding international instruments and state practice. In addition to serving as “forerunners of treaty law”, soft law arrangements may inspire various other types of mechanisms for international cooperation. From the point of view of customary international law, nonbinding instruments can provide substantial evidence of opinio juris.135 A code of conduct may also encourage adherence even by private entities incorporated in countries that are less exemplary in their compliance with international norms. If observance of a code of conduct is deemed to be the measure of responsibility within a certain sector worldwide, this is obviously likely to encourage compliance. Moreover, the agreement to comply with a certain code may be made a relevant, even decisive factor when considering conditions for international contracts.136 It can then become very difficult in practice for individual corporations and even states to reject such a global code. Eventually, if a practice becomes extensive enough, it may result in the emergence of customary law.137 One additional interesting indication of the status of international soft-law regulation is that frequent references are made to soft-law documents in both binding texts of international law and juridical proceedings as authoritative guidance on the interpretation or application of a treaty, for instance.138 Also, declaratory instruments by nongovernmental expert groups may gain an influential status, an example (again) being the work of the ILA on several legal issues. Even codes adopted by individual corporations and international standards developed by private organizations may acquire considerable regulatory force if they are universally adhered to by the relevant actors.139 International soft law 135 Sand 1990, p. 16. In principle, the more frequently a certain rule is contained in non-binding instruments, the more plausible its role as evidence of opinio juris appears— particularly where it is embraced by consensus declarations of the UN General Assembly. See Fisher 1990, pp. 50–51. For a treatment of the role of UNGA resolutions in general and of the Declarations of Principles in the space sector (the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting) in particular, see ibid., pp. 49–54. 136 Mirmina 2005, p. 660. An example is the Code of Conduct of the ISS, which will be taken up in more detail below. 137 Ibid., p. 662. 138 Birnie–Boyle 2002, p. 25. The practice of the ICJ and the WTO shows that they refer in particular to international declarations which have been adopted at what are known as ‘world-order conferences’, an apt example being the Rio Declaration produced by the Conference on Environment and Development in 1992. Nowrot 2004, p. 13. 139 Ibid., p. 14. There exist some significant autonomous international self-regulation systems which have developed with little or no involvement of states; consider, for instance, the focal role of the International Chamber of Commerce (ICC) in international

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regulation may also guide states in the adoption of national legislation. Indeed, there exist numerous sets of technical standards, codes of conduct and guidelines which have become benchmarks for international and national standard-setting worldwide despite their lack of formal intergovernmental acceptance as legal norms.140 Moreover, non-binding instruments may in fact be intended to have some normative significance despite the form in which they are adopted.141 This applies in particular to many recommendations issued by international organizations. Member states have voluntarily joined an organization, thereby accepting the obligations of its constituting (usually legally binding) instrument(s). Such instruments, however, may use relatively vague, abstract language and many of their obligations remain on a general level. As states typically are hesitant to delegate extensive decision-making powers to supra-national authorities, international organizations themselves usually do not have the ability to clarify the requirements of their constituting instruments in a legally binding manner: they can only resort to non-binding instruments, such as recommendations issued by the competent organs of the organization, to explicate and facilitate the implementation of binding rules with general wordings.142 Although these instruments remain formally non-binding, they are nevertheless typically respected by the member states as authoritative interpretations of the obligations that bind them pursuant to the organization’s constituting instruments.143 Obviously, there are numerous factors which affect states’ compliance with soft-law arrangements. The authority of non-legal instruments is often combusiness. Ibid. For more information about the ICC, see the International Chamber of Commerce website. Interestingly, the ICC issued a Business Charter on Sustainable Development in 1991, with 16 principles for environmental management including, for instance, one on the precautionary approach (Principle 10) and another on the transfer of environmentally sound technology (Principle 13). Furthermore, in a subsequent policy statement on the precautionary principle, the ICC adopted the principle in the formulation that was used in the Rio Declaration. ICC Policy Statement: A Precautionary Approach: An ICC Business Perspective. Another well-known example is the CERES Principles (former “Valdez Principles”), drafted by a group of business people and investors in the aftermath of the 1989 Exxon Valdez oil spill in Alaska. This “ten-point code of corporate environmental conduct” includes references to principles such as sustainable development. Today, over 50 companies have endorsed the CERES Principles. “CERES, CERES Principles”. On codes of conduct and the like developed within the private sector, see also Kiss–Shelton 2000, pp. 140–141. 140 Sand 1990, pp. 16–17. 141 Birnie–Boyle 2002, p. 25. As evidence of such intention, Birnie and Boyle enumerate “an element of good faith commitment”, a possible “desire to influence the development of state practice” and “an element of law-making intention and progressive development”. Ibid. 142 E.g., the technical nuclear safety codes related to the IAEA treaties. 143 Kiss–Shelton 2000, p. 48.

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mensurate with the degree of authority and legitimacy of the institution issuing them and the ‘mother instrument’. It may also depend on the way the soft law regulation is adopted: for instance, a declaration adopted unanimously or with a significant majority of the global state community can be deemed as representing the will of most states and is thus conducive to compliance. Other relevant factors may include, i.a., the possibilities of meaningful participation of the presumed target community in the negotiations, the perceived fairness of the norms in question, and public opinion. Furthermore, even soft law instruments may be subjected to international reporting and other supervision processes. Monitoring of compliance (even by self-reporting obligations, but better still by the involvement of intergovernmental organizations and NGOs) has proven to be an effective tool for exerting pressure upon states. In extreme cases, a breach of a non-binding instrument might even constitute evidence of a breach of due diligence and related obligations, and could thus have legal consequences.144 For instance, a sufficiently detailed code of conduct that is consistent with other relevant instruments could help to determine the level of care that any ‘good launching state’ needs to observe in its space activities and hence “be used by judges to characterise a faulty behaviour for application of the liability convention or any other liability law”.145 If nothing else, the existence of soft-law instruments indicates that there is reason for states to exercise caution in their activities.146 On balance, ‘soft law’ does not fit well into the classical categories of sources of international law as listed in Article 38.1 of the Statute of the ICJ. Even the notion of ‘soft’ law suggests something devoid of importance, at least from a legal point of view. Nevertheless, as noted above, the apparent distinction between ‘soft’ and ‘hard’ law can be somewhat misleading. Many soft law instruments do not lack all significance and authority—often quite the contrary. It can even be concluded that there are no major differences in the normative nature of ‘soft’ and ‘hard’ law; the major divergence is in the process by which their rules are declared and the consequences of breaching them.147 Hence, a soft law instrument does not need to remain inferior to a traditional treaty. Considering the characteristics of many of the current problems in international law, soft law can even have major advantages and may in fact prove more effective than binding regulation. In any case, it is very often the best method of rule-making available.

See ibid., p. 52. Kerrest 2001, pp. 872–873. A proposal deriving from the same line of thought is that for a “catalogue of guiding principles of preventive measures” against space debris with, i.a., limits for the amount of debris permitted per launch; any debris produced in excess of that would result in liability. Hacket 1994, p. 216. 146 See Birnie–Boyle 2002, p. 26. 147 Lowe 1999, p. 31. 144 145

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In the space sector, it has been suggested that those recommendations which are adopted by the UN General Assembly unanimously could entail some binding normative force.148 The prevailing opinion is, however, that despite their seemingly wide support even these declarations nevertheless remain nonbinding recommendations only (except where they incorporate already existing rules of international customary law or space treaties). Today, the development of common, non-binding recommendations is a topical issue as regards the problem of space debris in particular. Given the fact that the Legal Subcommittee of the UNCOPUOS has thus far not even made this most prominent of the environmental problems related to space activities an agenda item, the emergence of a new, legally binding international agreement in this area seems quite improbable in the near future.149 A less obligatory approach seems imperative in the immediate term. The “Workshop on Space Law in the 21st Century” at UNISPACE III in 1999 concluded that “there is a need to have at least a code of conduct concerning space debris” and the UNCOPUOS Legal Subcommittee, together with the Scientific and Technical Subcommittee, “should discuss the topic without delay”.150 As mentioned earlier, in 2001 the UNCOPUOS invited the IADC, an organization of space agencies, to develop a set of guidelines for the purpose.151 The resulting guidelines were submitted to the UNCOPUOS the next year.152 Initially, the UNCOPUOS was expected to develop its own space debris document on the basis of the IADC guidelines by 2004,153 but this goal was extended to 2007154 due to states’ inability to reach a consensus. The Space Debris Mitigation Guidelines of the Scientific and Technical Subcommittee were adopted in 2007. Furthermore, some European space agencies have developed a “European Code

148 See, e.g., an early assessment of the unanimous resolutions of the General Assembly dealing with outer space, in Christol 1965. The author has concluded that the “unanimous resolutions and declarations of the General Assembly are ascending a critical slope of legal authority”. Christol 1991, p. 328. 149 Clearly, there also exists no rule of customary international law that would require preservation of outer space, as is evidenced by the increasing degradation of this environment. Rzymanek 1995, p. 157. 150 Conclusions and Proposals of the Workshop on Space Law in the 21st Century 1999, para. 5. 151 Report of the Scientific and Technical Subcommittee on its 38th session 2001, para. 130. 152 Inter-Agency Space Debris Coordination Committee space debris mitigation guidelines (UN Doc. A/AC.105/C.1/L.260). 153 Report of the Scientific and Technical Subcommittee on its 38th session 2001, para. 130. 154 Report of the Scientific and Technical Subcommittee on its 42nd session 2005, Annex II, para. 6.

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of Conduct for Space Debris Mitigation”, which provides recommendations on mitigation measures that represent the current best practices.155 Thus there already exist some international codes of conduct which contribute to environmentally more benign management of space activities. However, as the difficulties with the adoption of a space debris document by the UNCOPUOS show, once a larger number of states is needed to reach an agreement on a set of rules (even voluntary ones), the process easily becomes complicated. As with conventional international treaty-making, the problem of the lowest common denominator comes into the picture again. However, a code of conduct does not require state action; it can be created through cooperation among space agencies or even private entities.156 Indeed, the IADC Debris Mitigation Guidelines and the European Code of Conduct for Space Debris Mitigation are both efforts of space agencies. Of course, the more space agencies and other stakeholders there are to adopt a code of conduct, the more difficult it is to achieve agreement. Moreover, the IADC Debris Mitigation Guidelines seem to evidence the lowest common denominator problem, as they are mostly a collection of the least demanding recommendations or guidelines of the various space agencies. Yet the space agencies have at least been able to agree on the adoption of the instrument. Obviously, it should be much easier indeed to achieve consensus at the level of space agencies, who all share more or less the same concerns and same understanding of the relevant issues, than at the governmental level, where many other, distinctively political agendas (e.g., defense, economic and foreign affairs) can play a prominent role.157 In addition to the space debris mitigation instruments, there are other examples of codes of conduct within the space sector. The partner states of the International Space Station (ISS) have created a Code of Conduct for the ISS Crew. The ISS Code of Conduct provides interesting pointers which could prove useful also in the regulation of other aspects of space activities, environmental ones included. It is an example of a voluntary code which has been incorporated in a legally binding agreement. Pursuant to the international legal foundation of the ISS partnership, the Agreement on the Civil International Space Station, “[t]he Code of Conduct for the Space Station crew will be developed and approved by all the Partners in accordance with the individual Partner’s internal procedures, and in accordance with the [Memoranda of Understanding]”.158

155

For a more detailed assessment, see above. See Mirmina 2005, p. 659. 157 See ibid., p. 660. Of course, all of these space agencies except ESA are national space agencies, which typically have close ties with governmental authorities. 158 Art. 11.2. This means the memoranda of understanding which the ISS partner states have negotiated in conjunction with their negotiation of the ISS Agreement to provide more detailed provisions for implementation of the agreement (see preamble of the agreement). 156

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A partner state cannot provide personnel to the ISS unless it has approved the code of conduct and it must ensure that its crew members also observe the code.159 Hence the Agreement on the Civil International Space Station is an internationally binding treaty requiring that a—in principle—voluntary code of conduct has to be created and observed. Violations of the code of conduct can thus entail practical legal consequences, as they simultaneously constitute a breach of a treaty obligation. States may also require international compliance with other kinds of standards as a condition for concluding contracts or cooperating on joint space missions. Thus a formally non-binding code of conduct and an international treaty are by no means mutually exclusive instruments. There is no reason why such a structure could not be used in environmental management of the space sector, too. Of course, inclusion of the environmental requirements in domestic legislation would ensure the widest possible compliance, but absent states’ will this is impossible. Pending such will, codes of conduct can, at their best, particularly where combined with treaty provisions requiring their application, provide relatively effective means of securing compliance with environmental standards.160 Even if the adoption of a common code of conduct does not prove feasible, at least some sort of coordination between the codes of different states and space agencies should be encouraged.161 The planned and existing codes of conduct in the space sector mostly concern the problem of space debris. These codes of conduct are largely congruent. The more innovative and detailed the environmental codes of conduct are that are developed for space activities, the more potential for conflicts between them there is, however. As long as the provisions of a code of conduct remain recommendatory only, no major difficulties should arise; if they evolve in one way or another into norms of an increasingly binding character, however, problems may emerge. Of course, discrepancies can eat away the credibility of recommendatory instruments, too, and render them ineffective. At worst it may even be difficult for stakeholders to determine what in fact is the recommended course of action. Hence it should be ensured that the various recommendations are consistent with each other. An example of less successful coordination of recommendatory instruments is provided by the re-/de-orbiting provisions of the IADC Space Debris Guidelines and the NPS Principles of the UN. Pursuant to NPS Principle 3.2 “[n]uclear reactors may be operated … [i]n low-Earth orbits if they are stored in sufficiently high orbits after the operational part of their mission”.162 A sufficiently high orbit is defined as “one in which the orbital lifetime is long enough to allow

159 160 161 162

Art. 11.2. See Mirmina 2005, pp. 659–660. Kerrest 2001, p. 873. Principle 3.2.a.iii (emphasis added).

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for a sufficient decay of the fission products”;163 in most cases this would mean hundreds of years. The IADC, on the other hand, adopts quite the opposite approach. The IADC post-mission disposal recommendation for (all) spent LEO spacecraft is that they be de-orbited (direct re-entry if possible) or maneuvered into a lower orbital altitude where their lifetime will not exceed 25 years.164 The same IADC guideline further provides that “[i]f a space system is to be disposed of by re-entry into the atmosphere, debris that survives to reach the surface of the Earth should not pose an undue risk to people or property”. Furthermore, “ground environmental pollution, caused by radioactive substances, toxic substances or any other environmental pollutants resulting from onboard articles, should be prevented or minimised in order to be accepted as permissible”.165

Hence the IADC guidelines clearly suggest that spacecraft equipped with NPS should follow the same basic disposal recommendations, only taking special precautions. There is a major difference between these two instruments in this respect: the NPS Principles propose that spent spacecraft be moved into higher orbits for long-time storage, whereas the IADC recommends a quite contrary policy, i.e., reducing the orbital lifetime of spent spacecraft as much as possible.166 5.2.8. International Standards and Mutual Recognition of National Authorizations Also worth discussing in this context are certain regulatory mechanisms whose operation is the responsibility of national administrative bodies. The salient instruments here—again common in the environmental sector—are permits, certificates, licenses, labels, and the like. They are among the most widely used techniques to prevent environmental harm. For instance, environmentally hazardous activities or the use of natural resources may be made subject to licensing procedures. Usually, the idea of such systems is to control severe environmental degradation, not eliminate harmful effects altogether.167 The various authorization processes also increasingly incorporate environmental impact assessments, which will be studied in more detail later.168 Such procedures can operate as parts of regimes that build on mutually agreed international

163 164 165 166 167 168

Principle 3.2.b. Section 5.3.2. Emphasis added. See Nazarenko et al. 2005, p. 562. Shelton–Kiss 2006, p. 36. Kiss–Shelton 2000, p. 211.

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standards and corresponding reciprocal recognition between the states involved of permits and like authorizations issued by competent national authorities for those who comply with the international requirements. Powers to determine the relevant standards may even be conferred on an international body.169 Standards have been defined as “prescriptive norms that govern products or processes or set limits on the amount of pollutants or emissions produced”.170 For instance, there may be internationally agreed standards specifying design requirements or operating procedures for facilities, or permissible means and methods of certain activities (process standards).171 Another type of standards are those used for regulating aspects related to specific items: their composition, technical performance, handling and packaging, for instance. These are often called product standards.172 Standards may also set the level of accepted emissions of pollutants from specified sources; emission standards regarding fixed installations are in fact the most common type of standards required by international agreements.173 Another kind of approach is quality standards that determine the accepted level of pollution in a certain environment (also called ambient quality standards). They may vary according to the particular use made of the environment (or environmental resource).174 Thus the spectrum

Sand 1990, p. 22. Shelton–Kiss 2006, p. 24. 171 One example is provided by the requirements of the 1991 Protocol on Environmental Protection to the Antarctic Treaty on waste incineration, another one by those establishing a ban on driftnet fishing pursuant to the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific. 172 For instance, there exist various types of ‘eco-labels’ which are meant to help the consumer identify environmentally friendly products. Germany has been a pioneering state in the use of ‘eco-labels’, a system which has later been adopted (in various versions) by many other states in Europe in particular. See Jordan et al. 2006, p. 486. The first international eco-labelling scheme was that established by the EC Council Regulation 880/92 of 23 March 1992. Later, this scheme has been revised to, i.a., include a European Union Eco-labelling Board (Commission Decision 2000/730/EC of 10 November 2000). See Sands 2003, p. 862. For more on environmental labels, see, e.g., Kiss–Shelton 2000, pp. 219–220; Sand 1990 pp. 26–28. International product standards also include the 1992 Amendments to the MARPOL Convention, which demand that new oil tankers be built with ‘double hulls’ to reduce environmental risks of oil transport. 173 Consider the examples of the climate change regime, the protocols to the 1979 Convention on Long-Range Transboundary Air Pollution, and regional seas agreements, for instance. 174 For example, water quality standards set for drinking water and fishing may not be the same. An example from this sector is the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, which calls for the determination of water quality objectives and water quality criteria (Art. 3.3 and guidelines for the purpose in Annex III). 169 170

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of international standards is wide.175 Such standards can be used in national authorization of the potentially harmful movement and use of substances, products and activities. International organs can even be made to issue the authorizations, but the domestic authorities responsible for the functioning of such mechanisms have handled this task successfully where there has been enough compatibility between and mutual recognition of procedures, as well as cooperation between national specialists.176 Indeed, international licensing requirements and similar mechanisms are increasingly common in the environmental sector, also contributing to transparency in environmental decision-making.177 For instance, ships on international voyages must carry valid certificates (issued on the national level) as evidence that they comply with the requirements of the MARPOL. National authorities are also responsible for issuing waste disposal permits on the basis of various global and regional instruments, such as the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. As regards other types of wastes, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal relies exclusively on national authorities to issue waste export and import authorizations. Another example of an area which relies heavily on reciprocal acceptance of national certification is the trade of chemicals. A more specific type of trade is trade in endangered species, for which the Convention on International Trade in Endangered Species of Wild Fauna and Flora has established global trade controls which are based on mutual recognition of national permits and certificates. Examples of a similar approach with a longer history include the classification and labeling of alcoholic beverages, sea- and airworthiness certificates for ships and aircraft, and international telecommunications, especially within the ITU scheme, which has relevance for the space sector.178 Considering the inherently international nature of the space sector, the use of international standards as the basis for authorization would seem appropriate in many cases also beyond the ITU system. Licenses and the like based on 175 See Kiss–Shelton 2000, pp. 194–197; Shelton–Kiss 2006, pp. 34–35. Many such standards actually emerged initially not from international standard-setting or even national regulation but as a form of voluntary, unilateral self-regulation, possibly in response to criticism from environmental or other NGOs. The industry (or other organization in question) may thus have acted purely out of immediate self-interest, in order to be more competitive by gaining good publicity and support. Of course, there may be also more ethical values involved even on the part of the industry itself. Typically, however, the prime interest of such actors has not been the protection of social or environmental values but the maximization of economic profit. Campins-Eritja–Gupta 2004, pp. 251, 261–262. 176 Sand 1990, p. 22. 177 See Kiss–Shelton 2000, p. 213. 178 See Sand 1990, pp. 22–23.

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commonly agreed limits could regulate the activities with maximum legitimacy and effectiveness. If each state were to set its own standards, the result might be significant differences in technical and safety requirements and ensuing distorted competition. For instance, some sort of international type-approval for space objects might be considered. This approval could be based on factors such as certified compliance with uniform, internationally agreed emission standards for spent fuel, waste, etc., and end-of-lifetime disposal capabilities for the entire space object. The international regulatory body to approve satellite and launch vehicle designs could be authorized to consider also other aspects of the environmental suitability of payloads.179 The competent national agencies could then apply these standards when considering licenses for space activities.180 An international standardization mechanism could provide a tool for diminishing the various kinds of environmental threats related to space activities. However, it is no panacea. One fact which might work to the detriment of such proposals is that, traditionally, many licensing systems have not required public authorities to get approval for their projects, particularly for military ones.181 Space missions very often involve at least some military application.182 Secondly, international standardization is not a tool well suited to tackling problems already created. It hardly can ever affect the operation of satellites and other objects which have already been put into outer space.183 Considering, for instance, that the debris-generating objects currently present in Earth orbits can be enough to render these areas hazardous forever (if nothing is done), standardization alone clearly will not suffice. It can, however, work as one useful tool among others in the environmental management of space activities. Although the Space Debris Mitigation Guidelines produced by the IADC are called ‘guidelines’, they have been described as a de facto “standard for the responsible space operator”. Considering that they are the product of eleven

Williamson 2006, p. 264. For comparison, see, e.g., Sand 1990, p. 23, on the licensing of imported cars in Europe under the 1958 Geneva Agreement Concerning the Adoption of Uniform Conditions of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts. 181 Kiss–Shelton 2000, pp. 211–212. 182 It has been pointed out, however, that the more intensive the use of outer space becomes, the more interest the military, too, should have in reliable regulations. For instance, despite its initial reluctance, the military now favors increasingly stricter codes of conduct for the management of the space debris problem. Cosmic Study on Space Traffic Management 2006, p. 54. 183 The situation is different as regards pre-existing installations on Earth: at least technically (even if not politically) it is usually possible to make their future operations subject to review and licensing requirements in accordance with new standards. In contrast, our present technology does not allow the same in respect of objects already in outer space. 179 180

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focal space agencies world wide and in essence a compilation of the standards used by those agencies, such a conception seems relatively well-founded.184 If the guidelines are widely followed, they could, for all practical purposes, provide a substitute for an international treaty.185 On the other hand, the IADC guidelines have also been termed a “vision statement”, i.e., they are not formulated as real standards but merely as goals to be achieved.186 If this is the case, the obligations they can replace can only be of an equally ambiguous nature at best.187 Regardless of how they are perceived, the IADC guidelines can at least help in putting increasing political pressure on non-complying space operators to adopt similar measures.188 Moreover, the IADC guidelines are already used by some national licensing authorities as standards for assessing applications. In the UK, an applicant for a space activity license has, i.a., to provide an assessment of the risk to public safety and property for each phase of the mission. The relevant legislation, the Outer Space Act, was enacted in 1986. The hazards of space debris were not yet adequately recognized at that time, but the legislation is flexible enough to allow the assessment of proposed debris mitigation practices, for instance, when considering license applications. In practice, the evaluation of applications draws significantly upon the IADC Debris Mitigation Guidelines and the European Code of Conduct for Space Debris Mitigation: the measures provided by these instruments are used for assessing compliance of the applicants’ proposed activities with the best practices of the space sector. For instance, compliance of re-orbiting plans with the recommendations of the IADC guidelines is examined.189 Hence, the IADC guidelines can be used nationally as a ‘standard for the responsible space operator’ also in a legally relevant manner. Another country which has incorporated international space debris mitigation measures in its national licensing procedure is the US: the rules adopted by the FCC in 2004190 expressly require end-of-lifetime disposal strategies to be accordant See Mirmina 2005, p. 661. Perek 2005, p. 588. 186 Davey–Taylor 2005, p. 566. 187 See Crowther et al. 2005. 188 Mirmina 2005, p. 662. As examined earlier, the UNCOPUOS Scientific and Technical Subcommittee has also adopted its own space debris mitigation document, which draws heavily on the IADC guidelines. The space debris document of the subcommittee is also called ‘guidelines’ instead of ‘standards’—apparently partly because subcommittees of UN General Assembly Committees have no history in adopting technical operational standards for spacecraft design. There have even been doubts concerning the expertise of the Technical and Scientific Subcommittee to draft such standards (despite the fact that many of its representatives also work in the IADC, for instance). Ibid., p. 658. 189 See Crowther et al. 2005. 190 FCC Order “Mitigation of Orbital Debris”. 184 185

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with the IADC Debris Mitigation Guidelines and the essentially identical ITU recommendation.191 The International Organization for Standardization (ISO) has begun work on creating debris mitigation standards based on the IADC guidelines to “capture best practices in satellite design, manufacture and operation that support international space debris minimization goals”.192 In 2002, ISO experts concluded that there was a need for engineering design standards “to enable implementation and verification of requirements derived from debris mitigation guidelines”, and possibly also to “improve the reliability and survivability of space systems in the debris environment”.193 The Sub-Committee “Space Systems and Operations” of the ISO’s Technical Committee “Aircraft and Space Vehicles”194 set up an Orbital Debris Co-Ordination Working Group (ODCWG) in 2003 to examine the issue. The goal is to provide the space industry with “measurable and verifiable requirements” (either to be specified in a standard or as a result of a process defined in a standard).195 In principle, the idea is that ISO standards could provide an unequivocal and concise common framework for the interpretation and implementation of the IADC Debris Mitigation Guidelines. This framework would consist of “design and operational requirements, management and reporting processes, and supporting technical databases of tools, models and reference information”. The aim is to develop standards which are consistent with existing guidelines and other measures adopted in order to ensure the acceptance (and use) of the standards both by states and space industry. Each ISO standard is to represent “internationally agreed practices for a particular aspect of debris mitigation”. In addition to preparing the ISO debris mitigation standards, the ODCWG works on developing liaisons with other agencies involved in debris mitigation. This is to facilitate building a consensus between all stakeholders and to help identify the current industry best practices.196 The first standardization projects that were agreed on concerned implementation of debris mitigation satellite disposal requirements throughout a project (including preparation of debris mitigation plans)197 and satellite propellant measurement and management in orbit for the purpose of debris mitigation.198 191

ITU-R S.1003. “New FCC Orbital Debris Ruling” 2004. 193 Davey–Taylor 2005, p. 566. 194 Known as ISO TC20/SC14. 195 Davey–Taylor 2005, p. 569. 196 Taylor 2005, pp. 14–15. 197 ISOWD24113 “Space Systems–Orbital Debris–Part 1: Routes to compliance and management for debris mitigation”. 198 ISOWD23339 “Unmanned spacecraft remaining useable propellant mass estimation”. The next work item proposals to be studied concern information exchange between operators, collision avoidance, and satellite disposal (by re- or de-orbiting). 192

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The ISO expects to publish its first standard on debris mitigation in 2008. One of the problems identified by the ISO is that on many topics there exists no industry best practice as yet and hence those topics are not sufficiently mature to be developed into ISO standards.199 Also, the lack of advanced enough technical methods or data may prevent the development of a standard on a certain issue. Another type of challenge to the preparation of ISO standards on debris mitigation is posed by the simultaneous discussions on the same topic within the IADC and the UNCOPUOS.200 Of course, compliance with standards of the ISO, as a nongovernmental organization, is voluntary and it has no powers of enforcement. Yet, the ISO is a network of national standards institutes operating in 156 countries and, moreover, “occupies a special position between the public and private sectors”. Many of the member institutes are involved in their national governmental structures or have a governmental mandate. Some other members have originated completely in the private sector. As the ISO works on consensus,201 its standards should show a balance between the business and governmental interests (typically involving also wider societal interests). ISO standards can be adjusted in accordance with developments in technology or political preferences: the ISO requires review of its standards at least every five years to decide whether they should be maintained, amended or withdrawn. Moreover, as the ISO develops its standards only in response to market need, many of them have achieved widespread applicability. Despite the voluntary and private nature of ISO standards, they have gained considerable practical influence in the globalized markets—even to the extent that they can substitute for national or international standards and regulation, thus becoming in effect mandatory.202 Commitments to international standards may also be made legally binding. In some states, for instance, certain ISO standards (particularly relating to health, safety and environment) have been incorporated in the national regulatory framework or referred to in legislation as a technical basis, in which

There are also many other items under consideration. For a detailed list of the standards projects, see Davey–Taylor 2005, p. 567. 199 Taylor 2005, p. 15. 200 Davey–Taylor 2005, p. 568. 201 The principle of consensus applied by the ISO has been defined somewhat ambiguously as “absence of sustained opposition”. Ibid., p. 567. For a summary of the process of development of ISO standards (including the voting majorities required at different stages), see ibid., p. 570. 202 See Campins-Eritja–Gupta 2004, pp. 264–265. One obvious problem with such development is the legitimacy of the standards, as they are not established through any kind of democratic process. This situation seems particularly questionable from the point of view of many less developed countries, for whom the price of compliance with ecological standards, for instance, can be prohibitive. For a more detailed treatment, see ibid., pp. 265–270.

