«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
exploration, use and scientific investigation of outer space. It provides that ‘exploration and use’ of outer space is ‘free’ for all states. Thus, outer space is a common space in which states do not enjoy sovereign rights – similar to the deep seabed and the high seas. It is not subject to claims of sovereignty of individual states. As the broad terms in this article generally cover all space activities, the freedom of outer space does also apply to space-based geoengineering technologies. 256 This freedom is subject to limitations, as space activities have to be ‘carried out for the benefit and in the interests of all countries irrespective of their degree of economic and scientific development’ and shall be ‘province of all mankind’. 257 These notions limit the freedom of outer space in the sense that neither exploration nor use of outer space shall be undertaken for the sole advantage of one country, but done only for the benefit of the international community. 258 However, the precise contours of this concept and of its restricting effect are not fully fleshed. 259 As the provision requires that all countries shall be involved in 14 December 1992); Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (UNGA Res. 51/122 of 13 December 1996).
cf. http://www.oosa.unvienna.org/oosa/en/climatechange/index.html As of March 2012, there were 101 ratifications and 26 signatories of the Liability Convention, see http://www.oosa.unvienna.org/oosa/en/SpaceLaw/treatystatus/index.html Durner (2000) 146.
Lafferranderie (2005) 10.
Zedalis (2010) 23, Proelß/Güssow (2011) 15.
Moreover, only peaceful use of outer space is allowed, Article IV Outer Space Treaty.
Hobe (2009) 32.
Hobe (2009) 40.
Options and Proposals for the International Governance of Geoengineering space explorations irrespective of their development level, it stays unclear whether this amounts to an obligation of the sharing of the benefits of space activities, i.e. if a sort of material balance is necessary. 260 It is also unresolved who would determine, from which perspective and on what basis, whether an activity was for the benefit of all countries. We did not find state practice to draw from in this regard.
Notably, the question of whether such geo-engineering would be in the interest of all countries goes to the heart of the debate around geo-engineering. Opponents would point to the potential and uncertain side effects and the need to address the cause of global warming;
proponents would argue that global cooling effects are in the global interest and they would outweigh the side effects at least in the short term. 261 However, the exact wording of Article I seems to second the arguments of the proponents. The provision states that any activity has to be carried out ‘for’ the benefit of all countries. It is unclear whether the word ‘for’ means that the geoengineering activity actually would have to result in impacts deemed to be beneficial, or whether it would be sufficient that the intention and design of the geoengineering technique qualify as beneficial - regardless of their actual impacts. 262 It has been suggested that this requirement could only be met by a benefit sharing mechanism and that in absence of it any unilateral geoengineering in outer space would be incompatible with this provision.
However, given the general nature of the provision and the absence of state practice, this appears overly specific and to overstretch interpretation. 263 At least it can be concluded that the restrictions in Article I do not prohibit geoengineering in general.
Article IX Outer Space Treaty is potentially relevant as well, as it directly deals with environmental consequences (including on the earth) of space activities (non-contamination), next to principles regarding co-operation, mutual assistance, non-harmful interference and consultation.
The first sentence limits the freedom of states to deploy space activities, as those have to be guided by the ‘principle of co-operation and mutual assistance’ and have to be conducted ‘with due regard to the corresponding interest’ of all other parties. 264 However, the limitations themselves have their limitations, as they merely refer to the space activities of other parties to the Outer Space Treaty (‘corresponding interests’). Whether geoengineering techniques in space would interfere with other states’ space activities - e.g. communication channels- would depend on the specific case. However, this does not govern other, more severe consequences of these technologies, i.e. unintended side-effects that could occur on earth. Moreover, as the provision concerns the permissibility of certain space activities in general, it does not seem to prohibit space-based geoengineering activities as such. All peaceful uses of space including geoengineering are permitted, as long as the ‘due regard’ - requirement and the other conditions are met. Marchisio argues that states carrying out space activities have to prove beyond reasonable doubt that everything possible was undertaken to prevent a harmful act from occurring. 265 This resembles legal questions raised regarding the due diligence standard Hobe (2009) 38.
Proponant: Zedalis (2010) 24.
As Zedalis seems to suggest, Zedalis (2010) 24.
Proelß/Güssow (2011) 17; Rickels et al (2011) 88.
Marchisio (2009) 175.
Marchisio (2009) 176, Rickels et all (2011) 88.
Options and Proposals for the International Governance of Geoengineering under the obligation to respect the environment and the implications of the precautionary principle (cf. section 5.1.2).
The space and earth environment is addressed by the second sentence of Article IX. It provides that parties have to ‘pursue studies […] and conduct exploration […] so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose’. According to a strict reading of the wording of Article IX, this obligation to avoid contamination only applies to the ‘exploration’ of outer space, but not to the general ‘use’. However, others argue that this sentence also intends to cover ‘use’, because the term was left out due to an editorial error. 266 Moreover, it could be argued a fortiori that if this limitation applies to exploration, it should even more apply to use-activities, which have likely a stronger impact.
