Abstract
If there was full acceptance of the school of thought which recognises as international customary law the obligation to prevent outer space from harmful contamination and to pursue activities in outer space with due diligence, as crystallised by Articles I and IX of the Outer Space Treaty, then it will become necessary to investigate what will be the consequences of a breach of such an international customary rule of law.
The present discussion will move in this investigation, considering mainly the international responsibility arising from pollution per se, regardless of whether the damage occurred or not, particularly focusing on Article VI of the 1967 Outer Space Treaty.
Since international space law does not provide any secondary rule which specifically regulate the legal consequences of environmental pollution of outer space as such, these provisions will be inferred from the general principles of international law on States responsibility for wrongful acts.
As a matter of fact, if no international responsibility regime is predicted against space pollution per se, the outer space environment would be left completely undefended, opening the road for a totally irresponsible exploitation. In this sense, the international responsibility might be considered as a deterrent against such an attitude, indirectly leading space exploration and exploitation towards prevention and sustainability for the future generations.
In other words, paraphrasing Judge Max Huber’s observations in the Spanish Zone of Morocco Claims case, international responsibility for the wrongful act of space pollution should be the necessary corollary of the right of free use and access to outer space on an equitable basis.
Finally, such a responsibility should result in the duty to make reparation for the negative ecological consequences of space pollution.
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Notes
- 1.
Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies of 1967, namely the Outer Space Treaty.
- 2.
As a matter of fact, as authoritative doctrine underlined, referring to Chap. 4 of the 1998 Report of the International Law Commission: «The ambit of the Draft Articles (on the International Liability Arising from Acts Not Prohibited by International Law) […] although centring on questions of prevention, has been restricted to the “Prevention of Transboundary Damage from Hazardous Activities” and clearly refer to harm done to another State, not to damage or harm caused outwith all territorial jurisdictions to the environment qua environment».
And in more recent times, Marchisio echoed: «[…] If we look at the current situation of general international law, we can see that absolute/strict liability for harmful consequences of internationally lawful activities is not reflected yet by specific customary norms. It is well known that the Draft Articles on prevention of the transboundary harm from hazardous activities adopted by the ILC in 2001 confirms such a conclusion». See: f. lyall, Protection of the Space Environment and Law, in 39th Colloquium L. Outer Space, 1996, 476. s. marchisio, Protecting the Space Environment, in 46th Colloquium L. Outer Space, 2003, 14. See also: Supplement No. 10 (A/56/10), Report of the International Law Commission on the Work of its Fifty-third Session, 2001.
- 3.
UNGA Res. 41/65 of 3 December 1986, Principles Relating to Remote Sensing of the Earth from Space.
- 4.
According to Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts: “Every internationally wrongful act of a State entails the international responsibility of that State”.
- 5.
I.C.J. Reports 2010, Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay).
- 6.
In this view, the liability system is instrumental to ensure an adequate allocation of loss in case of damages caused by ultra-hazardous activities.
- 7.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. See also: Report of the International Law Commission at its 53rd Session. In the present work, it will be referred as the ILC Draft Articles.
- 8.
Ibidem.
- 9.
This legal operation, through which the conduct of a physical person, whether it be an action or omission, is qualified as a “State action” is called “attribution”.
- 10.
In order to have a full explanation of the principle recalled here, the author refers back to the original version of Condorelli: “[…] On a voulu, d’une part, soumettre les États à des obligations spécialement lourdes de surveillance et de contrôle, d’autre part, leur faire supporter la responsabilité internationale pour tout fait illicite spatial susceptible d’être perpétré au cours des activités en question. Dans ce but, non seulement on a renforcé, ici, de façon éclatante, l’obligation de type classique de “diligence due”, mais on a assorti celle-ci d’une règle spéciale (dérogeant aux principes communs sur l’imputation des faits illicites […]) d’après laquelle les comportements spatiaux des particuliers sont intégralement assimilés à ceux des organes et des entités de l’État, donc imputés à celui-ci”. See: Luigi Condorelli, ʽLa Réparation des Dommages Catastrophiques Causés par les Activités Spatialesʼ, in La Réparation des Dommages Catastrophiques. Les Risques Technologiques Majeurs en Droit International et en Droit Communautaire (Travaux des XIIIes Journées d’Études Juridiques Jean Dabin Organisées par le Département de Droit International Charles De Visscher, Université Catholique de Louvain 1990) 270.
- 11.
This is also the reason why such kinds of responsibility are usually connected to a compulsory insurance system. See: Céline Négre, ʽResponsibility and International Environmental Lawʼ, in James Crawford, Alain Pellet, Simon Olleson (eds.), The Law of International Responsibility (OUP 2010) 807.
See also: Benedetto Conforti, Diritto Internazionale (10th edn., Editoriale scientifica 2010) 405.
- 12.
Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl, Cologne Commentary on Space Law: Outer Space Treaty, vol. 1 (1st edn., Carl Heymanns 2009) 112.
- 13.
idem.
- 14.
Marco Pedrazzi, ʽOuter Space, Liability for Damageʼ, Max Planck Encyclopedia of Public International Law (2008) 2.
