Legal Accountability of States for Environmental Harm Caused By Space Activities

2nd September, 2024 - 9:11 am Categories: Environment Law Practice 0 Comments

Ever since the advent of space exploration initiated by the launch of the first artificial satellites and the advancement of rocket technology in the 1950s, a multitude of nations, including the USA and the then Soviet Union, have increasingly participated in space endeavours or expressed intentions to utilize space more extensively. While not all of these countries possess the capacity to develop extensive space programs akin to those of established space-faring nations, several, such as India, have established space agencies in more recent times. However, with this exciting growth of space exploration comes a growing concern – the environmental impact of our activities beyond Earth’s atmosphere.

ENVIROMENT POLUUTION IN THE OUTER SPACE

In face of beauty of space that may lure people into not realizing, human activity appears to be progressively using the hostile environment the environment as a repository for toxic materials. This concept is far more extensive outside than the idea of smog or toxic waste, something which we consider to be pollution located mainly on our planet Earth. This is an ‘in deep’ look at the types of pollutants which directly impact the space around us, with the attendant consequences.[1]

THE THREE PRINCIPLES’ FOR ATTRIBUTION

The principle of the polluter pays principle is a cornerstone of environmental law, emphasizing that nations engaging in polluting activities bear full responsibility for the resulting environmental consequences.[2] This doctrine was underscored in the Trail Smelter Arbitration case[3], where Canada was held liable for pollution damage inflicted on the forests of Washington state. Similarly, the precautionary principle urges nations to take preventive action in the face of environmental risk, even in the absence of conclusive scientific evidence. The principle also states that certain preventative steps are necessary to protect the environment, even in the lack of a causal link supported by scientific proof. The principle represents the international community’s preference for conserving shared resources and reducing pollution over state sovereignty.[4] In case of Corfu Channel (United Kingdom v. Albania, 1949)[5] involved mines laid by Albania in international waters damaging British warships. This case underscored the importance of state responsibility and accountability for transboundary harm, even in cases involving military activities.

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The prohibition on transboundary harm is a forward-thinking strategy that establishes the responsibilities that governments have to one another. The prohibition does not and cannot require states to completely avoid collisions caused by space debris; to the extent that debris pieces are difficult to track, this would impose an undue burden, particularly on the nations that produce the majority of space debris (the United States, China, and Russia). Rather, the prohibition, when combined with the polluter pays principle and the precautionary principle, provides a strong legal framework for states to participate in active debris removal, implement stricter safety standards for the satellites and space objects they launch, and perform stronger tracking measures to trace large floating pieces.

In case of The Rainbow Warrior Case (New Zealand v. France, 1990)[6] was the most notorious counterpoint with respect to global environmental issues and politics. French agents had the Greenpeace vessel Rainbow Warrior traduced in New Zealand’s territorial waters. France shouldered the blame for taking such action and paid for it (even with the gold of its national treasury). This example to some extent justifies the position that the states are responsible to guarantee environmental standards and other’s nations’ sovereignty when they are protecting the environment. In it, it provided insight into the importance of international law as a means of responding to cross-border harm created by state actions.[7]

Another type of litter that cause pollution to space is space debris, which can be described as abandoned and obsolete satellites, burnt rocket stages and the debris that came as a result of these structures breaking apart or collisions. Factors attributing to space debris include but are not limited to collisions of satellites, prototype tests conducted by states such as China, US, India and Russia, and the abandonment of exhausted satellites and upper stages of rockets in orbit.

The problem encompasses under 27,000 catalogued objects alone, estimated to be over 14 millions of smaller flake sized objects, possess threats to spacecraft, space stations, and human space flights. This would give rise to an increased chance of crashes which may cause parts of orbits to be rendered unusable consequently disturbing the usage of the outer space as a sustainable entity.

The country’s highly developed space technology is is still without a space law system. Nowhere it exists that both space tort and patent protection laws the laws of the space really refer to. The establishment of standardized operation procedures and systematic national laws become the key concerns for the Chinese case considering the developed general rules.
The adopted liability regime did not envisage space debris proliferation, particularly during the US-Soviet Union space race era when more and more satellites were launched into the orbit. The USA may involve proactive policies, for instance, a security deposit program for communication, travel, etc, by developing outer space through the technique of resolving the trash in the seas adopted from developed countries’ efforts on international environmental law.

In the absence of the disappearance of poorer countries from space exploitation by the major forces like China and the US, it is vital to recognize the power inequalities among them. Many times, space programs of extremely rich nations have more sources and wise technology to go on to the space ventures, which may along the way make the space pollution even worse. In addition, these countries can basically opt for following their real interests aiming to neglect the ecological questions affecting countries in the early stages of development.
To address this exploitation, there must be fairness in space resource distribution and allocation of spacecraft opportunities among people. This might consist of programs or purposes through reaching contracts, such as technology transfer between countries, where wealthy nations transfer their technology to developing countries in order that they could work on this freely or on their own to experience the sustainable space exploration. Therefore, one of the world organizations like the United Nations could prove to be among the most vocal actors in mediating quarrels that could have been provoked by the gap in economic status.[8]

There are various treaties for effective outer space pollution such as  Outer Space Treaty, while providing the solid ground for harmonious outer space exploration, this landmark treaty is exactly that. This rule focuses on the idea of “no interference” and putting a stop to space activities which would be unwanted and negative towards the environment.[9] Although it gives certain directions and rules for behaviour, the Outer Space is too common missing details regarding pollution control and also the Convention of Liability for Damage Caused by Space Activities (Liability Convention): It constitutes a statutory basis for States to accept responsibility for damage by their space objects during their normal operation. It outlines the principle of “absolute liability,” meaning a launching state is liable for damage, regardless of fault, unless it can prove the damage resulted from It outlines the principle of “absolute liability,” meaning a launching state is liable for damage, regardless of fault, unless it can prove the damage resulted from Strengths of the Liability Convention The states are stimulated to take care of their operational space activities through best operational practices, and to ensure policies are in place to reduce the risk of space debris generation.

CONCLUSION

In conclusion, addressing the issue of space debris is paramount for the sustainability of space exploration. Current legal frameworks are inadequate and require international collaboration to establish clear definitions, assign liability, and develop comprehensive regulations. Failure to act swiftly could severely hinder future space endeavours, disproportionately affecting developing nations. Therefore, it is imperative for the global community to prioritize concerted efforts to mitigate the risks posed by space debris, safeguarding the future of space exploration for all nations.

Author:  Aishwarya Pravinchandra Patil , in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Apr. 25, 1952, 163 U.N.T.S. 131.

[2] Schmalenbach, Kirsten. “States Responsibility and Liability for Transboundary Environmental Harm.” In Corporate Liability for Transboundary Environmental Harm, pp. 43–84. Springer, 2022

[3] Trail Smelter Arbitration (United States v. Canada), 3 R.I.A.A. 1905 (1941).

[4] “Environmental Liability in Transboundary Harms.” JSTOR.

[5] Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, p. 4.

[6] Rainbow Warrior Case (New Zealand v. France), 30 I.L.M. 801 (1991).

[7] Schmalenbach, Kirsten. Corporate Liability for Transboundary Environmental Harm: An International and Transnational Perspective. Springer, 2022

[8] Savaresi, Annalisa. “International Human Rights Law and Transboundary Environmental Harm: Trends and Challenges.” Journal of Land and Environmental Law, vol. 24, no. 2, 2019, pp. 434–456.

[9] Convention on International Liability for Damage Caused by Space Objects