Space programmes and international envir
۫ٷۋڷ۪ۙۨٷۦٷۣۤۡӨڷۘۢٷڷ۠ٷۣۢۨٷۢۦۙۨۢٲ
ۺ۠ۦۙۨۦٷ۩ۏ
ۏۋٲۛҖۦۣۘۛۙғۦۖۡٷۗ۠ۧғٷۢۦ۩ۣ۞ҖҖۃۤۨۨۜ
ẹếẰẽẹẬếẴẺẹẬặΝẬẹắڷۦۣۚڷ۪ۧۙۗۦۙۧڷ۠ٷۣۢۨۘۘۆ
̀ẺẸẻẬẽẬếẴềẰΝẬỂΝỀẬẽếẰẽặỄ
ۙۦۙۜڷ۟ۗ۠Өڷۃۧۨۦۙ۠ٷڷ۠ٷۡٮ
ۙۦۙۜڷ۟ۗ۠Өڷۃۣۧۢۨۤۦۗۧۖ۩ۑ
ۙۦۙۜڷ۟ۗ۠Өڷۃۧۨۢۦۤۙۦڷ۠ٷۗۦۣۙۡۡӨ
ۙۦۙۜڷ۟ۗ۠Өڷۃڷۙۧ۩ڷۣۚڷۧۡۦۙے
ۣۣۢۨۗۙۨۦێڷۣۨۢۙۡۢۦ۪ۢٮڷ۠ٷۣۢۨٷۢۦۙۨۢٲڷۘۢٷڷۧۙۡۡٷۦۣۛۦێڷۙۗٷۤۑ
ۘۢٷۑڷғٱڷۦۙۨۙێ
Ғڷڿۀڷۤۤڷۃھۀۂڽڷۺۦٷ۩ۢٷЂڷҖڷڽڼڷۙ۩ۧۧٲڷҖڷڽھڷۙۡ۩ۣ۠۔ڷҖڷۺ۠ۦۙۨۦٷ۩ۏڷ۫ٷۋڷ۪ۙۨٷۦٷۣۤۡӨڷۘۢٷڷ۠ٷۣۢۨٷۢۦۙۨۢٲ
ڼڿ
ہڼڼھڷۺۦٷ۩ۢٷЂڷۀڽڷۃۣۙۢ۠ۢڷۘۙۜۧ۠ۖ۩ێڷۃڿۀғڽғڽھ۞Җٷۥ۠ۗҖڿۂڼڽғڼڽڷۃٲۍө
ۂۀڼہھڼڼڼڿۂہҢڼھڼڼۑٵۨۗٷۦۨۧۖٷۛҖۦۣۘۛۙғۦۖۡٷۗ۠ۧғٷۢۦ۩ۣ۞ҖҖۃۤۨۨۜڷۃۙ۠ۗۨۦٷڷۧۜۨڷۣۨڷ۟ۢۋ
ۃۙ۠ۗۨۦٷڷۧۜۨڷۙۨۗڷۣۨڷۣ۫ٱ
ۣۨۢۙۡۢۦ۪ۢٮڷ۠ٷۣۢۨٷۢۦۙۨۢٲڷۘۢٷڷۧۙۡۡٷۦۣۛۦێڷۙۗٷۤۑڷғۀھۀۂڽڿڷۘۢٷۑڷғٱڷۦۙۨۙێ
ڼڿҒڿۀڷۤۤڷۃڽھڷۃۺ۠ۦۙۨۦٷ۩ۏڷ۫ٷۋڷ۪ۙۨٷۦٷۣۤۡӨڷۘۢٷڷ۠ٷۣۢۨٷۢۦۙۨۢٲڷۣۢғۣۨۗۙۨۦێ
ڿۀғڽғڽھ۞Җٷۥ۠ۗҖڿۂڼڽғڼڽۃۣۘ
ۙۦۙۜڷ۟ۗ۠Өڷۃڷۣۧۢۧۧۡۦۙێڷۨۧۙ۩ۥۙې
ڿڽڼھڷۢٷЂڷڽڿڷۣۢڷҢۂڽғۂҢғҢۂғۀۂڽڷۃۧۧۙۦۘۘٷڷێٲڷۃۏۋٲۛҖۦۣۘۛۙғۦۖۡٷۗ۠ۧғٷۢۦ۩ۣ۞ҖҖۃۤۨۨۜڷۣۡۦۚڷۘۙۘٷۣۣ۠ۢ۫ө
SPACE PROGRAMMES
AND
INTERNATIONAL ENVIRONMENT PROTECTION
By
PETER H. SAND*
INTRODUCTION
THE " human environment" has become fashionable with lawyers, at
a price: chances are that the volume of legal theory surrounding and
obscuring the topic will soon outscore the comparable record achievements of space law. Before joining in the endeavour, it may be
useful to define the subject of this paper by way of progressive
elimination.
