Space waste is currently posing an ever-increasing danger to life on Earth, though the average person still does not realize the magnitude of this danger. This is certainly not the situation as concerns space lawyers. Space law deals extensively with space waste, and international lawyers are actively engaged in seeking to reach agreements on how to settle problems generated by space law. In practice, however, the degree of practical benefit achieved can vary considerably.
The fundamental international documents are given. Within the framework of the United Nations, mention may be made of the Outer Space Treaty, the Liability Convention and the Moon Agreement. It is possible that these agreements are already somewhat outdated, though the blame for this cannot be laid on space lawyers. The creation of new agreements and the will to abide by these agreements is generally not the responsibility of space lawyers or any other kind of lawyers, but of the states and their governing authorities.
We have already seen an example in which the Soviet Union paid indemnity (rather unwillingly) to Canada for causing damage with a space object (i.e. the satellite Cosmos 954). Most such cases remain unknown to the ordinary citizen. Information is not readily available on space objects inducing damage on the surface of Earth, either on land or in water. Tariffs should not be drafted - precedents are undesirable. Why would a state that is active in space pay up to an informal tariff if it can agree secretly and pay less?
Space waste has attained a special legal character.
Space waste can be categorized as
space waste of unknown origin, and
space waste for which the responsible state is known.
In the first category, it is impossible to find anyone who could be made responsible for the damage caused by the space object; in the second category, there is a slight hope of obtaining indemnity. The case of the Soviet space object causing damage in Canada belongs in the second category, for which examples are quite rare.
Thus, not only does space waste threaten spatial and terrestrial activities, but most of the damage caused by space waste de facto remains without any legal reparation. This situation of casus nocet domino is in contrast with the original concept of international space law. The res ipsa loquitur type of liability was created in order to establish the identity of the state liable for space activity; in order to assure the international community that, however dangerous space activity may be, no-one who has suffered harm will remain without pecuniary compensation.
Today, the practicalities of space waste reveal that many would remain unindemnified, all of this being contrary to the spirit of space law. Accordingly, efforts must be made to specify the origin of space waste and also to determine who is responsible for it.
It should not be forgotten that major countries active in space are not really interested in apportioning responsibility, since it would almost certainly be one of them. It is a fact that countries newly active in space are mostly responsible for space waste. With the broadening of space activity, ever more countries are causing detonations in space, fairly close to the Earth's surface, and these detonations result in the augmentation of space waste and hence of the number of collisions between bodies in space. This has given rise to the phenomenon known as the Kessler Syndrome, named after Donald J. Kessler, a NASA scientist.
Kessler declared that spatial objects in low-Earth orbit may collide again and again, with the eventual consequence of a rather dark future for human space activity. Naturally, it is easier to devise theoretical solutions than to put them to the test of practice. Moreover, all the devised solutions are expensive, and it is therefore more economical to observe the paths of space debris, rather than to collect and eliminate it.
This type of attitude has led space lawyers to attempt to canalize the creation of space waste. It is treated alike in international documents and international soft law. New agreements are under preparation, and a solution of the dilemma of 'cheaper or better' is sought by both scientists and representatives of the legal profession. The dilemma involves the situation that, although a solution that is cheaper
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sounds more attractive, a cheaper solution is not necessarily in the interest of future generations.
In 1999, the COPUOS of the United Nations Organization published a 'Technical Report on Space Debris', and in 2007, 'Guidelines on Space Debris Mitigation'. These steps have been major ones towards the elimination of space waste, but alone they are not sufficient. These documents still recall the dilemma of 'cheaper or better'. Nonetheless, followers of this movement have emerged: in 2004, a 'European Code of Conduct for Space Debris Mitigation' was passed.
Space waste is dangerous not only for mankind, but also for outer space. The Moon Agreement is designed to prevent the pollution of the Moon and other celestial bodies in the Solar System. By analogy, we might say that this Agreement is also valid for celestial bodies outside the Solar System. When the Moon Agreement was passed, it seemed impossible for man to leave the Solar System and to reach other systems in outer space. Nowadays, however, the possibility of man reaching and polluting the natural environment of other systems too must also be reckoned with. The above dilemma of therefore acquires new aspects of environment protection.
