Gaining Freedom, Losing Space
Classic international space law instruments promote the freedom of States to explore and use outer space for peaceful purposes, providing only vague restrictions on this freedom. Should the freedom of use be restricted?
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.