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Pollution of Man's Last Frontier: Adequacy of Present Space Environmental Law in Preserving the Resource of Outer Space

Published online by Cambridge University Press:  21 May 2009

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Man entered the threshold of his last unexplored frontier in 1957 with the launching of Sputnik I into outer space. The transition from the scientific and technological wonder that Sputnik I created to the use of outer space for the benefit of man has been at an exceedingly fast pace. Yet the frontier has just begun to be revealed and the exploitation of the common resource of outer space is in its infancy. Developments in space technology in years to come will determine more accurately the fuller potential of this resource. The rapid increase in space activity with advances in space technology has resulted in a constantly changing legal order for accommodating social, political, military, and economic aspects of these activities.

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Copyright © T.M.C. Asser Press 1973

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References

1. For an excellent account of the uses of outer space see Lay, S. Houston and Taubenfeld, Howard J., the Law Relating to Activities of Man in Space. The University of Chicago Press: Chicago and London (1970) 1733.Google Scholar

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3. On May 25, 1973, three U.S. astronauts docked with Skylab I space station workshop to commence a series of experiments. The Washington Post, 05 26, 1973, at 1Google Scholar col. 4. After completing the first series of experiments the astronauts returned to earth in the Pacific Ocean on June 22, 1973. The Washington Post, 06 23, 1973, at 1Google Scholar col. 1. For details of the earth resources technology experiments see NASA-University of Colorado, Skylab Experiments, Vol. 2 (05 1973).Google Scholar

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12. Compiled from U.K. Ministry of Aviation Supply's Royal Aircraft Establishment Technical Report 68124 (1968), data supplied by Royal Aircraft Establishment by letter of March 6, 1973, and NASA's Goddard Space Flight Center Satellite Situation Report for April 30, 1973. Since compilation is from multiple sources, there may be a small degree of error.

13. As reported in “Space Objects Box Score” Satellite Situation Report, supra note 12.

14. See, e.g., U.K. Ministry of Aviation Supply's Royal Aircraft Establishment Technical Report, Supra note 12, col. 2 at 1 et seq.; id. Technical Report 71082 (1971) col. 2 at 185 et seq.

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22. Id. at 1, 3–5, 7–10, 12, 13, 15, 17–30, 33–38.

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30. Clute, , supra note 5, 112Google Scholar; Washington Post Dec. 4, 1968, reported that the U.S.S.R. successfully launched a satellite which tracked down and destroyed two other satellites. One might speculate on the possibility of adding innumerable pieces of space debris in view of the current developments in DBS technology. Broadcasting hostile propaganda in times of peace is condemned by U.N. General Assembly Resolution 110–11 of November 3, 1947. A country capable of destroying such satellites could proceed to do so under the right of self defense. In introducing a draft of the Outer Space Treaty the Soviet delegate saw urgent need for legal measures “to prevent a great technical achievement (the reception of direct television broadcasts by conventional television sets) from being used against the interests of peace”, U.N. Doc. A/AC 105/C.2/SR.57 at 13. See also Soviet Space Programs, 1966–70, supra note 2, 500–501.

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35. McDougall, M., Lasswell, H. and Vlasic, I., Law and Public Order in Space (1963) 643.Google Scholar The type of damage that may be caused by impact on a city is described by Spencer Beresford in Liability for Ground Damage Caused by Spacecraft, 19 Fed. B. J. (1959) at 242: “The Force of its impact would crush a building or any other object in its way. Its heat could cause burns and ignite inflammable materials over a wide area. The resulting damage might resemble the devastation left by a meteor. Certain kinds of spacecraft could produce even greater hazards – for example, by releasing radioactive material from a nuclear engine”. See also Dembling, Paul G., Aspects of the Law of Space Activities, 21 Fed. B. J. 235 (1961)Google Scholar and A Liability Treaty for Outer Space Activities, 19 American Univ. L. Rev. (1969) 44.Google Scholar

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37. NORAD Fact Sheet, Supra note, 34, 12.Google Scholar For an instance of collision between two U.S. satellites in space see Lay, and Taubenfield, , supra note 1, 140.Google Scholar

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41. On Outbound and earthbound contamination see generally Robinson, George S., Earth Exposure to Extra-terrestrial Matter: NASA's Quarantine Regulations, 5 Int'l Lawyer (1971) 219220.Google Scholar See also Phillips, , Back Contamination, 1 Environmental Biology and Medicine (1971) 121160Google ScholarPubMed; Gorove, , supra note 10, 5557.Google Scholar

42. The first impact was by the U.S.S.R. in September 1959 (Luna II), see Soviet Space Programs, 19661970, supra note 2, 532.Google Scholar