- 15.
Marco Pedrazzi, Danni Causati da Attività Spaziali e Responsabilità Internazionale (1st edn., Giuffré 1996) 36.
- 16.
For more information, visit the United Nations Office of Outer Space Affairs website: http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/travaux-preparatoires/outerspacetreaty.html
- 17.
See footnote n. 7.
- 18.
ILC Commentary to the Draft Articles on Responsibility of States for internationally Wrongful Acts, 2001, para. 4, 126.
- 19.
As a matter of fact, also the International Law Commission in the 2001 Draft Articles avoided to recall the distinction, proposed in the 1996 Project of Articles, between international crimes and international delicts.
- 20.
I.C.J. Reports 1997, Case Concerning the the Gabčíkovo – Nagymaros Project (Hungary – Slovakia), 25 September 1997, para. 47, 38.
- 21.
Yumi Nishimura, ʽSource of the Obligationʼ, in James Crawford, Alain Pellet, Simon Olleson (eds.), The Law of International Responsibility (OUP 2010) 368.
- 22.
However, it should be noted that “no specific regime” does not mean that the regime of State responsibility would not differ according to the substantive content of the obligation violated or the particular relationship created by international obligation (i.e. if the obligation is only between the Parties or it is an erga omnes duty). As a matter of fact, these features of the obligation breached will be reflected by the content of the responsibility and the legitimacy to invoke it.
- 23.
ILC Commentary to the Draft Articles on Responsibility of States for internationally Wrongful Acts, 2001, para. 2, 123.
- 24.
In order to have a full explanation of the principle recalled here, the author refers back to the original version of Carbone, Luzzatto and Santa Maria: “(I principi generali) esprimono immediatamente certe specifiche caratteristiche della struttura del sistema giuridico nel quale la società internazionale è organizzata. […] Possono essere considerati […] come ricavati in via induttiva da regole consuetudinarie, e partecipano dei caratteri propri di queste quanto ai loro elementi costitutivi ed al loro valore formale: non esiste, dunque, alcuna differenza di posizione gerarchica delle due categorie di regole. […] Si tratta altro che di una particolare categoria di norme consuetudinarie”. See: Riccardo Luzzatto, ʽIl Diritto Internazionale Generale e le Sue Fontiʼ, in Sergio M. Carbone, Riccardo Luzzatto, Alberto Santa Maria (eds), Istituzioni di Diritto Internazionale (5th edn., Giappichelli Editore 2016) 52.
- 25.
UN doc. A/62/20, Annex to the Report of the Committee on the Peaceful Uses of Outer Space, i. e. UN Space Debris Mitigation Guidelines, 2007.
- 26.
See: I.C.J. Reports 1996, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 29, p. 242.
- 27.
In this view, it should be noted that in the field on environmental law, generally obligations are conceived as obligations of conduct. See: Gerhard Hafner, Isabelle Buffard, ʽObligations of Prevention and the Precautionary Principleʼ, in in James Crawford, Alain Pellet, Simon Olleson (eds.), The Law of International Responsibility (OUP 2010) 530.
- 28.
As a matter of fact, although in international law there is not an explicit obligation to avoid causal damage to other States space assets, however there should be the duty to observe a standard of care or due diligence in performing space activities. See: Joyeeta Chatterjee, ʽLegal Issues Relating to Unauthorised Space Debris Remediationʼ, paper presented at the 65th International Astronautical Congress held in Toronto, 2014.
- 29.
In this view, spacecrafts disposal and active debris removal techniques are efficient means of mitigation.
- 30.
Yearbook of the International Law Commission, 1978, vol. 2, para. 19, 151.
- 31.
This means that: “(Advertising, but it might be replaced by) Activities that would so substantially clutter the orbit that it would become impossible for other States to explore outer space would likely violate International law” and that where authorisation was issued despite such a risk, the authorising State would be in breach of its international obligations and arguably have committed an internationally wrongful act”. See: Jai Galliott, Commercial Space Exploration: Ethics, Policy and Governance (1st edn., Routledge 2015) 102.
See also: Frank J. Balsamello, ʽWhen You Wish Upon a Falling Billboardʼ (2010) 28 Geo. L. J. 1785.
- 32.
United Nations, International Law Commission, Yearbook of the International Law Commission, 1996, vol. 2, part. 2, 111.
- 33.
“If international responsibility is ruled out (in case of conventional mechanisms), it nevertheless reappears in cases of persistent failure, although […] adapted to damage to the global environment in the framework of “non-compliance” procedures”. See: Nègre (n.11) 809.
- 34.
This way, all the difficulties linked to the proof of the internationally wrongful act, i.e. the breach of the obligation of prevention and the casual link between the negligence and the harmful consequences suffered, will be avoided.
- 35.
Nègre (n.11) 807.
- 36.
David A. Koplow, ʽAsat-isfaction: Customary International Law and the Regulation of Anti-Satellite Weaponsʼ (2008) 30 Mich. J. Int’l L. 1187–1272.
- 37.
Charter of the United Nations (1945).
- 38.
