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The Environmental Element in Space Law
Studies in Space Law
General Editor
Frans G. von der Dunk
International Institute of Air and Space Law, Leiden University
VOLUME 3
The Environmental Element
in Space Law
Assessing the Present and Charting the Future
By
Lotta Viikari
LEIDEN • BOSTON
2008
This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Viikari, Lotta.
The environmental element in space law : assessing the present and charting the future / by
Lotta Viikari.
p. cm. (Studies in space law, 1871-7659 ; v. 3)
Revision of the author’s thesis (doctoral), 2007.
Includes index.
ISBN 978-90-04-16744-5 (hardback : alk. paper) 1. Space law Finland. 2.
Aeronautics Environmental aspects Finland. I. Title.
KJT3469.V55 2008
341.4’7 dc22
2008017590
ISSN: 1871-7659
ISBN: 978 90 04 16744 5
Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing,

IDC Publishers, Martinus Nijhoff Publishers and VSP.
All rights reserved. No part of this publication may be reproduced, translated, stored in
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Fees are subject to change.
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v
Contents
Acknowledgements ix
Abbreviations xiii
Chapter One
Introduction 1
1.1. General Background 1
1.2. Structure 7
1.3. Approach of the Book 9
1.4. The Expanding Spectrum of Stakeholders in the Space Sector 21
1.4.1. States 21
1.4.2. OtherEntities 24
Chapter Two
Environmental Problems Related to Space Activities 29
2.1. Space Debris 31
2.2. Nuclear Contamination 45
2.3. Solar PowerSatellites 49
2.4. Manned Space Stations 50
2.5. Exobiological Contamination 50
2.6. Conclusion 52
vi Contents

Chapter Three
SpaceLaw From an Environmental Perspective 55
3.1. UN SpaceConventions 58
3.1.1. The Outer Space Treaty 58
3.1.2. The Moon Treaty 62
3.1.3. TheLiability Convention 65
3.1.4. TheRegistration Convention 73
3.1.5. The Rescue Agreement 81
3.2. The Nuclear Power Source Principles 83
3.3. TheInternational Telecommunication Union 85
3.4. Developments within Certain Other International Organs 93
3.4.1. TheInter-Agency Space DebrisCoordination Committee 93
3.4.2. The United Nations Committee on the Peaceful Uses of
Outer Space 97
3.4.3. The International Law Association 102
3.5. Environmentally-oriented National and Regional Efforts 104
3.6. Conclusion 111
Chapter Four
International Environmental Law in the Space Sector 119
4.1. Treaties 121
4.2. Principles 127
4.2.1. Sustainable Development 129
4.2.1.1. Components and Evolution 129
4.2.1.2.
Su
stainableDevelopment and the Space Sector 144
4.2.2. Sic Utere Tuo, Good Neighborlinessand Due Diligence 150
4.2.3. The Precautionary Principle 157
4.2.3.1. Components and Evolution 157
4.2.3.2. Application 161

4.2.3.3. ThePrecautionary Principle and the Space Sector 173
4.2.4. Common but Differentiated Responsibilities 178
4.2.5. The Polluter-Pays Principle 184
4.2.5.1. Components and Evolution 184
4.2.5.2. The Polluter-Pays Principle and the SpaceSector 190
4.3. Conclusion 203
Chapter Five
From General Principles to Practicable Rules 207
5.1. Complications of Traditional International Treaty-making 210
5.2. Improved Norm-setting Strategies 215
5.2.1. The Framework Convention Approach 215
5.2.2.
Selective Incentives 222
5.
2.3.Differential Obligations 225
5.2.4. Promotion of Over-achievement 231
Contents vii
5.2.5. Delegated Decision-making Powers and Self-correcting
Treaties 233
5.2.6. InterimAgreements and Ratification Limits 238
5.2.7. Common Rules of Conduct 241
5.2.8. International Standards and Mutual Recognition of National
Authorizations 249
5.2.9. Information Sharing and Other Forms of Cooperation 257
5.3. Environmental Impact Assessment 260
5.3.1. History and Status 261
5.3.2. Procedure and Goals 268
5.3.3. EIA and Space Law 273
5.3.3.1. Current Situation 273
5.3.3.2. TheFuture Potential of EIA inSpace Activities 278

