Protection of the Outer Space Environment

The first thing that comes to a person when one talk about ‘environment’ is the land we live on and the water we drink or the air we breathe. The value of these resources has only been considered in the context of human beings and their activity. Therefore there have been many environmental regulations focusing on the prevention of direct damage to the human interest and not on the prevention of the damage to the environment so to speak. Therefore there are much legislation on matters such as toxic wastes, clean air and water and so on. Protection of the sparsely populated environments, for instance the Antarctica, has only been recently area of legislations. This recent trend is one indication of the movement towards a broader long term view of human interests and a wider understanding of the term ‘environment’. However, the ‘environment’ is in reality surrounded by a much larger environment of outer space the importance of which is growing due to the stupendous growth in science and technology. The interrelationship of different aspect of the Earths environment becomes much clearer by placing the earth in a broader context.

As we have seen, there has been a rapid development in the space technology especially after the historic day when the Soviet Union launched Sputnik-I into the orbit. This achievement marked the opening of a new territory, full of vast resources and exciting opportunities. A new era began in the life of mankind known as ‘the space age’ which changed ideas, science, communication and the life itself. The technological advances, such as weather satellites, are increasingly making outer space a part of our everyday lives and, therefore, our environment.

However, there is still uncertainty as to where the outer space as such begins. This has been an important issue ever since the beginning of the ‘space age’. However, the United States, the leading space power has consistently refused to ponder over this question. This is supported by the Functionalist school of International Space Lawyers who say that one need not or should not even try to define where the outer space begins as is advocated by so called ‘spatialists’ who believe that the boundary question between national airspace and outer space should be settled as a matter of priority. However Ben Cheng says that the functionalists’ argument is based on a false premise. He substantiates his argument by saying that so far as the international law is concerned, the initial and the most fundamental level of classification is of ‘spatial’ which precedes and in fact determines, any functional classification whether any activity is lawful or not lawful. International law divides the world traditionally into three categories of territory, namely (i) national territory , (ii) territorium nullius, or ‘no man’s land, (iii) territorium extra commercium, or ‘territory outside commerce’. A new category has been created by a treaty, namely, (iv) territory that constitutes the ‘Common Heritage of Mankind’ where neither the area itself nor its resources may be individually appropriated by the states or their nationals for their own benefits. This was recognized first by the Moon Treaty by declaring that the Moon and the other Celestial bodies within the solar system other than the earth the common heritage of mankind. The notion of states sharing a common interest in the exploration and use of outer space has led the international community to declare outer space to be the “province of all mankind.”

The world has seen dramatic advancement in technology and increases in number of space related activities that has been carried out. The exploration and use of the space has tremendously expanded the horizons of human activity and knowledge. This rapid development of the space technology has created opportunities of enormous benefit to the mankind. Today, the outer space is used for the basic types of activities such as the scientific investigation of the outer space, manned space flights, and utilization for artificial earth satellites for telecommunication, meteorology, remote sensing of the earth’s natural resources, geodesy, direct broadcasting and navigation. There are several worldwide networks which are in place providing instantaneous radio, television and data transmission on global basis thereby making outer space a part of our everyday lives and, therefore, our environment. Therefore the development in this field has made human life easier and has opened up enormous opportunities for human benefit.

Though the rapid progress of the space technology has opened up enormous opportunities for the exploration of the outer space, the intensive and the extensive exploration of the outer space and of the moon and other celestial body has led to a situation in which the various environmental problems involving impact of space activities is a concern and it has become necessary to take measures to protect the environment of the earth. The launching of vehicles into outer space and celestial bodies is known to involve inevitable contamination as the vehicles emit exhaust gases throughout their burn. The term pollution and contamination denote the introduction into the environment of toxic substances or other elements in such a quantity that exceeds the natural ability to render them harmless or purify them and thereby causes harm to animate and inanimate nature, and the health and welfare of man. The question of environment harm resulting from space activities has been highlighted by many scholars and jurists as well as the international organizations. Advancements in technology have increased access to outer space and its resources, but “to fully benefit from these new opportunities, the need invariably arose for a body of International Law describing the ground rules for their use.” in this. The initially International Council of Scientific Unions (1931), conducted studies relating to the environmental impact of space activities. This work was taken up by Committee on Space Research (COSPAR) in the year 1959. The International Astronautical Federation (IAF) is another organization which is concerned with the environmental changes occurring due to the space activities. The Committee on Peaceful Uses of Outer Space (COPOUS) of the United Nations is largely involved.