Article VIII of the Outer Space Treaty states: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object […] while in outer space […]. Ownership of objects launched into outer space […], and of their component parts, is not affected by their presence in outer space […]”.
- 39.
In legal theory there is a distinction between lex lata and lex ferenda, the former referring to law “as it is”, the latter representing the law as “it ought to be”. In this view, only from lex lata descends the legality or illegality of an action.
- 40.
T. S. Kelso, ‘Analysis of the 2007 Chinese ASAT Test and the Impact of its Debris on the Space Environmentʼ, paper presented during the 2007 Amos Conference held in Maui, Hawaii.
- 41.
Marchisio (n.2) 15.
- 42.
However, it should be noted that actually, in practice, the distinction between the two categories may be blurred. As a matter of fact, if it is true that generally speaking environment protection obligations fall under the former category, being regulated through regional conventional instruments, thus operating on the basis of reciprocity, they may overlap with the latter classification, as far as the regional mechanism incorporates the erga omnes obligations. See: Antonio Cassese, ʽGrave Breaches of Obligations Owed to the International Community as a Whole: the Character of the Violationʼ, in James Crawford, Alain Pellet, Simon Olleson (eds.), The Law of International Responsibility (OUP 2010) 415–421.
- 43.
ILC Commentary to the Draft Articles on Responsibility of States for internationally Wrongful Acts, 2001, para. 12, 323.
- 44.
Isabel Feichtner, ʽCommunity Interestʼ, Max Planck Encyclopedia of Public International Law (2007) 6.
- 45.
For the intersection between environment protection and sustainable development, see: Edith Brown Weiss, ʽOur Rights and Obligations to Future Generationsʼ (1990) 84 Am. J. Int’l L. 198–207.
- 46.
Annex to the UNGA Res. 2222 (XXI) of 19 December 1966, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.
In the present work, it will be referred as the Outer Space Treaty.
- 47.
This theory, according to which international obligations for the environmental protection may have an erga omnes effect, seems to be shared also by Lotta Viikari which adds: “This (assumption) holds true in particular if the erga omnes character of obligations is not determined narrowly by whether all States have standing to bring proceedings before an international tribunal in the event of a breach, but on the basis of a right or ability of the international community to hold an individual State accountable for compliance with the obligations through other institutions, such as the Conference of the Parties […] in case of climate changes”. Lotta Viikari, The Environmental Element in Space Law: Assessing the Present and Charting the Future (Brill/Nijhoff 2008) 140–141.
- 48.
Laura Pineschi, La Protezione dell’Ambiente in Antartide (1st edn., Cedam 1993) 30.
- 49.
Luigi Fumagalli, ʽIllecito e Responsabilitàʼ, in Sergio M. Carbone, Riccardo Luzzatto, Alberto Santa Maria (eds), Istituzioni di Diritto Internazionale (5th edn., Giappichelli Editore 2016) 52.
- 50.
For the theory maintaining that the obligation of cessation should be considered as a secondary rule, see: Karl Zemanek, ʽLa Responsabilité des États pour Faits Internationalement Illicites ainsi que pour Faits Internationalement Licitesʼ, in Prosper Weil, Responsabilité Internationale (1st edn., Éditions A. Pedone 1987) 65.
- 51.
In this view, the obligation of cessation is a form of implementation of the principle pacta sunt servanda, because the State is owed to respect its international obligations. For the theory that the obligation of cessation should be considered a primary obligation, see: Christian Dominicé, ʽObservations sur les Droits de l’État Victime d’un Fait Internationalement Illiciteʼ, in Weil (n.50) 27.
- 52.
ILC Yearbook 1993, Commentary to Draft Articles, para. 4, 55.
- 53.
PCIJ Reports, Series A, Factory at Chorzów (Jurisdiction), 26 July 1927, No. 9, 21.
- 54.
PCIJ Reports, Series A, Factory at Chorzów (Merits), 13 September 1928, No. 17, 27.
- 55.
In this view, Article 35 of the ILC Draft Articles establishes: “A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed […]”.
- 56.
Peter Malanczuk, ʽReview of the Regulatory Regime Governing the Space Environment. The Problem of Space Debrisʼ, in (1995) 38 Colloquium L. Outer Space, 355–382.
See also: Stephan Hobe, ʽEnvironmental Protection in Outer Space: Where we Stand and What is Needed to Make Progress with Regard to the Problem of Space Debrisʼ (2012) 8 The Indian J. L. & Tech. 1–10.
- 57.
Arbitral Tribunal, Rainbow Warrior (New Zeland vs. France), 30 April 1990, para. 101, 264.
- 58.
See footnote 42.
- 59.
In this view, probably, the costs of Active Debris Removal will be a criterion to evaluate the impossibility of States compliance.
- 60.
See footnote n. 7.
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Pavesi, G. (2018). Legal Consequences of Environmental Pollution in Outer Space. In: Froehlich, A. (eds) A Fresh View on the Outer Space Treaty. Studies in Space Policy, vol 13. Springer, Cham. https://doi.org/10.1007/978-3-319-70434-0_2
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