5.3.4. Strategic Environmental Assessment and Sustainability
Impact Assessment 280
5.4. Dispute Resolution 285
5.4.1. Dispute Settlement under International Space Law 287
5.4.1.1. The Outer Space Treaty 289
5.4.1.2.
TheLiability Convention 290
5.
4.1.3. The Moon Treaty 295
5.4.1.4. The InternationalTelecommunication Union 295
5.4.1.5. Other Arrangements 296
5.4.2. Adjudication vs. Arbitration 298
5.4.2.1. Benefits of Arbitration in Space-related Disputes . 301
5.4.2.2. The ILA Draft Convention on the Settlement of
Disputes Related to Space Activities 305
5.4.3. Improving the Dispute Resolutionin the Space Sector 309
5.5. Conclusion 317
Chapter Six
Concluding Remarks 321
Treaties, OtherInstruments and Documents 359
Treaties 359
European Union Law 372
Documents Prepared by or for the UNCOPUOS 373
Other InternationalInstruments and Documents 376
National Instruments 385
Cases 389
International Court of Justice 389
Other Cases 390
viii Contents
Bibliography 325

Monographs, Articles, etc., Attributable to Authors 325
References without an Author 352
Websitesof Organizations, etc. 357
Index 393
ix
Acknowledgements
This book is a slightly revised and updated version of my doctoral thesis, which
I defended in June 2007. As so many Ph.D. candidates before me have noted,
writing a doctoral thesis is a lonely enterprise. This has been particularly true
for a person preparing a thesis on space law in Finland, which clearly does
not rank among the major spacefaring countries and has little history in space
law research. The solitary hours I have spent with this effort are countless.
Nevertheless, numerous other persons and institutions have contributed to the
process in one way or another. I am much indebted to them for assisting me
during the research.
Firstly, I have been privileged to be guided by Professor Kari Hakapää
throughout my Ph.D. process. He was always willing to discuss any progress
and read my drafts. His expert comments have been invaluable and his patience
admirable. Indeed, I can hardly thank him enough. Professor Hakapää is also
one of the few persons whom I know for sure has read the entire thesis. The other
two are the external examiners, Professor David I. Fisher of the University of
Stockholm and Professor Armel Kerrest of the University of West Bretagne. Both
delivered their assessments of my work very promptly, which made it possible
for the defense to take place just before summer holidays, for which I am very
grateful. Professor Kerrest most kindly agreed also to act as my opponent in the
public defense.
I have been lucky enough to have had no major financial worries during the
preparation of this work, which has obviously facilitated things significantly.
Initially, I started to develop my Ph.D. in a project funded by the Academy of
Finland. At early stages of the work, I also received a four-year scholarship from

the second doctoral program in law in Finland, for which I am very grateful
although I never actually used the funding. While writing the thesis, I have been
x Acknowledgements
working at the Faculty of Law of the University of Lapland, the Department of
Law of the University of Joensuu, and the Northern Institute for Environmental
and Minority Law (NIEM) at the Arctic Centre of the University of Lapland.
The longest time I have spent at the Arctic Centre, where I have had the
opportunity to be engaged in research and teaching in areas of international law
also beyond the particular scope of my Ph.D.
I have been fortunate enough to receive collegial support and encouragement
from all of the places where I have worked. Principal thanks must go, however, to
my colleagues at NIEM, especially our director, Professor Timo Koivurova, who
also bears responsibility for luring me into the realm of Arctic legal questions.
Additionally, I would like to mention in particular Leena Heinämäki and Maarit
Klemetti, both of whom have tried to remind me of the existence of (different
kinds of) life beyond my office walls. Special thanks are also due to Txomin
Hernández Bediaga. From the Faculty of Law of the University of Lapland I wish
to especially thank three of the professors who acted as dean while I was writing
the thesis, Esko Linnakangas, Ahti Saarenpää and Terttu Utriainen. My warm
thanks are also due to Professors Rauno Halttunen and Juha Karhu. Moreover,
thanks must go to Professor Maurice Andem, without whose involvement my
Ph.D. process would have been quite a di ff erent journey. Additionally, I want
to thank Professor Tapio Määttä, Professor Tuomas Kuokkanen, and Dr. Tapio
Puurunen, with whom I have had the pleasure of discussing my research at the
University of Joensuu. Of the many other people who have provided me with
different kinds of assistance and encouragement I would like to mention with
gratitude Dr. Walter Flury from the European Space Agency, Professor Lauri
Hannikainen from the University of Turku, and Dr. Leslie Tennen from Law
Offices of Sterns and Tennen.
The resources provided by the library of the University of Lapland have