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case the standards in question become legally relevant (not of course due to an international provision to that effect but because of the sovereign decision of the state to make them such).203 Provided that the ISO is capable of developing feasible, realistic standards on the mitigation of orbital debris, some states might incorporate its standards into their national legislation. Voluntary standards such as those of the ISO can be referred to in international legal agreements as well.204 The possibilities of wider utilization of the standards of another international standardization organization (even specific to the space sector), the European Cooperation for Space Standardization (ECSS),205 have also been examined.206 In addition to attempts to create international standards for the needs of the space sector, one suggestion is that spacefaring states develop a single form to be used when submitting applications to the different national regulatory authorities for the same space mission.207 The Legal Subcommittee of the UNCOPUOS has encouraged states to develop national space legislation further, including, e.g., harmonization of national rules regarding space permits.208 In the EU, even the

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“International Organization for Standardization, Overview of the ISO System”. Another interesting example is provided by the Missile Technology Control Regime (MTCR). Although a voluntary arrangement, this regime, which now comprises a total of 33 states, has been quite successful. Essentially, it is a system of shared export policy applied to a list of controlled items relevant for delivery systems for weapons of mass destruction. This export policy is stated in the MTCR Guidelines and annex for controlling transfers of such items (Guidelines for Sensitive Missile-Relevant Transfers and Equipment, Software and Technology Annex), which governments then implement in accordance with national legislation (para. 1). Hence, although the MTCR imposes no international penalties for violations, penalties may be imposed domestically. For more information, see Missile Technology Control Regime website. One more structurally quite similar regime is that of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. Unlike in the MTCR, however, the Wassenaar member states maintain their own export controls. They are required to report their decisions concerning the export of the equipment and technologies concerned. See the Wassenaar Arrangement website. 204 Campins-Eritja–Gupta 2004, p. 269. 205 The ECSS is an initiative started in 1993 to develop a coherent set of standards for use in all European space activities. For more on the work of the ECSS, see the European Cooperation for Space Standardization website. 206 See in particular the work of the research projects “Project 2001” and “Project 2001 Plus”. Gerhard–Schrogl 2005. 207 This application form could be similar to the Combined Application Form of the European Radiocommunications Office for Telecommunications, which the applicant can use in all member countries of the European Conference of Postal and Telecommunications Administrations. Gerhard 2001, p. 12. 208 Report of the Legal Subcommittee on its 41st session 2002, Annex IV, Appendix.

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option of actual harmonization of national space laws has been discussed;209 cooperation within ESA has already contributed to this end for the past quarter of a century.210 Thanks to the recent developments in the European space sector, it seems merely a matter of time before European space legislation and European space standards become a reality. The European Union White Paper on Space was adopted in 2003, and was followed immediately by the conclusion of a framework agreement between the EC and ESA.211 The ongoing strengthening of ties between ESA and the EU and, above all, the possible entry into force of the EU Constitution212 pave the way for EU space law even further. Provided that all EU member states ratify the constitution—allowing it to enter into force—space activities would clearly be elevated to the level of EU’s founding treaties.213 5.2.9. Information Sharing and Other Forms of Cooperation Scientists can best identify environmental and technical problems as well as the response options available. Their organizations usually provide a relatively independent source of data, on the basis of which politicians can take decisions.214

209 The objective is to make the European space sector more effective and competitive by, i.a., reducing the attractiveness of ‘authorization shopping’ due to different requirements, costs and fees in the process of applying for various permits to carry out space activities. Gerhard 2001, p. 12. 210 ESA was established in 1975 (Convention for the Establishment of a European Space Agency). 211 The Framework Agreement between the European Community and the European Space Agency entered into force on 28 March 2004. 212 Treaty Establishing a Constitution for Europe. A proposal for the EU Constitution was adopted by the Intergovernmental Conference on 18 June 2004 and signed 29 October 2004; it has, however, not been ratified as yet. Space activities are dealt with particularly in Arts. III-146 – III-156. 213 Pursuant to Art. I-14.3 of the proposed constitution, “[i]n the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs”. Accordingly, space would belong to the category of shared competence between the EU and its member states. This shared competence is, however, different from the ‘normal’ shared competence provided for in Art. I-11.2, pursuant to which member states are allowed to use their competence (to enact legislation) only where the EU refrains from using its competence. In the space sector, the shared competence does not entail this peremptory effect: the competence of the EU is a sui generis competence of sorts, which allows it to define and implement programs in particular. What this means in practice still remains unclear, however. For more on the developments in the European space sector, see, e.g., Hobe 2003. 214 Birnie–Boyle 2002, p. 65. Although politics and science are mutually dependent,

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Both environmental law and space law are marked by a heavy reliance on science. Given the global nature of many, if not most of the problems in these areas today, the relevant science is also increasingly international, depending on multinational, multidisciplinary cooperation of experts. The networks within which such cooperation takes place are often referred to as “epistemic communities”.215 In addition to scientific and administrative (management) authorities, nongovernmental stakeholders, such as industry, research institutions, and environmental groups are often involved in these networks.216 International organizations provide an important arena for such cooperation. Personnel of an international organization may themselves act as members of epistemic communities. For less developed states in particular, the legal and technical expertise and diplomatic machinery offered by many international organizations is of major importance.217 Instead of focusing on states or their cooperation, however, the concept of epistemic community typically highlights the role of single individuals and their abilities to change the attitudes of political decision-makers and the public.218 The greater the uncertainty surrounding an issue, the more significant the role of epistemic communities tends to be. The environment is an area where their work has been particularly influential. Where global environmental hazards involving relatively high levels of uncertainty are concerned, plausible and sufficiently extensive scientific information has proven decisive for convincing states of the need to adopt obligations to curb the increasing problems.219 Science is essential already in identifying the problematic issues for which legal regulation is needed.220 For instance, the problem of space debris has been finally put on the inter-governmental agenda thanks to careful scientific study lasting many years.221 Even the currently focal precautionary principle, which in fact derives from the acknowledgement of uncertainty and the limitations of science,

confidence in science as a source of relatively reliable knowledge plays a focal role in political decision-making. See Underdal 2000, pp. 10–11. For a more detailed assessment of the intertwined relationship of politics and science, see Skodvin–Underdal 2000. 215 On the historical development of the role of epistemic communities (those of scientific and technical professionals in particular) in environmental policy-making, see Kuokkanen 2002, pp. 249–254. 216 See Sand 1990, p. 29. 217 Birnie–Boyle 2002, p. 36. 218 Breitmeier 1997, p. 91. 219 See Raustiala 1997, pp. 56–58. Apparently, governments have also been most willing to adopt international obligations in those areas where there exist transnational epistemic communities. Haas–Sundgren 1993, p. 417. 220 de Sadeleer 2002, pp. 175–176. 221 Cosmic Study on Space Traffic Management 2006, p. 19. Other examples where scientific research has played a decisive role in making the state community address global problems are ozone depletion and climate change. Underdal 2000, p. 3.

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confers upon scientists a central role, albeit “less for the knowledge that [they offer] than for the suspicions and doubts to which [they give] rise”.222 This role is further strengthened by the requirement of continuous re-evaluation of the scientific evidence on which any precautionary action is based, in order to enable corresponding revision of decisions taken.223 Where international environmental problems are concerned such re-evaluation necessitates extensive monitoring and international collaboration in assessing the data obtained. Hence effective information sharing and permanent, direct contacts are essential among scientists and the various other national actors entrusted with the implementation of international environmental obligations.224 Cooperation and reciprocity are thus central factors for the success of most international environmental agreements when identifying relevant issues for regulation, formulating legal regimes, and implementing them. Typical information sharing requirements in international environmental law concern the state of the environment and activities that have the potential to cause environmental degradation.225 Environmental treaties contain also many other types of requirements relating to information. These include provisions on surveillance, reporting, monitoring, consultations and notification of emergency situations.226 The availability of reliable information is also very relevant for conducting environmental impact assessments, which will be studied in more detail below. The role of information is equally focal in the space sector. Already the OST set out the general requirement for states to share information about factors potentially affecting the space activities of others.227 Due to the inherently international nature of space utilization and the major risks involved, it is obvious that information-sharing is essential and that epistemic communities play a significant role. Above all, the UNCOPUOS and its subcommittees are instrumental in the development of international space law from setting the agenda through implementation and monitoring of the agreed instruments. In addition, there is a broad range of other relevant international (governmental and nongovernmental) bodies. The IADC provides a prominent example of de Sadeleer 2002, p. 178. Ibid., pp. 179–180. 224 See Sand 1990, pp. 29–30. For a more detailed treatment of the intertwined and often complicated relationship between science and legally relevant decision-making, see de Sadeleer 2002, pp. 174–201. 225 See Sands 2003, p. 826. 226 Ibid., pp. 828 et seq. One of the most detailed monitoring systems is that of the 1979 Convention on Long-Range Transboundary Air Pollution, which in Art. 9 establishes a cooperative program for the monitoring and evaluation of long-range transboundary air pollutants in Europe (known as EMEP). This program provides for, i.a., the development and use of “comparable or standardized procedures for monitoring” and data exchange. See also Arts. 3 and 8. 227 Art. IX. 222 223

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space-agency level cooperation where all involved share more or less the same interests and understanding of issues and speak a common expert language.228 This greatly facilitates information exchange and reaching agreements—the premier evidence of which is the IADC Space Debris Mitigation Guidelines. Such cooperation should be further encouraged and better supported (in terms of financial and other resources). Considering the ‘free rider’ problem in particular, states’ willingness to abide by common decisions regarding the environmental protection of outer space depends considerably on adequate certainty that others are doing their part. Often it is only the scientists who are capable of telling whether this actually is the case. Transparent information sharing is thus focal.229 If only the will exists, that is even relatively easy to organize. However, more complex cooperational mechanisms, even completely new international bodies, might also be needed. For instance, one proposal building essentially on cooperation between high-ranking scientists worldwide is that for the establishment of an international consultative expert body (consisting of representatives of major space agencies and the space industry, including also small operators) to consider issues relevant to environmental protection of outer space and to raise international awareness of them.230 It has been suggested that cooperation for the purpose of limiting space pollution would be needed also on a broader (and apparently deeper) basis between scientists, lawyers and “ethical committees”.231 Regardless of the form of international cooperation, it is likely to build general confidence and encourage the consideration of further steps of collaboration,232 thereby generating valuable stimuli for the future development of space law as well. 5.3. Environmental Impact Assessment One salient mechanism which derives from the ideology of sustainable development233 and the precautionary principle is environmental impact assessment See Perek 2002, p. 129; Mirmina 2005, p. 660. See Vogler 2000, p. 38. 230 Williamson 2006, pp. 261–263. 231 Pursuant to the UNESCO Working Group on “Ethics of Outer Space”, “[t]he creation of ethical and juridical frameworks presupposes the development of a symbiosis between scientists, lawyers and ethical committees”. The Ethics of Space Policy 2000, p. 26. 232 See Sand 1990, pp. 29. 233 EIA has also been depicted as a procedural element of sustainable development (Birnie–Boyle 2002, p. 95) or, in other words, one of the most important means of implementing the goal of sustainable development (Harrop–Nixon 1999, p. 2; Training Manual on International Environmental Law 2006, p. 26). Obviously, any sustainable management of the environment is largely dependent on the ability to anticipate consequences of activities. Morgan 1998, p. 1. Whether treated as a ‘sub-principle’ or 228 229

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(EIA).234 EIA has been defined in short as a “procedure for evaluating the likely impact of a proposed activity on the environment”.235 EIA seems particularly suitable for the space sector, where it is extremely difficult to amend any environmental adversities once they have been created, yet demand for the use of space resources is already high and increasing fast. Moreover, prospects for acceptance of the EIA among the international space community appear relatively promising, as requirements to conduct impact assessment procedures are increasingly common in national legislation—in environmental legislation obviously, but also in national laws governing space activities and in the regulations of space agencies. EIA is a common tool on the international level, too, particularly in international environmental instruments. Although environmentalist aspirations have not been among the most popular ones in the use of outer space, it has become quite clear that without an increasingly precautionary approach, the space sector will continue to create environmental hazards that will rapidly diminish its future prospects. 5.3.1. History and Status The earliest mandatory EIA procedures were introduced back in 1969 through the US National Environmental Policy Act (NEPA).236 Since then, the terrain has broadened dramatically, and not only in the industrialized world but in developing states as well. EIA obligations are also broader in scope and more detailed.237 Today, there are regulations for project-level EIA in over 100 countries, yet with considerable variations in the types of projects assessed, details

procedural element, or a tool for implementing the aim of sustainable development, environmental impact assessment clearly is a more substantive, less abstract mechanism, resembling rather a concrete rule than a broad principle. See also Verschuuren 2003, p. 34. 234 The relationship of EIA to the precautionary principle can be defined in different ways. For instance, it can be seen as constituting a tool to define the ‘best information available’, which can establish the need for precautionary action. On the other hand, an EIA may itself constitute the first precautionary measure after some other means have shown the need to adopt a precautionary approach. Trouwborst 2006, pp. 174–175. 235 Espoo Convention on Environmental Impact Assessment in a Transboundary Context, Art. 1.vi. A longer definition of environmental assessment in general is, for instance, “an environmental management tool whose objective is to identify, predict and evaluate the potential biological, physical, social and health effects of a proposed action and to communicate the findings in a way which encourages environmental concerns to be adequately addressed by stakeholders, including decision-makers and communities prior to development decisions being made”. Harrop–Nixon 1999, p. 2. 236 EIA had been practiced informally already before that. Ibid., p. 4. 237 Shelton–Kiss 2006, p. 38.

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of procedure, and the number of assessments carried out.238 Nevertheless, the methodology used and the basic features of the process tend to be quite alike.239 Furthermore, there has been a significant increase in both the type of activities to which assessments are applied and the scope of such assessments, which nowadays extend far beyond the purely environmental.240 For instance, assessing social and health impacts is a standard component of EIAs today241 and has often allowed the selection of an alternative which is environmentally, economically and socially superior to the original choice.242 The idea of EIA as a part of national policy has been adopted in the international arena, too. The increasing recognition of EIA and its potential value as an instrument to promote sustainable development was reflected, for instance, in Principle 17 of the 1992 Rio Declaration: Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

This very broad formulation suggests a process which takes account of all environmental impacts, those on the domestic level as well as those affecting the environment of other states and areas beyond national jurisdictions. Despite its broadness, the principle also sets some limits. Firstly, the requirement of “significance” excludes from assessment impacts which are minor or temporary only; they must exceed a certain threshold of importance.243 Secondly, the principle indicates that undertakings which cannot be labeled “activities” are excluded. For instance, general plans and strategies do not easily fall into the category of “activities”, which seem to suggest something more defined and advanced.244 Thirdly, with its reference to likelihood the principle sets another condition, namely, that of foreseeability, which triggers the duty to carry out an EIA.245 Although the notions of ‘significance’ and ‘activity’ have all the potential to create complications, ‘foreseeability’ is particularly problematic. It can lead to a sort of vicious circle: the object of an EIA is to find out whether harm Cordonier Segger et al. 2002, p. 59. Birnie–Boyle 2002, p. 131. 240 Cordonier Segger et al. 2002, pp. 58–59. 241 Ibid., p. 61. 242 Harrop–Nixon 1999, p. 9. 243 The notion of significance is commonly applied in regulation concerning EIA. However, it is hardly ever defined in detail. For a more detailed account, see Gilpin 1995, pp. 6–7. 244 See below for a more detailed assessment of Strategic Environmental Assessment and Sustainability Impact Assessment as environmental assessment tools suitable for earlier stages of planning processes. 245 Birnie–Boyle 2002, p. 134. 238 239

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is likely, yet an assessment of the likelihood of harm needs to be done before the obligation to conduct an EIA arises. Although states should exercise good faith in making the determination, this may not help the potentially affected states very much in practice. If the source state finds that the activities it is planning are not likely to cause significant environmental harm, it is quite difficult for other states to challenge this determination and request an EIA, if for no other reason than the sheer lack of information.246 A possible detour around the problem is to use the precautionary approach of Rio Principle 15 to lower the threshold of risk when making a decision on the likelihood of harm (and thus on the need for an EIA).247 The Protocol on Environmental Protection to the Antarctic Treaty sets an example of another type of solution based on a graduated approach: it requires an “initial environmental examination” to be conducted for all activities except for those having “less than a minor or transitory impact”.248 A “comprehensive environmental evaluation” is then required if the likely impact is found to be “more than a minor or transitory” one.249 Thus, 246

Ibid. Also a general obligation to notify and consult with other states arises only once international environmental harm is deemed likely. According to Rio Principle 19, “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith”. 247 Rio Principle 15, promoting a general precautionary approach of which impact assessment procedures are a vital part, states: “In order to protect the environment, the precautionary approach should be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. An example of the application of this principle for lowering the required foreseeability of harm in international treaty law is the UNCLOS, Art. 206 of which requires that states do an EIA when they have “reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment” (emphasis added). 248 Annex I, Art. 2.1 (emphasis added). According to this provision, “[u]nless it has been determined that an activity will have less than a minor or transitory impact, or unless a Comprehensive Environmental Evaluation is being prepared in accordance with Article 3, an Initial Environmental Evaluation shall be prepared. It shall contain sufficient detail to assess whether a proposed activity may have more than a minor or transitory impact and shall include: (a) a description of the proposed activity, including its purpose, location, duration and intensity; and (b) consideration of alternatives to the proposed activity and any impacts that the activity may have, including consideration of cumulative impacts in the light of existing and known planned activities”. Paragraph 2 continues: “[i]f an Initial Environmental Evaluation indicates that a proposed activity is likely to have no more than a minor or transitory impact, the activity may proceed, provided that appropriate procedures, which may include monitoring, are put in place to assess and verify the impact of the activity”. 249 Annex I, Art. 3.1 (emphasis added).

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within this system most activities will be subject to at least some type of an assessment. The Espoo Convention on EIA in a Transboundary Context tries to tackle the problem in still another manner by giving other states the right to invoke an inquiry commission procedure (albeit a legally non-binding one250) to determine whether an EIA is needed in case of disagreement.251 Obligations under international environmental law that require EIAs were first introduced in the context of potential transboundary impacts of particular projects. This is no surprise, considering that a transboundary EIA is, in effect, a mere extension of a national EIA procedure to foreign impacts and actors.252 The first transboundary EIA mechanism of international importance was the EIA Directive adopted by the EC in 1985.253 There are also international agreements on EIA which establish their own EIA systems.254 Many of these follow the example of Rio Principle 17 in their formulations of the obligation to conduct an EIA. Among the most significant international EIA conventions is the UNECEsponsored 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context. However, even the Espoo Convention bases its EIA procedure in a flexible manner on the national EIA system of the state in which the activity proposal to be assessed originates.255

250 In practice, the entire transboundary procedure under the convention applies only if both states concerned so agree. See Koivurova 2002, pp. 329–331. 251 Pursuant to the Espoo Convention, first there is an obligation of the states concerned to discuss the matter. If the discussions fail, either state (normally the potentially affected state) has the right to initiate an inquiry procedure, in which an expert panel gives its opinion on the significance of the potential harm (Art. 3.7 and Appendix IV). The Espoo Convention also has a list of activities (in Appendix I) which require an EIA, but only when these activities are “likely to cause significant adverse transboundary impact” (Art. 2.2). EIA is thus not automatically required even for all the listed activities. On the other hand, the convention also allows for activities other than those listed in Appendix I to be the subject of prior EIA if the parties so agree (Art. 2.5), and even sets out guidance to assist in determining the significance of a proposed project. Such criteria include the size, location and effects of the planned activity (Appendix III). 252 Koivurova 2002, p. 289. 253 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. This directive was mostly concerned with harmonization of national EIA procedures within the EC. The 1985 directive has later been amended, to above all increase its congruence with the 1991 Espoo Convention on EIA in a Transboundary Context, as the EC joined this convention in 1997 (see Council Directive 97/11/EC of 3 March 1997). Another amendment took place in consequence of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (see Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003). 254 Interestingly, the US Senate had suggested a general international convention for a transboundary EIA procedure as early as in 1978. See Koivurova 2002, pp. 289–290. 255 Pursuant to Art. 2.2, “[e]ach Party shall take the necessary legal, administrative

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With the growing recognition of international interdependence, obligations to conduct EIAs have arisen also in relation to activities which are proposed to take place in areas beyond the limits of national jurisdiction.256 Such obligations can be found, for instance, in the 1991 Protocol to the Antarctic Treaty on Environmental Protection with its detailed obligatory EIA scheme257 and the 1982 UNCLOS.258 The Convention on Biological Diversity also refers to the need to conduct national EIAs.259 Even international organizations may have their own environmental assessment procedures. For instance, the World Bank requires an environmental impact assessment for all proposed investment projects “to help ensure that they are environmentally sound and sustainable, and thus to improve decision making”.260 The projects are screened for domestic, transboundary and global environmental impacts.261 Furthermore, business and industry have developed their own procedures for environmental assessment. The Business Charter on Sustainable Development of the ICC calls for prior assessment of environmental impacts “before starting a new activity or

or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II”. Furthermore, “[t]he Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact”. This entails a national EIA procedure which meets the minimum requirements set by the convention, and a licensing procedure for activities listed in Appendix I. 256 On the history and role of EIA in international law in more detail, see Sands 2003, pp. 799–825. 257 Art. 8 and Annex I. 258 Art. 206. 259 This convention addresses EIA in a rather lukewarm manner, however. According to Art. 14.1, “[e]ach Contracting Party, as far as possible and as appropriate, shall: (a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures”. 260 Para. 1, Environmental Assessment, World Bank Operational Manual 4.01. 261 Para. 3. Many other international lending agencies, such as the Asian Development Bank, the European Bank for Reconstruction, the European Investment Bank, and the Inter-American Development Bank also require EIAs. See Birnie–Boyle 2002, p. 131 fn. 388; Morgan 1998, p. 8. Thanks to the requirements of such organizations, EIA has been introduced in many countries where there were no previous obligations to conduct EIAs. Ibid.

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project and before decommissioning a facility or leaving a site”.262 Indeed, many multinational companies have set up environmental assessment systems of their own.263 It has been argued that there even exists an obligation under customary international law to conduct an EIA in cases entailing a risk of harmful environmental consequences.264 As regards domestic impacts (i.e. impacts confined to the area of the state where the harm originates), there does not seem to be much evidence suggesting the existence of an international obligation to conduct an EIA, however.265 Neither do international treaties require the assessment of global environmental impacts in an extensive manner. Furthermore, there does not exist much state practice to support such an obligation of customary international law. One exception is the law of the sea, where there is an abundance of treaty obligations requiring that states assess activities likely to affect the marine environment and that they also report the findings to relevant international organizations.266 Another area where there is noteworthy state practice to support the existence of a customary law obligation to conduct EIAs is transboundary EIA. For instance, although the US NEPA does not expressly deal with impacts outside national territory, court practice has extended its application in a manner which suggests that the national EIA requirements also apply to transboundary impacts, and even to the Antarctic.267 There are also countries Principle 5. See Harrop–Nixon 1999, pp. 6–7. 264 Such a conclusion is supported, i.a., by the fact that the Rio Declaration was adopted by consensus. 265 The few examples that can be seen as providing some support for the existence of such an EIA obligation are the Rio Principle 17 and the Convention on Biological Diversity, as well as some non-binding UNEP documents on EIA. See Birnie–Boyle 2002, p. 132. 266 Examples include the 1982 UNCLOS (Art. 206), as well as several regional conventions: e.g., the 1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Art. 12); the 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Art. 16); the 1985 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Art. 13); the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Art. 7); and the 1992 Convention on the Protection of the Black Sea Against Pollution (Art. XV.5). 267 For instance, Canadian plaintiffs have been allowed standing to challenge the EIA where oil development in Alaska has affected them. US courts have held that NEPA also applies to other US federal actions abroad (including highway construction in Central America and the spraying of weed killers on marijuana and poppy crops in Mexico). Moreover, the Court of Appeal confirmed in the case Environmental Defense Fund v. Massey that NEPA even applies to the Antarctic. Similar practice can be found in Canada, where a federal court required the assessment of the extraterritorial impacts of a dam in 1989. See Birnie–Boyle 2002, p. 132 and fns. 398–400. Both Canada and 262 263

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whose national legislation explicitly refers to the assessment of extraterritorial effects.268 The most comprehensive international agreement on EIA is the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context.269 According to Article 2.1, the goal of the convention is that states “either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities”.270 The ICJ’s decision in 1997 in the Gabcikovo-Nagymaros case further supports the proposition that there is a duty to conduct EIAs before proceeding with serious transboundary projects under customary international law. In this case, Hungary accused Czechoslovakia of not having assessed the impacts of the hydro-electric project in question in an adequate manner.271 Although the ICJ did not expressly address the need for EIA in its decision, it stressed the need to take account of new norms and standards of international environmental law, the principle of sustainable development in particular, and required the parties to “look afresh” at the environmental effects of the project and to cooperate in this. The precautionary approach—a focal element of sustainable development— and the EIA it typically entails clearly fall into the category of new international environmental norms and standards.272 Similarly, the ILC Draft Articles on

the US are also parties to North American agreements which require them to assess transboundary environmental effects (see 1991 Agreement Between the Government of the United States of America and the Government of Canada on Air Quality, Art. V.1; 1993 North American Agreement on Environmental Co-operation, Art. 2.1.e). 268 For instance, the Canadian legislation has been amended so that it now applies also to extraterritorial effects (Canadian Environmental Assessment Act 1992, c. 37, paras. 46–54). Other examples include Finland (1994 Act on EIA Procedure, Chapter 3; 1999 Decree on EIA Procedure, Chapter 5) and Germany (Gesetz über die Umweltverträglichkeitsprüfung, 8§, 9a§, 9b§). 269 The Espoo Convention is basically a regional international agreement, but a very significant one considering that it has thus far gained 41 participants (including the EC). Moreover, the US and Canada have also signed the Espoo Convention (in 1991), and the latter even ratified it in 1998. Although negotiated under the UNECE, the Espoo Convention was initially open for “States members of the Economic Commission for Europe [ECE] as well as States having consultative status with the [ECE] … and … regional economic integration organizations constituted by sovereign States members of the [ECE] to which their member States have transferred competence in respect of matters governed by this Convention” (Arts. 16–17). Furthermore, in 2001, the Meeting of the Parties decided to open the possibility for all UN member states to accede to the convention (Art. 17.3). For more on the Espoo Convention, see the United Nations Economic Commission for Europe website. The convention also provided a model for the EC Directive on EIA. 270 See Birnie–Boyle 2002, p. 132. 271 Para. 41. 272 See paras. 140–141. “Throughout the ages, mankind has, for economic and other

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Prevention of Transboundary Harm from Hazardous Activities require that “[a]ny decision in respect of the authorization of an activity within the scope of the present articles shall, in particular, be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment”.273 It can be thus concluded that if environmental impact assessment is an obligation of international customary law, it applies at most to risks of transboundary harm to the environment of other states and hazards to the oceans.274 5.3.2. Procedure and Goals Instead of being a simple, technical procedure, any single EIA process usually comprises a variety of different activities.275 Typically, an EIA includes a preliminary information-gathering phase and a report, followed by a possible decision to proceed with the project in question. There may also be additional measures, such as investigations and studies, public meetings and consultations. EIA is primarily meant to provide the decision-makers with information that is as comprehensive as possible about the different environmental effects the proposed activity would entail, including alternative courses of action in terms of location, technology, design, and scale, alternative means for implementing a planned policy, and the zero-alternative, i.e. the no-action alternative. The potential effects of the possible alternatives should also be assessed, and plans for mitigation in respect of each alternative outlined. The assessments take account of environmental impacts on ecosystems, diminution of aesthetic and scientific values, long-term or cumulative effects, as well as transboundary implications. reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind—for present and future generations— of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past”. Para. 140 (emphasis added). 273 Art. 7. 274 Alternatively, (instead of being a customary law obligation) EIA could perhaps be regarded at least as a general principle of law. Birnie–Boyle 2002, p. 131. See also the dissent of Judge Weeramantry in the 1995 Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case of the ICJ, where he stated that the principle of environmental impact assessment “is gathering strength and international acceptance, and has reached the level of general recognition at which this Court should take notice of it” (p. 344). 275 Morgan 1998, p. 3.