43. Soviet Space Programs 1971, supra note 2, 69.Google Scholar

44. See New York Times 03 2, 1966 p. 1.Google Scholar Venera 3 struck Mars on March 1, 1966, Soviet Science Programs 19661970, supra note 2, 539.Google Scholar

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47. Sagan, C., Leventhal, E.C. and Lederberg, J., 159 Science (03 15, 1968) 1192.Google Scholar

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52. The special procedure and requirements are discussed in McLane, , King, et al. , Lunar receiving laboiatory, 155 Science (1967) 525CrossRefGoogle Scholar; see also NASA Manned Spacecraft Center, Back Contamination Mission Rules, 11 14, 1969.Google Scholar

53. The attempt on Oct. 21, 1961 was unsuccessful as the needles failed to leave the package. On May 12, 1963, a second attempt was successful in releasing the needles. See Ryle, supra note 23, 19–23; International Cooperation and Organization for Outer Space, supra note 36, 407–410; Johnson, , Pollution and Contamination in SpaceGoogle Scholar, in Cohen, (ed.) Law and Politics in Space, 1964, 37et. seq.Google Scholar

54. Lovell, and Ryle, , Interference to Radio Astronomy from Belts of Orbiting Dipoles (Needles), 3 J. Royal Astro. Soc. (1962) 100108Google Scholar; Backwell and Wilson, Interference to Optical Astronomy from Belts of Orbiting Dipoles (Needles), id. at 109–114; COSPAR Information Bulletin No. 7, Nov. 19, 1961, 20–21.

55. Darwin, H.G., The Outer Space Treaty, 42, Brit. Y.B. Int'l L. 1967, 281.Google Scholar

56. A statement by the COSPAR Consultative Group on Potentially Harmful Effects of Space Experiments issued on May 16, 1964, stated that adding as many as tenfold needles as compared with 1963 experiments would cause significant interference, and a hundredfold increase would be “detrimental to much advanced research in astronomy”. The statement is reprinted as Appendix 2 at 396–397 in International Cooperation and Organization for Outer Space, supra note 36; see also Ryle, , supra note 23, 2122.Google Scholar

57. Lay, and Taubenfeld, supra note 1, 18Google Scholar; Kirgis, , supra note 23, 308Google Scholar; Sand, supra, note 6, 55.Google Scholar

58. Supra note 57.

59. See e.g., Nelson, Bryce, Reflecting Satellite: NASA Study Causes Concern Among Astronomers 155 Science (01 20, 1967) 304CrossRefGoogle Scholar; Clute, supra note 5, 113.Google Scholar

60. On the use of nuclear energy in space see Space Nuclear Power Generators, Hearings before the Joint Committee on Atomic Energy, 89th Cong., 1st sess. (Aug. 6, 1965); Johnson, , Beyond Apollo with Nuclear Propulsion, 2 Astro, and Aero. 12 1964, 2228.Google Scholar For an excellent account of development in the U.S. see NASA Authorization for Fiscal Year 1973, supra note 2, 721–726, 745–796.

61. See Washington Post, 05 24, 1964, 8.Google Scholar

62. Electrical power for the Apollo lunar experiments is provided by small radioisotope thermoelectric generators which use 8 lbs. of 238 Plutonium Dioxide Microspheres. COSPAR has expressed concern on the consequences of the release of radioactive debris on the Martian suface, should the 1975 Viking spacecraft which uses a radioactive thermo-electric generator crash land on Mars; see Kastel, Dean P., The National Academy of Sciences in International Cooperation in Outer Space: A Symposium, Senate Comm. on Aeronautical and Space Sciences, S. Doc. 92–57, 92d Cong. 1st sess. (12 9, 1971) 219.Google Scholar If the unfortunate event materializes, future manned missions to Mars would be jeopardized. The use of nuclear power is also contemplated in human camps on other celestial bodies. On this see Glenn T. Seaborg, AEC Press release S–6–66 of Feb. 17, 1966.

63. Horsford, Cyril, supra note 7, 3.Google Scholar

64. Brooks, Eugene, Legal Aspects of the Lunar Landings – 4 Int.'l Lawyer 4, (1970), 422Google Scholar; New York Times 07 17, 1969Google Scholar, Special Supplement p. 47; Lay, and Taubenfeld, , supra note 1, 4.Google Scholar

65. See e.g., Von Braun, , supra note 15, 35Google Scholar; NASA Authorization for Fiscal Year 1973, supra note 2, 33, 362–364.

66. Von Braun, , supra note 15, 34.Google Scholar

67. Sand, , supra note 6, 55.Google Scholar

68. Multilateral Treaty Banning Nuclear Weapons in the Atmosphere, in Outer Space, and Under Water, Oct. 5, 1963, 2 U.S.T. 1313, T.I.A.S. 5433 (hereinafter cited as The Test Ban Treaty).