been invaluable to my work. During the past couple of years, the services of
the library at Arktikum in the Arctic Centre have been particularly relevant
for me. Most importantly, I have also been able to conduct research at the
libraries of the European Space Agency in Paris, the International Institute of
Air and Space Law at the University of Leiden, the Institute of Air and Space
Law at the University of Cologne, and the Peace Palace in The Hague. I have
had the pleasure of getting most helpful assistance from the librarians of these
institutions, for which I extend my warm thanks to all of them.
I am also grateful to Richard Foley, from whose proofreading this manuscript
has benefited. I have received financial assistance for the proofreading from
the Finnish Branch of the International Law Association, which has had a
very supportive attitude towards my endeavors in legal research from their
very beginning. My sincerest thanks for that. My thanks are also due to Markku
Vartiainen and Risto Haavisto of the Faculty of Law of the University of Lapland
for various kinds of assistance during the final stages of my Ph.D. process.
Finally, my h eartiest thanks go to Dr. Leila Juanto, who has spent countless
evenings, weekends and holidays with me at the university. Her inspiring
Acknowledgements xi
example and constant support have been essential to completing this project. I
must also thank my relatives, of whom I remember with special warmth my late
UncleElmo.Idedicatethisbooktomyfamily.
Obviously, this book remains my own product and I alone bear full
responsibility for the views expressed, as well as for any errors or omissions.
Rovaniemi, November 2007
Lotta Viikari
xiii
Abbreviations
ABM Anti-Ballistic Missile
AIAA American Institute of Aeronautics and Astronautics

AJIL American Journal of International Law
ARC Administrative Radio Conference
BGBl Bundesgesetzblatt
CC Claims Commission (of the Liability Convention)
CERES Coalition for Environmentally Responsible Economies
CETEX Committee on Contamination by Extraterrestrial Exploration
CFR Code of Federal Regulations (US)
CNES Centre National d’Etudes Spatiales
COMEST UNESCO World Commission on the Ethics of Scientific
Knowledge and Technology
COSPAR Committee on Space Research
DISCOS Database and Information System Characterising Objects in
Space
DoD (US) Department of Defense
EARC Extraordinary Administrative Radio Conference
EC European Community
ECE (United Nations) Economic Commission for Europe
ECJ European Court of Justice
ECSL European Centre for Space Law
ECSS European Cooperation for Space Standardization
EEZ Exclusive Economic Zone
EIA Environmental Impact Assessment
EMEP Environmental Monitoring, Evaluation and Protection Program
ENMOD Convention on the Prohibition of Military or Any Other Hostile
Use of Environmental Modification Techniques
xiv Abbreviations
ESA European Space Agency
EU European Union
EUMETSAT European Organisation for the Exploitation of Meteorological
Satellites

EUROCONTROL European Organisation for the Safety of Air Navigation
FCC (US) Federal Communications Commission
GAOR General Assembly Official Records
GEF Global Environmental Facility
GEO Geostationary (Earth) Orbit
GLONASS Global Navigation Satellite System
GNP Gross National Product
GPS Global Positioning System
GSO Geosynchronous Orbit (or Geostationary Satellite Orbit)
HELCOM Helsinki Commission
HEO Highly Elliptical Orbit
HIA Health Impact Assessment
IAA International Academy of Astronautics
IADC Inter-Agency Space Debris Coordination Committee
IAEA International Atomic Energy Agency
IAF International Astronautical Federation
IAU International Astronomical Union
ICAO International Civil Aviation Organization
ICC International Chamber of Commerce
ICJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
ICSU International Council of Scientific Unions/ International
Council for Science
IGO Intergovernmental Organization
IISL International Institute of Space Law
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
IMO International Maritime Organization
INESAP International Network of Engineers and Scientists Against