Environmental law is presumed to be valid not only on Earth, but also extraterrestrially and outside the Solar System. Space law and international environmental law have similar roots. The legal techniques of regulating correlations between man and his environment must be expanded to include the environment of outer space. All this necessitates a reformation of the text of classical space agreements reached under the auspices of the United Nations Organization. New discoveries must be followed by a new kind of law: innovative law.
The dilemma of 'cheaper or better' runs counter to environment-consciousness. What is cheaper might well be useful and environment-friendly, but it is not definitely the case. Environmental law must be innovative and adaptable to science, whether it concerns the terrestrial environment, or that of other parts of the universe. The question remains: is the law to follow scientific progress, or does the latter have to emerge within the framework of law?
If space waste could be identified in every event of collision, it would not be worthwhile for states that are active in space simply to observe and avoid their own debris and that of other states. The true solution would be to collect and bring down space waste, though this would be costly. The aim must therefore be to find a balanced solution, where the costs of eliminating space waste would be less than the costs of the damage to be avoided. This would create favourable conditions for an environmentally friendly settlement of the problem of space waste. If the losses and gains were at least equal, why would man prefer an environmentally unfriendly way? It appears reasonable to choose an ethically positive way, rather than following anti-green values. The only problem is that this is still purely a theoretical situation. Even if the evolution of space science follows the concepts of law-makers, the rules and technical reality remain widely separated.
The further evolution of law and technology could be represented by technical standards. In environmental law and in space law, the technical standards are the would-be norms which could substitute the present-day legal norms. Standards as technical norms are already accepted as legal norms in many fields of environment protection. It is quite a possibility to bring about a legal climate in which standardization and legalization would initially supplement each other, and then, in a later phase, be merged into each other. Unlawfulness and lawlessness are not the same. In environmental space law, as in other important fields of regulation, not an unlawful, but a lawless situation may be conceived.
According to Article IX of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, states party to the Treaty must pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them 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, must adopt appropriate measures for this purpose. If a state party to the Treaty has reason to believe that any activity or experiment planned by it or its nationals in outer space will cause potentially harmful interference with the activities of other states party to the Treaty in the peaceful exploration and use of outer space, it must undertake appropriate international consultations before proceeding with any such activity or experiment.
The Outer Space Treaty thus circumscribes orientative rules for environmental pollution in outer space. Naturally, the outlines can acquire content only through the abstraction of theory from case law. Case law remains mostly unknown to ordinary
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citizens, though it does not impede exponents of the legal profession from developing environmental space law according to this abstracting activity.
When reminding his readers of the tyrant who publicly displayed the texts of law but in positions far too high to be readable for his subjects, Hegel wrote that law is something people should learn about.[1] In the present day and age, people are probably not really interested in the protection of the environment of outer space. However, in a few decades, when space activity will be not only a legal, but also a practical option in many countries, and travelling in space will be much more accessible for ordinary citizens worldwide, people will be appreciably more sensitive regarding environmental protection of the Earth and outer space.
The legal norm mentioned above was postulated at a time when space activity was the prerogative of only the wealthiest nations. As time passes and the factual background changes, the legal norms will demand renovation.
The interests of national security and the national economy are usually in accord with the interests of protecting the environment of outer space. The principle of laesio minor can normally be evoked, i.e. the principle of causing the least possible harm. In a broader sense, it might be said that no human activity in space is harmless, but human activities that cause a tolerable damage are accepted by the state.
When he found that the state budget could not endure such expenses, the principle of laesio minor led Barack Obama to withdraw assets from the planned Mars expedition and other extremely costly space activities. When the US economy had improved sufficiently, the president reversed his decision, and restored the former funding. From such examples, it is clear that the principle of laesio minor can work properly in practice.
Maintaining the balance between the national economy, national security and space activity is the keyword in considerations of space law and space environmental law. Protection of the environment is relevant, but has never been as important as human wealth. Environmental law is conducted by a self-protecting anthropocentric mechanism. Regardless of whether God, or some other power created the environment, it is the task of man to safeguard it.
When mankind acts upon the rules of environmentalism, the priority of economic growth and national security is not abandoned. This aspect must always be taken into account in considerations of human activities in outer space.