The global legal regime that currently regulates outer space comprises five international agreements. This regime consists of the 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), the Convention on International Liability for Damage Caused by Space Objects (Liability Convention), the Convention on Registration of Objects Launched into Outer Space (Registration Convention), and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty). Although the existing legal regime consists of the treaties and agreements as described above has some relevant provisions seeking protection of the environment of the earth and its neighbourhood outer space, these are not adequate today.

The researcher will look into the nature of pollution in the outer space. The first part of the paper will deal with the commercial use of the outer space environment and show how it has caused pollution in the outer space. Space debris which is one of the important source of space pollution will be highlighted in he first part. The second part of the paper will deal with the legal regime governing the space environment. In this part of the paper, the four treaties which deals with the outer space will be analysed. The last part of the paper will show the need for an international legal regime on outer space because of the many loopholes in the preceding treaties.

 

 

Chapter I:

Commercial activities and its impact on the Outer Space Environment

 

The exploration of the space environment is a natural extension of the desire of the mankind to explore the planet to which he belongs. The issue of pollution of the outer space is more complex than the environmental pollution on Earth. The launching of vehicles into outer space and celestial bodies is known to involve inevitable contamination as the vehicles emit exhaust gases throughout their burn. The term pollution and contamination denote the introduction into the environment of toxic substances or other elements in such a quantity that exceeds the natural ability to render them harmless or purify them and thereby causes harm to animate and inanimate nature, and the health and welfare of man.

The use of space for various purposes is increasing day by day. Satellites have been launched by the space- capable nations including the United States, erstwhile Soviet Union, the European Space Agency, France, Germany, Japan, China and India for number of applications. The most important application relates to the field of communications. The satellite communication has brought the world closer and promoted the concept of global village. Telecommunications was the first aspect of outer space activity to be commercialized. It remains the most lucrative sector of space commerce. Telecommunications is also the sector with the least potential for environmental damage from its primary activity. This has led to a number of benefits to man. Entertainment worldwide is provided by satellite hook up. The weather satellites have helped in the weather forecasting and monitoring has been a lot easier. The transportation sector of space commerce that is, services for carrying payloads into outer space, experienced the greatest growth during the 1980s. It has also been the most competitive sector. Space transportation activities have the greatest present potential for adverse environmental effects.   These activities involve the highest risk of accidents, and they create more waste and debris than do other types of space commerce.   Thus, they have the potential to affect the environment in many different ways, both on the Earth and in space. Remote Sensing are used for resource mapping, monitoring forest cover and other uses. It is a small but a competitive and politically controversial are of the commercial activities in space.

These commercial activities in the outer space have been increasing which has eventually polluted the environment. This can be categorized into ‘forward’ pollution and ‘back’ pollution. Forward pollution is pollution that occurs in outer space as the result of human activity. It is the most common form of pollution in the outer space environment by solid wastes. Chemical Pollution is a type of a forward pollution.

