Leiden Law Blog

Gaining Freedom, Losing Space

Posted on by Neta Palkovitz in Public Law , 2
Gaining Freedom, Losing Space

With the ever increasing possibilities to access outer space many space-inspired individuals have the chance to make their space dreams come true.

Some want to launch their favourite iconic objects or other strange items, and others might take comfort in a final resting place amongst the stars. Indeed, these kinds of activities not only allow people to express themselves, but may bring a sense of rare accomplishment to their proponents.

As far as international space law in concerned, Article I(2) of the Outer Space Treaty, 1967 states the right of freedom of exploration and use of outer space, which is given to all States on an equal basis. This is one of the most fundamental principles of international space law. On the other hand, the Treaty includes some limitations to this principle in Article IX, stating that: “States Parties shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty”. Some abstract limitations relating to inter-planetary contamination are mentioned as well, aiming to protect Earth’s environment. Therefore, the Treaty does not include specific strong legal obligation to avoid the contamination of outer space. This may seem rather unfortunate, nevertheless, the Treaty never meant to be environmentally-oriented, and it does allow international environmental law to penetrate outer space, by means of Article III.

Taking the above into mind, the following question arises: would it be beneficial to limit the freedom of exploration and use in order to promote environmental protection of outer space?

On the one hand, studies have shown that we are facing risks of over congesting certain orbits by creating space debris. These risks are connected to the safety of astronauts (as vividly illustrated by the film Gravity), potential liabilities in collision cases, and generally, to the sustainability of the outer space environment. On the other hand, the existing international legal framework for space activities generally favours the freedom of exploration and use, and includes only a set of non-binding guidelines that expressly promote environmental interests in space.

Further, apart from the United Nations and the ITU which have competence to regulate the use of outer space, no other international organisation has legitimate authority to set international binding standards for peaceful space activities. Therefore, the authority remains with States to authorise and supervise their nationals for carrying out certain activities in space, pursuant to Article VI of the Treaty and domestic implementing laws and regulations.

Putting this dilemma in simple terms, we may be experiencing the “tragedy of the commons” in outer space: it does not belong to anyone, but everyone can use it freely, and sovereign States are not interested in limiting themselves or their nationals without reassurance that others do the same.

Considering that existing binding international space law instruments are not sufficient to promote the sustainability of outer space, and while the problem of space debris is yet to be solved technically and regulatory, the situation calls for an intermediate action. States that are interested in promoting the sustainability of outer space should be encouraged to consider self-limiting practices on a voluntary basis, hoping that the rest will follow. This will be a practical step, displaying commitment to work towards a comprehensive binding solution.

Until then, we will surely encounter more intriguing activities and objects in outer space, noting that the environmental price humanity will pay in the future might be higher than the value of the current freedom of use.

2 Comments

Pia
Posted on May 14, 2015 at 04:21 by Pia

These documents of international law, when read with an eye towards sustainability, in Article IX, of the Outer Space Treaty 1967, states that exploration out to be conducted (of the planets and outer space) so as to avoid their harmful contamination…

These words do intend to invoke environmental protection of the orbits and outer space with regard to human exploration.  Thus sustainability is in the Treaty, whether the current generation wants to acknowledge it or not.

It is important to realize that whether your interpretation is for or against sustainability in the letter of the law, the effect of damaging an orbit, will occur and has already occurred, hopefully not beyond repair, if the controlled use of the orbits does not happen.  This requires limiting the access.  Promoting fast space access will increase the Kessler Syndrome and hasten the critical density point, at which time our atmosphere, the orbits and possibly those on Earth may face grave consequences. We need to think logically and prudently, not just dash ahead with all we want to do.  That only furthers the Tragedy of the Commons.

SUNIL ARORA
Posted on August 30, 2014 at 10:30 by SUNIL ARORA

As individual(s);association;and/or nation(s) act in their own interest expecting that they will work under or abide by voluantirly self-regulatory practices will be a very tall order.Comprehensive laws/binding guide lines to be followed are to be laid down so that humanity does not suffer due to enviornmetal problems.

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