Article XI of the Outer Space Treaty specifies that, in order to promote international cooperation in the peaceful exploration and use of outer space, states party to the Treaty that conduct activities in outer space, including the Moon and other celestial bodies, must agree to inform the Secretary-General of the United Nations, the public and the international scientific community, to the greatest feasible and practicable extent, of the nature, conduct, locations and results of such activities. On receiving such information, the Secretary-General of the United Nations must be prepared to disseminate it immediately and effectively.
Cooperation between states is a basic principle of international law. Nonetheless, failure to adhere to this principle is a common feature in everyday practice. The situation holds equally for international space law. Environmental cooperation in the terrestrial environment, and cooperation in environmental space law exhibit similar characteristics. The problems contaminating the cause of environmental protection on Earth are to be seen in environmental space law too. Both states and individuals are striving to find ways to reduce greenhouse gas emission, preserve nature, minimize the ecological footprint of mankind, achieve sustainable development, etc. Sustainable space activity is likewise an important topic of environmentalism.
Preserving nature implies making it possible for future generations to enjoy the values of nature. As concerns outer space, the motivation is similar. In outer space, minerals and other, unknown energy resources await discovery by man. The principle of caution in terrestrial environmental law has its practical equivalent in environmental space law.
Cooperation should not be corrupted by personal interests put before the common good.
A British green campaign, 10:10, was launched in 2010. Its aim is a 10 % reduaction of the emission of carbon dioxide in 2010. Similar environmental programmes and campaigns have been triggered elsewhere. It is not only the developed countries that are environmentally conscious: rapidly developing countries such as India, China, South Africa and
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Brazil are also taking part in the fight against the exploitation of their natural values, with a view to the environmentally sustainable evolution of their nations.
People worldwide recognize that there are things to be done for the environment, and that they (even the poorer ones) should take part in the conservation of the natural (and created) environment.
The British campaign referred to above is one of the examples. It may not be the best, but it reflects an effort to achieve advances in the field. We have arrived at the final years of the fifth Kondratyev cycle, but we have still not entered the sixth cycle. Environmental protection and space activity are both connected with the wave of machine production and the wave of informatics.
The Kondratyev waves do not necessarily depend on political changes, and even larger waves are conceivable. Space research has developed considerably during the last two cycles, and the rate of this development is expected to be multiplied still further in the near future.
Environmental programmes exist at the level of the European Union, at the level of member states, and also at a global level, usually under the aegis of the United Nations Organization. Similar efforts are being made as regards space environment. Without the activities of man in outer space, terrestrial environmentalism could fail. But the costs of space activities are much higher and chances of successful space environmental protection are fainter.
Article I of the Outer Space Treaty states that the exploration and use of outer space, including the Moon and other celestial bodies, must be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and it must be the province of all mankind.
The meaning of this is nowadays far too wide to allow its general applicability. The intention of the legislators was to create the basic background for any space activities which were conceivable in 1967, the year in which the Outer Space Treaty was formulated. The good intention on the part of legislators was later corrupted by practice on the part of certain rogue states.
A new Outer Space Treaty should be worded and signed in the near future in order to lay down the basic principles of an environment-conscious and prudent space activity by mankind. The need is there, and the legislators are ready to respond to the will of the governments, but the expression of this will is retarded by local and global geopolitical circumstances.
Will there be a new era in space activity? Is mankind ready to accept new rules sanctioning giving to the few and taking from all? Is it really in the interest of all countries to carry out space activity? One weakness of the Outer Space Treaty of 1967 was that the concept of countries was taken to mean states including societies, whereas it is now clear that, although state and society are closely correlated, they are two different entities.
Thus, there appears to be a need for social space ecology, an expression implying that the space environment is to be protected not only for state purposes, but also for the benefit of societies. What is important for states is not definitely in the interest of all of its citizens, and citizens may form groups of various interests within societies. The time for social space ecology has arrived.
State and society have the common responsibility of analysing the effects of human space activity on the life of mankind, with determination of the priorities of citizens above those of states, and the harmonization of political intentions with civil purposes.