Chemical Pollution:

When a spacecraft is launched into the space, they produce something called “ground cloud” which basically consisting of exhaust gases, cooling water, sand and dust. The use of certain rocket and stratospheric aircraft fuels has been found to speed the depletion of the earth’s ozone layer. Specifically, the chlorine, aluminum, nitrogen dioxide and sulphur dioxide that are present in these fuels have been detected in the ozone layer by scientists. The ozone layer is very important as it absorbs harmful ultraviolet rays and acts as a shield around the earth. The depletion of this shield or the ozone results in incoming ultraviolet radiation which causes harmful effects on plants, and skin cancer, eye damage on the animals. At least one study has concluded that the presence of nitrogen dioxide and sulphur dioxide in the earth’s atmosphere “may reduce the temperature of the earth’s surface,” potentially impacting agricultural production. The exhaust gases released by the spacecrafts will affect the ionosphere which is situated 80 kilometers above the earth’s surface. This may lead to the creation of a ‘hole’ in the ionosphere which will have harmful effects on the environment of the earth.

Back pollution, on the other hand, is pollution that occurs on the Earth as a result of extraterrestrial matter entering the Earth’s environment. The most dangerous sort of back pollution so far is radioactive waste.

 

Radiological Pollution :

The prime source of radioactive contamination is the active payloads with the Nuclear Power Sources (NPS). The collision between active payloads and space debris or other space objects could release radioactive contamination and other waster products into the earth and the outer space environment. The use of Nuclear Power Sources (NPS) in outer space is aimed at providing electric power for spacecraft sub-systems such as altitude control, communications, and command, as well as for the operations of various equipment on board. Radiological pollution also occurs due to the disintegration of failed launching of space objects carrying NPS. The interconnectedness of the Earth’s environment and outer space means that any damage or harm to the space environment is likely to have a spillover effect on Earth. The possibility of malfunctioning NPS entering into the earth’s atmosphere is also possible as seen in the COSMOS-954 incident in 1978, where a nuclear-powered satellite disintegrated upon re-entry, scattering a significant amount of highly radioactive debris across Canadian territory. Similarly, in 1983, COSMOS 1402, carrying 45 kilograms of uranium-235, malfunctioned and broke into three parts upon re-entry. The hazards to humankind from NPS in outer space will primarily be radiological, arising from radiation exposure through “both direct external radiation and internal radiation from inhalation or ingestion.”

However, the greatest threat to the space activities has been recognized to be the hazards coming from the man made debris from the spacecrafts. The increased launching of the satellites into space for communication has also led to the problem of space debris. The deployment of an ever-increasing number of man-made objects into outer space has created a potential for malfunctioning and decay. It has also resulted in a rise in the number of defunct, damaged, or abandoned objects, which, together with other debris caused by explosions and collisions, has fast become a threat to space activities.

Space Debris:

‘Debris’ is derived from the French ‘debrise’ which means to break down. There are no treaties which have given a definition of this word. In general use, the term debris consists of spent space objects, used rocket stage, separation devices, shrouds clamps, and all large and small fragments including the particles remaining after the disintegration of the space objects. Carl Q. Christol suggests that the debris is something that possesses tangible, physical characteristics of the kind that can be seen, touched, weighed and processed in factories and analysed in the laboratories. He further said that ‘debris’ may consists of a space object, including its component parts, or it may be composed of fragments that are located in space or which endure the test of atmosphere and ultimately comes to rest on the surface of the earth.

Spacecrafts often collide with natural objects like meteoroids, but now they also collide with objects created by human activities. Space debris left in orbit by past space missions presents a significant hazard to current space systems, poses a risk to future manned spacecraft and space stations and ultimately may render portions of near Earth space unusable. The quantum of space debris is steadily increasing over time. The space debris has variety of sources. Nearly one half of all debris is composed of fragments created by explosions, hyper-velocity impact, or deterioration of the surfaces of active and inactive payloads. The remaining debris is composed of inactive payloads, spent rocket thrusters, and other materials produced by operation of space craft. The space debris’ population can be classified into three basic categories:

 

<!–[if !supportLists]–>(a) <!–[endif]–>Inactive Payloads:

Inactive payloads are those which were active once upon a time but do not perform any useful functions now. In other words, inactive payloads are those formerly payloads which can no longer be controlled by the countries that launched them. They also include those which are out of control of their operators because of the depletion of the station keeping fuel or the inability to communicate with the object. This category mainly consists of Spent Satellite and Space Probes. They account for 20% of trackable debris population.