The second sentence of Article IX is complex. Regarding the space environment, any harmful contamination shall be avoided (see wording of Article IX sentence 2 alternative 1). The earth’s environment is to be protected only against adverse changes caused by the introduction of extraterrestrial matter (Article IX sentence 2 alternative 2). Again, there is not much state practice or case law to carve out more details of this sentence. There is no definition of ‘harmful contamination’, which could mean any alteration of the status quo (i.e. the placement of installations in space as such) or only a harmful alteration of it 267. Considering the explicitly added word ‘harmful’, the latter interpretation seems preferable. This means that as long as the installation functions and serves its purpose, and does not turn into space debris or poses a risk to other space objects, it cannot be considered to be ‘contamination’. Moreover, it is unclear whether geoengineering installations can be considered ‘extraterrestrial matter’. Again, no definition is provided. In this sense ‘Article IX opens more questions than it gives clear answers’. 268 So far there have been no cases on the basis of Article IX that could provide guidance. 269 Generally, it can be concluded that this provision is too general prohibit spacebased geoengineering as such. 270 The last two sentences of Article IX are potentially relevant as well, as they deal with ‘potential harmful interference’ caused by space activities in general, including geoengineering installations. However, these sentences merely require consultation between states in the event of interference. This would apply to geoengineering technologies, but does not concern their permissibility in general. Moreover, consultation is only required if the harmful interference concerns space activities of other parties to the Outer Space Treaty (‘activities of other State Parties in the peaceful exploration and use of outer space’), but not interference on earth.
Article VI and VII of the Outer Space Treaty address state responsibility and liability for damage caused by space activities. They are potentially relevant for space-based geoengineering techniques, especially considering the harmful side-effects that they could cause. These provisions contain important basic principles, but they were not drafted with a view to address Frantzen (1991) 612, Proelß/Güssow (2011) 19.
cf. Rickels et al (2011) 88.
Marchisio (2009) 170.
Kerrest/Smith (2009) 144.
Zedalis (2010) 25.
Options and Proposals for the International Governance of Geoengineering exhaustively all issues on liability. 271 The Liability Convention was drafted in parallel and provides more detailed and specific rules (see below in this section).
Article VI and VII of the Outer Space Treaty do not deal with the permissibility of activities as such. They are retrospective rules that determine responsibility for those space activities that result in some sort of harm. 272 Article VI clarifies that states are responsible for their national activities in outer space, both deployed by governmental and non-governmental actors. This includes, inter alia, an obligation to authorize and supervise such activities. Article VII imposes international liability on those parties which qualify as launching states for damage caused by space objects. As for geoengineering, the latter obligation has certain limitations. According to the wording in Article VII, launching states are only liable for damage caused ‘by’ space objects to another party. This approach matches typical environmental problems in outer space: direct damage caused by orbital space debris or objects falling from space or hitting other space objects. 273 However, the key concern with regard to geo-engineering technologies is indirect damage that could occur on the earth’s environment, such as whether modification, hydrological interference, impacts on biodiversity etc. – without a physical impact of the space object itself. 274 It is not entirely clear whether such impacts could be qualified as damage ‘by’ the geoengineering installations in space. Nevertheless, the provision would cover instances like geoengineering installations falling out of the orbit and causing damage to the earth.
Moreover, neither the Outer Space Treaty nor the Liability Convention contain any definition of space objects. Thus, it is unclear whether the provisions on responsibility/liability apply to every possible geoengineering technology in space (such as dust). 275 It is a pending issue whether the size, material or use of an object determines the qualification of a ‘space object’. 276 As to the damage covered, Articles VI and VII of the Outer Space Treaty do not appear to exclude any particular kind of damage - material or immaterial, loss suffered as well as gain or loss of profit. 277 Specific conditions to receive damages are not defined. Moreover, the burden of proof lies with the claimant – which would be considerably difficult to show in the case of geoengineering. 278 The damage may be indirect and may not occur locally or immediately. The chain of events may be very long. 279 In addition, Article VII is silent on whether any fault or negligence is required.
The Liability Convention provides more elaborate and specific rules on damage resulting from a space object. The Liability Convention is lex specialis to the general rules in the Outer Space Kerrest/Smith (2009) 134 Zedalis (2010) 24.
Sands (2003) 382.
Malanczuk (1991) 790 Article I does not include a definition, but only a clarification that individual party or components are covered by the term space object as well (“include“).
Kerrest/Smith (2009) 140.
Kerrest/Smith (2009) 141.
Malanczuk (1991) 794.
Kerrest/Smith (2009) 142.