Proliferation
INMARSAT International Maritime Satellite Organization
ISO International Organization for Standardization
ISS International Space Station
ITLOS International Tribunal for the Law of the Sea
ITU International Telecommunication Union
JAXA Japan Aerospace Exploration Agency
LCIA London Cour t of International Arbitration
LEO Low Earth Orbit
MARPOL Convention for the Prevention of Pollution from Ships
MEO Medium Earth Orbit
MOU Memorandum of Understanding
MTCR Missile Technology Control Regime
Abbreviations xv
NASA (US) National Aeronautics and Space Administration
NEPA (US) National Environmental Policy Act
NGO Nongovernmental Organization
NPD NASA Policy Directive
NPR NASA Policy Requirement
NPS Nuclear Power Source(s)
ODCWG Orbital Debris Co-Ordination Working Group (of the ISO)
OECD Organisation for Economic Co-operation and Development
OJ Official Journal (of the EU)
OSPAR Convention for the Protection of the Marine Environment of
the North-East Atlantic
OST Outer Space Treaty
PCA Permanent Court of Arbitration
PSA (UN) Programme on Space Applications
PSN Pasifik Satellite Nusantara
RARC Regional Administrative Radio Conference

RIAA (UN) Reports of International Arbitral Awards
RTG Radioisotope Thermal Generator
SDR Special Drawing Right
SEA Strategic Environmental Assessment
SIA Sustainability Impact Assessment; Social Impact Assessment
SLW Schriften zum Luft- und Weltraumrecht/ Studies in Air and
Space Law/ Etudes de droit Aérien et Spatial
SopS Suomen Säädöskokoelman Sopimussarja (Finnish Treaty Series)
SSN Space Surveillance Network
SUIRG Satellite Users Interference Reduction Group
TIAS Treaties and Other International Acts Series
UIC Uranium Information Centre
UK United Kingdom
UN United Nations
UNCED United Nations Conference on Environment and Development
UNCITRAL United Nations Commission on International Trade Law
UNCLOS United Nations Convention on the Law of the Sea
UNCOPUOS United Nations Committee on the Peaceful Uses of Outer Space
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Program
UNESCO United Nations Educational, Scientific and Cultural Organiza-
tion
UNGA United Nations General Assembly
UNISPACE United Nations Conference on the Exploration and Peaceful
Uses of Outer Space
UNOOSA United Nations Office for Outer Space Affairs
UNTS United Nations Treaty Series
US United States (of America)
USC United States Code
USD United States Dollar

UST United States Treaties and Other International Agreements
xvi Abbreviations
WARC World Administrative Radio Conference
WARC ORB World Administrative Radio Conference on the Use of the
Geostationary Satellite Orbit and the Planning of Space Services
Utilizing It
WHO World Health Organization
WIPO World Intellectual Property Organization
WRC World Radio Conference
WTO World Trade Organization
ZLW Zeitschrift für Luft- und Weltraumrecht
1
Chapter One
Introduction
1.1. General Background
This book examines the current international legal regimes in space law and
environmental law in order to ascertain their applicability and efficacy in
addressing environmental threats in the use of outer space. Outer space is the
space upwards from the airspace (atmosphere) surrounding the Earth. As the
composition of atmosphere does not change dramatically at a certain height, it is
impossible to physically determine exactly where the atmosphere ends and outer
space begins. Consequently, the problem of limitation is more of a political and
legal issue than a technical one.
Various alternatives have been suggested over the years as the most suitable
criterion for making this distinction. There are two predominant approaches,
the spatial and the functional.
1
The latter requires a definition of ‘space activities’,
whereas the former allows a far more straightforward definition of outer space:
one based on distance. One example of the difficulties related to the functional

approach is the United States (US) Space Shuttle, which is launched like a rocket
into Earth orbit but uses aerodynamic lift like an airplane when returning to
the Earth’s surface. Functionally, the Shuttle might thus be classified both as
a spacecraft and an aircraft and should be governed by space law and air law,
1
Report of the Legal Subcommittee on its 44th session 2005, Annex I, para. 8.a.
For a more detailed assessment of the delimitation issue, see, e.g., Metcalf 1999,pp.56–
68.
2 Chapter One
depending on the phase of the mission.
2
In accordance with the spatial approach,
it has been proposed, for instance, that a realistic limit for the beginning of
outer space might be the altitude of approximately 80 kilometers, given the
composition of the atmosphere and the history of aeronautical and astronautical
activities.
3
Some kind of a fixed limit would be welcome because the airspace partly
falls under national sovereignty,
4
whereas outer space never does. Nevertheless,
no legal boundary between the contiguous areas of the airspace and outer
space—and hence between the areas of application of air law and space law,
respectively—has yet been agreed upon.
5
The Legal Subcommittee of the United
Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) has
discussed the definition and delimitation of outer space as an agenda item
since 1967. Some nations have voiced the opinion that due to “scientific and
technological progress, the commercialization of outer space, emerging legal