(b) Operational Debris:

Operational Debris are those which remain in the outer space and which are associated with the space activities. They relate mostly to launch hardware. They also include the items placed in outer space, either actually or deliberately, by humans during manned space flights. The largest pieces of operational debris are associated with the placing of space satellite in orbit. Operational debris include burnt out first and second stage rocket bodies, orbital transfer vehicles, apogee kick motors, exploded fuel tanks and insulation, window and lens covers and flakes of plaint peeled off from orbiting space objects.

(c) Fragmentation Debris:

Fragmentation Debris are the most prolific source of space debris. They result from explosions and break ups and also due to unknown phenomena. The explosion may be deliberate or accidental. Testing of military weapon in space results in deliberate explosion, for instance, the United States destroyed a Solwind satellite under its anti- satellite weapon test programme. Accidental explosion generally results from propulsion system failure. Most of the debris come from accidental explosions. The fragmentations of debris nearly 100 identified satellite break ups account for 49% of all catalogued space objects space objects in earth orbit and are found at altitudes below 2,000 kms, where many application satellites operate and where all manned operations take place.

 

Chapter II:

Protection of the Outer Space Environment:

The Legal Regime

The era of space exploration has witnessed the conclusion of a number of conventions relating to the provisions and the conservation of the earth’s environment and circumterrestrial outer space. The Ad Hoc Committee on the Peaceful Uses of Outer Space was established by the U.N. General Assembly at its thirteenth session in 1958, and was replaced a year later by a permanent body. The international legal regime is based on five major treaties negotiated primarily under the auspices of United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). The committee stated in 1959 that certain activities related to lunar and planetary impacts might result in biological, chemical and radiological contamination endangering the environment. The preliminary work of COPUOS resulted in the adoption of the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. This declaration formed the basis for the 1967 Outer Space Treaty, which introduced many fundamental principles of outer-space law and has been regarded by numerous scholars as the “Magna Carta” of outer space. The 1967 Outer Space Treaty laid down broad fundamental principles pertaining to the exploration and use of outer space. It was understood that further conventions would have to be negotiated to provide more specific rules. Thus, the Outer Space Treaty led to the successful conclusion of four other major international conventions, which provide the international legal framework regulating the conduct of space activities. These conventions are the extension or the improvement of the Outer Space Treaty. The conventions areas follows:

(1) the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space;

(2) the 1976 Convention on the Registration of Objects Launched into Outer Space;

(3) the 1977 Convention on the International Liability for Damage Caused by Space Objects; and

(4) the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.

 

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies 1967 (Outer Space Treaty)

 

The bedrock international law concerning outer space is The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies, or the Outer Space Treaty of the year 1967 which provided for broad principles for regulation of the conduct of states undertaking space activities. The Outer Space Treaty sets forth the fundamental policies and shared interests of the international community in space exploration and has served as the “main base for the legal order of the space environment.”

In particular, articles I and II of the Outer Space Treaty have a significant impact upon the use of the space environment. The objective of these two provisions of the Outer Space Treaty is to encourage maximum development of the space environment while encouraging equality. These two articles set the general tone of the Treaty in calling for the peaceful exploration and use of the space environment. The Treaty provides that the exploration and use of outer space “shall be carried out for the benefit and interests of countries” and shall not be “subject to national appropriations.” The Treaty also requires each country to ensure that the exploration and use of space will be undertaken indiscriminately and “in accordance with international law.” Article IV imposes limitation on the armament of the space environment by calling on parties to the treaty “not to place in orbit … any objects carrying nuclear weapons or any other kinds of weapons of mass destruction” and then in the second paragraph directs that “the moon and the celestial bodies shall be used … exclusively for peaceful purposes.” The Outer Space Treaty establishes consultation and notification requirements that might apply to potential environmental hazards. For example, article IX of the treaty requires a state to undertake international consultations before proceeding with activities in space that might interfere with the activities of other states in the peaceful use of outer space. Likewise, a state that believes that the activities of another state would cause potentially harmful interference may request consultations. These provisions of the Outer Space Treaty, if adhered to and enforced by the usual international means, would provide a degree of protection from environmental damage by commercial space activities.   However, the provisions of the treaty are so broad that they defeat its purpose.   The lack of definitions and standards makes determinations of liability difficult.   At the same time, this problem discourages commercial space activities, because investors will curtail their activities in order to avoid potentially arbitrary findings of negligence.

Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968

 

This agreement was passed after death of 3 US astronauts on board Apollo - I & one USSR astronaut on board Soyuz - I in 1967. The 1968 Astronaut Agreement establishes specific procedures to provide assistance to distressed astronauts who may be victims of environmental or other adversities. Moreover, article 5(4) of the Astronaut Agreement stipulates that if a state party “has reason to believe that a space object or its component parts discovered in territory under its jurisdiction, or recovered by it elsewhere, is of a hazardous or deleterious nature,” it may so notify the launching authority, which is immediately required to take effective measures to eliminate possible danger of harm.

 

Convention on International Liability for Damage Caused by Space Objects, 1972 (The Liability Convention)

The 1972 Liability Convention provides specific rules as an elaboration of article VII of the Outer Space Treaty and determines liability for damage caused by a space object. The definition of “space object” is controversial; a major issue is whether a space object remains a space object after its breakup, deterioration, loss, or abandonment, or whether it becomes space debris. Moreover, the “damage” as defined by the Convention may involve loss of life, personal injury, or damage to property, but no mention is made of damage to the environment.

Convention on Registration of Objects Launched into Outer Space, 1975 (Registration Convention)

The main object of the convention is the registration of the space object so that so as to facilitate the identification of the space object causing damage. The launching state party is required to maintain a national registry and enter into it each object launched into space. Furthermore, information must be furnished to the U.N. Secretary-General on each space object launched for the purposes of international registration. Notice must also be given regarding objects on which information has previously been provided and which have been but are no longer in earth-orbit.

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 (Moon Agreement)

The final and most controversial of the space treaties is the Agreement Governing Activities of States on the Moon and Other Celestial Bodies, the so-called Moon Treaty. This treaty is, at first glance, much like the Outer Space Treaty.   Like the Outer Space Treaty, it provides that the moon shall be used exclusively for peaceful purposes, that there shall be freedom of scientific investigation on the moon, that weapons of mass destruction and military bases are forbidden on the moon, and that states exploring and using the moon are obligated to prevent harmful contamination of the moon’s environment. The Moon Agreement is intended to supplement the 1967 Outer Space Treaty. The Outer Space Treaty will continue to apply where the Moon Agreement does not enunciate more specific provisions. Although article IX of the Outer Space Treaty already provides for the protection of the environment, both in space and on Earth, article VII of the Moon Agreement further requires states parties to take measures to prevent the “disruption of the existing balance” of the celestial bodies and avoid harm to the environment of the Earth.

The Moon Treaty, however, diverges from the Outer Space Treaty and becomes politically controversial in its article 11. The provisions of article 11, especially the “common heritage of mankind” language, became the center of a political controversy that led the United States to reject the Moon Treaty. The United States was concerned that, among other things, article 11 would inhibit the full development of natural resources and discourages commercial exploitation of those resources.

In addition to the prohibition on national appropriation by occupation in article 11(2), the Moon Agreement further requires an “equitable sharing” by all states parties in the benefits derived from the resources, taking into account the interests and needs of developing countries as well as the contributions made by the developed nations in their operational activities. Indeed, since the Outer Space Treaty already applies to the moon, much of the Moon Treaty seems redundant.

 

 

 

 

 

 

 

 

 

 

 

 

Chapter III:

Need for International Legal Regime for the protection of outer space environment.