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They also consider issues such as pollution control, environmental protection measures, reporting, post-project analysis, and rehabilitation. Uncertainties in the assessment process must also be expressly presented, in keeping with the principle of precaution. One more common requirement is that the results of the assessment should be presented in a way that makes them understandable to the general public; scientific jargon incomprehensible to the layperson easily renders the right to participate in the EIA process quite meaningless.276 Obviously, an EIA which fails to describe at least the planned activity and its potential impacts, as well as mitigation measures and alternatives, would be practically futile.277 The central aspect of an EIA is to provide decision-makers with early, reliable, and adequate scientific information about possible effects of a planned activity on the environment. On the basis of this information, the final decision on whether the applicant is allowed to implement the plan—and on which conditions—is then taken.278 The EIA is thus essential for the prevention or minimization of environmental harm. The process has other important implications, too, one of the most relevant of which is the involvement of those potentially affected by the proposed activity. Accordingly, the majority of EIA systems require the participation of the public in some way alongside the relevant governmental authorities and other stakeholders.279 Such involvement has various aims. It may serve as testimony to good governance in general, provide an opportunity for public scrutiny, or, in more practical terms, constitute improved planning due to the concrete contribution of the public to the decision-making process. Clearly, it is also a tool for reducing conflict and developing wider support for the

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Unlike most other instruments of international law, the Espoo Convention on Transboundary EIA explicitly specifies also the minimum information which an EIA should contain. According to Art. 4.1 and Appendix II, this includes “(a) A description of the proposed activity and its purpose; (b) A description, where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the no-action alternative; (c) A description of the environment likely to be significantly affected by the proposed activity and its alternatives; (d) A description of the potential environmental impact of the proposed activity and its alternatives and an estimation of its significance; (e) A description of mitigation measures to keep adverse environmental impact to a minimum; (f ) An explicit indication of predictive methods and underlying assumptions as well as the relevant environmental data used ; (g) An identification of gaps in knowledge and uncertainties encountered in compiling the required information; (h) Where appropriate, an outline for monitoring and management programmes and any plans for post-project analysis; and (i) A non-technical summary including a visual presentation as appropriate (maps, graphs, etc.)” (emphasis added). For a more detailed account of EIA procedures in general, see, e.g., Gilpin 1995; Morgan 1998. 277 Furthermore, it would hardly meet any standards of good faith in transboundary cooperation. Birnie–Boyle 2002, p. 135. 278 See Koivurova 2002, p. 132. 279 On the various aims of EIA in more detail, see Morgan 1998.

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eventual decisions: it performs the function of legitimizing decisions.280 In any case, EIA enables the public to gain information about planned activities and influence these developments in some way.281 However, the involvement of the public in different environmental assessment systems varies greatly.282 Besides, EIA is merely one input in decision-making. There may be other significant, even clearly overriding considerations—sometimes ones known only to the decision-makers.283 The functions of an international level EIA are similar. Additionally, it is likely to awaken governments and international organizations to the possibility of transboundary harm (or harm affecting areas outside national jurisdictions).284 The actual participatory rights given to a potentially affected state even by the Espoo Convention, for instance, are quite limited, however: they entail little more than a right to provide the state conducting the EIA with information.285 Furthermore, states have the right to be notified “as early as possible” of activities which may entail a transboundary impact affecting them.286 Provided that an affected state responds “within the [reasonable] time specified in the notification” and expresses its willingness to participate in the EIA process,287 it has the right to receive supplementary information288 and, subsequently, the Birnie–Boyle 2002, p. 95. Earlier, requirements concerning the distribution of information to and consultation with the public were ambiguous in many EIA systems. Today they have become important objectives of EIAs. Inadequate consultation with or informing of the public in an EIA process is also a common cause for litigation. See Shelton–Kiss 2006, p. 39. 282 Harrop–Nixon 1999, p. 90. For a more detailed assessment of public involvement in EIAs, see, e.g., Morgan 1998, pp. 147–177. 283 See Gilpin 1995, p. 24. 284 Birnie–Boyle 2002, p. 131. 285 Art. 3.6. An amendment made to the Espoo Convention in 2004 allows, as appropriate, affected parties to participate also in the so-called scoping phase: “[i]f the Party of origin intends to carry out a procedure for the purposes of determining the content of the environmental impact assessment documentation, the affected Party should to the extent appropriate be given the opportunity to participate in this procedure” (Art. 2.11). The Espoo Convention accords the public of the affected state the same rights of participation as enjoyed by the public of the source state (Art. 2.6). 286 Pursuant to Art. 3.1, “the Party of origin shall, for the purposes of ensuring adequate and effective consultations … notify any Party which it considers may be an affected Party as early as possible and no later than when informing its own public about that proposed activity”. Art. 3.2 continues: “This notification shall contain, inter alia: (a) Information on the proposed activity, including any available information on its possible transboundary impact; (b) The nature of the possible decision; and (c) An indication of a reasonable time within which a response … is required, taking into account the nature of the proposed activity”. 287 Art. 3, paras. 2–3. 288 Art. 3.5. 280 281

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EIA documentation.289 Finally, it has to be informed of the final decision, which is to include information on the reasoning on which it is based.290 The affected state should also be consulted regarding measures to reduce or eliminate transboundary impacts.291 Additionally, both states have the right to initiate consultations “as to whether the decision [on the proposed activity] needs to be revised” in light of possible additional information gained.292 However, the potentially affected states have no veto with regard to planned activities, nor is there any duty on the state under whose jurisdiction a proposed activity is to take place to refrain from it even if the EIA indicates potential for adverse transboundary impacts; the Espoo Convention only requires “due account” to be taken of the EIA and the comments on it when making the final decision on an activity.293 Thus, transboundary EIA is by no means a process of joint approval. It provides the potentially affected state with essentially procedural protection which facilitates information-sharing, participation in the process and accords it the possibility to influence the outcome of a plan.294 The more thorough an environmental assessment is, the more likely it is to require time and effort. Especially in cases where more than one state is involved, the process can be complicated, expensive and slow; one need only consider here space missions, which often involve subcontractors and other stakeholders of different nationalities. Nevertheless, the benefits of an EIA can be considerable, as it helps states avoid major environmental disasters and hence the duty to Art. 4. Art. 6.2. 291 Pursuant to Art. 5, “[t]he Party of origin shall, after completion of the [EIA] documentation, without undue delay enter into consultations with the affected Party concerning, inter alia, the potential transboundary impact of the proposed activity and measures to reduce or eliminate its impact. Consultations may relate to: (a) Possible alternatives to the proposed activity, including the no-action alternative and possible measures to mitigate significant adverse transboundary impact and to monitor the effects of such measures at the expense of the Party of origin; (b) Other forms of possible mutual assistance in reducing any significant adverse transboundary impact of the proposed activity; and (c) Any other appropriate matters relating to the proposed activity. The Parties shall agree, at the commencement of such consultations, on a reasonable timeframe for the duration of the consultation period. Any such consultations may be conducted through an appropriate joint body, where one exists”. Emphasis added. 292 Provided that such information “was not available at the time a decision was made with respect to that activity and … could have materially affected the decision” (Art. 6.3). 293 Pursuant to Art. 6.1, “[t]he Parties shall ensure that, in the final decision on the proposed activity, due account is taken of the outcome of the environmental impact assessment, including the environmental impact assessment documentation, as well as the comments thereon received [from the affected state party], and the outcome of the consultations [with the affected party]”. 294 Birnie–Boyle 2002, p. 135. 289 290

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pay (potentially substantial) compensation for damage.295 In fact, EIA has been characterized as the “servant of development”, a mechanism for supporting economic growth in particular.296 Moreover, the lack of an EIA procedure renders any duty to notify or consult other states in case of a transboundary risk quite meaningless. Prior EIA can thus be seen as a focal part of the general obligation of transboundary cooperation. Furthermore, where a state fails to undertake a proper EIA (let alone makes decision to proceed with an activity despite negative findings of an EIA) it may find it very difficult to argue that it has acted with due diligence if harm which could (or even should) have been foreseen occurs.297 Finally, subsequent monitoring of the ongoing environmental risks and impacts of projects can be regarded as a focal element of an effective EIA. Failure to institute proper monitoring may constitute a failure to act in accordance with the principle of due diligence. The Gabcikovo-Nagymaros case again provides an illustrative example. The reasoning of the ICJ in the case appears to be that the prior evaluation of impacts of proposed activities and subsequent monitoring of the effects and risks of ongoing projects together constitute an important manifestation of the precautionary approach and sustainable development.298 Prior EIA and later monitoring can even be seen as different phases of the same assessment process.299 What is more, the ICJ’s observations on the need to apply contemporary norms and standards should be applicable not only to planning-stage prevention but to subsequent management of environmental degradation as well. Thus effects of a project should be subject to See ibid., p. 131. Gilpin 1995, p. 3. 297 Birnie–Boyle 2002, p. 133. See also the 1995 ICJ case Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, where New Zealand tried to stop France from continuing nuclear tests in the Pacific without carrying out a prior EIA. 298 See para. 140. 299 This has been referred to in a more detailed manner by the concept of ‘continuing EIA’, as put forward by Judge Weeramantry in his Separate Opinion in the GabcikovoNagymaros case. According to Judge Weeramantry, “environmental impact assessment means not merely an assessment prior to the commencement of the project, but a continuing assessment and evaluation as long as the project is in operation. This follows from the fact that EIA is a dynamic principle and is not confined to a pre-project evaluation of possible environmental consequences. As long as a project of some magnitude is in operation, EIA must continue, for every such project can have unexpected consequences; and considerations of prudence would point to the need for continuous monitoring … The greater the size and scope of the project, the greater is the need for a continuous monitoring of its effects, for EIA before the scheme can never be expected, in a matter so complex as the environment, to anticipate every possible environmental danger”. Emphasis added. Judge Weeramantry described EIA as “a specific application of the larger general principle of caution”, which “embodies the obligation of continuing watchfulness and anticipation”. Part B.a. 295 296

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monitoring throughout its implementation and, if needed, the implementation to be modified accordingly. Moreover, states should consult and cooperate in the implementation of projects that might affect other states’ interests. However, national EIA procedures containing compulsory post-project analysis are apparently still relatively rare.300 5.3.3. EIA and Space Law 5.3.3.1. Current Situation Despite its success in many other fields—and the obvious need for it in the space sector as well—environmental impact assessment is not a well-established tool in the international law of outer space. This is not surprising, however, considering the role of EIA as a tool for preventing transboundary impacts in particular. Obligations regarding transboundary impacts obviously are not particularly pertinent to the space sector, because of the inherently international nature of the activities, which mostly take place in global commons. Despite the introduction of some international obligations to conduct EIAs for activities that are proposed to take place in areas beyond the limits of national jurisdiction, such obligations have not been adopted for the space sector yet. As the UN space treaties were drafted at a time when environmental considerations were not central, their content in this respect is modest: the treaties lack provisions regarding environmental impact assessment, for instance. The nearest equivalent to any environmental assessment is contained in Article IX of the OST, which requires prior consultations in the case of a planned space activity or experiment that might cause “potentially harmful interference” with the space activities of other states parties. This, however, is an illustrative example of a futile duty to undertake consultations, for it is not coupled with any obligation whatsoever to take account of the outcome of such consultations. Another instrument produced by the United Nations, the UN General Assembly resolution “Principles Relevant to the Use of Nuclear Power Sources 300 See Gilpin 1995, pp. 27–28. Neither does the Espoo Convention, for instance, ask for anything more in this respect than “an outline for monitoring and management programmes and any plans for post-project analysis” to be included in the EIA and, moreover, even that only “where appropriate” (Appendix II.h). If the states concerned agree on a post-project analysis, Art. 7 of the convention and Appendix V advise them further in the process. According to the latter, objectives of the post-project analysis include “(a) Monitoring compliance with the conditions as set out in the authorization or approval of the activity and the effectiveness of mitigation measures; (b) Review of an impact for proper management and in order to cope with uncertainties; (c) Verification of past predictions in order to transfer experience to future activities of the same type”.

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in Outer Space”, is more explicit as concerns the prior assessment of potential impacts of space missions. Principle 4 requires that a state launching a space object must ensure that “a comprehensive safety assessment” is conducted prior to the launch. Where relevant, this assessment should be done in cooperation with those who have “designed, constructed or manufactured the nuclear power source, or will operate the space object, or from whose territory or facility such an object will be launched”. The assessment is to cover “all relevant phases of the mission and shall deal with all systems involved, including the means of launching, the space platform, the nuclear power source and its equipment and the means of control and communication between ground and space”.301 Furthermore, “[t]he results of this safety assessment … shall be made publicly available prior to each launch, and the [UN] Secretary-General … shall be informed on how States may obtain such results of the safety assessment as soon as possible prior to each launch”.302

The NPS Principles are, however, a recommendatory, legally non-binding document only and, moreover, their focus is nuclear safety rather than environmental concerns in general. The situation is somewhat better at the domestic level. The national legislation of certain spacefaring countries and the regulations of national space agencies at least prescribe that states should provide some kind of information assessing the possible environmental consequences of their proposed space activities. For instance, the US NEPA is relevant for the space sector as well, given, in particular, the focal role of the US in space activities. Pursuant to NEPA, every “major Federal act” requires environmental impact assessment.303 Also, space launches are subject to the NEPA process. Although the EIAs for space missions focus primarily on impacts concerning the immediate surroundings of the launch site, global impacts and impacts to the space environment are also assessed to an extent. Furthermore, as regards threats related to the currently most severe form of space pollution, space debris, an instrument called “NASA Policy for Limiting Orbital Debris Generation” requires “formal assessment” on NASA programs of “[orbital] debris generation potential and debris mitigation options”304 in accordance with NASA Safety Standard 1740.14. The standard provides NASA programs with specific guidelines and assessment methods covering debris released during normal operations,305 debris Principle 4.1. Principle 4.3. 303 Sect. 102. See also the subsequent Executive Order 12133 “Environmental Effects Aboard of Major Federal Actions” of 1979, and Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA. 304 Art. 1.b. 305 Chapter 3. 301 302

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generated by explosions and intentional breakups,306 debris generated by onorbit collisions,307 post-mission disposal308 and survival of re-entering space system components.309 The system requires two orbital debris assessment reports to be completed, one at the preliminary design review of the mission and the other 45 days prior to what is known as the critical design review. In addition to the process based on NEPA and NASA policy and procedures, there is a separate interagency process for evaluating the nuclear safety of space missions: where NPS are used, a special nuclear risk assessment has to be made by the US Department of Energy.310 Moreover, for any space mission involving the use of nuclear energy (for heating or electrical power), launch approval must be obtained from the Office of the President.311 Also, applicants for a commercial launch license must provide assurance that the proposed launch does not pose unacceptable danger to the environment.312 An example from another major spacefaring country of national environmental assessment requirements in regard to space activities is the Russian Statute on Licensing Space Operations, which provides that in order to obtain a license for space operations in the Russian Federation, the applicant has to supply, i.a., “documents confirming the safety of space operations (including ecological, fire Chapter 4. Chapter 5. 308 Chapter 6. 309 Chapter 7. Additionally, Chapter 8 specifies in more detail the requirements for a debris assessment report. 310 In accordance with a Presidential Directive/National Security Council Memorandum 25, the US Department of Energy is a cooperating agency in an Environmental Impact Statement whenever the proposed mission includes the use of NPS. It prepares a special nuclear risk assessment which is then reviewed by an ad hoc Interagency Nuclear Safety Review Panel (supported by experts from government, industry and academia) which prepares its own report for the mission. 311 Presidential Directive/National Security Council Memorandum 25, para. 9. For a recent example of the assessment of impacts of a NASA space mission using NPS, see the environmental assessment documentation concerning the “New Horizons” spacecraft, which was launched 19 January 2006, and is intended to explore Pluto and its moon Charon. For more information on the mission, see the New Horizons website. The Draft Environmental Impact Statement (which contains nearly 200 pages) was released in February 2005. The subsequent Final Environmental Impact Statement (containing two volumes with over 300 pages in total) was released in July 2005. As the New Horizons mission uses a radioisotope thermoelectric generator, the US Department of Energy also prepared a nuclear risk assessment to support the environmental impact statement of the mission. 312 See the Commercial Space Launch Act (as amended by the Commercial Space Launch amendments Act of 2004). There are also provisions for compliance monitoring. For a more detailed assessment of this legislation, see, e.g., Hancock 2005; “The Commercial Space Launch Amendments Act of 2004” 2004. 306 307

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and explosion safety) and the reliability of space equipment”.313 In the same vein (but in a more pronounced manner), Australian legislation places the applicant for a launch permit under an obligation to present an environmental plan for the launch (and “any connected return”).314 As already mentioned above, pursuant to the 1986 Outer Space Act of UK, an applicant for a space activity license has, i.a., to provide an assessment of the risk to public safety and property. The legislation is flexible enough to allow the assessment of proposed debris mitigation practices, for instance, when considering license applications.315 However, in general environmental considerations still do not appear to rank among the focal issues in national space legislation either. Even where impact assessments are regularly conducted in a thorough manner, their practical relevance in decision-making may remain less significant.316 Partly, this is due to the lack of stringent obligations in international space treaties on states to guarantee at the domestic level that space activities are not environmentally harmful and that assessments to this end are made and taken into account in decision-making. Neither have many states been particularly interested in environmental problems related with space activities, at least until recently. Traditionally, national space legislation has been more concerned about fulfilling the (few) concrete obligations deriving from the UN space treaties (including, i.a., those relating to the registration of space objects) and providing the national space industry with incentives for development, for instance.317 Such Decree No. 104, 1996, Art. 5.h. Space Activities Regulations 2001, Reg. 3.01. According to Reg. 3.02(1)(g)(ii), the launches (and returns) under a launch permit have to be conducted in accordance with an environmental plan, containing the arrangements and procedures specified in Reg. 3.12. These include arrangements “for monitoring and mitigating any adverse effects of each launch, and any connected return, conducted under the launch permit on the environment; and … for implementing the plan; and … procedures … for reporting on the implementation of the plan; and … for reviewing the plan; and … for ensuring that each launch, and any connected return, conducted under the launch permit, is conducted in accordance with any applicable requirements under Australian law for the protection of the environment”. Similar requirements apply to the operation of launch facilities. Space Activities Act 1998, Sect. 18(b); Space Activities Regulations 2001, Regulations 2.04(2)(e)(ii) and 2.17. 315 See Crowther et al. 2005. 316 This is by no means a problem of the space sector only: the practical influence of EIAs in decision-making can be modest also in other activity areas. See Morgan 1998, p. 48. 317 For example, one of the main aims of Australian space legislation has been to support the national launch industry by providing it with a developed legal framework. The results in this respect have been less successful than was originally hoped for, though. Nevertheless, Australia now belongs to the most advanced states globally as regards the sophistication of national space legislation. It is also one of the few states which has ratified all the UN space treaties. Freeland 2005, pp. 57, 63. 313 314

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an approach is obviously not enough for ensuring effective regulation of the environmental aspects of space utilization. Space operations also often have important political and military significance, which may render environmental considerations secondary. One additional relevant type of norms, albeit non-binding, which touch upon the issue of environmental assessment in the space sector are those embodied in soft-law instruments created by certain international forums. Within international law, these are the most advanced norms relating to environmental assessment in space activities; they are mostly concerned with the problem of space debris. Above all, the IADC Space Debris Mitigation Guidelines recommend that “[i]n order to manage the implementation of space debris mitigation measures … a feasible Space Debris Mitigation Plan be established and documented for each program and project”.318 This Mitigation Plan should include 1) “management plan addressing space debris mitigation activities”; 2) “plan for the assessment and mitigation of risks related to space debris, including applicable standards”; 3) “measures minimising the hazard related to malfunctions that have a potential for generating space debris”; 4) “plan for disposal of the space system at end of mission”; 5) “[j]ustification of choice and selection when several possibilities exist”; and 6) “[c]ompliance matrix addressing the recommendations of these Guidelines”.319

Although not called ‘environmental impact assessment’, the Mitigation Plan in essence works much like an EIA. Other relevant norms include the guidelines and recommendations of national space agencies, such as the French CNES.320 A space debris document of the CNES321 was used as a starting point for the development of the European Space Debris Safety and Mitigation Standard, the requirements of which include the establishment of a space debris mitigation plan containing, i.a., “a management plan for space debris activities including assessment and mitigation of debris risks, measures for minimizing debris generation, and ultimately the disposal of the system in question”.322 The European Space Debris Safety and Mitigation Standard is intended to be read in conjunction with another European document, the ESA Space Debris Mitigation Handbook. In a similar manner, this handbook covers, i.a., debris mitigation guidelines Part 4. Part 4. 320 For a comparison of the environmental assessment regulations of national space agencies, see Chapter 6 of the IADC Protection Manual. 321 CNES Space Debris Safety Requirements. 322 Alby et al. 2004, p. 1261. See the same article for a more detailed account of the draft document. 318 319

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and techniques, post-mission disposal assessment, re-entry survivability and on-ground risk-assessment, as well as on-orbit collision avoidance assessment.323 5.3.3.2. The Future Potential of EIA in Space Activities Outer space is a unique arena in many ways. An obvious problem for any assessment of impacts in this sector is deficiencies in knowledge. Space activities involve both complex natural processes and challenging technological phenomena. Predicting the behavior of complicated systems is very difficult. Since much of the relevant subject matter is poorly understood and the tools currently available remain more or less inadequate for the task of assessment, any assessment of impacts on space is likely to be expensive and time-consuming. Lack of time and resources can thus pose serious constraints on the development of responsible conduct in space. Space activities are also ultra-hazardous, which diminishes the possibilities of prior evaluation of impacts. Furthermore, the modern space industry is a highly commercialized and militarized area of activity, where the stakeholders may not be very keen on distributing detailed information about their plans. Consequently, the inclusiveness of information most often leaves a great deal to be desired, and hence the outcome of proposed space activities can seldom be assessed in detail. Quality of information is, however, of paramount importance to the effectiveness of any impact assessment system.324 Scientists are usually expected to produce information that is as unambiguous as possible for the use of those who make the decisions about planned activities. The above limitations considerably increase uncertainty surrounding any conclusions in the space sector in this respect. In practice, the substantial gray area which thus exists between scientific resolution and political choice enables non-scientific factors to become significant components of debates regarding space missions.325 Moreover, political decision-making has a focal role in space activities. Regardless of how scrupulously impact assessments are conducted in the space sector, political considerations may eventually seem to override environmental concerns. Hence the relevance of the precautionary principle and sustainable development, for example, seems to rest on shakier ground where space activities are concerned. Nevertheless, sustainable development and the related principles are increasingly important for all space activities. The assessment of potential impacts is common practice in environmental development planning on Earth. No doubt also the space sector necessitates improved environmental protection and the For a more detailed treatment, see Klinkrad et al. 2002. Morgan 1998, p. 23. 325 Neither can the scientific assessment of potential impacts of planned activities be deemed as truly objective; value-based judgments and hence influence of, i.a., politics cannot be eliminated. Ibid., p. 31. In fact, EIA processes have often been accused of lacking an adequate scientific basis. See ibid., pp. 75–81. 323 324

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application of more precautionary practices, including environmental assessment systems.326 All stakeholders—even the military—should have an interest in keeping outer space a safe environment for operations also in the future. Environmental assessments are already conducted for many space missions on the basis of state or space agency regulation. Also more commonly accepted practices promoting the assessment of potential impacts of proposed space activities would be needed. The considerable scale and magnitude of the potential adverse impacts of space activities call for an equally wide scope of assessment. Even health and social impacts may need to be taken into account.327 The deficiencies in impact assessment caused by lack of data, time and resources—even will, in some cases—can partly be amended by ongoing monitoring programs, for instance. In any case, the potential for damage in space activities is so significant that a thorough assessment of environmental and other impacts of space missions can hardly be omitted, despite the high costs and uncertainties involved. Moreover, although environmental assessment requirements may occasionally be considered as something akin to additional restrictions on the development of the space industry, they can in fact work in quite the contrary manner. The use of environmental assessment systems may in the long run even reduce project costs as well as the time needed for reaching decisions because the assessment also identifies and evaluates those potential consequences which might require expensive pollution abatement technology or potentially substantial compensation for damage.328 This could (and should) make the assessment of environmental impacts increasingly appealing even to the large number of commercial entities active in the space sector. Additionally, environmental assessments can give many new stakeholder groups a say in the management of space activities. Effective prior assessment of environmental impacts is of course also likely to benefit the environment itself—not least in outer space, where many environmental amenities can be considered to have a more or less unique value and can thus be compromised forever by the introduction of pollution, for instance. Hence, if we are to develop environmental impact assessment in the space sector further, we should consult the existing environmental assessment documents of national space agencies and international organs, as well as the norms of national space legislation, in order to identify beneficial practices to protect both space operations and the environment. Some of the soft-law instruments that presently exist or are being drafted are already intended for future submission to international regulatory bodies, primarily the UNCOPUOS. Eventually, See also Williamson 2006, p. 246. Importantly, in defining its scope, the Espoo Convention refers to “any effect … on the environment including human health and safety … landscape and historical monuments” and includes even “effects on cultural heritage or socio-economic conditions”, in addition to effects on more “natural” parts (such as flora and fauna) of the environment (Art. 1.vii). 328 Harrop–Nixon 1999, p. 9. 326 327

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they can become norms that are binding upon the entire space community. It would indeed be desirable to have a coherent set of international environmental assessment standards applicable to all space activities in order to ensure a level playing field for all actors worldwide and to minimize the hazards of human activities for the global environment of outer space as efficiently as possible.329 Additionally, democracy would seem to require enhanced public participation, or at least more open distribution of information about human enterprises in space. In principle, the effects of space activities can affect all of humanity. Hence the public involvement component of EIA can even be seen as requiring a system on the international level that would provide various actors with possibilities to participate in environmental assessment. Of course, there is no realistic reason to expect any public participation mechanism of that magnitude to materialize in the near future. Nevertheless, a more communicative approach might be becoming increasingly important for mission planners and policy-makers also in practice. The present reality with its myriad groups with specialized interests in space and an increasing number of diverse space missions, combined with laws facilitating access to courts, for instance, considerably heightens the probability that the space sector will attract opposition, even legal challenges.330 On balance, extensive inclusion of the various stakeholders in a process which assesses the potential impacts of a proposed activity and its alternatives in a thorough and plausible manner is likely to significantly reduce complications and should thus appear attractive to all stakeholder groups. 5.3.4. Strategic Environmental Assessment and Sustainability Impact Assessment The EIA is a process applicable to ‘activities’ or ‘projects’. Such operations do not start from scratch but can in fact be already quite well developed at the time the EIA is brought into play. ‘Activities’ and ‘projects’ are typically part of 329 It has even been proposed that some sort of “international forum or mechanism based on the cooperation between international or national, governmental or nongovernmental organizazation [sic] and scientific communities should be established for the environmental assessment of certain space projects susceptible of having a harmful effect” and for research on the measures to be taken. Tatsuzawa 1998, p. 415. In a similar manner, another author has recently suggested that as regards future missions to the Moon and Mars (and in particular the possible establishment of bases there), scientific studies to determine the environmental impacts of planned missions be taken and submitted to inspection by an international scientific body, which could even have the right to make a final determination of the acceptability of the missions. Weidaw 2005, p. 280. 330 Sterns–Tennen 1995, pp. 268–269. Failure to anticipate such public scrutiny can lead to significant administrative delays, increased costs and missed opportunities. Ibid., p. 280.