questions and the increasing use of outer space in general”, there is a need for
a definition of outer space that would delineate it from airspace.
6
Some others,
2
Harris–Harris 2006,p.6. See ibid. for a recent assessment of the delimitation
problem; these authors are in favor of a fixed, spatial demarcation line, yet one “sensitive
to technological advances”.
3
See, e.g., Andem 1992,pp.152–153. An authoritative example of the spatial approach
is the Australian Space Activities Act of 1998 (as amended in 2002), which now uses
the limit of 100 kilometers as the altitude where outer space begins by, for instance,
prescribing that to ‘launch’ a space object means to “launch the object into an area
beyond the distance of 100km above mean sea level” (or to attempt to do so; Sect.
8). Although such a limit of course applies only as regards domestic purposes, it is
nevertheless the first regulatory attempt to define where space begins and thus also has
certain wider relevance.
4
Airspace comes under national jurisdiction and sovereignty where it lies over
national territory and territorial waters. Otherwise, it is not subject to national
sovereignty, e.g., over the high seas. Convention on International Civil Aviation, Arts. 1
and 2; United Nations Convention on the Law of the Sea, Arts. 2, 58, 78, 87.Airspace
over a state’s exclusive economic zone and the continental shelf is comparable in status
to airspace over the high seas. Haanappel 1986,p.145.
5
Application of the law of outer space is indeterminate not only as concerns the
height from the Earth where it begins but also its extent. It does not necessarily appear
feasible (or justifiable) for humans to extend their legal regulation into the infinity
of space. See Hobe 2004(a), pp. 28, 41. At the moment, only one of the five United
Nations (UN) space treaties (the Moon Treaty; see below) explicitly limits its application

to the Moon and other celestial bodies within our solar system only. The other space
treaties only refer in a somewhat abstract manner to “outer space”. Of course, at the
moment the ability of humankind to conduct activities in space remains relatively
limited. Nevertheless, the question of the extent of our authority to regulate space
activities and of the legal status of outer space are fundamental.
6
Report of the Legal Subcommittee on its 45th session 2006, para. 90.“Some
delegations expressed the view that the lack of a definition or delimitation of outer space
Introduction 3
however, consider that the current legal framework functions well enough and
hence no such definition is needed, at least as yet. It has even been argued
that “an attempt to define … outer space” would currently be only “a theoretical
exercise” and, moreover, even counterproductive as it “could lead to complicating
existing activities and might not be able to anticipate continuing technological
developments”.
7
The issue remains unresolved.
Despite the fact that the international community has not agreed on a set
limit between the airspace and outer space, this has not (at least thus far)
created notable problems in the utilization of either area.
8
During the past
half a century, humankind has managed to extend its active environment
from the Earth and its atmosphere into outer space. Satellites are a major
achievement of the human technology that has enabled this development,
providing us with tools that facilitate the daily lives of millions of people
worldwide. For instance, satellite navigation systems are used for positioning
purposes in all fields of transportation today.
9
Another important user of outer

space is the remote sensing industry. To name but a few of the purposes it
serves, it provides us with data for meteorological services (including weather
forecasts), land and agriculture management, environmental planning and
mapping, as well as national reconnaissance. A last, but by no means the least,
branch of space activities that relies heavily on satellites is telecommunications.
Telecommunication satellites enable us to receive radio signals, intercontinental
telephone calls, TV programs and, practically speaking, any transmission of
text, data, video, audio or graphics, and remarkably large volumes of data at
that. Satellites provide smooth two-way exchange of data, making the range of
brought about legal uncertainty concerning the applicability of space law and air law
and that matters concerning state sovereignty and the boundary between air and outer
space needed to be clarified in order to reduce the possibility of disputes among States.”
Ibid., para. 91.
7
Ibid., para. 92. For a summary of the discussion concerning the question over the
years, see the UNCOPUOS document “Historical summary on the consideration of the
question on the definition and delimitation of outer space” prepared in 2002.
8
It has been suggested that as space exploration affects the “totality of the
environment”, such physical separation of airspace and outer space would not even
be necessary. See Bhatt 1979; Matte 1989,p.421.
9
The primary system used throughout the world for satellite navigation is the US
government Global Positioning System (GPS). Russia has a corresponding military
network, the Global Navigation Satellite System (Glonass). The European Space Agency
(ESA) and the European Union (EU) are now creating Europe’s own, exclusively civilian
navigation system (called Galileo), which is scheduled to be fully operational by 2012 or
2013. See more at the European Space Agency’s Galileo website. The US and ESA/EU
were long at odds over frequency allocation and interoperability between the GPS and
Galileo, but they finally reached an agreement on the issue in February 2004.“EU