Paragraph 1 of Article VII of the Moon Agreement specifies that, in exploring and using the Moon, states party to the Agreement must take measures to prevent the disruption of the existing balance of its environment, by introducing adverse changes in the environment, by its harmful contamination through the introduction of extra-environmental matter, or otherwise. Such states must also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise.
This regulation is especially aimed at maintaining the balance between states which participate in space activities and states which hesitate to agree with space activities by richer and much more powerful countries. Article VII of the Moon Agreement was, in fact, created to provide a legal cover for and legitimize all possible space activities by the then (in 1979) two major countries active in space. World politics has subsequently undergone major changes. Since the end of the cold war, spatially active countries other than the USA and the Soviet Union have emerged. Space activity now falls increasingly outside international control, which stimulates countries with sufficient assets to send satellites and perhaps
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man into outer space. The legal environment therefore suffers from an insufficiency.
The game originally with two players is now the game of several countries, and countries endangered by space waste are threatened not by two major states, but by un uncontrollable number of states proliferating their space waste according to the Kessler Syndrome.
Paragraph 2 of Article VII of the Moon Agreement stipulates that states party to the Agreement must inform the Secretary-General of the United Nations Organization of the measures they adopt in accordance with Paragraph 1 of Article VII (as quoted above) and must also, to the maximum extent feasible, notify him in advance of all their placements by them of radioactive materials on the Moon and the purposes of such placements.
Paragraph 3 of Article VII of the Moon Agreement further stipulates that states party to the Agreement must report to other such states and to the Secretary-General concerning areas of the Moon that are of special scientific interest, in order that, without prejudice to the rights of other states, consideration may be given to the designation of such areas as international scientific preserves, for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations.
The question arises of whether it is sufficient to follow the rules of the Moon Agreement. Are there countries which would not be interested in an international cooperation? If the answer is that there are, then the Moon Agreement, just like the Outer Space Treaty, is doomed to perish.
Radioactive space waste can already be found in space, and a number of space objects are powered by nuclear fuel. An appreciable quantity of radioactive waste can be found around the Earth, left there legally and with the full consent of other countries active in space.
Nonetheless, radioactive materials may additionally escape into outer space due to accidents. Is mankind on Earth prepared to eliminate such contaminations of outer space and of Earth itself?
It is stated in Paragraph 1 of Article V of the United Nations Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space that each contracting party which receives information or discovers that a space object or its component parts have returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any state must notify the launching authority and the Secretary-General of the United Nations. Paragraph 4 of Article V informs us that a contracting party which 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 may so notify the launching authority, which must immediately take effective steps, under the direction of the said Contracting Party, to eliminate any possible danger of harm. Paragraph 5 of Article V lays down that expenses incurred in fulfilling obligations to recover or return a space object or its component parts must be borne by the launching authority.
Paragraph 2 of Article V of the Moon Agreement ordains that vehicles, installations and equipment or their component parts found in places other than their intended location must be dealt with in accordance with Article V of the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.
As concerns hazardous or deleterious space waste, the legislation is clear. The problem is that space waste is often unidentifiable. The wording of Paragraph 4 of Article V of the United Nations Agreement on the Return of Objects launched into Outer Space therefore leaves the door ajar to avoid liability for space waste. The question of identification is today an urgent need of every country concerned with space activity, regardless of whether this is a country which does not launch space objects, but only suffers from space waste or its imminent danger.
To summarize, the wording of the Rescue and Return Agreement should be rewritten and modernized so as to cover present-day legal and factual situations.
Space waste is not necessarily of a hazardous or deleterious nature, but this is mostly the case when radioactive space waste enters the air, soil or waters. Besides space waste of a radioactive character, space waste otherwise causing a serious impact may also be harmful to persons, real estate or chattels.
Plato says in his Laws that 'costums and ethics become mixed when different countries come into contact with each other, since peoples becoming acquainted with other peoples feel the need to borrow new costums and ethics from the others. States with proper laws are usually disturbed by such a phenomenon, though most states with laws that are far from proper remain undisturbed by it.'[2] States coming into contact with one another are always likely to come into conflict. By the time of Plato, people under the age of forty were counselled not to
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travel abroad, as those with inadequate experience could cause problems and enmity between their own state and the visited state. In international space law, the situation is quite similar. Space waste may cause disagreements between states, and these must be settled before they become more serious, if necessary, with the help of the United Nations or other international bodies.