According to Jonathan Charney’s criteria, the preservation of the outer-space environment has merited international attention and generalized concern as evidenced in the numerous U.N. General Assembly declarations and the formation of COPUOS and its integral role in the making of international space treaties. However, none of the treaty obligations under the framework of the present space treaties contains a discrete, well-defined customary rule that imposes a duty on states to avoid harm to the space environment.

The time has now come for making an impact assessment of space activities and the hazards of space debris, and there needs to be proper measures on the basis of a comprehensive in depth understanding of the situation. In the recent years the discussions on this issue has been hurried. It is high time that the United Nations should direct their attention to the issue of development of legal framework and institutional machinery for the protection of environment. The environmental damage transcends national boundaries, therefore there needs to be a global approach to the evolution of an international legal regime for the protection of the environment. The current international treaties contain many loopholes and are not adequate to cope up with the developing situation.

Article IX of the 1967 Outer Space Treaty is the section most directly related to protection of the outer space environment. It reads,

“States . . . shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities . . . with due regard to the corresponding interests of all other States. . . . [They shall] conduct exploration . . . so as to avoid . . . harmful contamination . . . and, where necessary, shall adopt appropriate measures for this purpose. . . . If a State . . . has reason to believe that an activity . . . would cause potentially harmful interference with activities of other States . . . it shall undertake appropriate international consultations before proceeding with any such activity. . . . A State . . . which has reason to believe that an activity . . . planned by another State . . . would cause potentially harmful interference . . . may request consultation concerning the activity. . . .”

In this article it is clearly seen that the principles of cooperation and mutual assistance seem to suggest policies such as the sharing of operational techniques to prevent creation and accumulation of debris. The limitation of the Outer Space agreement has been summed up by one analyst in the following words, “While this Article establishes a sound legal norm of a very general nature, it leaves the real legal obligations under the treaty open to interpretation. . . . The treaty therefore lays down only a broad principle establishing a general international obligation not to undertake activities that would adversely affect the space environment.”

There are some terminological problems within the treaties that have been dealt earlier. The important terms such as “harmful contamination”, “adverse changes in the environment”, “harmful interferences”, etc., are not defined anywhere in the Outer Space Treaty. Therefore there arises a dispute as to whether a particular activities contravenes the general obligations under the treaty. HE Qizhi talks about an international Expert Group consisting of well qualified space scientists and technician entrusted to review, assess and establish standards of environmental effects of the space activities. Likewise Harold Craig Mansion in his article also talks about some similar group to look into the provisions for the protection of the space environment. According to him, there should be a new organization so as to regulate the pollution caused by outer space commerce. He calls that organization International Outer Space Agency with the primary purpose the promotion of international outer space activities of a commercial nature. He says there shall be a committee which would be called the Environmental Protection Committee (EPC) and would be responsible for environmental oversight of commercial space activities.

All these prove that the current legal regime governing activities in outer space is not enough. Therefore there needs to be a regime which should govern the outer space effectively and prevent the pollution in the Outer space. There is a need to act fast as the development in science and technology is increasing at a rapid pace.

 

Conclusion:

Therefore the current space treaties regime fails to offer satisfactory protection to the space environment. Since the dawn of the space age, mankind’s activities in space have grown dramatically. Individuals, organizations, and nations must recognize the unique characteristics of the space environment and its implications for human relations on Earth, as well as in space. An environmental perspective can help provide a broader context within which to view the current state of human evolution and the responsibilities of this first space generation to all future generations. Space activities have given humanity new capabilities and opportunities to fulfill common security needs. Our ability to use them wisely may ultimately determine whether humanity will be able to fully realize the potential of the space frontier or not. A unified international approach to resolving the problem by space capable nations will avoid redundancies in efforts and will provide a “more timely, more cost effective and more technologically efficient” solution to this troubling threat. A new body of space law is required; one that can recognize changes as rapidly as they arise. Fortunately, the international community can draw upon their successes in the past to create a dynamic and powerful body of space law that can react to the needs of the twenty-first century and beyond.

 

 

 

 

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