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some broader policies. These policies can be written up years before the more detailed planning (and environmental impact assessment) of a particular project even begins. Yet the pre-existing policies can largely determine the practical implementation of particular projects. Hence the possibilities of an EIA process to have a real effect on the carrying out of certain activities can be relatively minor, no matter how scrupulously the EIA is done.331 Space activities are a good example of an area where policy-level planning is decisive. Strategic Environmental Assessment (SEA), as the next ‘step’ in impact assessment procedures, would thus seem to be a good option for supplementing individual space EIAs. As distinct from project EIA, SEA means carrying out EIAs of plans themselves, thereby directly addressing the environmental implications of proposed strategies and policies.332 Accordingly, SEA is conducted much earlier in the decision-making process than EIA. By extending the scope of assessment to cover earlier stages in planning cycles (policies, plans and programs in particular), strategic-level assessments offer a way of dealing with indirect and cumulative impacts (both space- and timecrowding effects) and enable the examination of alternatives which project-level assessments cannot address efficiently.333 Hence SEA provides a valuable new tool for sustainable development. Although the less detailed level of information at which SEA operates is likely to entail greater uncertainty in impact predictions,334 it often reduces the time and costs required for the subsequent project-level assessments.335 Nevertheless, practical application of SEA is still infrequent.336 Governmental authorities have tended to regard SEA with suspicion, in particular because it involves public interest groups in policy-making.337 Until recently, there has been little practical evidence suggesting the extension of the scope of assessment of environmental impacts to the treatment of plans and programs of a more general nature. The Espoo Convention requires that EIA “shall, as a minimum See Morgan 1998, p. 38. There exist various different definitions and classifications of SEA. For a more detailed account of them, see, e.g., SEA and Integration of the Environment into Strategic Decision-Making 2001, pp. 6–11. One definition given to SEA is that of the 2003 UNECE Protocol on Strategic Environmental Assessment: “the evaluation of the likely environmental, including health, effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme” (Art. 2.6). 333 Harrop–Nixon 1999, pp. 150–152. Typically, SEA requires less detailed information than project-level assessments. 334 Ibid., p. 154. 335 Cordonier Segger et al. 2002, p. 62. 336 Morgan 1998, p. 14. 337 Ibid., p. 36. 331 332

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requirement, be undertaken at the project level of the proposed activity”, in addition to which, “to the extent appropriate, the Parties shall endeavour to apply the principles of environmental impact assessment to policies, plans and programmes”.338 According to the Espoo Convention, the assessment of environmental impacts is thus mandatory only as regards “proposed activities”: the notion of activity refers to EIA, not SEA. Indeed, it has been suggested that SEA “goes beyond the present state of international practice”.339 Nevertheless, SEA is currently a highly topical issue in the international arena, with the European countries in particular having promoted it. In 2001, a directive “on the assessment of the effects of certain plans and programmes on the environment” was adopted by the EC and the European Parliament.340 The SEA Directive introduces a system of prior environmental assessment at the planning stage, the purpose of which is to “provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development”.341 The directive applies to certain plans and programmes (and their modifications) “likely to have significant environmental effects”.342 It provides for the involvement of the public and environmental authorities; in the case of likely significant transboundary effects, also the potentially affected state and its public are informed and reserved an opportunity to comment on the plan.343 The SEA Directive also requires subsequent monitoring of the implementation of the plans and policies adopted.344

Art. 2.7 (emphasis added). Birnie–Boyle 2002, p. 135. 340 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. The directive supplements the EIA system for projects introduced by Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, which covers construction work and other installations or schemes, as well as other measures affecting the natural environment or landscape. By now, EU member states have also enacted national legislation in accordance with the requirements of the SEA Directive, where necessary. For instance, Finland has enacted a law and a decree on the assessment of effects of plans and programs of the authorities on the environment. For an assessment of practical experiences in implementing Directive 2001/42/EC in the North European countries, see Environmental Assessment of Plans and Programs 2003. 341 Art. 1. 342 Arts. 2–3. 343 Arts. 6–7. 344 Art. 10. For a more detailed summary of the SEA Directive, see “EUROPA, Assessment of the effects of plans and programmes on the environment”. 338 339

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Another relevant instrument is the Protocol on Strategic Environmental Assessment, by which the Espoo Convention was supplemented in 2003.345 The protocol incorporates the impact assessment ideology of the Espoo Convention more firmly into the earlier level of planning: once in force, the protocol will require its parties to evaluate the environmental consequences (including effects on human health) of their official draft plans and programs.346 The SEA Protocol addresses also policies and legislation, but application of SEA to these is not mandatory.347 In addition to consultations between relevant authorities, the protocol provides for extensive public participation in government decisionmaking, much as the Espoo Convention does in the case of EIA.348 The protocol also contains an obligation to monitor the effects of implementation of the plans and programs.349 The multiple causes of deterioration of the space environment also seem to necessitate more proactive, integrated approaches than those found in conventional EIAs, which only represent a limited response to problems. The need is all the more pressing, as there are significant non-project-level factors behind individual space missions which determine the course of space activities—starting from the basic principle of international space law, namely, the freedom-of-use rule established by Article I of the OST. Within the political scene, government macro-economic and security policies often address space issues (either directly or indirectly) with modest consideration of the full scale of their impacts. The international tendency towards a profound increase in private space activities is only likely to diminish recognition of environmental and social impacts. Furthermore, SEAs can better take into 345

Although negotiated under the UNECE, the SEA Protocol, too, will be open to all UN member states (Arts. 21, 23.3). It currently has 38 signatories and six states parties (Finland, the Czech Republic, Albania, Sweden, Bulgaria, Germany). 346 The plans and programs to which the protocol applies are specified in Art. 4 and Annexes I and II. The effects about which the protocol is concerned are defined as “any effect on the environment, including human health, flora, fauna, biodiversity, soil, climate, air, water, landscape, natural sites, material assets, cultural heritage and the interaction among these factors” (Art. 2.7). In contrast to the Espoo Convention, socioeconomic conditions are not included in this list (see Espoo Convention, Art. 1.vii). Furthermore, the SEA Protocol is more concerned with the assessment of plans and programs within a state than with transboundary effects. 347 Art. 13. 348 Arts. 8–10. The SEA Protocol builds not only on the Espoo Convention but also on the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention); the protocol even contains explicit references to the Aarhus Convention (Art. 15 and preamble). For an introduction to the Aarhus Convention, see “United Nations Economic Commission for Europe, Aarhus Convention”. 349 Art. 12. For more information on the SEA Protocol, see “United Nations Economic Commission for Europe, Protocol on Strategic Environmental Assessment”.

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account impacts which are distant from the particular project that initially causes them, ‘distance’ here referring to remoteness either in time or space,350 both of which are uniquely relevant to the space sector. On balance, the cumulative assessment enabled by SEAs would thus seem to be a highly appropriate tool for supplementing individual EIAs for space missions. SEA could also appear appealing to spacefaring entities, considering the typical reduction in time and costs involved in the subsequent project-level assessments. On the other hand, the policies, plans and programs to be addressed by SEA may often be seen as requiring a level of confidentiality which makes public consultation before their approval (and sometimes even after it) impossible;351 this could very likely be the case in many instances in the space sector. One tentative example of an SEA-oriented approach in the space sector is provided by the IADC Space Debris Mitigation Guidelines, the idea of which is that space debris mitigation measures should be “taken into consideration from the very early phases of project planning”.352 For example, the European SEA instruments (the directive and the protocol) presented above could serve as models for better-defined SEA practices in the space sector. On the other hand, the focal role of political decision-making in space activities is likely to diminish the significance of any environmental assessment systems. Furthermore, the fundamental freedom-of-use principle and the right of every state to retain jurisdiction and control over its space missions must also be respected. The more significant the potential international impacts of a space project, however, the more the balance should be tipped away from state discretion. This is all the more necessary when one considers that the prior assessment of environmental impacts of proposed activities can even be seen as a focal part of the general obligations of international cooperation and consultation required by the space treaties. Failure to undertake a proper environmental assessment may also constitute evidence of a breach of a due diligence obligation if reasonably foreseeable harm eventually occurs. Finally, among the most recent “innovations” in the integrated impact assessment field is the introduction of what are known as Sustainability Impact Assessments (SIAs).353 They take into consideration environmental, social and Harrop–Nixon 1999, p. 151; Morgan 1998, p. 201. See Harrop–Nixon 1999, p. 154. 352 Support to the IADC Space Debris Mitigation Guidelines, p. 8 (emphasis added). Pursuant to Part 4 of the guidelines, “[d]uring an organisation’s planning for and operation of a space system it should take systematic action to reduce adverse effects on the orbital environment by introducing space debris mitigation measures into the space system’s lifecycle, from the mission requirement analysis and definition phases”. 353 The abbreviation SIA has also been used for ‘social impact assessment’. Such assessments are not discussed in this work separately. However, the assessment of social impacts should be part of a careful EIA. Morgan 1998, p. 33. One more distinct type of impact assessment (yet not very relevant for this treatise) is the HIA, Health Impact 350 351

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economic factors and apply to policies, plans, programs and projects, seeking strategies which will result in long term sustainability. SIAs are increasingly concerned with processes, i.e., with the soundness of institutional planning and management, including mechanisms for the meaningful involvement of the appropriate stakeholders. Access to information and public participation are considered essential, and efforts are made to involve public interest groups in all aspects of the SIA system. Currently, there are still few concrete international legal obligations referring to SIAs.354 As regards space activities, conducting impact assessment at the level of SIAs would be a substantial improvement and could, for instance, better integrate the increasingly important private sector into the assessment procedures. However, for the moment, adopting even somewhat effective environmental impact assessment and strategic environmental assessment procedures seems like a demanding enough task. 5.4. Dispute Resolution For decades, only the most powerful states were capable of conducting activities in outer space. They were very few in number and could hardly constitute any practical hindrance to each other’s space activities. In such a setting, differing opinions in space law meant little else but disputes of an academic character. Even where more substantive disagreements arose, the strategic relevance of space exploration and the traditional emphasis on state sovereignty made the few prominent players generally reluctant to commit themselves to settle disputes in a legally binding manner. Also, to some extent, the idealistic picture of space adventure as a common project for all humankind made it possible to believe that negotiations and diplomacy should normally be enough to solve controversies in a pre-judicial phase.355 Since those times, the space sector has changed substantially. It has expanded at an ever increasing pace, both as regards the number and type of actors involved and the volume and variety of activities. Space programs have been undergoing a rapid shift from government-sponsored to commercial ventures. Accordingly, direct participation of private enterprises has grown fast.356 Both states and private entities are investing heavily in space activities, in consequence of which the stakes in the game have become manifold. Conflicting views on the use of outer space are also now incompatible in practice and often cannot be resolved by negotiations or consultations alone.357 Even as recently as in the Assessment. Potential health impacts should also be studied in an EIA. For more on the HIA, see, e.g., Environmental Impact Assessment Review 2005. 354 Cordonier Segger et al. 2002, pp. 64–65. 355 von der Dunk 2002, p. 442. 356 Böckstiegel 1993(a), pp. 33–34. 357 Böckstiegel 1994, p. 136.

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1980s, however, very few cases in the space sector were brought before tribunals; disputing parties preferred to negotiate the settlement of their controversies. Today, in contrast, different types of disputes (contracts, intellectual property, insurance law, etc.358) are increasingly submitted to binding resolution by a third party.359 Disputes which are not exclusively governed by public international law can be settled in a legally binding manner by national courts chosen in accordance with the jurisdiction rules determined by the laws of the states involved. Differences between private entities, even when they are of international character, tend to be less problematic than disputes where a private party is in disagreement with a state. Litigation in cases of the latter type can involve significant procedural inequality. Moreover, states and international organizations may avoid the process altogether by invoking their immunities, for at the international level there are no courts with compulsory jurisdiction. The other option for binding dispute settlement is arbitration (national or international). Compared to traditional court proceedings, the arbitral process has many potential advantages in the resolution of international conflicts involving different types of entities.360 Accordingly, disputing parties in the space sector resort to adjudication by courts relatively seldom. Instead, where negotiations do not solve a conflict, the favored method of dispute settlement is arbitration. Arbitration is often preferred by the space industry in disputes falling completely within domestic jurisdictions361 but it is used in particular in international commercial controversies (both by public and private entities).362 This part of the study first examines briefly the dispute settlement methods provided by the existing instruments of the international law of outer space. Secondly, it studies the suitability of the two binding dispute resolution

358 Obviously, space activities may generate numerous different types of disputes. Conflicts may originate from, i.a., violation of ITU registration procedures, harmful interference between satellites, or unlawful occupation of orbital slots. Inactive or malfunctioning satellites and space debris can also cause problems. Disputes between parties in joint ventures may arise concerning interpretation of contracts, for instance. See Supancana 1998, pp. 181, 199. These controversies can also involve many elements which are not space-related for any other reason than their occurrence in a dispute taking place in the space sector. Accordingly, many disputes are likely to extend beyond what is considered ‘space law’ in the sense of public international law. For a more detailed assessment of the variety of space-related cases, see, e.g., Ravillon 2004 and, particularly, Gorove 1996. 359 Ravillon 2004, p. 2. 360 Böckstiegel 1993(a), p. 34. 361 See Meredith 1996; Salin 2000, pp. 39–40. 362 See, e.g., Böckstiegel 1994, pp. 139–140; Bourely 1994, p. 145. For a more detailed treatment of certain arbitral cases concerning operations of the international satellite industry, see Ravillon 2003, pp. 820–825.

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mechanisms in international law, adjudication and arbitration, in respect of space activities. Finally, it surveys the possibilities of developing a more effective international dispute resolution system for the needs of the modern space sector. In principle, most of the dispute settlement mechanisms available in international law (such as the ICJ and the Permanent Court of Arbitration) can also be used for solving space-related disputes.363 None of them, however, are specifically tuned to modern space activities. This is a major problem considering in particular that it may still be “more than their amount … the specificity and complexity of the controversies arising from … space activities that create difficulties in the settlement of disputes”.364 Moreover, the international dispute resolution mechanisms have traditionally been reserved for states only,365 and indirect protection of the interests of private entities in international conflicts by their respective states has in many cases proven neither sufficient nor effective.366 5.4.1. Dispute Settlement under International Space Law Resolution of disputes is of obvious practical importance for the complex space sector today, but the legal instruments available are not always well equipped for this purpose. Space law is still a relatively young regulatory system, one where the focus has long remained on establishing international rules in the first place instead of their practical implementation and settlement of disputes. Although the question of dispute resolution has been discussed in the space sector for

von der Dunk 2002, p. 442. Bourely 1994, p. 144. 365 Interestingly, the Permanent Court of Arbitration has recently granted limited access to IGOs and even private parties. It adopted a new series of dispute protocols (Permanent Court of Arbitration Optional Rules) between 1992 and 1996, pursuant to which it now offers arbitration also for disputes in which only one party is a state (PCA Optional Rules for Arbitrating Disputes Between Two Parties of which Only One is a State); in which one party is a state or an international organization and the other is an international organization (PCA Optional Rules for Arbitration Involving International Organizations and States); and in which one party is an international organization and the other private party (PCA Optional Rules for Arbitration Between International Organizations and Private Parties). Hence, the PCA allows for both public and mixed public/private arbitrations. As concerns purely private disputes (between two private parties), PCA’s role is confined to some assistance at most. Above all, it often operates as an agency to select arbitrators. For instance, Art. 6.2 of the UNCITRAL Arbitration Rules permits either disputing party to request the Secretary-General of the PCA to designate an “appointing authority”. See Havel 2002, pp. 46–48. 366 See Böckstiegel 1993(a), p. 34. The time-consuming bureaucratic procedures that the government-to-government dispute resolution typically entails can in themselves render the process practically futile. Supancana 1998, p. 275. 363 364

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decades already,367 an extensive understanding of its fundamental role seems to have developed only recently.368 There are numerous international instruments which in one way or another deal with the settlement of controversies in the space sector, but the system they make up is fragmented and often inadequate.369 Despite its rather large volume, UN-sponsored space law provides only little practical help in this regard. The UN treaties governing the use of outer space, which date back to the 1960s and 1970s, contain few provisions for dispute settlement and the provisions they do have do not offer effective means for the purpose. They are ambiguous in their demands and very state-oriented; private enterprise is not even mentioned. The space treaties do not even provide for binding third party resolution of disputes; they only call for consultation procedures. The UNGA space principles resolutions provide equally non-intrusive means to resolve disputes.370 Admittedly, negotiations and consultations371—usually the first means of conflict resolution applied in international disputes372—can help prevent disputes from becoming intractable and leading to a cycle of reciprocal countermeasures. However, they may or may not be effective and the consequences of potentially never-ending stages of negotiations are difficult to predict.373 Moreover, serious conflicts can seldom be settled by negotiations alone. The inadequacy of the dispute settlement mechanisms provided by the existing international space law is a problem also from the point of view of See, e.g., Settlement of Space Law Disputes 1980. von der Dunk 2002, p. 442. 369 It was calculated in the early 1990s that a total of 57 international instruments concerned dispute settlement in space activities. See Böckstiegel 1993(a). However, most of them are either very limited in their scope of application or provide for non-binding mechanisms only. Within the current study it is not feasible to make even close to a comprehensive survey of all the different dispute settlement regimes of the space sector. Moreover, dispute resolution mechanisms of bilateral agreements are not examined in this treatise at all. For a short overview of various dispute settlement provisions of bilateral treaties, see Cocca 1992, pp. 196–197. 370 The Direct Satellite Broadcasting Principles speak about “peaceful settlement of disputes … through established procedures … agreed upon by the parties to the dispute in accordance with the provisions of the Charter of the United Nations” (Principle E); so do the Remote Sensing Principles (Principle XV). In the same vein, the Nuclear Power Source Principles refer to “negotiations or other established procedures for the peaceful settlement of disputes, in accordance with the Charter of the United Nations” (Principle 10). 371 The two terms usually are employed synonymously. Romano 2000, p. 47. 372 Ibid., p. 48. 373 Negotiations can be bilateral or multilateral, and conducted at different levels and by various agents through traditional diplomatic channels or within international organizations, conferences or meetings of informal character. See ibid., pp. 47–48. 367 368

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environmental degradation of outer space. It has been argued that environmental considerations and the resolution of disputes in the space sector are linked by a vicious circle of sorts. Provisions concerning the preservation of environment in space activities lack the precision required of obligations which could (even in principle) be enforced under international procedures of dispute settlement. The ambiguity of the obligations of UN space law makes states reluctant to adopt compulsory procedures for the resolution of disputes, as it is highly difficult to predict the exact scope and content of obligations that can be derived from such clauses. Following this reasoning, more specific environmental and other rules for the conduct of space activities should make states more inclined to accept a comprehensive, binding system for the settlement of disputes.374 5.4.1.1. The Outer Space Treaty The Outer Space Treaty is the ‘constitution’ of the international law of outer space. Where the settlement of disputes is concerned, however, it goes no further than to emphasize cooperation and demand consultations in case of a conflict.375 Additionally, Article III requires that States Parties to the Treaty shall carry on activities in the exploration and use of outer space … in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.

Thus the OST indirectly refers the question to the traditional methods of international dispute settlement listed in the UN Charter, according to which disputing parties are to first “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”.376 If such means fail in achieving a resolution to the conflict, the UN Charter indicates that “legal disputes should as a general rule be referred by the parties to the International 374 See Jaenicke 1990, p. 255. On the other hand, given the—in principle— fundamentally common interests of the international community in the management of the global environment, one can notice a shift away from traditional, adversarial dispute settlement mechanisms. In the environmental sector, there is a clear tendency towards non-compliance procedures, for instance. See Fitzmaurice 1997, p. 399. Considering that outer space, too, is one part of the human environment and that space activities are, furthermore, explicitly proclaimed as the ‘province of all mankind’, one could presume that something similar would emerge also in this field. Obviously, it is, however, not realistic to expect anything such in the very near future. Therefore this work does not examine non-compliance procedures at all, for instance. 375 See Art. IX. Besides, the consultations as referred to in the OST operate rather as a technique to avoid conflicts than to solve them. Jasentuliyana 1983, p. 233. 376 Art. 33.1.

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Court of Justice”,377 which is the principal judicial organ of the UN.378 However, no dispute settlement procedure which would result in a legally binding decision is made compulsory by the UN Charter either; the Statute of the ICJ (being part of the UN Charter) merely allows states to declare themselves subject to the Court’s compulsory jurisdiction.379 Besides, the ICJ only hears disputes between states,380 which disqualifies a substantial number of the entities participating in space activities today. Moreover, even states have been quite reluctant to recognize the ICJ’s jurisdiction as compulsory: only few countries which can truly be labeled ‘spacefaring’ have submitted a declaration to that effect.381 5.4.1.2. The Liability Convention The Liability Convention is the other broadly accepted UN space treaty which accommodates the issue of dispute resolution. It represents a step forward compared to the OST by establishing a special Claims Commission procedure. The convention allows states to assert liability claims on their own behalf and on behalf of corporations or individuals under their jurisdiction.382 Claims must be presented to the launching state(s) through diplomatic channels383 within one year of the date on which the damage occurred384 or when the state suffering damage learned (or could reasonably be expected to have learned) of Art. 36.3. Art. 92. 379 The methods of conferring jurisdiction are set out in Art. 36 of the ICJ Statute: a) consent to the Court’s jurisdiction on a case by case basis (para.1) or b) unilateral declaration accepting its compulsory jurisdiction over future disputes (para. 2; the socalled ‘Optional Clause’ declaration). On the competence and jurisdiction of the ICJ in more detail, see, e.g., Collier–Lowe 1999, pp. 124–154; Merrills 1991, pp. 109–123. 380 The ICJ is available for dispute resolution to states only (ICJ Statute, Art. 34.1) and, furthermore, only in disputes where both parties have accepted its jurisdiction (Art. 36). IGOs may turn to the ICJ merely for advisory opinion and even that only when duly authorized (Art. 65.1). 381 The UK, Australia and Canada have submitted declarations under Art. 36.2 of the ICJ Statute (the latest versions being from 2004, 2002, and 1994, respectively). However, the countries which have made such a declaration include at least strong additional candidates for future space nations, such as India (declaration submitted 1959, replaced 1974). On the other hand, former declarations of some states very active in the space sector are no longer in force (including France and the US). For all of the declarations, see Declarations Recognizing as Compulsory the Jurisdiction of the International Court of Justice. 382 Art. VIII.1. 383 Claims can also be presented through the UN Secretary-General or with the help of another state where the launching state and the claimant state do not maintain diplomatic relations (Art. IX). 384 Art. X.1. 377 378

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the occurrence of the damage or the identity of the liable launching state.385 If the dispute is not resolved within one year from the date on which the claim is received by the launching state, the parties must, if either of them so requests, establish a Claims Commission (CC).386 The CC is formed of three members, one chosen by each state party to the dispute and a chairperson chosen jointly by both.387 The CC decides the merits of the case and the amount of compensation388 by majority vote.389 There is once again a time limit of one year for making the decision.390 Decisions of the commission are public.391 However, the fact that the Liability Convention places no limit on liability is substantially moderated by the stipulation that the awards of the CC are of recommendatory nature only, unless the parties agree to the contrary.392 The non-binding nature of the Liability Convention’s dispute resolution mechanism has been often criticized. Its technique has been described as conciliation only,393 at least in cases where the disputing parties have not agreed that the decision of the CC is binding on them (or if they have agreed so only after the award has been issued). Where such an agreement has been made prior to the commencement of the procedure, the CC could be considered as an

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Art. X.2. Art. XIV. 387 Art. XV.1. If the parties are unable to agree on a chair, either of them can ask the UN Secretary-General to appoint one (Art. XV.2). 388 Art. XVIII. The aim is to “provide such reparation … as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred” (Art. XII). Yet the Liability Convention does not guarantee full compensation of damages: it stipulates that the CC “shall … determine the amount of compensation payable, if any” (Art. XV.III), and refers to international law and principles of justice and equity as the reason for this decision (Art. XII). Of course, such general references cannot provide very precise guidance for determining the compensation. 389 Art. XVI.5. 390 Art. XIX.3. 391 Art. XIX.4. Also the UN Secretary-General will receive a copy of the award. 392 Art. XIX.2. The vagueness concerning the decision-making of the CC and the recommendatory nature of its awards may have been the tradeoff required for the acceptance of the absolute and unlimited liability of the Liability Convention. See Gorove 1980, p. 50. 393 Conciliation is a dispute settlement method involving formal third-party intervention yet without the possibility of producing binding outcomes. It has been described as a combination of the basic features of both inquiry (i.e., the ascertainment of facts) and mediation (i.e., the endeavor to bring the parties to an agreement). Romano 2000, p. 60. For a more detailed assessment of conciliation, see, e.g., Merrills 1990, pp. 59–79. On conciliation in international environmental law in particular, see Romano 2000, pp. 60–64. 386

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ad hoc tribunal.394 Even if some states were willing to accept the commission’s decisions as compulsory, this might not be conceivable in practice. The modern space sector is a highly competitive area where joint space ventures are more the rule than an exception. This, combined with the joint and several liability established by Article V of the convention, makes it unfeasible for a launching state to declare its acceptance of the binding nature of CC rulings if the other launching states (or at least a majority of them) do not do the same. However, the recommendatory nature of the CC awards is somewhat cushioned by the requirements that the parties are to consider the decision in good faith and that it must be rendered promptly and made public.395 Moreover, international public opinion could make it difficult for a state to refuse to pay compensation decided by the commission.396 As regards dispute resolution of a more binding type, the Liability Convention explicitly permits legal action to be taken in domestic venues: according to Article XI.2, “[n]othing in this convention shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or

394 Jasentuliyana 1983, pp. 235–236; Böckstiegel 1993(b), p. 3. The CC has also been referred to as a “semi-arbitration court”. Supancana 1998, p. 187. 395 Art. XIX. Gorove 1991, p. 237. 396 Kerrest 2002, pp. 465–466. One way of strengthening the effectiveness of the dispute resolution mechanism of the Liability Convention would be for states to bind themselves to decisions of the CC on a reciprocal basis. Art. XIX.2 of the Liability Convention, pursuant to which the disputing parties can agree that a decision of the CC is binding on them, does not expressly provide for the possibility of states making such commitments in relation to any future dispute which might arise under the convention. However, it does not preclude such an option either. Moreover, para. 3 of the UNGA Resolution 2777(XXVI), by which the text of the Liability Convention was adopted, expressly provides that “any State may, on becoming a party to the Convention, declare that it will recognize as binding, in relation to any other State accepting the same obligation, the decision of the Claims Commission concerning any dispute to which it may become a party”. Obviously, such an ‘optional declaration’ is analogous to the Optional Clause provided for in Art. 36.2 of the ICJ Statute concerning the declarations of acceptance of compulsory jurisdiction of the ICJ (either for all or certain types of future legal disputes involving declaring states, or for a certain time; Art. 36.3). Of these two mechanisms, the ‘optional declaration’ in space law can even be seen as the stricter one, as it does not allow for the limitations concerning the effectiveness of declarations that the ICJ Statute does. For a more detailed assessment of ‘optional declarations’, see Maneggia 1999. At least Austria, Canada, Denmark, Greece, Ireland, New Zealand, Sweden, Norway, and the Netherlands have made a declaration pursuant to UNGA Res. 2777(XXVI). “Review of the Status of the Five International Legal Instruments Governing Outer Space” 1998(b), p. 4. Within the Legal Subcommittee of the UNCOPUOS, the need for a more extended resort to the ‘optional declaration’ mechanism has been highlighted. See, e.g., Report of the Committee on the Peaceful Uses of Outer Space 1998, para. 143.

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administrative tribunals or agencies of a launching state”.397 When proceeding with claims on the national level, however, states are prohibited from submitting claims pursuant to the Liability Convention’s procedures.398 This, combined with the one-year time limit of Article X (for presenting a claim for compensation to a launching state), can in practice compel a claimant to choose between domestic procedures and the Liability Convention’s system; a domestic claim for compensation for space-related damages can rarely be expected to be resolved within a year.399 At worst, even potentially effective local remedies may be forgone for fear of losing the possibility of availing oneself of the Liability Convention’s mechanism.400 One more weakness in the Liability Convention is that there, too, private parties must rely on the cooperation of states to assert claims.401 This can be detrimental to their interests, as political considerations may mean that governments are not always willing to act on their behalf.402 Even if claims are presented, diplomatic negotiations may proceed for an indefinite period of time: a CC is formed only if one of the parties so requests.403 The lengthiness of governmental negotiation processes is a considerable problem, particularly where commercial entities are concerned; in the highly competitive international marketplace, time is of the essence. Finally, the non-compulsory nature of CC awards, combined with the commission’s wide discretion in deciding the amount of compensation, may do little in practice to alleviate the damage suffered by private entities.404 On the whole, the dispute resolution procedure of the Liability 397 On the other hand, prior exhaustion of any local remedies is not required (Art. XI.1). Apparently, the intention has been to spare the victims of space accidents excessive procedures. Maneggia 1999, p. 424. 398 Art. XI.2. 399 Kerrest 2002, pp. 463–464. 400 See the statement of Detlev Christian Dicke in Settlement of Space Law Disputes 1980, p. 80. Another problem regarding time limits results from Art. VIII, which concerns cases where the state which has suffered damage (or whose natural or juridical persons have suffered damage) does not present any claim for compensation to the launching state. In such a situation, also the state in whose territory the damage was sustained and the state of residence of the victim are authorized to present a claim. However, the Liability Convention indicates no time limit after which these ‘secondary’ states are allowed to consider the ‘primary’ claimant state(s) to have refrained from presenting a claim. Kerrest 2002, p. 465. 401 The same applies to IGOs—even those that have gained a special status under Art. XXII enabling them to become parties to the convention for most practical purposes. 402 See Gorove 1991, p. 232. Such reluctance has been identified as a considerable threat particularly where harm caused by environmental degradation is concerned. See Romano 2000, pp. 126–127. 403 Even at the earliest, the CC can be established only one year after the presentation of the claim (Art. XIV). 404 It is also possible that the private entity which suffered the damage is not satisfied

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Convention involves significant uncertainties: not all disputes which arise will ever be introduced into the process; once initiated, they can last for a very long time; the decisions which are rendered may be far from satisfactory, and most likely are not even enforceable.405 Not surprisingly, the only dispute that has ever been dealt with under the Liability Convention was the Cosmos 954 case, and even this conflict was eventually resolved through state-to-state negotiations. The re-entry of the Soviet Cosmos 954 satellite into Earth’s atmosphere over Canada in 1978 is the most famous case involving international liability in space activities.406 It is also one of the few examples of an international dispute involving environmental concerns which has given rise to formal dispute settlement.407 In its claim for compensation, the Canadian government explicitly referred to the Liability Convention and the OST (and general principles of international law), claiming some six million Canadian dollars from the Soviet Union.408 Nevertheless, the incident was eventually not solved under the Liability Convention. After long negotiations, the Protocol between Canada and the Soviet Union409 signed in 1981 only established that the latter was to pay Canada three million Canadian dollars “in full and final settlement of all matters connected with the disintegration of the Soviet satellite Cosmos 954 in January 1978”; the protocol contained no reference to the Liability Convention.410

with the amount of compensation which its ‘home’ state is willing to disburse to it from the sum recovered from the launching state. Gorove 1980, p. 44. Such uncertainty concerning the damages does not appear consonant with the otherwise victim-oriented tone of the liability regime of the UN space treaties. See ibid., p. 50; Supancana 1998, p. 188. 405 See also White 1993, pp. 185–186. 406 See more above. 407 Brunnée 2004, p. 353. 408 Statement of the Canadian Claim, paras. 14–24. 409 Protocol Between the Government of Canada and the Government of the Union of Soviet Socialist Republics 1981. 410 It can be presumed, however, that the general awareness of the international liability for space activities established by the OST and the Liability Convention also had a certain weight in the decision of the Soviet Union to pay for the damages connected with recovery of the nuclear debris. Perek 2002, p. 125. For early observations concerning the Cosmos 954 incident, see, e.g., Dembling 1978; Gorove 1978; Haanappel 1978. Interestingly, also a bilateral Agreement between Canada and the United States of America on Liability for Loss or Damage from Certain Rocket Launches (concluded in 1974) stipulates that “[i]n the event that a claim arising out of these launches is not settled expeditiously in a mutually acceptable manner, the [Governments] shall give consideration to the establishment of a Claims Commission such as that provided for in Article XV of the [Liability Convention] with a view to arriving at a prompt and equitable settlement”.