69. The U.N. Resolution of the Commission for Conventional Armaments of Aug. 12, 1948 (U.N. Doc. S/C 3/32, August 18, 1948) defines weapons of mass destruction to include “atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have the characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above”.

70. Article I (2) reads “Each of the parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in the atmosphere; beyond its limits, including outer space; or underwater, including territorial waters or high seas; or (b) in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosion is conducted. It is understood in this connection that the provisions of this sub-paragraph are without prejudice to the conclusion of a treaty resulting in the permanent banning of all nuclear test explosions, including all such explosions underground, the conclusions of which, as the Parties have stated in the Preamble to this Treaty, they seek to achieve”.

71. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, was signed on Jan. 27, 1967 and entered into force Oct. 10, 1967, 18 U.S.T., 2410, T.I.A.S. 6347.

72. Id., Article 4 (2).

73. It has been argued that only enumerated military activities in Article IV (2) are prohibited and that non-aggressive military use is permitted. See Stein, Eric, Legal Restraints in Modern Arms Control Agreements, 66 Am. J. Int'l L. (1972) 260261.CrossRefGoogle Scholar The central problem here is that much of space technology can be employed for both military and non-military purposes. On this see McNaughton, Space Technology and Arms Control in Maxwell Cohen (ed.), Law and Politics in Space (1964), 69Google Scholar; Dembling, Paul G. and Arons, Daniel M., The Evolution of the Outer Space Treaty, 33 J. Air L. and Comm. (1967) at 435Google Scholar state, “aside from the first paragraph of Article IV, the placement of a weapon or other item of military equipment of any description on a celestial body would appear to be prohibited unless it can be demonstrated that the item of military equipment will be devoted solely to the peaceful exploration or use of the celestial body”.

74. Fawcett, , supra note 51, at 35Google Scholar comments on the drafting of Article IV(2) that in the second sentence, although the expression ‘celestial bodies’ is used, specific mention of the Moon is omitted. It could be argued that the omission is deliberate in an instrument of the importance of the Outer Space Treaty; that there is no prohibition intended in the use of military bases, installations, and fortifications, etc., on the Moon, the prohibition applying only to celestial bodies excluding the Moon.

75. See Statements by the Indian delegate in U.N. Doc. A/AC 105/c.2/SR 66, at 6; The Iranian delegate id at 7; The Austrian delegate in U.N. Doc. A/AC 105/c.2/SR 71 at 10; the Japanese delegate id at 12; The Brazilian delegate id at 17; and the Mexican delegate id at 19. Military activity is compatible with “peaceful purposes” as long as it is not aggressive.

76. Dembling, and Arons, , supra note 73, 434Google Scholar, Finch, Edward R. Jr., Outer Space for Peaceful Purposes, 54 ABA J. (1968), 366Google Scholar; Soviet Programs 1966–70, supra note 2, 462–463.

77. For definition of orbit see supra note 8.

78. Dean Acheson in Proc. Am. Soc. Int'l L. (1963) 14.

79. Convention on International Liability for Damage Caused by Space Objects (hereinafter Space Liability Treaty) signed at Washington, London and Moscow, March 29, 1972, reprinted in 66 Am. J. Int'l L. (1972), 702–709.

80. Article VII extends this concept of liability to include damage by space objects on the Moon or any other celestial body.

81. Supra note 79, Article II in conjunction with Article I (c). Article VIII of the Outer Space Treaty provides for national ownership of a space object by the launching state irrespective of whether it is in outer space or on the Moon or other celestial body or returns to earth.

82. Id. Article VI (1). For an excellent discussion of absolute or strict liability see Goldie, L.F.E., Liability for Damage and the Progressive Development of International Law, 14 Int'l and Comp. L.Q. 1189 (1965).CrossRefGoogle Scholar

83. Id Article VI (2).

84. Treaty on Outer Space, Hearings on Exec. D. before the Senate Comm. on Foreign Relations, 90th Cong. 1st Sess. (1967) 39–40, 54, 70–72, 75–76. See also S. Exec. Rep. No. 8, 90th Cong. 1st Sess. (1967) at 4–5.

85. Supra note 79, Article IV (1) (a).

86. For a short account of the prevailing controversy over compensation payable on expropriation of alien property see Kalsi, Swadesh S., Encouragement of Private Foreign Investment in the Developing Country: Provisions in the Laws of Kenya, 6 Int'l Lawyer (1972), 590595.Google Scholar

87. Supra note 79, Article IX.

88. Id Article XI (1).

89. Id Article VII.

90. Id Article XIV. Articles XIV to XX deal with the establishment, constitution, powers and rules of procedure of the Claims Commission.