and US a step further to agreement over Galileo satellite navigation following Brussels
negotiating round” 2004.
4 Chapter One
possible applications almost unlimited. In addition to satellite activities, there are
also other unmanned and manned space missions which operate in Earth orbits
(such as the manned International Space Station) or beyond (e.g., unmanned
planetary missions).
The technological progress which has made space activities possible is
admittedly impressive. Unfortunately, we have not proven equally successful
in learning the lessons of terrestrial history regarding the importance of
environmental protection. While decades of space ventures have led to significant
advances in technology for the benefit of humans, they have also witnessed
increasing space-related environmental problems. The world space community
has long known that space activities contribute to pollution and contamination
of the environment.
10
Furthermore, the space environment is far less resilient
than the Earth, as many parts of outer space cannot regenerate after disturbances
in the way the terrestrial environment typically does.
11
Nevertheless, especially
at the beginning of the space era, all human space activities were so challenging
that nearly any method seemed acceptable for placing objects in outer space.
12
Although space has become far more accessible to us and the general attitude to
environmental questions has changed quite dramatically, utilitarian policies have
disproportionately dominated space activities until today. This has gradually led
to substantial environmental threats that constitute increasing hazards to the
environment of outer space as well as to human space activities and even to life
on Earth.

Although environmental hazards in outer space already pose a variety of
threats, these threats often do not affect the particular operation which causes
them but endanger other space (and even terrestrial) activities indiscriminately.
This is a manifestation of the ‘tragedy of the commons’ problem: benefits
of individual space missions accrue to the entities conducting these activities
but the detrimental impact of space exploitation can usually hamper all those
10
The potential damage from experiments in space was recognized by the scientific
community as early as in the 1950s, and the International Council of Scientific
Unions (ICSU) formed a Committee on Contamination by Extraterrestrial Exploration
(CETEX) to study the issue. The task was assigned to the Committee on Space
Research (COSPAR) when CETEX was disbanded in 1959. COSPAR then established
a Consultative Group on the Potentially Harmful Effects of Space Experiments (with
a broad mandate to make recommendations regarding space activities) and a Panel
on Potentially Environmentally Detrimental Activities in Space to consider the various
problems related to the space environment. Matte 1989,p.427.Today,therearenumerous
organizations and bodies concerned with the issue (to a greater or lesser extent, and for
different reasons).
11
Williamson 2003,p.47.
12
Williamson 2006,p.45. Over half of the early attempts to put a satellite in orbit
failed (23 out of 40). At the time of the first manned spaceflight, the overall failure
percentage of space missions was still around 50. Williamson 2003,p.47.
Introduction 5
involved in the sector (and even others).
13
Given the typically high short-term
costs of curbing environmentally harmful effects of the use of outer space, it is no
surprise that many of the relevant stakeholders can be hesitant to take measures

to prevent environmental degradation. A related concept is that of ‘free riders’,
referring to entities which “benefit by the actions of others without sharing
any of the responsibility or cost”.
14
Such an approach often seems particularly
tempting in situations where substantial costs (such as those of combating
environmentally harmful consequences of space activities) must be paid now
but the benefits generated by the efforts will mostly be realized only in the
future. This narrowness of the time horizon appears to be a feature alarmingly
widespread within humankind today. The free-rider problem is particularly
tricky where the commons are concerned and thus intrinsically relates to all
space activities, making conflicts in this sector even more complicated and
difficult to resolve. It can considerably diminish the will of some states to adopt
environmentally more benign management practices: as long as the benefits of
regulated development of the use of outer space accrue more or less equally to
all actors irrespective of their behavior, some of them will feel little incentive to
accept any restrictions. Of course, if most of the relevant stakeholders take such
a stand, curbing the environmental problems will be impossible. Even where
there are only few ‘free riders’, their irresponsible behavior can at worst frustrate
genuine efforts by the majority.
It does not seem very likely that the traditional state community will—at
least in the near future—be able to treat many global environmental problems
with the efficacy these problems appear to require. There is no reason to
expect the situation to be any better as regards the environmental effects
of human activities in outer space. The future of the Earth and near-Earth
outer space—and hence also that of humankind—appears gloomy unless a new
environmental consciousness soon starts to emerge. As concerns the space sector,
positive indications are provided by the efforts of some states and international
organizations to alleviate environmental degradation of outer space. For instance,
in the case of space debris,