It is to be stressed that environmental space law focuses on finding the liable party, i.e. the launching authority. In international relations, liability has realistic meaning only if the party does not avoid responsibility. The accent is therefore on international cooperation. This Platonian approach in space law is not outdated, but the general attitude of peoples towards one another has not greatly changed. Only the level of technology changes, not the humans who produce it. Social space ecology is emerging in front of our eyes. The problems of our societies stem from both terrestrial and space ecology. The dilemma of 'cheaper or better' and similar phenomena are closely connected with the social functioning of citizens.
Article B of the United Nations Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting prescribes that activities in the field of direct television broadcasting by satellite should be conducted in accordance with international law, including the Charter of the United Nations, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, the relevant provisions of the International Telecommunication Convention and its Radio Regulations and of international instruments relating to friendly relations and cooperation among states and to human rights.
One of the problems associated with television broadcasting via artificial satellites is that, apart from their possible military use, the remnants of malfunctioning satellites may result in low-orbit collisions which can harm space objects of other states. There is also a chance that, if such remnants fall back onto territories inhabited by man, plants or animals, they may lead to human and ecological tragedies.
The United Nations General Assembly is concerned with all forms of activities that can possibly lead to minor or major catastrophes. The United Nations takes responsibility for the organization of safer and environmentally cleaner space activity. However, it is the responsibility of the individual states and well-organized societies to abide by the 'rule of law' as mentioned in the preamble of the United Nations Universal Declaration of Human Rights.
The counting of time in space activity started on 4 October 1957, when Sputnik 1 was launched from Baykonur, in Kazakhstan. This new counting of time seems to furnish an accelerating history. As time passes, the face of mankind changes. Law follows the facts, though almost never with the expected quality.
Space waste and space law are intricately linked with social space ecology. The social problems generated by the already existing and proliferating quantity of space debris are numerous, but in future are likely to multiply still further. With the proliferation of human activities in outer space, societies on Earth will certainly have to learn how to cope with space waste and the social problems triggered by it. The dilemma of 'cheaper or better' is one of mankind's most ancient dilemmas. A cheaper solution may appear to be a good one, but in many cases this is not the fact. On the contrary, when less is invested, the return is generally lower. In environmental space law, man should not choose the cheapest solution as the fate of future generations is at stake. A society which is responsible for its future citizens. Social space ecology is and will be unavoidably necessary, just as social ecology on Earth already is. The social processes are strongly interconnected with ecology and space ecology alike. The basic principles of social space ecology have been laid down in international documents, though the reality at the time of their creation, differed from present-day reality. This means that new wording of the existing international documents is needed, and new fields of regulation are emerging. Question relating to standardization or/and legalization remain, though it is not known whether standardization can fully substitute legal norms, or merely supplement them. Space waste is something tangible, with a direct impact on mankind. One of the starting-points of environmental space law, therefore, is the concept of space waste. Consideration should be given to the development of environment-consciousness on Earth, but states active in space should also respect the rights of poorer nations to the environmental value of outer space. The environment is undivisible, and should be shared by all.
Billings, L.: To the Moon, Mars and Beyond: Culture, Law, and Ethics in Space-faring Societies. Bulletin of Science, Technology and Society 2006. No. 26/5, pp. 430-437.
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Jasentuliyana, Nandasiri - Lee, Roy S. K. (ed. by): Manual on Space Law. Oceana, New York 1979
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Ogunbanwo, Ogunsola O.: International Law and Outer Space Activities. Nijhoff, Hága 1975
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Thompson, J.: Space for Rent: the International Telecommunications Union, Space Law and Orbit/Spectrum Leasing. Journal of Air Law and Commerce 1996. No. 62, pp. 279-311. ■
NOTES
[1] Hegel, Georg Wilhelm Friedrich: Basic Lines of Legal Philosophy (Grundlinien der Philosophie des Rechts) Akadémiai, Budapest 1971
[2] Plato: Laws. Atlantisz, Budapest 2008. pp. 466-467.
Lábjegyzetek:
[1] The Author is a research fellow, Szeged.
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