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5.4.1.3. The Moon Treaty The Moon Treaty also concerned itself with dispute resolution but did not make any effective progress in this regard. In a familiar manner, Article 15.2 refers to consultations only. The only obligation involved is that of a state receiving a request for consultations to enter into them (“shall enter”). However, the Moon Treaty goes somewhat beyond the OST in obliging disputing parties also to “take all measures to settle the dispute by other peaceful means of their choice appropriate to the circumstances and the nature of the dispute” if the consultations are not successful.411 Furthermore, it provides for good offices to be used where controversies occur during the consultations:412 “[i]f difficulties arise in connection with the opening of consultations or if consultations do not lead to a mutually acceptable settlement, any State Party may seek the assistance of the [UN] Secretary-General … in order to resolve the controversy”.413 However, no mandatory resolution of disputes is required. Hence the problems of weak dispute settlement mechanism (and ambiguous language) are evident also as regards this component of the UN space law system. Additionally, the Moon Treaty suffers from lack of support, which renders it rather insignificant in space activities. 5.4.1.4. The International Telecommunication Union The ITU, an international organization within the UN system, has a dispute resolution mechanism of its own. Pursuant to the ITU Constitution, Member States may settle their disputes on questions relating to the interpretation or application of this Constitution, of the ITU Convention or of the Administrative Regulations by negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon.414

Hence the ITU Constitution allows the disputing parties to resort very freely to any method “mutually agreed upon”. Furthermore, an arbitration procedure can be used as a last resource, in which case “any Member State party to a dispute may have recourse to arbitration in accordance with the procedure defined in the Convention”.415 Further details of the ITU arbitration procedure are elaborated in the ITU Convention. Pursuant to the convention, the disputing parties can decide whether the arbitration is to be entrusted to individuals, administrations 411 412 413 414 415

Art. 15.3. Jasentuliyana 1983, p. 234. Art. 15.3. Art. 56.1. Art. 56.2.

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or governments.416 Article 41 contains several detailed provisions concerning the appointment of arbitrator(s) and the arbitral process.417 Significantly, the arbitral decision is “final and binding upon the parties to the dispute”.418 Nevertheless, even the ITU system lacks effective enforcement mechanism for arbitral decisions. What is more, it is reserved for states only and has therefore been deemed to no longer reflect reality.419 It should be borne in mind, however, that the ITU is more interested in trying to find consensus on common rules in the telecommunication sector than in actually working in dispute resolution. In practice, the ITU’s dispute resolution system has remained unused,420 yet the existence of a conflict resolution mechanism presumably has a role in preventing disputes.421 5.4.1.5. Other Arrangements Outside the UN framework, there are a large number of other international legal instruments for limited but practical and important fields of space cooperation. They contain relatively exhaustive dispute resolution systems, typically including

416 Art. 41.2. If they are not able to agree about this within one month after notice of submission of the dispute to arbitration, the arbitration will be entrusted to governments. 417 There is also an Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication Union and to the Administrative Regulations. It introduces an addition to Article 41.5 of the ITU Convention, concerning the appointment of arbitrators. Pursuant to Art. 1 of the Optional Protocol, “[i]f one of the parties has not appointed an arbitrator within [the] time-limit [of three months], this appointment shall be made, at the request of the other party, by the Secretary-General [of the ITU]”. In essence, this amplification makes the procedure of Art. 41 of the ITU Convention truly ‘compulsory’. Noll 2002, p. 169. However, the Optional Protocol is applicable only between those member states which consent to be bound by it. 418 Art. 41.10. 419 Ravillon 2003, p. 806. 420 von der Dunk 2002, p. 451. Hence one may ask whether the ITU dispute resolution system has ever reflected reality. On the other hand, the non-application of the system most likely is also due to the fact that arbitration is not the primary mechanism for dispute settlement in the ITU system—it is the last resort only in case none of the other methods referred to in Art. 56.1 of the ITU Constitution lead to a satisfactory settlement. Obviously, disputing parties have (successfully) preferred these other means which allow for more privacy. Noll 2002, pp. 170–171. As a matter of fact, although a significant number of contracts in the telecommunications sector (also beyond space telecommunications) call for arbitration, it is seldom used in reality. Instead, most disputes are resolved through negotiation. Telecommunications Disputes: Specificities, Problems and Solutions 1999, pp. 20–21. For a more detailed treatment of the developments relating to settlement of disputes within the ITU system (as well as in international telecommunications beyond the ITU), see Noll 2002. 421 See Dispute Resolution in the Telecommunications Sector 2004, pp. 44–45.

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provisions calling for binding third party settlement of disputes—usually arbitration.422 However, recourse to arbitration tends to be the last resort. For instance, the cooperation agreements concluded between ESA and other international organizations, institutions and governments consistently (even in large-scale international projects) resort to arbitration after the exhaustion of consultation processes.423 In fact, ESA provides for final and binding resolution of disputes through arbitration in a variety of instruments related to its activities, both as concerns internal disputes arising between ESA member states and external contracts and agreements of the organization. The system of dispute resolution established by the ESA Convention424 is not examined here in detail. Suffice it to mention that Annex I to the ESA Convention directs the agency to provide for arbitration when making contracts.425 The “General Clauses and Conditions for ESA Contracts” contain a standard clause426 for the purpose. This clause is an example of a choice of institutional arbitration: it refers to arbitration by the Rules of Conciliation and Arbitration of the ICC. Apparently, ESA has never really had to resort to its dispute resolution system in practice, however.427 This is not only due to the ‘deterrent effect’ of the mechanism but also because it is standard practice for ESA to use dispute avoidance measures such as cross-waiver of liability clauses.428 Besides, an arbitration process would likely entail such a considerable See Böckstiegel 1994, pp. 137–138. For instance, pursuant to the Agreement on the Civil International Space Station, disputes should, in the first instance, be settled through consultations, either between the relevant space agencies (Art. 23.1) or at the level of governments (Art. 23.2). Multilateral government-level consultations may be convened where appropriate (Art. 23.2). Finally, “[i]f an issue not resolved through consultations still needs to be resolved, the concerned Partners may submit that issue to an agreed form of dispute resolution such as conciliation, mediation, or arbitration” (Art. 23.4). However, the ISS is a special case in the sense that a binding dispute settlement can only be used if all parties concerned agree. For a more detailed assessment, see Farand 2002, pp. 458–459. 424 1975 Convention for the Establishment of the European Space Agency. 425 Annex I, Art. XXV.1. 426 Clause 13. 427 See Farand 2002, p. 453. 428 Ibid., p. 459. Such reciprocal clauses are used in the contracts made with international organizations, state governments (those of ESA member states as well as others), industry and research centers. The clauses vary in their complexity and extent. They may, for instance, provide for exceptions concerning personnel injuries. Usually, the cross-waiver clause is passed along in the chain of contractors at different levels. The contracting parties are generally dissuaded from bringing actions amongst themselves and they all bear the risk of losses. Obviously, in addition to helping avoid courts (including courts of arbitration), cross-waivers decrease insecurity in contractual relations in general. A very practical and important effect is lower insurance rates (insurance could otherwise be prohibitively expensive in the high-risk space sector). 422 423

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investment of time and money that it strongly encourages any disputing parties to settle their controversies at an earlier stage, if only possible.429 Furthermore, international agreements concerning space telecommunications typically contain compulsory arbitration provisions.430 The commercial space industry has also used clauses providing for arbitration nearly from its outset, even in contracts with state institutions and IGOs.431 One can expect that, as far as commercial space activities in particular are concerned, the popularity of arbitration will only increase and that the parties (public and private entities alike) will typically resort to the established rules and institutions for it.432 In particular, the ICC has proven to be a popular forum for arbitration in the space sector.433 5.4.2. Adjudication vs. Arbitration Adjudication by courts is generally concerned with the assignment of fault and liability for damages. It has advantages such as a high degree of independence of judges and solid rules of procedure (in most cases at least), which make it more difficult to impede the proceedings. On the domestic level, adjudication is usually also backed up by relatively effective enforcement mechanisms. However, as a rule, dispute settlement options offered by national jurisdictions remain confined to the domestic level and entail particular problems in the case of disputes involving transboundary elements. The possibilities can also vary significantly from jurisdiction to jurisdiction. In international disputes, adjudication is not very common. As regards disputes between states, the advantages of adjudication cannot even be realized unless the parties accept

See Ravillon 2003, pp. 806–807; Farand 2002, pp. 461–462. NASA has been using crosswaiver of liability clauses since the 1970s, and they have now become the standard in space activities worldwide. Ibid., p. 454; see also Baker 1988, pp. 216–219. For a more detailed assessment of the use of reciprocal waivers of liability in the space sector and of their interaction with the role of insurance in conflict prevention, see Ravillon 2003, pp. 809–816. 429 Farand 2002, p. 453. 430 For an account of the settlement of disputes in the Agreement relating to the International Telecommunications Satellite Organization and the Convention on the International Mobile Satellite Organisation, for instance, see Ravillon 2003, p. 807. 431 Most of these contracts are not disclosed publicly but arbitration clauses appear to be common. Böckstiegel 1994, p. 140. 432 Ibid., pp. 137, 140–141. 433 Böckstiegel 1985, p. 115; Ravillon 2004, p. 2. However, the ICC has been criticized for excessively high fees, which are based on a percentage of the sum in dispute. Bostwick 1995, p. 33. In the space sector, this can amount to particularly high costs, as the sums in dispute very often are considerable. van den Hout 2002, p. xv.

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the jurisdiction of a court. In practice, states have been quite reluctant to subject themselves to compulsory jurisdiction internationally.434 This reluctance is particularly evident in the space sector, where conflicts tend to involve complex webs of interrelated issues, often with significant economic, political, and even military ramifications. There may be little separation of governmental, shareholder, and regulatory interests, thanks to governments’ engagement in all space activities directly, by ownership of corporate shares, or, if nothing else, because operators in this sector represent a significant source of revenue in the form of license fees, taxes, etc. Political and social differences between disputing states have tended to further increase their reluctance to surrender to compulsory jurisdiction.435 Sometimes not even states can avoid consenting to binding settlement of disagreements for practical reasons, however. In international business relations in particular, contracts will hardly be concluded without mandatory dispute resolution clauses. These clauses seldom refer to adjudication by courts; instead, they commonly resort to arbitration, providing for neutral arbitrators to make a binding award to resolve any dispute that may arise in the business transactions.436 Arbitration has been the favored mechanism for a long time in dispute resolution between private enterprises in international trade and investment437 but private parties also resort to arbitration at least as often when a state is involved in the dispute. This holds true in particular for cases where disputes would otherwise be likely to be heard in the courts of a state party to the conflict. Parties to international commercial disputes typically strive to avoid ‘hometown justice’: they are hesitant to submit claims to the national courts in the other party’s home country,438 all the more so if the other party is the home country. They may fear that the foreign courts are not independent enough or that their own standing in the proceedings is not sufficiently strong. States and private entities can both have similar doubts but the latter obviously run a greater risk of facing inequality of this kind. Even if such fears were groundless, a foreign Böckstiegel 1993(a), p. 31. See Jasentuliyana 1983, p. 239. 436 There are even entire networks of bilateral treaties which traditionally provide for intergovernmental arbitration in areas such as investment protection and aviation, where rapid settlement of disputes is necessary. Böckstiegel 1994, p. 137. In addition to a particular clause providing for arbitration in an agreement (made prior to any factual dispute), the parties may choose arbitration even after a dispute arises by agreeing to it in an ad hoc agreement (known as a compromis). Sometimes the use of arbitration is encouraged (or even prescribed) in legislation or in the rules of international organizations, for instance. For a more detailed treatment of the subject, see, e.g., Collier– Lowe 1999. 437 Böckstiegel 1993(a), p. 34. On the long history of commercial arbitration, see Collier–Lowe 1999, pp. 45–46. 438 Drahozal 2004, pp. 372, 375. 434 435

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party to a dispute would often have a practical handicap in the courts of another state due to less familiarity with the procedure. A similar disadvantage can result from the fact that state courts use the national language.439 Major uncertainties and potentially significant delays are involved also if a private entity resorts to its national state to pursue claims on the inter-state level.440 Consequently, it is quite usual today for companies engaged in transactions with foreign states to settle their disputes by international arbitration,441 which better accommodates the interests of the private sector: states and IGOs are accepted only on equal footing with private entities, i.e., immunities are not accepted.442 The fact that arbitration has become the preferred method of dispute settlement in international business regardless of the type of contracting parties has also had some effect on the arbitral process. Traditionally, private (commercial) international arbitration and inter-state arbitration have differed in certain respects.443 The procedures used today for resolving disputes between a private party and a state typically combine features of both public and private international arbitration. The International Centre for Settlement of Investment Disputes (ICSID) has been created particularly for handling disputes of this type.444 Arbitration as a mechanism for conflict resolution has thus become increasingly receptive to the evolving roles of governmental and nongovernmental entities in the global community.445

See Böckstiegel 1994, pp. 139–140. See also Paasivirta 1990, pp. 28–29. Equal access to efficient dispute settlement mechanisms can indeed be particularly important for private entities because they cannot directly resort to diplomatic and political means. Moreover, they normally are also much more dependent upon proper fulfillment of contractual obligations and/or payment of damages than governmental actors are. Böckstiegel 1993(b), p. 8. 441 Collier–Lowe 1999, p. 58. 442 The agreement to arbitrate is taken as a valid waiver of immunity as regards the arbitration process. Nevertheless, immunities might limit the enforceability of arbitral awards as well. For more detail, see Collier–Lowe 1999, pp. 270–273; Paasivirta 1990, pp. 316–322; Fox 2002. 443 The most obvious distinction has been the lex arbitri, which governs the arbitral process (see also below). In private commercial arbitration, it is typically considered to be the law of the country where the arbitration is conducted or has its seat, whereas in inter-state arbitration the lex arbitri traditionally is international law. Merrills 1991, p. 101. 444 Arts. 1.2 and 25 of the ICSID Convention on the Settlement of Investment Disputes between States and Nationals of Other States. More on the ICSID, see the International Centre for Settlement of Investment Disputes website. 445 See Merrills 1991, pp. 101–103. 439 440

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5.4.2.1. Benefits of Arbitration in Space-related Disputes In keeping with their popularity in all international business, arbitration clauses are common practice also in the space sector today. There are many reasons for this preference. The arbitral procedure is confidential and relatively unobtrusive, having lesser implications for states. For example, in leaving more room for the autonomy of parties, arbitration implies less loss of sovereignty.446 It also allows states to avoid the negative publicity associated with a possible condemnatory decision of a court.447 For private enterprises, confidentiality and discrete business relations are often even more vital.448 By resorting to arbitration, the parties are able to not only prevent a dispute and its conclusion from receiving untoward public attention during the process but also prohibit later disclosure of information obtained in the course of the arbitration.449 In addition to the protection of privileged information, the avoidance of adverse publicity can promote goodwill and encourage the parties to be more candid in resolving the dispute.450 In contrast to the adversarial nature of adjudication by courts, arbitration is also more likely to be conducive to creative problem solving.451 Arbitration seems like a strong candidate to become the most promising method of dispute settlement for the needs of the modern space sector. Traditional conflict resolution mechanisms are not capable of accommodating the interests of the various stakeholders in space activities in an optimal way; after all, they may not even recognize such focal actors as private entities, and do not necessarily provide the most conducive way to promote cooperative approaches, which are so vital for sustainable management of outer space. The emphasis of arbitration, on the other hand, is on the development of a reasonable and practicable solution, which can better address specific needs and desires of the disputing parties than a simple allocation of fault. While providing more promising opportunities to reach an amicable settlement of the dispute and a compromise that will satisfy all involved, arbitration also preserves (possibly even enhances) rather than damages the business relationship between the conflicting parties.452 It is a mechanism which enables a focus on long-term interests instead of the parties’ positions in a single dispute only.453 This is of particular value in Böckstiegel 1993(a), p. 31. Diederiks-Verschoor 1983, pp. 97–98. 448 White 1993, p. 188. 449 Apparently, the mere existence of disputes in the space sector is often kept secret. Ravillon 2003, p. 819. 450 See Sterns–Tennen 1994, p. 175. At its best, the existence of an arbitration provision can enhance the benefits of goodwill already during the course of performance of an agreement. Ibid. 451 Ibid., p. 182. 452 Böckstiegel 1994, p. 139. See also Dispute Resolution in the Telecommunications Sector 2004, pp. 11, 17. 453 See ibid., p. 100. 446 447

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the space sector, where the pool of potential suppliers of components and services is limited and the parties’ dealings in all likelihood require ongoing interaction. Thus, long-term working relationships, necessitating trust among the parties, are crucial.454 Having a reputation for being litigious or confrontational can have impact on a company’s future business within the entire space industry.455 Furthermore, arbitration avoids much of the complexity and uncertainty inherent in adjudication by courts. It is usually relatively informal and flexible, which is likely to mean simplified proceedings, often coinciding with faster investigation and disposal of cases. Arbitration also allows parties to retain significant control over the design of the process. For instance, particulars such as forum or place of arbitration, applicable law,456 rules of procedure, number and selection method of arbitrators, and language are often determined by the parties in the relevant business contract before a dispute even arises.457 Such freedom of choice is highly valuable in the space sector, where even private entities are typically very international in character. Consequently, there are often several national jurisdictions involved in a dispute and, hence, a significant risk of forum shopping and other strategic abuse of national legal processes. At least there is a risk of parties resorting to dysfunctional actions due to variations in jurisdictions. Therefore it seldom is feasible for space-related disputes to be dealt with using the means offered by national legal systems and laws determined in accordance with the rules of private international law.458 Where states are involved in a dispute, even sovereign immunity may be invoked (and accepted)459—given, in particular, that space activities continue to have significant political and strategic resonance.460 Sterns–Tennen 1994, p. 173; Ravillon 2003, p. 818. Sterns–Tennen 1994, p. 182. See also Dispute Resolution in the Telecommunications Sector 2004, p. 17. 456 This means the law which is applied to determine the merits of the case, usually distinguished from that which governs the arbitral process in its external aspects (lex arbitri). On applicable law, see Collier–Lowe 1999, pp. 239–248. On lex arbitri, see ibid., pp. 229–232; Merrills 1991, pp. 101–103. 457 White 1993, p. 188. 458 von der Dunk 2002, pp. 447–448. 459 Ibid., p. 451. Accordingly, the UN Convention on Jurisdictional Immunities of States and Their Property (not yet in force) is “without prejudice to the immunities enjoyed by a State under international law with respect to aircraft or space objects owned or operated by a State” (Art. 3.3). Similar problems apply to IGOs and their immunities. International disputes involving two IGOs are particularly complicated. Such cases are rare but when they occur they can be very difficult—especially if the two sets of states involved (members of each organization) overlap. Ibid., p. 447. Such problems may arise increasingly in the future—between ESA and the EU, for instance, as the latter is currently trying to significantly strengthen its role in space activities. See more, e.g., Hobe 2004(b). 460 Arbitration has its limitations. Above all, inter-state arbitration is hardly accept454 455

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Where needed, the parties to an arbitration may also adopt procedural rules allowing for emergency arbitration proceedings and interim measures.461 Prompt resolution of space-related disputes is of obvious importance due to the essential role of the time factor in equipment delivery, launching and operation of satellites, for instance.462 One of the most crucial issues in this respect is also the selection of arbitrators: good arbitrators can avoid prolonged conflicts by skipping unnecessary procedures and thereby saving considerable amounts of time and money.463 Furthermore, traditional adjudication can involve several rounds of (costly) court procedures, whereas the decision of an arbitral tribunal is very probably final.464 All expenditures considered, the total costs of arbitration can be substantially lower, a factor valued especially by private parties.465 Adjudication may also lack the expertise to deal with complex disputes, whereas a major advantage of arbitration is that the parties can select arbitrators whom they view as neutral and particularly knowledgeable in the subject matter.466 This is crucial for the optimal resolution of space-related conflicts, because space activities require considerable scientific specialization. Controversies in this sector often revolve around complex technological issues that are difficult for the non-expert to understand. As a rule, major financial investments

able for the disputing parties in conflicts which involve highly political, let alone military aspects. Moreover, even if arbitration is accepted in principle, differences in the cultural and legal backgrounds of the entities involved may contribute to abuse and manipulation of the process. Böckstiegel 1996, pp. 305–307. 461 See Bourely 1994, p. 147, on emergency arbitration proceedings (regarding emergency or temporary measures) of the International Space and Aviation Arbitration Court of the French Air and Space Law Society. See also Collier–Lowe 1999, pp. 248– 250, 254. In ad hoc arbitration the nomination of arbitrators often is relatively timeconsuming, however, and this may make fast interim measures difficult. Böckstiegel 1980, p. 156. 462 Bourely 1994, p. 146. 463 See Telecommunications Disputes: Specificities, Problems and Solutions 1999, p. 29. 464 See Böckstiegel 1993(a), p. 31. The power to appeal an arbitral award must normally be the subject of an express provision in the arbitration agreement. Because the aim of the parties in resorting to arbitration is to put an end to the dispute, it is relatively rare that arbitration agreements provide for possibilities to appeal the decision. Merrills 1991, pp. 95–96. On the possibilities to take further proceedings to interpret, revise, rectify, or appeal arbitral awards, or to seek their annulment, see, e.g., ibid., pp. 95–100; Collier–Lowe 1999, pp. 257–261. 465 The immediate financial expenses of arbitration can be substantial, however, considering that the disputing parties bear all the costs, whereas court proceedings typically entail many types of costs that are covered by some larger community (such as the salaries of judges). Romano 2000, p. 103. 466 Böckstiegel 1994, p. 139. On the other hand, the selection of arbitrators by the disputing parties may also result in lesser independence. Diederiks-Verschoor 1983, p. 98.

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are also at stake.467 If the parties prefer, arbitrators need not even be lawyers.468 On the other hand, even very technical disputes usually involve legal issues as well, in which lawyers have competence that technicians do not. Furthermore, the treatment of complicated international conflicts typically necessitates solid legal expertise, particularly in areas such as space law, which is still a relatively young, developing field of international law. Without expertise in the applicable legal rules, the proceedings may focus on less relevant issues and thus waste time and money.469 Contracts in the space sector often also involve several different operations carried out by a group of operators, which can, for instance, make the determination of liabilities for a single failure quite complex and mean that the decisions have considerable repercussions beyond the incident in question. Also, insurance coverage may have to be considered, which tends to complicate conflicts even further.470 Hence it does not seem feasible, in most cases, at least, to appoint an arbitral tribunal with no special legal expertise.471 Finally, arbitral awards tend to be more readily enforceable internationally than court judgments. This has traditionally been attributable to, above all, the large number of states which have ratified the United Nations New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Agreements and Awards.472 The importance of the New York Convention may, See Bourely 1994, p. 146; Sterns–Tennen 1994, p. 172. Understandably, the use of non-lawyers as arbitrators is more common in disputes which involve specific (non-legal) knowledge. A rare (if not the only) example of rules which expressly contemplate the use of such expert-arbitrators are those of the draft Arbitration Policy of EUROCONTROL (Art. 8.1). Kaufmann-Kohler 2002, pp. 288– 289. In addition to appointing technical and scientific experts as arbitrators, the tribunal can be provided with such expertise by having an expert (or experts) ‘sit with’ the arbitrators assisting them (without yet being members of the tribunal). See, e.g., ILA Draft Convention on the Settlement of Space Law Disputes, Art. 8. Experts can also be used for submitting evidence to the arbitrators without otherwise taking part to the work of the tribunal. See ILA Draft Convention on the Settlement of Space Law Disputes, Art. 29; EUROCONTROL draft Arbitration Policy, Art. 27. For a more detailed assessment, see Kaufmann-Kohler 2002. 469 van Eck 2002, pp. 299–300; Kaufmann-Kohler 2002, p. 295. Even worse, some procedural necessities may be overlooked, resulting in problems as regards due process and enforcement. Böckstiegel 2002, p. 308. 470 See Ravillon 2003, p. 818. 471 Accordingly, it has been suggested that at least the chair of any arbitral tribunal for space-related disputes ought to be a lawyer. Kaufmann-Kohler 2002, p. 296. 472 At this writing, there were 139 states parties to the New York Convention. This convention has significantly enhanced the enforceability of arbitration awards. There has been considerable growth in the use of arbitration in international trade and investment since its adoption. Dispute Resolution in the Telecommunications Sector 2004, p. 18. As regards similar instruments of more limited application, one should also mention the 1961 European Convention on International Commercial Arbitration, which has 30 parties. 467 468

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however, be diminishing because an increasing number of countries have enacted national legislation that is at least equally favorable to the enforcement of arbitral awards.473 Moreover, under the ICSID Convention (for arbitration between a state and a private party) an award is enforceable in the municipal courts of contracting states “as if it were a final judgment of a court in that State”.474 States tend to implement the decisions of arbitral tribunals quite well even without compulsion, because they often are hesitant to incur the political cost of non-compliance.475 In spite of all the benefits of arbitration, the extreme flexibility of the mechanism requires careful consideration and precautions. Poorly planned arbitration can lead to procedures at least as complex, lengthy and expensive as those which traditional adjudication involves.476 In general, arbitral agreements should be made before any conflict arises; the drafting of ad hoc arbitration rules for the settlement of a dispute by parties whose relationship is already strained (due to that very conflict) is potentially time-consuming and difficult.477 In order to avoid complications in designing arbitral systems, recourse is often had (even in agreements made well in advance) to the rules for arbitration drawn up by various institutions,478 one example being the reference in the General Clauses and Conditions for ESA Contracts to arbitration by the Rules of Conciliation and Arbitration of the ICC. 5.4.2.2. The ILA Draft Convention on the Settlement of Disputes Related to Space Activities The International Law Association has taken an important tentative but comprehensive step further in the settlement of international space-related conflicts. It has drafted a specific convention which puts forward a spectrum of dispute resolution mechanisms for space activities. In 1984, the ILA adopted a text entitled “ILA Draft Convention on the Settlement of Space Law Disputes”. This instrument was revised in 1998, but only minor adjustments were made to the original text, including a slight amendment to the original title, which now

Drahozal 2004, p. 377. Many countries today compete to attract international arbitration proceedings because of presumed economical benefits. Accordingly, they try to make their legislation more favorable to arbitration. For instance, more than 30 jurisdictions have enacted the UNCITRAL Model Law on International Commercial Arbitration. Ibid., p. 373. 474 Art. 54. 475 Merrills 1991, p. 106. 476 See Telecommunications Disputes: Specificities, Problems and Solutions 1999, p. 29. 477 Collier–Lowe 1999, p. 46. 478 Ibid.; Merrills 1991, p. 87. 473

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reads “Final Draft of the Revised Convention on the Settlement of Disputes related to Space Activities”.479 The ILA Draft Convention applies to all activities taking place or having effects in outer space.480 It is based on reciprocity: it only allows a party to benefit from the convention “insofar as it is itself bound”.481 It does “not apply to disputes which the parties have agreed or may agree to submit to another procedure of peaceful settlement, if that agreement provides for a procedure entailing binding decisions”.482 There is also an exclusion clause, according to which any state party on depositing its instrument of ratification, may declare (a) that it excludes from the applicability of the Convention space activities of a specific kind …, (b) that it limits the applicability of this Convention to certain space activities or to specific areas of space law as may be dealt with in specific bilateral or multilateral treaties …, (c) that it will not be bound by certain sections or articles of this Convention.483

Although the possibility to impose such limitations is likely to somewhat reduce the effectiveness of the convention, they probably are necessary, at least for the time being, in order to get as many states as possible—especially those engaged in space activities—to accept the instrument. As regards dispute resolution methods, the ILA Draft Convention draws heavily on the 1982 UNCLOS but of course has a different scope of application and is constructed in a somewhat simplified manner.484 Both conventions offer a variety of non-binding and binding procedures for the disputing parties to use but ultimately provide for compulsory third-party dispute settlement and

479 Apparently, this change in wording was made to allow for wider coverage of the instrument, as space-related disputes may extend beyond questions concerning ‘space law’ in the sense of public international law only. Böckstiegel 1997, p. 462. The more substantial modifications focused on procedural simplifications such as a reduction in the number of judges of the envisioned space law tribunal and shorter time limits in the dispute settlement procedure for avoiding prolonged controversies and excessive costs. See Report of the 68th Conference of the ILA 1998, p. 244. The primary need identified for the revision was the intensification of space activities, particularly those undertaken by commercial entities, and the ensuing increased risk of disagreement. Ibid., p. 241. 480 Art. 1.1. 481 Art. 1.3. 482 Art. 1.5. 483 Art. 1.2. 484 For instance, the ILA Draft Convention includes no provisions comparable to those of the UNCLOS dealing with the International Seabed Authority, the Seabed Disputes Chamber, and the Special Arbitration. For a more detailed treatment of the dispute resolution mechanism of the UNCLOS, see, e.g., Collier–Lowe 1999, pp. 84–95; Merrills 1991, pp. 155–178.

