The Current International Legal Setting for the Protection of the Outer Space Environment: The Precautionary Principle Avant La Lettre
| Author | Claudia Cinelli,Katarzyna Pogorzelska |
| Date | 01 July 2013 |
| Published date | 01 July 2013 |
| DOI | http://doi.org/10.1111/reel.12026 |
The Current International Legal Setting for the
Protection of the Outer Space Environment: The
Precautionary Principle Avant La Lettre*
Claudia Cinelli and Katarzyna Pogorzelska
Over the last decades, space-based technologies have
significantly contributed to the socio-economic
advancement of humankind. While reliance on outer
space has increased, the security of the space assets
enabling the benefits has significantly decreased due
toalaissez-faire approach in the exploitation and
exploration of outer space and the subsequent prolif-
eration of space debris. The problematic issue of space
debris is getting to the point where it should be treated
with precaution. The precautionary principle, broadly
applied in the protection of the terrestrial environ-
ment, may also have the potential to enhance the
regime for environmental protection of outer space.
This article analyzes the current legal regime, at inter-
national and European levels, for the protection of
the near-Earth outer space environment, focusing on
the issue of space debris. The article examines the
rationale behind an avant la lettre application of the
precautionary principle to the protection of the outer
space environment.
INTRODUCTION
The protection of the near-Earth outer space environ-
ment is a pressing question. Since the launch of
Sputnik1 on 4 October 1957, the use of outer space
transformed from being the domain of an exclusive club
of a few States into a widespread activity.1Many areas of
our everyday life rely on technological solutions made
possible by the conquest of space. Modern television
and radio, internet routing, navigation, credit card
authorization and automated teller banking services
all would not be possible without satellite communica-
tion.2Space-based solutions have also gradually
become an indispensable factor in development pro-
grammes facilitating natural resources management,
land use, weather forecasting, handling natural or man-
made disasters, telemedicine and education.3More-
over, States heavily rely on space technologies to ensure
their strategic security.4Finally, all the commercial
activities that have been derived from the space sector
over the years now constitute an important part of the
world economy.5
Unfortunately, these advances in the use of space-based
technologies have come at the cost of pollution of the
near-Earth space environment with space debris.
‘Space debris’ can be defined as ‘all man-made objects,
including fragments and elements thereof, in Earth
orbit or re-entering the atmosphere, that are non-
functional’.6The National Aeronautics and Space
Administration (NASA) recognizes five main sources of
space debris: fragmentation debris; non-functional
spacecraft (payloads); mission-related; rocket bodies;
* Claudia Cinelli is author of sections 5–6 and 8–12 and she super-
vised the manuscript as a whole. Katarzyna Pogorzelska is author of
sections 1–4 and 7.
1For the expanding spectrum of stakeholders in the space sector,
see G. Lafferranderie and D. Crowther (eds.), Outlook on Space Law
over the Next 30 Years (Kluwer Law International, 1997), at 21–64; L.
Viikari, The Environmental Element in Space Law: Assessing the
Present and Charting the Future (Martinus Nijhoff, 2008), at 21–28.
On the commercial use of outer space and legal implications, see
I.H.P. Diederiks-Verschoor and V. Kopal, An Introduction to Space
Law (Kluwer Law International, 2008), at 106–121.On the diversifica-
tion of actors and stakeholders, and its impacts on outer space law
see, e.g., I. Baumann, ‘Diversification of Space Law’, in: M. Benkö
and K.-U. Schrogl (eds.), Space Law: Current Problems and Perspec-
tives for Future Regulation, Vol. 2 (Eleven International, 2005), at 49.
2For examples of satellite services, see J.N. Pelton, The Basics of
Satellite Communications (IEC Publications, 2006), at 3.
3Space Millennium: Vienna Declaration on Space and Human Devel-
opment, in: Report of the Third United Nations Conference on
the Exploration and Peaceful Uses of Outer Space (UN Doc.