15
there is increasing awareness of the seriousness of
the problem and both the governmental sector and the industry have made
efforts to mitigate the hazard by developing procedures and standards for the
operation and design of space missions.
16
However, although unilateral action
is a step forward, it does not alone suffice to remedy the proliferation of debris.
The effects of human activities on the global commons of outer space have all
the potential to be severe, irreversible and wide in scope. At the same time, the
13
For a more detailed assessment of the tragedy of the commons problem, see, e.g.,
Vogler 2000,pp.10–15.
14
Susskind 1994,p.23.
15
Space debris and other environmental problems related to space activities are
examined in more detail below.
16
See Second Quarter 2002 Quarterly Launch Report, p. 9.
6 Chapter One
tragedy of the commons problem renders many strategies adopted nationally or
by a limited set of states for combating adverse environmental consequences of
space activities ineffective.
Accordingly, space debris is one of the central issues being discussed within
the UNCOPUOS. There have also been other efforts to confront the issue
at a wider international level but as yet there exists no binding international
regulation either for alleviation of the hazards deriving from space debris or
other environmental problems related to space activities. In the increasingly
international, commercialized and privatized space sector global rules are

essential, however. They would ensure a level (or at least relatively fair) playing
field for all stakeholders and help avoid the free-rider problem. Common
regulation could also synchronize the efforts already taken in this area. Indeed,
now would be the time for truly international norms instead of fragmented and
informal approaches to the problems identified.
17
For such regulation to be effective there is a need for genuine collective
responsibility.
18
Even international regulation does not help unless it is widely
respected. Otherwise, application of the norms will only hamper an actor’s com-
petitiveness. Considering the typically high immediate costs of environmentally
more benign space technologies and practices, there is no reason to expect
entrepreneurs in this highly competitive sector to be any more hesitant than
their sea-faring colleagues in shipping to seek advantages under a regulatory
system that allows them to conduct their activities in the most remunerative
way—essentially a flag of convenience for space activities.
19
Given the inherent
internationality of the space sector today, it would be surprising if such a devel-
opment could be avoided by any other means than comprehensive international
regulation.
20
Moreover, it seems to be high time to reconsider the fundamental premises on
which all human space activities are based. The more pressing the environmental
threats related to the use of outer space become, the more often the profound
17
Many of the experts working with environmental questions related to space
activities seem to share the opinion that an international-level set of rules is what is
now needed. See, e.g ., “Space Debris Mitigation: the case for a code of conduct” 2005.

18
As the United Nations Educational, Scientific and Cultural Organization
(UNESCO) Working Group on the “Ethics of Outer Space” put it: “[e]thics must
precede and guide the law and not vice versa”. The Ethics of Space Policy 2000,p.25.
19
See Kerrest 1999,pp.258–259;Kerrest2001,pp.871–872. The most prominent
example of such a development thus far is the Sea Launch company which launches
satellites from a sea platform in international equatorial waters. It was created in 1995
and has completed some 20 launches to date. For more information, see the Sea Launch
website.
20
All the more so, as space objects—once launched—are even more difficult to
control than maritime vessels, which physically remain on Earth and, furthermore, have
to visit harbors. Kerrest 1999,pp.258–259.
Introduction 7
question of the legitimacy of the modern space sector is put forward. On what
rights are the demands that humanity is making upon outer space ultimately
based? How far can those rights extend? At what costs should the space sector be
allowed to pursue its goals? Where do those goals derive from? Such questions are
asked with increasing frequency, yet only few answers have been given to date.
21
1.2. Structure
This work consists of six main parts. After the introductory remarks, Part
One presents the approach of the book and its basic starting points. It briefly
contemplates the fundamental ideology of space activities, which builds upon
industrial development and relies on a substantially anthropocentric world-
view. Both of these orientations entail little environmentalist thinking. Part
One also contains a presentation of the expanding spectrum of the various
stakeholders in the modern space sector. They generate increasing complexity
in the management of space activities, not least from a legal point of view.