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prescribe arbitration as the preferred subsidiary method.485 Firstly, the ILA Draft Convention obligates parties to exchange views and, if possible, to negotiate a settlement. This should be done “expeditiously”.486 If negotiations do not prove successful, either party has the option of inviting the other to submit the dispute to conciliation.487 Should these non-binding methods fail to resolve the conflict, either party may request binding dispute resolution.488 The binding mechanisms provided by Article 6 include the ICJ and an arbitral tribunal. Moreover, the draft convention envisions the possibility of a new “International Tribunal for Space Law”,489 a forum analogous to the ITLOS.490 A major difference between the two is that a space law tribunal would only be established if and when the parties to a dispute choose to do so,491 whereas the ITLOS is a permanent judicial body.492 The draft convention sets forth detailed procedures for not only conciliation but also the space law tribunal493 and the arbitral tribunal.494 States parties may choose by a written declaration one or more of the binding methods for dispute resolution at the time of signing, ratifying or acceding to the convention or at any time thereafter.495 A party involved in a dispute that has not made such a declaration is deemed to have accepted arbitration.496 Where the parties to a dispute have submitted declarations which choose different methods, See Böckstiegel 1994, pp. 137, 139. Art. 3. Obviously, the term ‘expeditious’ is open to interpretation. It has been suggested that a three-month time-limit for the exchange of views could be appropriate, but as it would be difficult to determine the precise moment to start counting this time, the ILA Draft Convention only reads “expeditiously”. Report of the 68th Conference of the ILA 1998, p. 246. 487 Art. 4. The draft convention contains more detailed rules for the conciliation, concerning, i.a., appointment of the conciliators and submission of the conciliation commission’s (non-binding) report (Section IV). 488 Art. 5 et seq. 489 The idea of a special global space law tribunal is by no means a recent one. A similar possibility would be to entrust the judicial functions to a supreme organ of a global space agency—which, of course, has not even been established yet (any more than a global space tribunal). See Cocca 1980, p. 147; Diederiks–Verschoor 1983, p. 97. 490 Particularly the first ‘version’ (in the 1984 draft convention) of the International Tribunal for Space Law resembled the ITLOS greatly. For instance, the number of judges (21) was taken from the ITLOS (UNCLOS, Annex VI, Art. 2.1), as was the requirement for quorum (11 judges; UNCLOS, Annex VI, Art. 13.1). In 1998, the number of judges was reduced to 15 (Art. 38.1) and the quorum accordingly to nine (Art. 49.1). 491 Art. 37. 492 For more information on the ITLOS, see the International Tribunal for the Law of the Sea website. 493 Section VI. 494 Section V. 495 Art. 6.1. 496 Art. 6.2. 485 486

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the dispute may only be submitted to arbitration, unless the parties agree otherwise.497 Hence, as in the UNCLOS, arbitration is the mandatory dispute settlement method if there is no congruent choice by the disputing parties to resort to some other means.498 In order to avoid delays, the draft convention also establishes a summary procedure to determine disputes.499 Unlike in the UNCLOS, there is no possibility to opt out of compulsory dispute settlement even where politically sensitive issues are concerned.500 Such an option might make states more receptive to accepting the ILA Draft Convention, at the cost of having a potentially somewhat less effective dispute resolution system. Significantly, the ILA Draft Convention provides that the dispute settlement procedures envisaged by it “shall be open to entities other than High Contracting Parties unless the matter is submitted to the International Court of Justice”.501 This refers to private enterprises, above all, for whom the possibility of binding resolution of disputes by arbitration tends to be of particular importance. If they wish, they can even have direct access to the International Tribunal for Space Law—without having to ask the state they are legally connected with to be a party to the dispute on their behalf. In a similar manner, Article 10.2 of the draft convention enables nongovernmental organizations to be parties to its dispute settlement procedures. The opening of proceedings to these entities beyond the governmental sector has been described as a “true example of progressive development of law”502 and, indeed, it constitutes a remarkable reform.503 Another central improvement over the existing space treaties is that Art. 6.4. See UNCLOS, Art. 287.5. However, the only form of compulsory jurisdiction under the UNCLOS relates to disputes concerning deep seabed mining arising under Part XI (see Part XI, Section 5). 499 Art. 50.3. 500 Due to the political sensitivity of certain types of issues, Art. 298 of the UNCLOS provides a reverse pattern to the general system of binding but optional dispute resolution: states are allowed to opt out of compulsory dispute resolution procedures in the area of sea boundary limitations. Art. 297.3 allows such discretion as regards disputes concerning the right of coastal states with respect to fisheries of the EEZ. Similar exclusions are allowed under the Antarctic Treaty System (as concerns territorial claims in Antarctica) and in international regulation of nuclear damage. See Romano 2000, p. 97. 501 Art. 10.2. 502 Stephan Hobe, according to Report of the 68th Conference of the ILA 1998, p. 242. 503 However, this reform has also been identified as the very reason why the ILA Draft Convention “has been unable to build up a true momentum”. Hulsroj 1999, p. 71. According to Hulsroj, the draft convention has “gone, at least, one bridge too far … in the sense that it encompasses both inter-state and state-domestic entity conflicts and seeks to set up an International Tribunal for Space Law in the modus of the [ITLOS]”. However, the law of the sea also provides an interesting example of enlarging international adjudication beyond states: the ITLOS permits non-state entities 497 498

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Article 11.2 on applicable law expressly allows the court or tribunal having jurisdiction under the draft convention to “decide a case ex aequo et bono” where the disputing parties so agree.504 The ILA Draft Convention on Space Debris also contains an article (Article 9) on the settlement of disputes. Pursuant to this article, the primary method of resolving disputes concerning the interpretation or application of the Draft Convention on Space Debris is consultations.505 If the consultations fail and the disputing parties have not agreed on a means of peaceful settlement within 12 months of the request for consultation, the dispute is to be resolved by arbitration or adjudication (at the request of any disputing party).506 Unless a disputing party has excluded the application of the ILA Draft Convention on the Settlement of Disputes (in full or in part), it is applicable to the process.507 There is also a possibility for a court or tribunal to which a dispute has been submitted to order interim measures.508 5.4.3. Improving the Dispute Resolution in the Space Sector There is an obvious need for a more effective mechanism of dispute resolution in the modern space sector. A precondition for such effectiveness is that the mechanism be acceptable to a majority of the relevant stakeholders, both public and private. When this can be achieved, the mere existence of such a mechanism can provide strong incentives for finding solutions to conflicts. In order to avoid complicated confrontations, all institutionalized dispute resolution should also be preceded by mandatory consultations between the disputing parties, considering that most disputes in the space sector have probably been

(including state enterprises, natural or juridical persons, and the International Seabed Authority which is an international organization) to take part in proceedings in limited, well-specified instances concerning disputes relating to activities in the international deep seabed (see Art. 187). 504 Art. 11.2. See Stephan Hobe, according to Report of the 68th Conference of the ILA 1998, pp. 246–247. If that were to occur, the exercise of this power might, however, not be easy to reconcile with the judicial character of a court. 505 Pursuant to para. 1, any of the disputing parties may request such consultations and they are to be conducted “with a view to reaching a prompt and amicable settlement”. 506 Para. 2. 507 Exclusion of the application of the ILA Draft Convention on the Settlement of Disputes is possible pursuant to Art. 9.3, by a declaration. The same provision gives the parties a choice between binding and non-binding dispute settlement procedures— mostly in order to enable the instrument to gain as wide as possible support. Report of the 66th Conference of the ILA 1994, p. 315. 508 Art. 9.

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resolved through informal negotiations thus far.509 For preventing prolonged negotiations, some international treaties set a fixed time limit after which the disputing parties have to resort to other means; such time limits are suggested by the ILA Draft Convention for the space sector as well.510 Conciliation, as the non-binding method of dispute resolution most akin to adjudication, could also be made mandatory.511 Evidently, such means alone can no longer serve the interests of the highly competitive space sector in an optimal way, however. Potential remedies to the current deficiencies in space-related dispute resolution depend partly on what kinds of entities are parties to a conflict. As it already is common practice among private enterprises in international business to resort to arbitration for resolving their differences, it does not seem necessary (or even feasible) to provide a completely new dispute settlement machinery for their needs in the space sector.512 Although the rules and procedures of international commercial arbitration seem in principle appropriate for resolving space-related controversies, they could nevertheless be adjusted to suit this particular area even better. First of all, procedures would be more straightforward if the established arbitral institutions expressly defined space law disputes as a category of claims which they accept for arbitration. This should be quite simple. A more profound problem is that some of the institutions may produce less successful awards in space-related conflicts due to their unfamiliarity with space activities and space law. Rapid and reliable access to a list of arbitrators with expertise in this particular field could help.513 There might even be demand for some sort of space-specific arbitration rules. The arbitral process could be more receptive to the needs of the space sector also in other ways. One would be the further development of space law. A general feature of arbitration is that it does not establish the precedents which court rulings provide: arbitral decisions are usually not published. In some cases See Ravillon 2003, pp. 816–817. Other examples include, i.a., the Convention on the Regulation of Antarctic Mineral Resource Activities (12 months; Art. 57.2), Convention on the Law of NonNavigational Uses of International Watercourses (six months; Art. 33.3), and Convention on Cooperation for the Protection and Sustainable Use of the Danube (12 months; Art. 24.2.a). 511 In the environmental sector, treaties have increasingly started to require conciliation as a compulsory phase in the dispute settlement process. The existence of a conciliation award—although recommendatory only—can have a significant role in helping avoid the need to resort to more formal means of dispute settlement. Romano 2000, p. 43. 512 At worst, new dispute resolution mechanisms for the private space industry might even constitute a step backwards because countries worldwide have accepted a multilateral system of enforcement of arbitral awards by ratifying the 1958 New York Convention. See Böckstiegel 1993(a), p. 34. 513 See Telecommunications Disputes: Specificities, Problems and Solutions 1999, p. 29. 509 510

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the arbitrator is not so much as required to give the parties themselves a written rationale for the decision.514 The discretion typically surrounding arbitrations makes it rather difficult to obtain information on arbitral cases.515 However, space law is still such a young branch of international law with numerous unsettled questions that published legal opinions would be particularly valuable for its continuity and development.516 Because court cases in this sector are relatively rare, it is primarily arbitral awards which would provide well-reasoned (albeit, of course, non-binding) precedents. Confidentiality being one of the most essential characteristics of arbitration, arbitration in the space sector has been of limited precedential and norm-generating value thus far.517 Hence some kind of a procedure for publication of the relevant legal findings of arbitral proceedings would be welcome.518 It could significantly enhance predictability in the resolution of space-related controversies.519 Of course, arbitration can never provide the continuity in case law that adjudication can—due to the frequent change of arbitrators if nothing else520—unless recourse is taken to arbitration by a permanent tribunal, which can better provide certainty and normative coherence.521 In any case, it is vital that the privacy and anonymity of the parties and the confidentiality of the information revealed in the course of arbitrations continue to enjoy protection.522 After all, they are the decisive

514

Consequently, at worst even the parties to a dispute may not understand how they should govern their conduct in the future in order to avoid further controversies. White 1993, p. 189. 515 Ravillon 2004, p. 2. 516 Böckstiegel 1993(a), p. 31. 517 Havel 2002, p. 12. The limited availability of arbitral practice in the space sector derives also from the simple fact that space activities (particularly those of commercial nature) have attained a considerable volume only rather recently. Böckstiegel 1994, p. 136. 518 Another useful improvement could be the publication of innovative dispute resolution procedures themselves. See Dispute Resolution in the Telecommunications Sector 2004, p. ix. 519 Another proposal for increasing such predictability is that if a new space law tribunal is established, it should also be able to give advisory opinions. Report of the 68th Conference of the ILA 1998, p. 248. An analogous example is provided by the Seabed Disputes Chamber of the ITLOS, which can give advisory opinions at the request of the Assembly or the Council of the International Seabed Authority (UNCLOS, Art. 191). Individual states do not have the authority to request such opinions. 520 Böckstiegel 1980, pp. 155–156. 521 Havel 2002, pp. 25, 35–36. 522 White 1993, p. 189. Also the parties’ possible fear of so-called negative precedents has to be dealt with; one of the factors contributing to the success of arbitration is that the parties can refrain from maintaining rigid positions out of fear that the outcome may harm them in future cases. See Dispute Resolution in the Telecommunications Sector 2004, p. 17.

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reasons why participants in space operations typically resort to arbitration for resolving their conflicts in the first place.523 Although settlement of disputes between private parties in the space sector can be demanding, it is even more complex when public international law is involved. On this level, state-versus-state disputes are the most typical controversies and the ones most suitable for being resolved there.524 Traditionally, states have been reluctant to submit to binding mechanisms of dispute settlement (be it adjudication or arbitration), especially in advance;525 most states view such arrangements as constraints on their sovereignty. Compulsory dispute resolution mechanisms are also out of favor in conflicts between states and international organizations that may involve considerable political friction.526 Within the domain of public international law, the lack of effective dispute resolution mechanisms is increasingly evident. As long as no general agreement establishing a binding procedure for dispute settlement in space activities exists, it is probable that most states will continue to resolve their mutual disputes through diplomatic channels. This may be difficult, though, especially in certain particularly sensitive areas of space activity such as remote sensing and direct broadcasting. The current trend of increasing relativism of state sovereignty seems to promise some reforms in this respect.527 As discussed above, arbitration is already common in international business—the space business included—also in relations which involve state entities. There is even an arbitral regime, the ICSID, designed specifically for dealing with disputes between states and private parties. It seems likely that the enormous interests at stake in the modern space sector will eventually make states inclined to adopt even harsher restrictions on their sovereignty by accepting an effective (binding) general dispute settlement system.528 The ILA Draft Convention is one suggestion to this end. Yet it also addresses the concerns of states, at least to an extent, by giving them a number of options for resolving disputes. Considering the variety of possible disputes as well as the different political, legal and other circumstances potentially relevant in a conflict situation, it seems quite improbable that one single method to settle controversies could be equally suitable for all situations in the space sector.529 In particular, it does not appear realistic to expect most states to accept any See Ravillon 2003, pp. 818–819. von der Dunk 2002, p. 447. 525 Böckstiegel 1994, p. 137. 526 Report of the 68th Conference of the ILA 1998, p. 242. 527 See Williams 1997, p. 63. 528 Ibid., p. 65. An interesting example from an analogous area, air law, is the system of ICAO, where dispute resolution is handled through the ICAO Council. Decisions of the Council may be appealed, either to arbitration or the ICJ (Convention on International Civil Aviation, Art. 84). 529 Böckstiegel 1980, p. 152. 523 524

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international court as the exclusively competent organ for dispute settlement. The experience of the UNCLOS presents a compelling argument in favor of a solution of the type envisaged by the draft convention: a combination of adjudication by a court (even by an international tribunal for space activities) and arbitration (ad hoc or administered530) where parties are allowed to choose between the methods but with an obligation to accept one of them. A system of this type could have a realistic chance of being approved by a majority of the international state community (including states active in space).531 Of major importance today is also the approval of the private sector (and IGOs), which could be achieved by giving them equal access to the dispute resolution mechanism (except for the possibility to avail themselves of the ICJ). Such a system can be created by a new space convention, as envisioned by the ILA. As an alternative to a completely new international instrument, the existing space treaties could be reinforced by additional provisions or protocols providing for more effective dispute settlement.532 Whatever solution is adopted, it is likely to take a while before any new instruments or provisions of international space law come into force. In the meanwhile, possibilities for strengthening the role of the ICJ, for instance, could be pondered.533 One suggestion has been to set up a special chamber of the ICJ for space law disputes, similar to that established in 1993 for environmental See also Bourely 1994 on the creation of the International Space and Aviation Arbitration Court of the French Air and Space Law Society. Apparently, partly in response to complaints concerning the high arbitration fees of the ICC, the fees of arbitrators and experts in the Court are determined on the basis of a lump sum per each day when a hearing or meeting is held. Bostwick 1995, pp. 33–34. This should make the costs even lower than in lawsuits in the domestic courts of many countries. Diederiks-Verschoor 1998, pp. 42–43. The rules of the Court call for a binding award which cannot be appealed. It is strictly confidential, as is the handling of the dispute. The award has to be rendered within one year after the commencement of the arbitration. Bostwick 1995, pp. 33–34. An interim arbitration procedure is also possible. Furthermore, the rules provide for arrangements for appointing experts listed according to their areas of specialization and recommended by the Court. Diederiks-Verschoor 1998, p. 43. Apparently, the Court has, however, not been used yet. See Ravillon 2003, p. 808. 531 The prospects for this seem relatively promising, considering that the UNCLOS by the time of this writing has as many as 152 parties, including both industrialized and developing countries. One more way to make states more inclined to binding mechanisms of dispute settlement could be to give them right to withdraw their submission to binding dispute resolution such that the withdrawal takes effect after a certain period of time and concerns future disputes only. Böckstiegel 1978, p. 18. 532 Mendes de Leon 1995, pp. 338–339. 533 For an assessment of such possibilities, see, e.g., Böckstiegel 1997; Vereshchetin 2001. Interestingly, when the OST was being drafted, the US actually proposed a clause pursuant to which disputes arising from the interpretation or application of the OST could be referred to the ICJ for decision. Stojak 1997, p. 452. 530

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matters.534 Apparently the idea has enjoyed relatively wide support among space lawyers.535 The formation of such chambers is possible under Article 26 of the ICJ Statute, for dealing either with certain categories of cases536 (like environmental matters) or with one particular case.537 The space law chamber could hence be formed either on a permanent basis as a standing chamber or as an ad hoc chamber for hearing a given case. Pursuant to the ICJ Statute, cases are “heard and determined by the chambers … if the parties so request”;538 the option of referring an environmental case to the full court would thus also remain. Even a more extensive chamber structure has been proposed for the possible global space law tribunal: different chambers tailored to hear different types of disputes.539 This could introduce considerable special expertise in conflict resolution.540 Particularly where the disputing parties are allowed to select certain judges for the chamber (as is de facto the case where ad hoc chambers of the ICJ are concerned), this brings the tribunal quite close to arbitration.541 534

The ICJ established a special seven-member Chamber of the Court for Environmental Matters in 1993. International Court of Justice, Press Release 1993. For a more detailed assessment of the Environmental Chamber, see, e.g., Romano 2000, pp. 122–125. It has been suggested that if a chamber for space-related disputes were established, there could be some kind of interaction between it and the Environmental Chamber of the ICJ, considering that space activities also often have environmental effects. See de Lupis Frankopan 1997, p. 461. 535 See Report of the 68th Conference of the ILA 1998, p. 247. The utilization of chambers of the ICJ for resolving space law controversies is no new idea. See, e.g., Cocca 1980, p. 140. Of more recent studies, see, e.g., Williams 1997, p. 64. 536 Art. 26.1. The examples given in the article for the application of this paragraph are “labour cases and cases relating to transit and communications”. The ICJ Statute has ‘inherited’ these two types of cases from its ‘predecessor’, the Statute of the Permanent Court of International Justice (Arts. 26 and 27). Labor, transit and telecommunications may have appeared to be focal issues in the early 20th century. Today, however, environmental disputes have greater international importance. Romano 2000, pp. 122– 123. 537 Art. 26.2. 538 Art. 26.3. 539 Cocca 1980, p. 147. 540 One more suggestion for introducing special expertise into the resolution of controversies in the space sector has been the creation of an ombudsman of sorts. This suggestion does not seem to entail the establishment of any decision-making body but merely a consultative organ “consisting of prominent space and telecommunication lawyers”. Supancana 1998, p. 194. 541 See Böckstiegel 1993(b), p. 5. Pursuant to Art. 26.2 of the Statute of the ICJ, “[t]he number of judges to constitute [an ad hoc] chamber shall be determined by the Court with the approval of the parties” (emphasis added). Despite the temperate language of the provision, it in fact permits the views of the disputing parties concerning the composition of the ad hoc chamber to be decisive. This apparently has increased the attractiveness of ad hoc chambers of the ICJ. Romano 2000, p. 124.

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However, at least a system with several different kinds of chambers combined with wide discretion in selecting the body to hear a given case sounds slightly excessive, even overly complicated. The UNCLOS system can again serve as an example: within the ITLOS, there is a special Seabed Disputes Chamber.542 The UNCLOS also provides for a possibility of establishing ad hoc chambers for the ITLOS for “dealing with particular categories of disputes”543 and even ‘subchambers’ for the Seabed Disputes Chamber.544 It should be recalled, however, that during the UNCLOS negotiations, the Seabed Disputes Chamber did not prove popular among industrialized states, many of which called for dispute resolution by arbitration instead.545 As a matter of fact, the entire ITLOS was the compromise result of protracted negotiations, and it has not been put to full use since its formation: states seldom resort to the ITLOS in practice, and the few cases which have been submitted to it are relatively insignificant.546 Specialized tribunals or chambers thus do not appear very popular in this area, which is analogous to the space sector. No state has yet opted to have a dispute heard by the Environmental Chamber of the ICJ either.547 Hence, even if a special space disputes chamber were established, there is no reason to expect that a considerable number of disputes (if any) from the space sector would be brought before the ICJ. Although improvements in adjudication processes might solve some of the current problems related to dispute resolution in the space sector, this appears to be a more demanding task than that of establishing better arbitration-based mechanisms. Besides, considering the focal role of international organizations UNCLOS, Art. 186. Annex VI, Art. 15. 544 Annex VI, Art. 36. For a more detailed treatment of the subject, see, e.g., Collier– Lowe 1999, pp. 84–95. 545 Oxman 1983, p. 78. 546 By the time of this writing, ITLOS has had a total of 13 cases, of which seven have concerned prompt release of vessels. See the proceedings and judgments of the ITLOS at the International Tribunal for the Law of the Sea website. 547 Apparently, the reasons for the failure of the ICJ Environmental Chamber to attract litigants are manifold. They include the general reluctance of states to settle their international disputes (particularly those concerning environmental matters) by adjudicative means. Moreover, unlike in the case of ad hoc chambers of the ICJ, the disputing parties are not allowed to determine the composition of the Environmental Chamber. Also, the procedure is very similar to that of the full court. One more reason might be that states cannot necessarily agree very easily that their dispute is an environmental one. For instance, in the Gabcikovo-Nagymaros case, where Hungary strongly appealed to principles of international environmental law, Slovakia focused on the law of the treaties (which also had a more focal role in the decision of the ICJ). See Romano 2000, pp. 123–125. Indeed, any legal dispute in a ‘specialized’ area can (and most likely will) involve many other important issues of international law. This may prompt states to turn to the full court instead of a specialized chamber of it. Vereshchetin 2001, p. 481. 542 543

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and—above all—the private sector in space activities, the ICJ risks being excluded from much of litigation in this area anyway. One proposal that has been put forward is that the space sector could resort to the Permanent Court of Arbitration (PCA) instead, as it has recently granted limited access to other actors than states (including even private entities).548 Furthermore, it has been increasingly recognized that disputes in the space sector can involve many other stakeholders than the immediate disputing parties. Above all, environmental concerns are common to all humanity, including even future generations. Accordingly, disputes regarding the use and condition of the environment seem to call for other kinds of conflict resolution mechanisms than the traditional bilateral and adversarial methods. Despite its many advantages in accommodating different stakeholders, arbitration, too, remains a bilateral procedure—actually even more so than court proceedings, as arbitration agreements typically do not allow even third states whose interests may be directly at stake to intervene. Interestingly, some environmental treaties have expanded the opportunities available within their dispute resolution mechanisms by granting third states with legal interests in a dispute the right to intervene in arbitral processes. For instance, pursuant to the 1991 Espoo Convention on Transboundary EIA, [a]ny Party to this Convention having an interest of a legal nature in the subjectmatter of the dispute, and which may be affected by a decision in the case, may intervene in the proceedings with the consent of the tribunal.549 548 See Hulsroj 1999, pp. 71–72. A precedent from a partly analogous field is provided by the European Organization for the Safety of Air Navigation (EUROCONTROL). The EUROCONTROL Convention Relating to Cooperation for the Safety of Air Navigation refers to the Optional Rules of the PCA. The PCA applies various sets of optional arbitration rules, based on the 1976 UNCITRAL arbitration rules. The EUROCONTROL Draft Arbitration Policy complements the PCA’s Optional Rules. In addition to referring disputes to arbitration under the auspices of the PCA, it posits a newly conceived instrument, a preliminary advisory opinion, as a tool for enforcing regulatory measures (Art. 5). For a more detailed assessment of the EUROCONTROL regulation in dispute resolution, see Arbitration in Air, Space and Telecommunications Law: enforcing regulatory measures 2002, which includes several articles on this topic. The PCA has been favored also in the environmental sector; arbitration clauses with reference to the PCA can be found in instruments such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Art. XVIII) and the Convention on Migratory Species (Art. XIII). It has even been proposed that the resolution of international space-related disputes before permanent arbitral tribunals (even more, before a sector-specific supranational forum with particular expertise in space issues) should be made mandatory and, moreover, stakeholders other than states and international organizations should be afforded equal (full) participation in this system. For a detailed treatment of the issue, see Havel 2002. 549 Appendix VII, Art. 15. There are also many other examples, including the

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This reflects an increasing awareness of the unity of the global environment.550 Considering the inherent unity of the space environment and the interrelatedness of the spacefaring international community, such an approach could serve the needs of the space sector, too.551 Even more extensive multilaterality could be achieved by discussing the resolution of conflicts within conferences where numerous stakeholders are involved. This would, however, call for the establishment of completely new institutionalized processes and, above all, publicity for which the space sector hardly is ready. Besides, there also is an obvious need for independent, codified legal resolution of disputes through a binding judgment in order to safeguard the interests of all stakeholders regardless of political considerations, for instance. This can best be guaranteed by arbitration, which thus appears to be the most promising candidate for the resolution of disputes in the space sector. 5.5. Conclusion In principle, a general convention governing the activities of the various entities operating in outer space sounds appealing, provided that such an instrument could attract sufficiently broad acceptance by the relevant actors. For the present author, the idea of a new specific space convention which would concentrate on the environmental aspects of space activities sounds at least equally appealing. In practice, however, such a convention is unlikely to materialize in the near future. The lengthiness of the international treaty-making process is one among the many obstacles to the development of international space law. International regimes typically emerge only after complex bargaining processes. Even when there exists a zone of agreement, it tends to be very difficult to identify common preferences. Efforts to reach agreement on a specific point within this zone easily give rise to hard bargaining and coercive diplomacy. Consequently, negotiations often fail to result in agreements, or they yield less than optimal results, ones generally attributable to the problem of the lowest common denominator. Even if states manage to agree on new international regulation, the provisions of legally Convention on the Protection and Use of Transboundary Watercourses and the Convention on the Transboundary Effects of Industrial Accidents (both from 1992), which have borrowed the wording of their relevant provisions directly from the Espoo Convention (Annex IV, Art. 15, and Annex XIII, Art. 15 respectively). Earlier agreements with provisions to the same effect include, i.a., the 1973 MARPOL Convention (Protocol II, Art. VII). For more examples, see Romano 2000, pp. 107–108. 550 Ibid., p. 43. 551 An interesting precedent is provided by the arbitration tribunal established pursuant to the ESA Convention, where any ESA member state may intervene in the proceedings if the tribunal agrees (Art. XVII.4).

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binging international treaties may be formulated in such general terms that their implementation in practice is very difficult. Sometimes treaties never even enter into force or do so only for a limited number of parties, not necessarily including the states whose cooperation would be the most essential for achieving the goals of the instrument. These problems can render even full-fledged international treaties practically meaningless. Such complications are by no means unfamiliar in the space sector. The existing body of UN space law is a good example of the difficulty of negotiating effective international treaties. Furthermore, the international community has long been unable to create any new international space conventions. However, the current challenges in this field of human activity necessitate more advanced legal mechanisms; there is a pressing need for improved approaches of some kind to the negotiation of international rules. One area which can provide pointers to the kind of innovations that could be useful in this respect is international environmental law. Above all, examination of the two-step convention-protocol approach commonly used in international environmental negotiations and the related problem of the lowest common denominator can yield important lessons for the future of space law. Even the simple idea of subsequent, supplementary instruments to flesh out the ambiguous obligations of the space treaties is important.552 At least equally important would be the creation of a legal mechanism which could effectively take into account the ongoing developments in space science and technology. Hence international environmental law should be consulted both as concerns negotiation processes and innovative mechanisms adopted by these processes, the two aspects being sometimes difficult to distinguish. Innovative approaches in this regard include mechanisms such as interim agreements, ‘supranationally’ adopted technical standards, and self-correcting treaties. International certification mechanisms could also prove feasible. One prospect—although largely rejected by the current regimes in the management of the resources of global commons—is that more tempting differential obligations or selective incentives would be developed for the industrialized countries. For instance, technology transfer to facilitate enhanced possibilities for (preferably environmentally safer) space activities could prove acceptable to industrialized states in exchange for some sort of extended access to space resources.553 Another interesting option is an international fund that could be harnessed to serve a 552

Indeed, there have been various proposals for the adoption of such instruments to complement the UN space treaty system. See, e.g., The Report of the ESA Space Debris Working Group 1988, which put forward the idea of an “Additional Protocol to the 1976 Registration Convention” for facilitating the difficulties related to the registration of space objects vis-à-vis the space debris problem (p. 67). 553 Access to sustainable use of resources is a widely applied incentive in terrestrial surroundings in return for accepting environmental restrictions. See, e.g., Sand 1990, p. 7.