91. Id Article XIX (1) in conjunction with Article XVIII.

92. Note that alternatively the decisions and awards of the Claims Commission can be made binding between the parties that have so declared in accordance with U.N. Resolution 2777 (XXVI) in relation to any other state accepting the same obligation.

93. Supra note 79, Article XIX (2). It is interesting to observe the following from the statement of Carl F. Salans in S. Exec. Rep. No. 92–38, 92d Cong. 2d Sess. (1972) at 6 “When it became clear that the Convention would provide for claims commissions empowered to make only recommendatory rather than binding awards, the U.S. agreed not to insist on a limit if the Convention were otherwise acceptable” (i.e., a ceiling on liability arising from a particular incident).

94. For a brief account of CETEX & COSPAR seen Johnson, Pollution and Contamination in Space in Cohen (ed.), supra note 73, 39–45. See also International Cooperation in Outer Space: A Symposium, Supra note 62, 538–545.

95. The COSPAR Resolution of May 20, 1964 is reprinted in International Co-operation and Organization For Outer Space, supra note 36, 391–392; see also Report of the Panel on Standards for Space Probe Sterilization, id at 397–399.

96. For a criticism of the phrase “due regard” as being vague see McMahon, J.F., Legal Aspects of Outer Space; recent developments, 41 Brit. Y.B. Int'l L. (19651966) 420Google Scholar; see also Gorove, supra note 10, 61.Google Scholar

97. Murray, , Davies, and Eckman, supra note 48, 1505Google Scholar; Horowitz, et al. , supra note 46, 1504Google Scholar, conclude that the present sterilization standards adopted by COSPAR should significantly be relaxed.

98. Gorove, , supra note 10, 6263.Google Scholar

99. Id at 63.

100. Wehringer, C.K., The Moon, Spaceports and Law, 36 J. Air L. and Comm. (1970), 68.Google Scholar

101. See, e.g., Lovell, and Ryle, supra note 55.Google Scholar

102. Brooks, supra note 64, 423.Google Scholar

103. See above section on Trends in Space Activity.

104. U.N. General Assembly Resolution 1721 (XVI) of December 20, 1961. See also Jenks, , supra note 9, 219224.Google Scholar In 1970, the Canadian delegation to the Committee on the Peaceful Uses of Outer Space submitted a comprehensive proposal for registration of objects launched into outer space. See U.N. Doc. A/AC. 105/ C.1/L.31, April 20, 1970.

105. On the negotiating aspects of Article XI, see Dembling, and Arons, , supra note 73, 444447Google Scholar; see also Dalfen, , supra note 18, 255268.Google Scholar

106. Reference is made to the Satellite Situation Report pubhshed montly by the National Aeronautics and Space Administration's Goddard Space Flight Center, Greenbelt, Maryland, U.S.A. which contains a list of all U.S. objects in outer space.

107. See, e.g., International Co-operation and Organization for Outer Space, supra note 36, 262.

108. Beesley, Allen et al. , The Legal Problems of International Tele-Communications with special reference to INTELSAT 20 Univ. Toronto L.J. (1970), 309Google Scholar; Fawcett, , supra note 51, 5.Google Scholar

109. On the Space Shuttle see generally, NASA Authorization for Fiscal Year 1973, supra note 2, 334–423; NASA Environmental Statement for Space Shuttle Program, Draft Statement April, 1972, 1–12. On economic analysis of shuttle see Heiss, Klaus P. and Morgenstern, Oskar in NASA Authorization for Fiscal Year 1973, supra, note 2, 425556.Google Scholar

110. Hall, , supra note 36, 289290.Google Scholar

111. Richard H. Campbell, Traffic in Outei Space, in supra note 20, at 73 gives an instance of the U.S. launch number 082 of 1965 which carried only one pay load but accounted for 451 pieces of space debris.

112. See supra section Space Environmental Law: Damage by Space Objects.

113. Supra note 20.

114. McMahon, , supra note 8, 392.Google Scholar

115. Id at 393.

116. However, the reader's attention is drawn to the work of the U.N. on the human environment. See especially G.A. Resolution 2994 (XXVII Dec. 15, 1972) on U.N. Conference on the Human Environment, G.A. Resolution 2995 (XXVII Dec. 15, 1972) on cooperation between states in the field of the Human Environment, G.A. Resolution 2996 (XXVII Dec. 15, 1972) on International Responsibility of States in Regard to the Environment, and G.A. Resolution 2997 (XXVII Dec. 15, 1972) on Institutional and Financial Arrangements for International Environmental Cooperation.

117. Howard J. and Rita F. Taubenfeld, Modification of the Human Environment in Cyril E. Black and Richard A. Falk, (Ed.) The Future of the International Legal Order: Volume IV - The Structure of the International Environment (1972), 140.