[Sameer Gupta]
Travelling in time and distance, mankind has been able to navigate and perform sovereign & commercial operations in the Outer Space, commonly referred to as the final frontier. Through numerous space missions humans have been able to convert scientific fiction into scientific reality. However, the scientific realities are not confined to technological prowess and development. The scientific reality of Outer Space is accompanied with environmental hazards which are a consequence of increasing human operations in Outer Space.
Even though there has been much thought on the preservation of Outer Space environment, International Environmental Law in particular has not been receptive enough towards environmental concerns in Outer Space. A careful perusal of the Rio and Stockholm Declaration (hereinafter referred to as ‘declarations’) will help us to understand how international discourse in general has been ignorant towards the idea that the Outer Space is a part of the global environment. The declarations have failed to explicitly identify Outer Space as a part of the global environment. However, the declarations have also carve out sufficient space for creative interpretations which bolsters our argument for the Outer Space to be considered as a part of the environment.
Principle 2 of Rio declaration and Principle 21 of Stockholm declaration enumerates that “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” Pertinently, the Outer Space is a global common wherein the principle of res communis (common heritage of mankind) is applicable and consequentially it is beyond the limits of national jurisdiction of any state. [In this context, Article VIII of the Outer Space Treaty (OST) must not be confused as conferring jurisdiction to any state over Outer Space. Article VIII is solely concerned with jurisdiction and control over space objects.]
The human sphere of influence in Outer Space has significantly altered the traditional definition of environment. The OST marks a sufficient indication that the Outer Space should be considered as a part of the global environment. Space law imposes obligations erga omnes specifically, Article IX of OST establishes an obligation of protecting space environment which is erga omnes partes, and therefore owed to a group of States for the protection of a collective interest. Corpus juris spatialis has been developed on the principles of cooperation between states. Therefore, space faring nations owe a moral responsibility for their outer space activities. Consequent to proliferation of commercial activities in Outer Space, space debris has become an issue of concern to all nations and therefore it is imperative that member states pay more attention to the problem of space debris collision.
The increase of space debris component in the Outer Space is attributable to states because beyond the naturally occurring particles in Outer Space, States have independently and through private enterprises contributed significantly in the creation of space debris. The ASAT test by several nations is a clear manifestation of this contribution. The OST does not prescribe any specific mode of conduct for private enterprises and individuals. This allows the member states to formulate their own policies for private and commercial activity in Outer Space. This lacuna can be addressed through the application of the Precautionary Principle. Commercial operations including mining can be a source of great damage and Moon’s fragile environment makes the outcome of lunar activities uncertain and therefore focus must be there on decision making as erroneous decisions about the Moon cannot be reversed. The fragile environment and increased lunar activities are reason to consider applying the precautionary principle to the Moon prior to environmental degradation.
The obligation to pay due regard in terms on ensuring diligence is a procedural extension of the precautionary principle. This obligation finds its textual representation in both the OST and the Moon Agreement. The ICJ and ITLOS have also noted that the obligation to ‘ensure’ is an obligation of conduct. However, scientific realities of Outer Space has made it evident that on some occasions the mankind can pay the required due regard to the environment of the Outer Space by a mere ‘omission.’ A mere omission in this context would mean that the States can refrain from engaging in activities which have the propensity to create space debris which is the principle concern for Outer Space environment.
For the Outer Space sustainability, States must ensure that the environment in Outer Space remains suitable for exploration and use by current and future generations. The Outer Space deserves the very same sensitive thought and treatment which is ascribed to our terrestrial environment. Our scientific limitations to preserve the Outer Space environment, makes the final frontier more about conscience and less about regulation.
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