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variety of purposes in the management of space activities, including the more sustainable use of outer space. Such systems obviously require a delicate balancing of interests and may appear problematic even in light of the fundamental principles of space law. Nevertheless, they deserve thorough examination as there is pressing need for more feasible legal mechanisms in the space sector. In order to enhance positive attitudes in this sector towards international regulation, it would be of utmost importance that increased attention be paid to the gains resulting from more prudent management of space activities—instead of applying the common approach in international treaty negotiations of focusing on the allocation of the losses or costs involved in new regulation. Otherwise, treaties will easily be seen merely as new instruments of restriction and constraint rather than opportunities, and the economic losses such accords often entail (in the short run) will provide excuses for withdrawing from the process even before negotiations have begun.554 Although legally binding international obligations might seem to offer the most secure basis for space activities, the role of recommendations and other nonbinding instruments should not be underestimated. After all, in international law it hardly can be the fear of sanctions but the desire to avoid other, somehow inauspicious outcomes that drives states to act in a certain manner—also in outer space. Considering this, the legal status of international instruments should not play a major role as regards compliance with them. Accordingly, the potential of mechanisms such as non-binding codes of conduct, for instance, should be carefully considered. Particularly where the problem of space debris is concerned, several voluntary standards have already been developed. Compliance with them still leaves much to be desired, however. The role of international cooperation of experts from different fields is focal for the development and operation of any mechanism for the environmental management of space activities. A tool for which multidisciplinarity and reciprocity are particularly essential is the environmental impact assessment.555 EIA can not only improve environmental decision-making in the case of individual space missions but also enhance the legitimacy and acceptance of the regulation of space activities in general (and hence facilitate norm-making 554 See Susskind 1994, p. 23. Such withdrawal may, of course, occur also later, with the effect of even already negotiated instruments being rejected by the state community. An apt example is the Moon Treaty, which merely referred to the establishment of an international regime (the details of which were to be agreed later) to govern the utilization of lunar resources in the future, once such exploitation becomes feasible (Art. 11.5 et seq.). This reference alone was enough to scare away most of the potential ratifying states, as the exploitation of space resources began to look more feasible towards the end of the negotiation process—even despite the fact that the text of the Moon Treaty was eventually adopted by the UN General Assembly without a vote. 555 See Morgan 1998, p. 9.

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even at the international level). Despite the unique challenges of assessing the potential impacts of space activities, EIA, modified to address these particular features, is thus a tool well worthy of further development for the needs of the space sector—whether it be introduced by international treaties or legally non-binding instruments. This is particularly true inasmuch as any adverse environmental impacts of space activities are highly difficult to mitigate once they have materialized. One more way to make international mechanisms more effective is to equip them with better mechanisms for dispute resolution. No matter how sophisticated the international legal instruments negotiated are, they cannot prevent disputes from arising altogether. Hence there is need for improved dispute resolution mechanisms which provide a system that is binding and detailed enough to be effective and, moreover, accommodates also actors other than sovereign states. In particular, private enterprises need to be guaranteed direct access as parties to any dispute settlement procedure. It seems that a feasible solution could be arbitration combined with other dispute resolution methods to create a system that offers a certain freedom of choice but ultimately results in a binding settlement of disputes.

Chapter Six

Concluding Remarks The increasing utilization of outer space also means increasing environmental threats. It has become obvious that the effective management of environmental problems related to space activities is impossible using the current international law of outer space only. Degradation of the space environment is already a severe problem, with the potential to threaten not only the exploration and exploitation activities of the present generation but also the opportunities of generations to come to use outer space and its resources. Obviously, it is an even more significant threat in the eyes of those who see outer space as having some value beyond its utility to humanity. This book has examined some ways to approach this challenging situation and the presumed advantages and disadvantages of various alternatives. The different measures available are not mutually exclusive but can often be applied concurrently for an optimal result. Common to all of the approaches studied is that they require widespread international cooperation if they are to be effective. Often even a single ‘free-rider’ state may at worst render the efforts of all others worthless. Therefore, it is of utmost importance that more extensive and effective international mechanisms be created for the purpose of controlling degradation of outer space. The challenges related to the adoption of any new regulation in the area of international space law are manifold. However, it should by no means be an impossible task either. One positive factor likely to facilitate the development of coherent and widely acceptable agreements maximizing the common good is that all spacefaring entities have many potential roles and are likely to be equally affected by the adversities related to space activities. Nevertheless, many developing states remain at a disadvantage in international space law negotiations. There are numerous considerations which deserve special attention 321

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in this regard, particularly ones connected to the status of outer space as the province of all mankind. The relevant questions include how to guarantee efficient and reasonable management of this global common, how to preserve it as a legacy for future generations, and how to secure access for those parts of humanity which are not currently spacefaring nations, for instance. An additional fundamental challenge is that as no one can (in principle, at least) be excluded from the use of outer space, the burden of management and protection falls entirely on restrictions governing that use. The first step towards new international regulation could be, for instance, a resolution by the UN General Assembly consisting of (non-binding) environmental principles especially tailored to space activities. Principles of international environmental law should be put to more effective use in outer space in other ways, too. Despite the various problems in resorting to such principles, at least the general idea of sustainable development as a comprehensive view of integrating economic and environmental interests should be accepted as a starting point for all space activities. It should be adopted as the foundation for any new norms in space law, in particular ones for controlling the environmental aspects of space activities. Protection of remote, hostile areas such as outer space raises many practical problems, but it would be important at least to recognize more explicitly that states are not free to pollute these areas by their activities. As a minimum standard, outer space should by analogy be accorded the level of protection already afforded to other global commons. In accordance with the ideology of sustainable development, multidisciplinarity and all kinds of cooperational regimes facilitating progressive learning processes and enabling continuous re-evaluation of space activities according to insights gained over time should be specifically encouraged. Moreover, the concept of development should be reconsidered to include other elements in addition to economic growth. Instead of ‘sustainable development’, one might speak of sustainable management of outer space and its resources, because for many the definition of development entails merely increased efficiency resulting from technological improvements. On the other hand, technological improvements which contribute to environmentally less adverse conduct of space activities would be more than welcome. With the technology used today, it seems difficult to slow the rate of environmental change in outer space to a level which that environment can tolerate, at least without considerable restrictions on space activities. In addition to limiting and regulating human activity in outer space, parts of space could even be reserved as fully protected from human intervention. Obviously, most of outer space remains (at least for the time being) far beyond our reach already due to its physical dimensions and the restrictions posed by our technical capacity, hence being ‘automatically’ protected from human activities. However, ‘space conservation areas’ could and should be established also (and above all) in near-Earth outer space—if for no other reason than to preserve possibilities for human space activities in the future. Also, mechanisms such as

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international funds to allow long-term strategies for alleviating environmental degradation of outer space should be considered. A most vital priority is to prevent environmental harm before it materializes, hence the need to, for instance, apply environmental impact assessments to all space missions. Conservation of the space environment may not rank very high on the agendas of many of the relevant stakeholders, at least when it requires them to compromise on some of their other interests. Nevertheless, it is a challenge that can no longer be avoided. Another issue requiring ever more attention in the modern space sector is the settlement of disputes. Dispute resolution is relevant for all space activities, environmental management of outer space included. More effective regulation in this respect calls for solutions that are capable of accommodating all relevant stakeholders and producing expeditious, yet fair, solutions and legal certainty. Evidently, it is high time to push hard for the establishment of a well-oiled dispute resolution system for the needs of the current space community. Even more desirable would be to be able to provide incentives for the future space sector to resolve disagreements constructively or, preferably, to avoid them altogether with the aid of better-developed dispute prevention mechanisms. Bearing in mind the ambitious plans of the spacefaring nations today, it might not take long before the already complicated controversies in space activities expand into totally new dimensions. The amount of ‘conventional’ space activities is increasing steeply. Additionally, novel types of space missions are being planned. For instance, the introduction of a permanent human presence on celestial bodies is likely to entail a whole spectrum of new challenges. Among other potential problems, such developments will surely have an impact on the space environment—and on a scale far greater than we have seen thus far. Permanent space settlements will—sooner or later—also entail conflicts involving criminal acts in outer space, for instance. It is possible that future developments might even necessitate completely unique legal codes for space colonies. Fortunately, such considerations still remain far beyond the scope of this work. It can only be hoped that humanity will be better prepared to address the challenges materializing in the future than it has been in dealing with the current problems in the use of outer space.

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Treaties, Other Instruments and Documents This list is organized in alphabetical order according to the full name of the documents. Entries for protocols and other subsequent instruments are placed under the main instrument where possible. For treaties, the list gives the dates of adoption and entry into force. The entry for each document indicates at least one source where the document can be found or accessed (URL). The websites referred to below were last viewed on 20 November 2007 unless otherwise indicated. Treaties Agreed Measures for the Conservation of Antarctic Fauna and Flora Done 2 June 1964; in force 1 November 1982. Agreement Between the Government of the United States of America and the Government of Canada on Air Quality Done and in force 13 March 1991. Agreement Concerning the Adoption of Uniform Conditions of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts Done 20 March 1958; entry into force of the latest amendments 23 June 2005. Now called “Agreement Concerning the Adoption of Uniform Technical Prescriptions for Wheeled Vehicles, Equipment and Parts which can be fitted and/or used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of These Prescriptions”. E/ECE/324, E/ECE/TRANS/505, Rev.1/Add.17/Rev.3 (11 July 2005).

359

360

Treaties, Other Instruments and Documents

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty) Adopted 5 December 1979 by UNGA Res. 34/68; opened for signature 18 December 1979; in force 11 July 1984. 1363 UNTS 3, 18 ILM 1434 (1979). Agreement on the Civil International Space Station (Agreement among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning cooperation on the International Space Station) 29 January 1998. Agreement on the Conservation of Nature and Natural Resources Done 9 July 1985; not yet in force. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement) Adopted 19 December 1967 by UNGA Res. 2345 (XXII); opened for signature 22 April 1968; in force 3 December 1968. 672 UNTS 199, 19 UST 7570, TIAS 6599. Agreement relating to the International Telecommunications Satellite Organization Done 20 August 1971; in force 12 February 1973. Antarctic Treaty Done 1 December 1959; in force 23 June 1961. 402 UNTS 71. – Protocol on Environmental Protection to the Antarctic Treaty Done 4 October 1991; in force 14 January 1998. 30 ILM 1455 (1991). Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal Done 22 March 1989; in force 5 May 1992. 1673 UNTS 126, 28 ILM 657 (1989). – Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal Done 10 December 1999; not yet in force.

Treaties, Other Instruments and Documents

361

Charter of the United Nations, including Statute of the International Court of Justice Done 26 June 1945; in force 24 October 1945. 1 UNTS xvi. Comprehensive Nuclear Test Ban Treaty Done 10 September 1996; not yet in force. 35 ILM 1439 (1996). Constitution of the International Telecommunication Union Done 22 December 1992; in force 1 July 1994 (entry into force of the latest amendments 1 January 2004). 1825 UNTS 3. – Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication Union and to the Administrative Regulations Done 22 December 1992; in force 1 July 1994. Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) Done 16 November 1972; in force 17 December 1975. 1037 UNTS 151. Convention for the Establishment of the European Space Agency Done 30 May 1975; in force 30 October 1980. 14 ILM 864 (1975). Convention for the Prevention of Marine Pollution from Land-Based Sources (NB. Replaced by the 1992 Paris Convention) Done 4 June 1974; in force 6 May 1978. 13 ILM 352 (1974). – Amended by a Protocol done 26 March 1986; in force 1 February 1990. 27 ILM 625 (1988). Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific Done 24 November 1989; in force 17 May 1991. 29 ILM 1449 (1990). Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region Done 24 March 1983; in force 11 October 1986. 22 ILM 221 (1983).

362

Treaties, Other Instruments and Documents

Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region Done 21 June 1985; in force 30 May 1996. Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) Done 22 September 1992; in force 25 March 1998. 32 ILM 1072 (1993). Convention for the Protection of the Mediterranean Sea Against Pollution Done 16 February 1976; in force 12 February 1978. 15 ILM 290 (1976). Convention for the Protection of the Natural Resources and Environment of the South Pacific Region Done 24 November 1986; in force 22 August 1990. 26 ILM 38 (1987). Convention of the International Telecommunication Union Done 22 December 1992; in force 1 July 1994 (entry into force of the latest amendments 1 January 2004). 1825 UNTS 3. – Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication Union and to the Administrative Regulations Done 22 December 1992; in force 1 July 1994. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) Done 25 June 1998; in force 30 October 2001. 38 ILM 515 (1999). Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency Done 26 September 1986; in force 26 February 1987. 25 ILM 1377(1986). Convention on Biological Diversity Done 22 May 1992; in force 29 December 1993. 1760 UNTS 79, 31 ILM 818 (1992).

Treaties, Other Instruments and Documents

363

– Cartagena Protocol on Biosafety Done 29 January 2000; in force 11 September 2003. 39 ILM 1027 (2000). Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels Done 10 October 1989; not yet in force. Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano Convention) Done 21 June 1993; not yet in force. 32 ILM 1228 (1993). Convention on Cooperation for the Protection and Sustainable Use of the Danube Done 29 June 1994; in force 22 October 1998. Convention on Early Notification of a Nuclear Accident Done 26 September 1986; in force 27 October 1986. 25 ILM 1370 (1986). Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention; Transboundary EIA Convention) Done 25 February 1991; in force 10 September 1997. 30 ILM 800 (1991). – Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context Done 21 May 2003; not yet in force. Convention on Fishing and the Conservation of the Living Resources of the High Seas Done 29 April 1958; in force 20 March 1966. 559 UNTS 285, TIAS 5969. Convention on International Civil Aviation (Chicago Convention) Done 7 December 1944; in force 14 April 1947. 15 UNTS 295. Convention on International Liability for Damage Caused by Space Objects (Liability Convention) Adopted 29 November 1971 by UNGA Res. 2777 (XXVI); opened for signature 29 March 1972; in force 1 September 1972.

364

Treaties, Other Instruments and Documents

961 UNTS 187, 24 UST 2389, TIAS 7762. Convention on International Trade in Endangered Species of Wild Fauna and Flora Done 3 March 1973; in force 1 July 1975. 993 UNTS 243, 12 ILM 1085 (1973). Convention on Long-Range Transboundary Air Pollution Done 13 November 1979; in force 16 March 1983. 1302 UNTS 217, 18 ILM 1442 (1979), TIAS 10541. – Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Long-Term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (EMEP) Done 28 September 1984; in force 28 January 1988. 24 ILM 484 (1985). – Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes (Sofia Protocol) Done 31 October 1988; in force 14 February 1991. 28 ILM 212 (1989). Also the rest of the protocols to this Convention are accessible at Convention on Migratory Species of wild Animals Done 23 June 1979; in force 1 November 1983. 19 ILM 15(1980). Convention on Nuclear Safety Done 17 June 1994; in force 24 October 1996. 33 ILM 1514 (1994). Convention on Registration of Objects Launched into Outer Space (Registration Convention) Adopted 12 November 1974 by UNGA Res. 3235 (XXIX); opened for signature 14 January 1975; in force 15 September 1976. 1023 UNTS 15, 28 UST 695, TIAS 8480. Convention on Supplementary Compensation for Nuclear Damage Done September 12, 1997; not yet in force.

Treaties, Other Instruments and Documents

365

Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa Done 29 January 1991; in force 22 April 1998. 30 ILM 775 (1991). Convention on the Conservation of Antarctic Marine Living Resources Done 20 May 1980; in force 7 April 1982. 19 ILM 837 (1980), TIAS 10240. Convention on the International Mobile Satellite Organisation – Convention on the International Maritime Satellite Organisation Done 3 September 1976; in force 16 July 1979. – Amended Convention on the International Mobile Satellite Organisation Done 20–24 April 1998; in force 31 July 2001. Convention on the Law of the Non-Navigational Uses of International Watercourses Done 21 May 1997; not yet in force. 36 ILM 700 (1997). Convention on the Physical Protection of Nuclear Material Done 3 March 1980; in force 8 February 1987. 1456 UNTS 101, 18 ILM 1419 (1979), TIAS 11080. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter Done 13 November 1972; in force 30 August 1975. 11 ILM 1294 (1972), 26 UST 2403, TIAS 8165. – 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 Done 7 November 1996; not yet in force (once in force, replaces the 1972 Convention). 36 ILM 7 (1997). Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) Done 18 May 1977; in force 5 October 1978. 1108 UNTS 152, 16 ILM 88 (1977), 31 UST 333, TIAS 9614. Convention on the Protection and Use of Transboundary Watercourses and International Lakes Done 17 March 1992; in force 6 October 1996.

366

Treaties, Other Instruments and Documents

31 ILM 1312 (1992). – Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents Done 21 May 2003; not yet in force. Convention on the Protection of the Black Sea Against Pollution Done 21 April 1992; in force 15 January 1994. 32 ILM 1110 (1993). Convention on the Protection of the Marine Environment of the Baltic Sea Area Done 9 April 1992; in force 17 January 2000. Convention on the Recognition and Enforcement of Foreign Arbitral Agreements and Awards (New York Convention) Done 10 June 1958; in force 7 June 1959. 330 UNTS 38 (1959). Convention on the Regulation of Antarctic Mineral Resource Activities Done 2 June 1988; not yet in force. 27 ILM 868 (1988). Convention on the Transboundary Effects of Industrial Accidents Done 17 March 1992; in force 19 April 2000. 31 ILM 1333 (1992). – Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents Done 21 May 2003; not yet in force. Convention on Third Party Liability in the Field of Nuclear Energy, as amended by the additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (Paris Convention) Done 29 July 1960; in force 1 April 1968.

Treaties, Other Instruments and Documents

367

– Convention of 31st January 1963 Supplementary to the Paris Convention of 29th July 1960, as amended by the additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (Brussels Supplementary Convention) Done 31 January 1963; in force 4 December 1974. – Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention Done 21 September 1988; in force 27 April 1992. – Protocol to Amend the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the additional protocol of 28 January 1964 and by the protocol of 16 November 1982 (Protocol to the Paris Convention) Done 21 February 2004. – Protocol to Amend the Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy, as amended by the additional protocol of 28 January 1964 and by the protocol of 16 November 1982 (Protocol to the Brussels Supplementary Convention) Done 21 February 2004. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, as amended by the Protocol of 1982 and the Amendments of 1987 (Ramsar Convention) Done 2 February 1971; in force 21 December 1975. 996 UNTS 245, 11 ILM 963 (1972), TIAS 11084. Convention Relating to the Status of Refugees Done 28 July 1951; in force 22 April 1954. 189 UNTS 150. – Protocol Relating to the Status of Refugees Done 18 November 1966; in force 4 October 1967. 606 UNTS 267. EUROCONTROL Convention Relating to Cooperation for the Safety of Air Navigation Done 13 December 1960; in force 1 March 1963. 523 UNTS 117. – Replaced by a consolidated version of the Convention done 27 June 1997: Protocol consolidating the Eurocontrol International Convention relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended

368

Treaties, Other Instruments and Documents

European Convention on International Commercial Arbitration Done 21 April 1961; in force 7 January 1964. 484 UNTS 364. Framework Agreement Between the European Community and the European Space Agency Done 25 November 2003; in force 28 March 2004. Instrument for the Establishment of the Restructured Global Environmental Facility Done in March 1994; in force 7 July 1994 (amended in 2002; amendments in force 19 June 2003). International Convention for the Prevention of Pollution from Ships (MARPOL Convention) Done 2 November 1973. – Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships Done 17 February 1978. 1340 UNTS 61, 17 ILM 546 (1978). The two instruments form a combined instrument which is referred to as the “International Convention for the Prevention of Marine Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto” (MARPOL 73/78). It entered into force 2 October 1983. For a list and description of amendments to the Convention, see International Convention for the Regulation of Whaling Done 2 December 1946; in force 10 November 1948. 161 UNTS 72. International Convention on Civil Liability for Oil Pollution Damage Done 29 November 1969; in force 19 June 1975. 973 UNTS 3, 9 ILM 45 (1970). – International Maritime Organization Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage of 29 November 1969 Done 27 November 1992; in force 30 May 1996. This Protocol replaced the 1969 Convention.

Treaties, Other Instruments and Documents

369

International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea Done 3 May 1996; not yet in force. 35 ILM 1415 (1996). International Convention on Oil Pollution Preparedness, Response and Co-operation Done 30 November 1990; in force 13 May 1995. 30 ILM 733 (1990). International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage Done 18 December 1971; in force 16 October 1978. 1110 UNTS 57, 11 ILM 284 (1972). – International Maritime Organization Protocol of 1992 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 18 December 1971 Done 27 November 1992; in force 30 May 1996. This Protocol replaced the 1971 Convention. International Telecommunication Convention Done 25 October 1973; in force 1 January 1975. 28 UST 2495, TIAS 8572. – Replaced by International Telecommunication Convention Done 6 November 1982; in force 1 January 1984. – Replaced by 1992 Constitution and Convention of the International Telecommunication Union International Tropical Timber Agreement Done 26 January 1994; in force 1 January 1997. 33 ILM 1014 (1994). North American Agreement on Environmental Co-operation Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America Done August 1993; in force 1 January 1994. 32 ILM 1480 (1993). Protocol Amending the Agreements, Conventions and Protocols on Narcotic Drugs, Concluded at the Hague on 23 January 1912, at Geneva on 11 February 1925 and 19 February 1925, and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26

370

Treaties, Other Instruments and Documents

June 1936 Done and in force 11 December 1946. 12 UNTS 179. Statute of the International Court of Justice See Charter of the United Nations Statute of the Permanent Court of International Justice Done and in force 16 December 1920. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (Partial Test Ban Treaty) Done 5 August 1963; in force 10 October 1963. 480 UNTS 43. Treaty Between the Hungarian People’s Republic and the Czechoslovak Socialist Republic Concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks Done 16 September 1977; in force 30 June 1978. 1109 UNTS 235, 32 ILM 1247 (1993). Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (ABM Treaty) Done 26 May 1972; in force 3 October 1972; expired 13 June 2002. 944 UNTS 13. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (Outer Space Treaty; OST) Adopted 27 January 1967 by UNGA Res. 2222(XXI); opened for signature on 27 January 1967; in force 10 October 1967. 610 UNTS 205. United Nations Convention on Jurisdictional Immunities of States and Their Property Done 2 December 2004; not yet in force. United Nations Convention on the Law of the Sea (UNCLOS) Done 10 December 1982; in force 16 December 1994. 1833 UNTS 397, 21 ILM 1245 (1982). – Agreement for the Implementation of the Provisions of the United Nations Con-

Treaties, Other Instruments and Documents

371

vention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) Done 4 August 1995; in force 11 December 2001. 2167 UNTS 88, 34 ILM 1542 (1995). – Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York Agreement) Done 28 July 1994; in force 28 July 1996. 33 ILM 1309 (1994). – Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area International Seabed Authority, Resumed 6th Session, Kingston (Jamaica), 3–14 July 2000. ISBA/6/A/18. 13 July 2000. [10.11.2006] United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa Done 17 June 1994; in force 26 December 1996. 1954 UNTS 3, 33 ILM 1328 (1994). United Nations Framework Convention on Climate Change Done 9 May 1992; in force 21 March 1994. 1771 UNTS 107. – Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) Done 11 December 1997; in force 16 February 2005. 37 ILM 22 (1998). Vienna Convention for the Protection of the Ozone Layer Done 22 March 1985; in force 22 September 1988. 26 ILM 1529 (1987). – Montreal Protocol on Substances that Deplete the Ozone Layer Done 16 September 1987; in force 1 January 1989. 26 ILM 1550 (1987). The Montreal Protocol as adjusted and/or amended in London (1990), Copenhagen (1992), Vienna (1995), Montreal (1997) and Beijing (1999) is accessible at

372

Treaties, Other Instruments and Documents

Vienna Convention on Civil Liability for Nuclear Damage Done 21 May 1963; in force 12 November 1977. 1063 UNTS 265, 2 ILM 727 (1963). – Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention Done 21 September 1988; in force 27 April 1992. – Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage Done 12 September 1997; in force 4 October 2003. 36 ILM 1462 (1997). Vienna Convention on the Law of Treaties Done 23 May 1969; in force 27 January 1980. 1155 UNTS 311, 8 ILM 679 (1969). European Union Law Commission Decision 2000/730/EC of 10 November 2000 establishing the European Union Eco-labelling Board and its rules of procedure Official Journal (OJ) L 293, 22/11/2000 P. 0024–0030. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment OJ L 175, 05/07/1985 P. 0040–0048. Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment OJ L 073, 14/03/1997 P. 0005–0015. Council Regulation (EEC) 880/92 of 23 March 1992 on a Community eco-label award scheme OJ L 99, 11/4/1992 P. 0001–0007. Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment OJ L 197, 21/07/2001 P. 0030–0037. Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC OJ L 156, 25/06/2003 P. 0017–0025. European Union White Paper on Space COM(2003) 673 final, 11.11.2003.

Treaties, Other Instruments and Documents

373

Treaty Establishing a Constitution for Europe Signed 29 October 2004; not yet in force. OJ C 310, 16/12/2004. Treaty Establishing the European Community Signed 25 March 1957; in force 1 January 1958. OJ C 325, 24/12/2002. Treaty on European Union Signed 7 February 1992; in force 1 November 1993. OJ C 191, 29/07/1992. Documents Prepared by or for the UNCOPUOS Collisions between nuclear power sources and space debris Working paper submitted by the Russian Federation. UNCOPUOS Scientific and Technical Subcommittee 38th session. Vienna, 12–23 February 2001. UN Doc. A/AC.105/C.1/L.246. Draft report of the Committee on the Peaceful Uses of Outer Space on the implementation of the recommendations of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III) UNCOPUOS Scientific and Technical Subcommittee 41st session. Vienna, 16–27 February 2004. UN Doc. A/AC.105/C.1/L.272/Add.2. Environmental Effects of Space Activities – Study prepared by the Committee on Space Research (COSPAR) of the International Council of Scientific Unions (ICSU). Note by the Secretariat, 1983. UN Doc. A/AC.105/344. – Report submitted by the Committee on Space Research and the International Astronautical Federation. Note by the Secretariat, 1988. UN Doc. A/AC.105/420. Historical summary on the consideration of the question on the definition and delimitation of outer space UNCOPUOS Legal Subcommittee 41st session. Vienna, 2–12 April 2002. UN Doc. A/AC.105/769. Inter-Agency Space Debris Coordination Committee Space Debris Mitigation Guidelines UNCOPUOS Scientific and Technical Subcommittee 40th session. Vienna, 17–28 February 2003. UN Doc. A/AC.105/C.1/L.260.

374

Treaties, Other Instruments and Documents

International cooperation in the peaceful uses of outer space: activities of Member States Note by the Secretariat, with Addenda 1–4. UN Docs. A/AC.105/832; A/AC.105/832/Add.1; A/AC.105/832/Add.2; A/AC.105/832/ Add.3; A/AC.105/832/Add.4. Practice of States and international organizations in registering space objects Background paper by the Secretariat. UNCOPUOS Legal Subcommittee 44th session. Vienna, 4–15 April 2005. A/AC.105/C.2/L.255. Proposed outline of objectives, scope and attributes for an international technically based framework of goals and recommendations for the safety of planned and currently foreseeable nuclear power source applications in outer space Note by the Secretariat. UNCOPUOS Scientific and Technical Subcommittee 42nd session. Vienna, 21 February – 4 March 2005. UN Doc. A/AC.105/L.253/Rev.2. Report of the IADC Activities on IADC Space Debris Mitigation Guidelines & Supporting Document UNCOPUOS Scientific and Technical Subcommittee 42nd session (2003). PowerPoint-presentation. Reports of the Committee on the Peaceful Uses of Outer Space – 2006, 61st session UN Doc. A/61/20. GAOR, 61st sess., Suppl. no. 20. – 2005, 60th session UN Doc. A/60/20. GAOR, 60th sess., Suppl. no. 20. – 2004, 59th session UN Doc. A/59/20. GAOR, 59th sess., Suppl. no. 20. – 1998, 53rd session UN Doc. A/53/20. GAOR, 53rd sess., Suppl. no. 20. Reports of the Legal Subcommittee of the UNCOPUOS – Report of the Legal Subcommittee on the work of its 45th session Vienna, 3–13 April 2006. UN Doc. A/AC.105/971. – Report of the Legal Subcommittee on the work of its 44th session Vienna, 4–15 April 2005. UN Doc. A/AC.105/850. – Report of the Legal Subcommittee on the work of its 43rd session Vienna, 29 March – 8 April 2004. UN Doc. A/AC.105/826.