Part Two examines the various types of problems related to space activities
which can be labelled ‘environmental’. Part Three proceeds to sketch the funda-
mental elements of environmental management of space activities by studying
the current instruments of the international law of outer space and assessing their
suitability for addressing environmental concerns. The presentation also exam-
ines focal developments within international organizations which have adopted
recommendatory instruments for alleviating environmental degradation related
to the use of outer space. Additionally, this part presents some environmentally
inclined efforts to regulate space activities at the regional and national levels.
Part Four reflects on the possibilities to use other, more distinctly environmental
21
Several of the organizations active in the space sector have been discussing questions
concerning the ethical basis of space activities. The ethics of space activities have also
been considered within UNESCO, whose World Commission on the Ethics of Scientific
Knowledge and Technology (COMEST) set up a Working Group on the “Ethics of Outer
Space”. The very fundamental questions brought up by this group include: “What is
the role of human beings in the Universe?; How can the links between the earth and
outer space be organized?; Who is to determine the priorities and choices of science
and space technologies and on the basis of which objectives for society?; How can the
risks engendered by the space technologies be defined democratically and what risks can
be regarded as ‘acceptable’?; What is the level of responsibility and solidarity to which
individuals and groups must aspire for present and future generations?”. The Ethics of
Space P olicy 2000,p.8.Obviously,itisverydifficult to find consensus on such issues.
In 2005, COMEST decided that it would not develop a declaration of ethical principles
for space activities. Instead, it intends to “emphasize and promote awareness of moral
and ethical issues raised by space activities in the framework of reinforced international
cooperation”. Report of the Legal Subcommittee on its 44th session 2005, para. 44.
8 Chapter One
but not particularly space-related international legal instruments for the needs
of the space sector. As the help available from international treaties remains quite

limited, the examination turns to the principles of international environmental
law for any relief they might be capable of providing.
Part Five is the core contribution of the book. It concentrates on the
prospects for developing new instruments for environmental management of
the space sector. There is an obvious need to clarify the ambiguous obligations
of the UN space treaties in one way or another. The presumption is that the
international community could be made more receptive to the adoption of such
reforms by mechanisms similar to those used in international norm-making
in the environmental sector. Accordingly, one starting point is an analysis of
the ‘framework convention–subsequent protocol’ approach commonly applied
in global environmental diplomacy today. Other mechanisms examined which
could facilitate the adoption of increasingly effective international norms include
the use of selective incentives and differential obligations. Promoting over-
achievement of treaty obligations is yet another approach to the issues that are
taken up.
Considering the challenges encountered in international norm-making in
the space sector thus far, Part Five also assesses the chances of making new
international norms operative faster as well as the possibility of creating instru-
ments whose provisions can readily accommodate changing conditions (includ-
ing instruments of legally non-binding nature). This examination includes
mechanisms such as interim agreements, self-correcting treaties, codes of con-
duct, supranationally adopted technical standards, and international certifi-
cation mechanisms. Information sharing and other forms of cooperation at
different levels are also important. Moreover, special attention is paid to the
possibilities of environmental impact assessment (EIA), which is one of the
focal instruments of contemporary environmental law. It has the potential to
spare the space community from many environmental problems much as it has
helped address terrestrial concerns.
Part Five ends with a consideration of the dispute resolution. In an ideal world,
neither liability mechanisms nor dispute resolution would be needed. In reality,

however, regulatory systems seldom work so smoothly that no conflicts emerge.
For instance, the occurrence of environmental harm is no rarity, which calls
for authoritative settlement of disputes and just compensation and reparation
of damage.
22
Hence, whatever mechanisms for the alleviation of environmental
problems related to space activities are employed, they can be of little significance
unless accompanied by effective means of dispute settlement. Currently, there
22
Obviously, the existence of solid liability and dispute resolution mechanisms is
also likely to make the actors more inclined to observe the relevant norms in the first
place and hence diminish the need to actually resort to these mechanisms.