A/CONF.184/6, 18 October 1999), at 6; United Nations Office for
Outer Space Affairs (UNOOSA), Solutions for the World’s Problems
(UNOOSA, 2006).
4The Space Council (i.e., regular joint meetings of the EU and the
European Space Agency at ministerial level for developing European
space policy) has recognized the space sector as ‘a strategic asset
contributing to the independence, security and prosperity of Europe’.
See 4th Space Council Resolution on the European Space Policy
(Council of the European Union, 2007), found at: <http://
www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/
intm/94166.pdf>, at Section I. The American government highlights
that space system and technology development contribute signifi-
cantly to the ‘most critical national security interests’. See National
Space Policy of the United States of America (2010), found at: <http://
www.whitehouse.gov/sites/default/files/national_space_policy_6-28-
10.pdf>,at13.
5Organization for Economic Cooperation and Development (OECD),
The Space Economy at a Glance 2011 (OECD, 2011).
6United Nations General Assembly, Space Debris Mitigation Guide-
lines of the Committee on the Peaceful Uses of Outer Space (UN
Doc. A/62/20, 22 December 2007), Annex (‘Space Debris Mitigation
Guidelines’), at Section 1.
bs_bs_banner
Review of European Community & International Environmental Law
RECIEL 22 (2) 2013. ISSN 0962-8797
© 2013 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
186
and debris of unknown origin.7Presently, space debris
constitutes about 93% of the catalogued space objects.8
Fragmentation debris, which accounts for nearly 60%
of all catalogued space debris, originates from inten-
tional or accidental in-orbit break-ups, collisions and
explosions. China’s intentional anti-satellite (ASAT)
test on 11 January 2007 and an incidental collision of a
decommissioned Russian satellite with an American
operational satellite on 10 February 2009 are two inci-
dents from which consequent clouds of space debris
constitute now one-third of all catalogued space
objects.9Whether it is the size of a defunct satellite or a
tiny paint flake, man-made space debris poses a threat
to space missions and constitutes the most serious pol-
lutant of the near-Earth space environment.
The danger posed by debris for space missions stems
from the fact that proliferation of space debris trans-
lates into a growing probability of collision with func-
tional satellites, the International Space Station or an
astronaut.10 The destructive potential of even the small-
est debris particle derives from the fact that relative
impact velocities in orbits are very high. In low Earth
orbit, the average impact speed of orbital debris with
another space object will be approximately 10 kilome-
tres per second. Consequently, collisions with even a
small piece of debris will involve enormous energy.11 In
the future, the growing amount of space debris may also
result in a belt of debris encircling the Earth leading to
cluttering or even clogging of space, preventing its
further use (a phenomenon known as the ‘Kessler
syndrome’).12
Apart from being an obvious threat to human assets on
orbit, space debris may also have harmful effects on the
outer space environment. It is difficult, however, to
fully define the impact of in-orbit break-ups, and to
quantify the impact of chemical substances generated
as spacecraft combustion products in the space envi-
ronment. This scientific uncertainty may form the
premise for a precautionary approach to space activi-
ties. Such an approach can be a useful tool for enhanc-
ing the protection of the outer space environment, from
an anthropocentric perspective as well as in its own
right.
The application of precautionary criteria to the protec-
tion of the outer space environment would be valuable
because current provisions of outer space law concern-
ing the issue are very general and their applicability is
frequently challenged. Existing provisions approach the
protection of the outer space environment in two ways.
First, there are provisions protecting the space environ-
ment as such; and second, there are measures that
contribute to space protection by protecting human
interests in space (i.e., adopting an anthropocentric
approach). The latter type of measures relies mostly on
traditional legal tools such as State responsibility and
liability for damage. In European Union (EU) legisla-
tion, one can also find provisions on general State
responsibility as well as responsibility for space objects.