Treaties, Other Instruments and Documents

375

– Report of the Legal Subcommittee on its 41st Session Vienna, 2–12 April 2002. UN Doc. A/AC.105/787. – Report of the Legal Subcommittee on the Work of its 34th session Vienna, 27 March – 7 April 1995. UN Doc. A/AC.105/607. Reports of the Scientific and Technical Subcommittee of the UNCOPUOS – Report of the Scientific and Technical Subcommittee on its 44th session Vienna, 12–23 February 2007. UN Doc. A/AC.105/890. – Report of the Scientific and Technical Subcommittee on its 43rd session Vienna, 20 February – 3 March 2006. UN Doc. A/AC.105/869. – Report of the Scientific and Technical Subcommittee on its 42nd session Vienna, 21 February – 4 March 2005. UN Doc. A/AC.105/848. – Report of the Scientific and Technical Subcommittee on its 40th session Vienna, 17–28 February 2003. UN Doc. A/AC.105/804. – Report of the Scientific and Technical Subcommittee on its 39th session Vienna 25 February – 8 March 2002. UN Doc. A/AC.105/786. – Report of the Scientific and Technical Subcommittee on its 38th session Vienna 12–23 February 2001. UN Doc. A/AC.105/761. – Report of the Scientific and Technical Subcommittee on the work of its 35th session Vienna, 9–20 February 1998. UN Doc. A/AC.105/679. – Report of the Scientific and Technical Subcommittee on the work of its 31st session Vienna, 21 February – 3 March 1994. A/AC.105/571. – Technical Report on Space Debris adopted by the Scientific and Technical Subcommittee of the UNCOPUOS New York, 1999. A/AC.105/720. Review of the status of the five international legal instruments governing outer space – Working paper submitted by Germany on behalf of Austria, Belgium, Czech Republic, Denmark, Finland, France, Greece, Hungary, Ireland, Italy, Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden, Switzerland and the United Kingdom of Great Britain and Northern Ireland. UNCOPUOS Legal Subcommittee 37th session. Vienna, 23 March – 3 April 1998(a). UN Doc. A/AC.105/C.2/L.211/Rev.1. – Note by the Secretariat, Addendum. 13 May 1998(b). UN Doc. A/AC.105/C.2/L.210/Add.1.

376

Treaties, Other Instruments and Documents

Review of the use of nuclear power sources in space programmes and international cooperation Working paper submitted by the Russian Federation. UNCOPUOS Scientific and Technical Subcommittee 42nd session. Vienna, 21 February – 4 March 2005. UN Doc. A/AC.105/C.1/L.282. Space Debris Mitigation Guidelines of the Scientific and Technical Subcommittee of the UNCOPUOS Report of the Scientific and Technical Subcommittee on its 44th session. Vienna, 12–23 February 2007. UN Doc. A/AC.105/890, Annex IV (pp. 42–46). 511th Meeting of the UNCOPUOS, 17 June 2003, Unedited transcript, COPUOS/ T.511. Other International Instruments and Documents Agenda 21 United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3–14 June 1992. CERES Principles 1989. Code of Conduct for the International Space Station Crew Title 14 CFR Vol. 5, Part 1214.403. Revised 1 January 2005. Conclusions and Proposals of the Workshop on Space Law in the 21st Century, organized by the International Institute of Space Law Vienna, 19–30 July 1999. UN Doc. A/CONF.184/C.1/L.12. COSPAR Planetary Protection Policy 20 October, 2002; amended 24 March, 2005. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space UN Doc. A/RES/1962(XVII). 13 December 1963. GAOR, 18th sess., Suppl. no. 15. Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration)

Treaties, Other Instruments and Documents

377

Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972. UN Doc. A/Conf.48/14/Rev. 1(1973), 11 ILM 1416 (1972). Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, Taking Particular Account of the Needs of Developing Countries (Space Benefits Declaration) UN Doc. A/RES/51/122. 13 December 1996. GAOR, 51st sess., Suppl. no. 49. Declaration on the Right to Development UN Doc. A/RES/41/128. 4 December 1986. GAOR, 41st sess., Suppl. no. 53. Declarations Recognizing as Compulsory the Jurisdiction of the ICJ Draft Articles on Prevention of Transboundary Harm from Hazardous Activities Adopted by the International Law Commission at its 53rd session, 2001. Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by the International Law Commission at its 53rd session, 2001. Environmental Assessment, Operational Policies, the World Bank Operational Manual, OP 4.01. January 1999 (revised August 2004). ESA Space Debris Mitigation Handbook, Release 1.0 7 April 1999. EUROCONTROL Draft Arbitration Policy Arbitration in Air, Space and Telecommunications Law 2002, Annex II (pp. 351–357). General Clauses and Conditions for ESA Contracts ESA/C/290, rev. 6. European Code of Conduct for Space Debris Mitigation, Issue 1.0 28 June 2004. Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities 3 November 1995.

378

Treaties, Other Instruments and Documents

Guidelines for Sensitive Missile-Relevant Transfers (MTCR Guidelines) – Equipment, Software and Technology Annex (MTCR Annex) 17 November 2005. IADC Protection Manual IADC-04–03, Version 3.3, Revision April 04, 2004. IADC Recommendation, Re-orbit Procedure for GEO Preservation IADC-97–004. IADC Space Debris Mitigation Guidelines Also in UN Doc. A/AC.105/C.1/L.260, Annex. ICC Business Charter on Sustainable Development ICC Policy Statement: A Precautionary Approach: An ICC Business Perspective Document No. 210/505 Rev.2, 2 April 1997. ICSID Convention on the Settlement of Investment Disputes between States and Nationals of Other States ILA Draft Convention on Space Debris Report of the 66th Conference of the ILA, Buenos Aires (Argentina), 1994. Pp. 317– 321. Reprinted in Böckstiegel Karl-Heinz, ILA Draft Convention on Space Debris, German Journal of Air and Space Law—ZLW, Vol. 44, Issue 1 (1995). Pp. 29–34. Also accessible at ILA Draft Convention on the Settlement of Space Law Disputes Report of the 61st Conference of the ILA, Paris (France), 1984. Pp. 334–355. – ILA Final Draft of the Revised Convention on the Settlement of Disputes related to Space Activities Report of the 68th Conference of the ILA, Taipei (Taiwan, Republic of China), 1998. Pp. 249–267. Reprinted in Böckstiegel Karl-Heinz, Neue weltraumrechtlichen Arbeiten der International Law Association (ILA) (pp. 337–350), German Journal of Air and Space Law—ZLW, Vol. 47, Issue 3 (1998). Pp. 331–350. Also accessible at Index of Notifications by Member States and Organizations on the Establishment of National Registries of Objects Launched into Outer Space

Treaties, Other Instruments and Documents

379

International Code of Conduct against Ballistic Missile Proliferation (renamed the Hague Code of Conduct against Ballistic Missile Proliferation) 25 November 2002. UN Doc. A/57/724 (enclosure). Letter dated 2003/06/11 from the Permanent Representative of the Russian Federation to the Conference on Disarmament addressed to the Secretary-General of the Conference notifying on the development of an initiative to promote openness and to build confidence in the domain of outer space activities 26 June 2003. UN Doc. CD/1710. List of space-related initiatives and programmes carried out by member States of the Committee on the Peaceful Uses of Outer Space and within the United Nations system that respond to specific recommendations contained in the Johannesburg Plan of Implementation of the World Summit on Sustainable Development Updated June 2006. Johannesburg Declaration on Sustainable Development Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August – 4 September 2002. UN Doc. A/CONF.199/20 (pp. 1–5). Memorandum of Understanding on Notifications of Missile Launches (United States of America—Russian Federation) 16 December 2000. New Delhi Declaration on Principles of International Law relating to Sustainable Development Resolution 3/2002. 70th Conference of the International Law Association, New Delhi, 2–6 April 2002. Nuuk Declaration of Environment and Development in the Arctic 16 September 1993. OECD Council Decisions – C(2001)107/Final Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations 12 June 2001, 25 February 2002; as amended by C(2004)20.

380

Treaties, Other Instruments and Documents

– C(88)90/Final On Transfrontier Movements of Hazardous Wastes 27 May 1988; amended on 28 July 1994—C(94)152/Final OECD Recommendations – C(89)88/Final Concerning the Application of the Polluter-Pays Principle to Accidental Pollution 7 July 1989. – C(72)128 On Guiding Principles concerning International Economic Aspects of Environmental Policies 26 May 1972. – C(74)223 On the Implementation of the Polluter-Pays Principle 14 November 1974. – C(90)177/Final On the Use of Economic Instruments in Environmental Policy 31 January 1991. Online Index of Objects Launched into Outer Space Our Common Future (Brundtland Report) Report of the World Commission on Environment and Development. 4 August 1987. UN Doc. A/42/427. Overall Progress Achieved since the United Nations Conference on Environment and Development Report of the Secretary General, Addendum, International Legal Instruments and Mechanisms. Commission on Sustainable Development, 5th Session, 7–25 April 1997. UN Doc. E/CN.17/1997/2/Add.29. Plan of Implementation of the World Summit on Sustainable Development Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August – 4 September 2002. UN Doc. A/CONF.199/20 (pp. 6–72). Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects

Treaties, Other Instruments and Documents

381

Joint Working Paper of The Peoples’ Republic of China and the Russian Federation Conference on Disarmament on June 27, 2002. Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting UN Doc. A/RES/37/92. 10 December 1982. GAOR, 37th sess., Suppl. no. 51. Principles Relating to Remote Sensing of the Earth from Space UN Doc. A/RES/41/65. 3 December 1986. GAOR, 41st sess., Suppl. no. 53. Principles Relevant to the Use of Nuclear Power Sources in Outer Space (NPS Principles) UN Doc. A/RES/47/68. 14 December 1992. GAOR, 47th sess., Suppl. no. 49. Recommendations of the International Telecommunication Union – ITU-R RA.1417 A radio-quiet zone in the vicinity of the L2 Sun-Earth Lagrange point – ITU-R RA.479–4 Protection of Frequencies for Radioastronomical Measurements in the Shielded Zone of the Moon – ITU-R S.1003 Environmental Protection of the Geostationary Satellite Orbit – ITU-R S.672–4 Satellite Antenna Radiation Pattern for Use as a Design Objective in the FixedSatellite Service Employing Geostationary Satellites Renewing the United Nations: a programme for reform Report of the Secretary-General. 14 July 1997. UN Doc. A/51/950. Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III) Vienna, 19–30 July 1999. UN Doc. A/CONF.184/6. Reports of the Conferences of the ILA – 68th Conference Taipei, Taiwan (Republic of China), 24–30 May 1998. International Law Association 1998. – 66th Conference Buenos Aires (Argentina), 14–20 August 1994. International Law Association, 1994. – 65th Conference Cairo (Egypt), 21–26 April 1992. International Law Association, 1993.

382

Treaties, Other Instruments and Documents

– 64th Conference Broadbeach, Queensland (Australia), 20–25 August 1990. International Law Association, 1991. Resolution for a European Policy on the Protection of the Space Environment from Debris Council of the ESA, 20 December 2002. National research on space debris, safety of space objects with nuclear power sources on board and problems of their collisions with space debris / Note by the Secretariat: addendum (2001). UN Doc. A/AC.105/751/Add.1. Resolutions of the Conference of the Parties to the Convention on Wetlands of International Importance especially as Waterfowl Habitat (the Ramsar Convention) in 1971 – Memorandum of Understanding on the “Wetlands for the Future Program” Between the Bureau of the Convention on Wetlands of International Importance and the Government of the United States of America – Resolution 4.3 of the 4th Meeting of the Conference of the Contracting Parties (Montreux, Switzerland, 27.6.-4.7.1990) – Resolution VI.6 of the 6th Meeting of the Conference of the Contracting Parties (Brisbane, Australia 19.-27.3.1996) Resolutions of the Plenipotentiary Conference of the ITU – Resolution 88 (rev. Marrakesh, 2002) Processing charges for satellite network filings and administrative procedures – Resolution 91 (Minneapolis, 1998) Cost recovery for some ITU products and services Resolutions of the United Nations General Assembly – 59/115 Application of the concept of the “launching State” UN Doc. A/RES/59/115. GAOR, 59th sess., Suppl. no. 49. – 2777(XXVI) Convention on International Liability for Damage Caused by Space Objects UN Doc. A/RES/2777(XXVI). GAOR, 26th sess., Suppl. no. 29. – 2749(XXV) Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction UN Doc. A/RES/2749(XXV). GAOR, 25th sess., Suppl. No. 28. – 2997(XXVII) Institutional and financial arrangements for international environmental cooperation UN Doc. A/RES/2997(XXVII). GAOR, 27th sess., Suppl. no. 30.

Treaties, Other Instruments and Documents

383

– 47/191 Institutional arrangements to follow up the United Nations Conference on Environment and Development UN Doc. A/RES/47/191. GAOR, 47th sess., Suppl. no. 49. – 1472(XIV) International co-operation in the peaceful uses of outer space UN Doc. A/RES/1472(XIV). GAOR, 14th sess., Suppl. no. 16. – 1721(XVI) International co-operation in the peaceful uses of outer space UN Doc. A/RES/1721(XVI). GAOR, 16th sess., Suppl. No. 17. – 59/116 International co-operation in the peaceful uses of outer space UN Doc. A/RES/59/116. GAOR, 59th sess., Suppl. no. 49. – 60/54 Prevention of an arms race in outer space UN Doc. A/RES/60/54. GAOR, 60th sess., Suppl. no. 49. – 2398(XXIII) 1968 Problems of the human environment UN Doc. A/RES/2398(XXIII). GAOR, 23rd sess., Suppl. no. 18. – 1348(XIII) Question of the peaceful use of outer space UN Doc. A/RES/1348(XIII). GAOR, 13th sess., Suppl. no. 18. – 37/90 Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space UN Doc. A/RES/37/90. GAOR, 37th sess., Suppl. no. 51. – 60/62 The Hague Code of Conduct against Ballistic Missile Proliferation UN Doc. A/RES/60/62. GAOR, 60th sess., Suppl. no. 49. – 54/68 Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space UN Doc. A/RES/54/68. GAOR, 54th sess., Suppl. no. 49. – 44/228 UN Conference on Environment and Development. UN Doc. A/RES/44/228. GAOR, 54th sess., Suppl. no. 49. Review of the implementation of the recommendations of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space Note by the Secretary-General. UN Doc. A/59/174 (2004). Rio Declaration on Environment and Development Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, Volume 1, Resolutions adopted by the Conference. UN Doc. A/CONF.151/26 (Vol. 1), 31 ILM 874 (1992).

384

Treaties, Other Instruments and Documents

Rules of Arbitration of the International Chamber of Commerce In force 1 January 1998. Support to the IADC Space Debris Mitigation Guidelines IADC WG4. 5 October 2004. The Report of the ESA Space Debris Working Group ESA SP-1109. November 1988. The Space Millennium: Vienna Declaration on Space and Human Development Adopted by the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space at its 10th plenary meeting, on 30 July 1999. Terms of Reference for the Inter-Agency Space Debris Coordination Committee UNCITRAL Arbitration Rules Adopted 15 December 1976. Also reprinted in Permanent Court of Arbitration: basic documents 2005, pp. 265–296. UNCITRAL Model Law on International Commercial Arbitration Adopted in 1985; amendend in 2006. Vienna Declaration and Programme of Action (Vienna Declaration on Human Rights) World Conference on Human Rights, Vienna, 25 June 1993. UN Doc. A/CONF.157/23. Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies: Guidelines & Procedures, including the Initial Elements (as amended and updated in 2003 and 2004) 11–12 July 1996. World Charter for Nature UN Doc. A/RES/37/7. 28 October 1982. GAOR, 37th sess., Suppl. no. 51.

Treaties, Other Instruments and Documents

385

National Instruments Australia Space Activities Act 1998 No. 123 (as amended) Space Activities Regulations 2001 No. 186 Canada Canadian Environmental Assessment Act (1992, c. 37) Finland Act on Environmental Assessment of Plans and Programmes “Laki viranomaisten suunnitelmien ja ohjelmien ympäristövaikutusten arvioinnista” Suomen säädöskokoelma (Statute Book of Finland) 200/2005. – Decree on Environmental Assessment of Plans and Programmes “Valtioneuvoston asetus viranomaisten suunnitelmien ja ohjelmien ympäristövaikutusten arvioinnista” 347/2005. Act on Environmental Impact Assessment Procedure “Laki ympäristövaikutusten arviointimenettelystä” 486/1994. (An English translation of the act, including the amendments made in 1999, is available at . Amendments regarding SEA were made only in 2005, however.) – Decree on Environmental Impact Assessment Procedure “Asetus ympäristövaikutusten arviointimenettelystä” 268/1999. France CNES Space Debris Safety Requirements MPM-51-00-12. 19 April 1999. Germany Gesetz über die Umweltverträglichkeitsprüfung BGBl I 1990, 205. Russia Law of the Russian Federation “About Space Activity” (unofficial translation) Decree No. 5663–1 of the Russian House of Soviets. 1993 (amended 1996).

386

Treaties, Other Instruments and Documents

Space Technology Items. General Requirements for Mitigation of Space Debris Population Russian Aviation and Space Agency Standard OCT 134-1023-2000. July 2000. Statute on Licensing Space Operations No. 104, Russian Federation (unofficial translation) 2 February 1996. UK Outer Space Act 1986 Chapter 38. 18 July 1986. US Commercial Space Launch Amendments Act of 2004 H.R. 3752, 108th Cong. (2004). Commercial Space Transportation Licensing Regulations Final Rule. 14 CFR 400–450. 1999. Council on Environmental Quality Regulations for Implementing the Procedural Provisions of National Environmental Policy Act 40 CFR 1500–1508. 1984. Counterspace Operations US Air Force Doctrine Document 2–2.1, 2 August 2004. Environmental Effects Aboard of Major Federal Actions Executive Order 12114. 4 January 1979. Mitigation of Orbital Debris Federal Communications Commission. Second Report and Order, FCC 04–130, IB Docket No. 02–54. 21 June 2004. Long Range Plan United States Space Command. April 1998. Mitigation of Orbital Debris (In the Matter of ), Notice of Proposed Rulemaking Propose to amend our rules to address orbital debris mitigation, and seek comment on a number issues.

Treaties, Other Instruments and Documents

387

FCC 02–80, IB Docket No. 02–54. 13 March 2002. NASA Planetary Protection Provisions for Robotic Extraterrestrial Missions NPR 8020.12C, effective date: April 27, 2005; expiration date: April 27, 2010. NASA Policy for Limiting Orbital Debris Generation NPD 8710.3B, effective date: April 28, 2004. [10.11.2006] This directive superseded the first formal NASA guidance on orbital debris, the NASA management Instruction 1700.8 “Policy for Limiting Orbital Debris Generation” of 5 April 1993. NPD 8710.3B was superseded on 17 August, 2007 by directive NPR 8715.6. NASA Safety Standard 1740.14 Effective 1 August 1995. National Environmental Policy Act of 1969 (as amended) (NEPA) 42 USC 4321–4347. National Space Policy Directives and Executive Charter NSPD-1. 2 November 1989. Presidential Directive/National Security Council Memorandum 25 Scientific or Technological Experiments with Possible Large-Scale Adverse Environmental Effects and Launch of Nuclear Systems Into Space 14 December 1977 (revised 8 May 1996). U.S. Government Orbital Debris Mitigation Standard Practices U.S. Space-Based Positioning, Navigation and Timing Policy 15 December 2004.

Cases International Court of Justice Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) 5 February 1970. 1970 ICJ Reports 3. Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections) 26 June 1992. 1992 ICJ Reports 240. Corfu Channel (United Kingdom v. Albania) (Merits) 9 April 1949. 1949 ICJ Reports 4. East Timor (Portugal v. Australia) 30 June 1995. 1995 ICJ Reports 90. Gabcikovo-Nagymaros Project (Hungary v. Slovakia) 25 September 1997. 1997 ICJ Reports 7. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 8 July 1996. 1996 ICJ Reports 226.

389

390

Cases

Nuclear Tests (Australia v. France; New Zealand v. France) 20 December 1974. 1974 ICJ Reports 253. (Australia v. France) 1974 ICJ Reports 457. (New Zealand v. France) Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case 22 September 1995. 1995 ICJ Reports 288. Other Cases Cosmos 954 (Disintegration of Cosmos 954 over Canadian Territory in 1978) (Canada v. USSR) – Protocol Between the Government of Canada and the Government of the Union of Soviet Socialist Republics Done and in force 2 April 1981. 20 ILM 689 (1981). Reprinted also in Space Law: basic legal documents, Vol. 1, Part A.IX.2.2.2. – Statement of the Canadian Claim 18 ILM 899 (1979). Reprinted also in Space Law: basic legal documents, Vol. 1, Part A.IX.2.2.2. EC Measures Concerning Meat and Meat Products (Hormones) (Complaints: United States and Canada) WTO Appellate Body, 16 January 1998. AB-1997–4—Report of the Appellate Body. Environmental Defense Fund v. Massey 29 January 1993. United States Court of Appeals for the District of Columbia Circuit. European Commission v. UK C-804/79. 5 May 1981. ECJ. Ireland v. Commission of the EC C-358/85. 15 December 1987. ECJ. Julia Abad Pérez and Others v. Council of the EU and Commission of the EC T-304/01. 13 December 2006. Court of First Instance. Minors Oposa v. Secretary of the Department of Environment and Natural Resources 30 July 1993. The Supreme Court of the Philippines. 33 ILM 173 (1994). MOX Plant Case (Ireland v. United Kingdom), Provisional Measures Case No. 10, 2001. ITLOS.

Cases

391

National Farmers’ Union and Others (The Queen v Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National Farmers’ Union, David Burnett and Sons Ltd, R.S. and E. Wright Ltd, Anglo Beef Processors Ltd, United Kingdom Genetics, Wyjac Calves Ltd, International Traders Ferry Ltd, MFP International Ltd, Interstate Truck Rental Ltd and Vian Exports Ltd) C-157/96. 5 May 1998. ECJ. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures Cases No. 3 & 4, 1999. ITLOS. The Queen v. Ministry of Agriculture, Fisheries and Food C-157/96. 5 May 1998. ECJ. Trail Smelter Arbitration 33 AJIL 182 (1939); 35 AJIL 684 (1941); 3 RIAA 1907 (1941). UK v. Commission of the EC C-180/96. 5 May 1998. ECJ.

Index ABM Treaty 124–126 abuse of rights 153–154 air pollution 123, 158 Antarctica 11–12, 129, 133, 136, 138, 164, 183, 206, 265–266 anthropocentrism 7, 10, 12–17, 52, 104, 131–134, 158

100–101, 126, 209, 211–214, 227, 234, 246, 255 Cosmos 954 40, 46, 48, 72, 190, 294 de-orbiting 82, 95, 107, 111, 248–249, 254 definition / delimitation of outer space 1–3 delegated decision-making 233–236 differential obligations 225–226, 318 dispute settlement ESA 297, 302, 305, 317 ITU 295–296 UN space law 288–295 WTO 170–171 due diligence 129, 155–157, 159, 165–168, 174, 245, 272, 284

Baikonur 29–30 Beef Hormones dispute 170 burden of proof 169–170, 175–176 Centre National d’Etudes Spatiales (CNES) 93, 105, 277 Claims Commission 291–293 Coalition for Environmentally Responsible Economies (CERES) 244 Committee on Contamination by Extraterrestrial Exploration (CETEX) 4, 51, 177 Committee on Space Research (COSPAR) 4, 51, 58, 82 common but differentiated responsibilities 129, 138, 178–184, 186, 225 common heritage of mankind 64, 141, 145, 148, 174, 205, 224 consensus decision-making 93, 97–98,

ENMOD Convention 121 environment, definition of 9–11 Environmental Defense Fund v. Massey 266 environmental ethics in the space sector 14–16, 19 environmental funds 225–226 environmental impact assessment (EIA) goals 268–272 historical development 261–268

393

394

Index

in the space sector 273–285 procedure 268–269 environmental problem, definition of 12 equity (inter- and intra-generational) 130, 132, 135–136, 145–148, 178–180, 183, 230 erga omnes obligations 140–141, 149 Espoo Convention 163, 166, 261, 264– 265, 267, 269–271, 273, 279, 281–283, 316 SEA Protocol 283 European Cooperation for Space Standardization (ECSS) 256 European Court of Justice 158, 172, 184, 186 European Space Agency (ESA) dispute settlement 297, 302, 305, 317 space debris mitigation 104–105, 277 European Union (EU) 3, 25, 92, 158, 160, 170, 250, 256–257, 302 exobiological contamination 50–52 first-come, first-served principle 23, 113–114 framework convention – protocol approach 208–209, 215–221, 232, 235, 242 free-riders 5, 321 freedom of use and exploration 51, 58–59, 61, 124, 154, 177 future generations 7, 16, 54, 65, 112, 130, 132–137, 142, 145–148, 180, 228, 230, 268, 316, 322 Geostationary Orbit (GEO) 35, 37–38, 41–45, 85–88, 90–92, 94–95, 105, 108–111, 113–116, 228 good neighborliness 150, 153–155, 165 harmful interference 43, 60–61, 85–87, 90, 92, 111, 273, 286 history of space law 57, 60–61, 111 IAEA conventions – see nuclear power information sharing 154, 257–260

Inter-Agency Space Debris Coordination Committee (IADC) Space Debris Mitigation Guidelines 93– 99, 105, 115, 237, 246–247, 252–254, 277, 284 International Academy of Astronautics (IAA) 32 International Astronautical Federation (IAF) 28, 50 International Astronomical Union (IAU) 28 International Atomic Energy Agency (IAEA) 102, 121–123, 194, 197 International Centre for Settlement of Investment Disputes (ICSID) 300, 305, 312 International Chamber of Commerce (ICC) 243–244, 265, 298, 305, 313 International Civil Aviation Organization (ICAO) 233, 235–236, 312 International Council of Scientific Unions (ICSU) 3, 28, 50 International Court of Justice (ICJ) cases and advisory opinions Barcelona Traction, Light and Power Company, Limited 140 Certain Phosphate Lands in Nauru 137 Corfu Channel 150, 161 East Timor 140 Gabcikovo-Nagymaros 11, 134–135, 139–144, 170, 184, 267–268, 272, 315 Legality of the Threat or Use of Nuclear Weapons 11, 137, 152 Nuclear Tests 137, 140, 150 Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case 169–170, 175, 268, 272 International Institute of Space Law (IISL) 28 International Law Association (ILA) Draft Convention on Space Debris 33, 102–104, 148, 232, 309

Index Draft Convention on the Settlement of Disputes Related to Space Activities 305–309 International Law Commission (ILC) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 11, 154, 161 on Responsibility of States for Internationally Wrongful Acts 140, 156 International Network of Engineers and Scientists Against Proliferation (INESAP) 28 International Organization for Standardization (ISO) 254–256 International Space Station (ISS) 38– 40, 44, 50, 107, 247–248, 296 International Telecommunication Union (ITU) dispute settlement 295–296 recommendations 14, 86–88, 112– 113, 254 registration system 85–87, 89–92 International Tribunal for the Law of the Sea (ITLOS) 161, 169, 171–172, 307–309, 311, 315 launching state, definition of 67 liability absolute liability 66, 68, 71, 191–194, 198, 200, 235 fault liability 66, 68, 71–72, 191, 193, 200–201 Low Earth Orbit (LEO) 34–37, 44–45, 48, 92–95, 103, 105, 110–111, 117–118, 249 lowest-common-denominator problem 100, 209, 211–212, 217, 231, 233, 247, 317 Memorial Spaceflights 53–54 Minors Oposa v. Secretary of the Department of Environment and Natural Resources 136 MOX Plant case 169, 171–172 NASA – see United States of America

395

national appropriation of outer space 59, 113, 122, 145 NEPA – see United States of America New Horizons mission 28, 275 New York Agreement 174, 181, 224, 240 North – South confrontation 23–24 nuclear power IAEA conventions 121–123 in the space sector 45–48 liability regimes 193–197 Nuclear Power Source Principles 78, 83–85, 102, 121, 248–249, 273–274 Test Ban Treaty 32, 45, 121 oil pollution liability 199 Organisation for Economic Cooperation and Development (OECD) 184–185, 187, 189, 194, 233 paper satellites 23, 89–92 PAROS Resolutions 126 Permanent Court of Arbitration (PCA) 287, 316 planetary protection 50–52, 58 province of mankind 21, 59, 65, 145, 223, 228, 289, 322 re-orbiting 88, 94–95, 107–108, 110–111, 113–116, 232, 253 registration of space objects 73–80 reservations 221 Rosaviakosmos 29–30, 95, 110 Satellite Users Interference Reduction Group (SUIRG) 93 sea launch 6 SEA Protocol – see Espoo Convention solar power satellites 49–50 Southern Bluefin Tuna cases 160–161, 171 Space Benefits Declaration 224 space debris, definition of 31–33 space object, definition of 69–72, 75–76 strategic environmental assessment (SEA) 280–284

396 sustainability impact assessment (SIA) 284–285 technology transfer 147, 180–181, 222–225, 229, 318 Test Ban Treaty – see nuclear power tragedy of the commons 4–5 Trail Smelter arbitration 150, 152, 159, 161 trust funds 183, 200, 223–230 unanimity rule 211, 220–221 United Nations Commission on International Trade Law (UNCITRAL) 287, 305, 316

Index United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE) 37, 88, 117, 146–147, 223, 226, 246 United Nations Programme on Space Applications (PSA) 223–224, 226– 227 United States of America (US) NASA 30–31, 38, 40, 50–51, 93, 106–107, 274–275, 298 National Environmental Policy Act (NEPA) 261, 266, 274–275 negation 124 White Paper on Space (EU) 257