Unfortunately, neither international nor regional
norms are precise enough to handle the complex issues
of protection of the outer space environment and space
debris. The norms – especially the international ones –
constitute a framework that needs to be elaborated
with measures specifically tailored for environmental
protection in outer space.
While the key elements underpinning the precaution-
ary approach –namely, scientific uncertainty about
risk and foreseeability in terms of seriousness/
irreversibility of potential environmental damage –
have become part of international and European envi-
ronmental law, they are not yet part of the legal regime
for outer space. However, these precautionary criteria
show potential to complement the overly general norms
of the current treaty regime. Article III of the Outer
Space Treaty (OST) states that space activities shall be
7NASA, Handbook for Limiting Orbital Debris (NASA, 2008), at
26–29. See also H.A. Baker, Space Debris: Legal and Policy Impli-
cations (Martinus Nijhoff, 1989), at 3–9.
8NASA indicates that there are 1,149 active satellites in orbit as of 21
January 2013. See <http://celestrak.com/satcat/boxscore.asp>.At
the same time there are ~22,000 pieces of orbital debris larger than
10 cm known to exist, out of which ~16,000 are catalogued pieces.
The estimated population of particles between 1 and 10 cm in diam-
eter is ~500,000. The number of particles between 1 mm and 1 cm is
larger than 100,000,000. See NASA, ‘Orbital Debris Program Office’,
found at: <http://orbitaldebris.jsc.nasa.gov/faqs.html>. For the
number of catalogued debris, see <http://celestrak.com/satcat/
boxscore.asp>.
9The target of the Chinese ASAT test was an old Chinese meteoro-
logical spacecraft, Fengyun-1C. See NASA, ‘Chinese Anti-satellite
Test Creates Most Severe Orbital Debris Cloud in History’, 11:2
Orbital Debris Quarterly News (2007), 2 (‘NASA, ‘Chinese Anti-
satellite Test’). The collision of February 2009 between Iridium 33, an
American operational communications satellite, and Cosmos 2251, a
Russian decommissioned communications satellite, was the first
accidental hypervelocity collision. See NASA, ‘Satellite Collision
Leaves Significant Debris Clouds’, 13:2 Orbital Debris Quarterly
News (2009), 1.
10 United Nations Committee on the Peaceful Uses of Outer Space
(UNCOPUOS), A Technical Report on Space Debris (UN Doc.
A/AC.105/720, 1999) (‘UNCOPUOS, Technical Report’), at 14–17;
UNCOPUOS, Towards Long-term Sustainability of Space Activities:
Overcoming the Challenges of Space Debris. A Report of the Inter-
national Interdisciplinary Congress on Space Debris (UN Doc.
A/AC.105/C.I/2011/CRP.14, 3 February 2011) (‘UNCOPUOS,
Towards Long-term Sustainability’), at 20–21; C.A. Belk et al., Mete-
oroids and Orbital Debris: Effects on Spacecraft (NASA, 1997).
11 See NASA, ‘Chinese Anti-satellite Test’, n. 9 above. For the physics
of orbital speed, see D. Wright, L. Grego and L. Gronlund, The
Physics of Space Security: A Reference Manual (American Academy
of Arts and Sciences, 2005), found at: <http://www.amacad.org/
publications/Physics_of_Space_Security.pdf>,at20.
12 Cf. D.J. Kessler and B.G. Cour-Palais, ‘Collision Frequency of
Artificial Satellites: The Creation of a Debris Belt’, 83:A6 Journal of
Geophysical Research (1978), 2637. The authors demonstrated a
direct correlation between the growing number of objects in orbit and
the number of collisions between such objects. Through mathemati-
cal modelling, they portended that ‘the debris flux will increase expo-
nentially with time’ even without any new launches (ibid., at 2645).
RECIEL 22 (2) 2013 PROTECTION OF THE OUTER SPACE ENVIRONMENT
© 2013 John Wiley & Sons Ltd
187
To continue reading
Request your trial