First, a distinction needs to be drawn between the cosmic environment at large and our terrestrial environment stricto sensu. With
due respect to the scientific merits of a " clean universe," and without
attempting to draw another magic line, we may conveniently exclude
from our present discussion the legal problems pertaining to what
Jenks describes as the " cluttering and contamination" of outer
space and celestial bodies,1 and concentrate instead on matters directly
relevant to the quality of life on Earth.
The second distinction concerns the information impact and the
action impact of space technology. Space Science has begun to make
important contributions to Earth Science: besides a certain amount
of technological spin-off, the data obtained by application satellites
for meteorology, earth resources and pollution monitoring arc
becoming a vital basis for environmental decision-making, possibly
including " anthropogeneous modification of the environment." *
* Legal Officer, FAO, Rome; Guest Scholar in Environmental Studies (1971),
Woodrow Wilson International Centre for Scholars, Washington. Views and
opinions expressed in this paper are strictly personal and are not to be attributed
to any organisation or institution with which the author is associated.
1
Jenks, Space Law (1963) pp. 280-282. For recent surveys of the law relating to
(out-bound) pollution of the cosmic environment, lee Lay and Taubenfeld, The
Law Relating to Activillei of Man in Space (1970) pp. 189-191, and Chichvarin,
Okhrana prirody i mezltdunarodnyye otnoiheniya (Nature Conservation and International Relations, 1970) pp. 252-255.
1
See the series of technical papers on application satellites submitted at the
recent 22nd International Astronomical Congress, and especially Vinogradov,
Anlhropogeneous Modification of the Environment from the Data of Space
Photography (1971).
43
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International and Comparative Law Quarterly [VOL. 21
Yet the legal consequences of this new " information impact" are
not essentially an environmental problem, but rather part of a more
general problem of international law and politics: viz. the sharing
of knowledge which directly equates power {Wissen ist Macht, from
some horse's mouth).3 This problem is substantially beyond the
scope of the present paper.4
Having thus narrowed down the subject, we can now focus our
attention on a different, but equally important, environmental
dimension of current space programmes. Beyond the neutral tasks
of scientific observation and data-gathering, space technology is
gradually advancing towards a position from where it can actively
interfere with the natural condition of our biosphere—for better or
worse. Experimentally, accidentally, and for the most part inadvertently, certain space activities have already begun to affect the terrestrial environment; and ultimately, outer space may indeed become
another medium for planned " ecomanagement." 8 This change' of
roles, from exploration to interference, from reflection to action, is
the real innovation.
The environmental impact of space programmes may be incidental
(i.e., unintended), or deliberate; it may be caused by terrestrial
sources utilised in the course of space activities, or by extra-terrestrial
sources introduced into the biosphere as a result of such activities.
Rather than summarily ranking these types of impact on a blacklist
of " global threats to the environment,"' each should be viewed as
part of a continuum, within which its environmental significance
may vary from zero to kogai (the now proverbial Japanese term for
environmental disruption).'
What aggravates the potential risk from individual types of
-1 According to Teller, in Peacetime Uses of Outer Space (Ramo ed. 1961) p. 261,
the thing of value to be brought back from space is knowledge, not gold,
uranium or diamonds.
* See the papers submitted by Cocca, Emine, Meloni, Vereshchetin, at the 22nd
International Astronautical Congress, Brussels (Sept. 1971). Cf. the proceeding*
of the 1968 UN Conference on Space Exploration and Applications, and the
note " Sharing the Practical Benefits of New Technology in the Peaceful Uses of
Outer Space" (1970) 62 Department of State Bulletin No. 1595, p. 63. See also
Brocks, "New Developments in Earth Satellite Law" (1970) 65 Northwestern
University Law Review p. 65, commenting on the recent Argentine proposal in
the Legal Subcommittee of the UN Outer Space Committee, regarding compulsory disclosure of resource information obtained by remote-sensing satellites
(UN Doc. A/AC.105/85. Annex 2, 1970).
3
Mayda, Environment and Resources: From Conservation to Ecomanagement
(1968, 2nd ed. 1972).
« £.£., see the report to the International Council of Scientific Unions, ICSUBulletin No. 19 (ryov. 1969) p. 26, which became the agenda of the new " Special
Committee on Problems of the Environment " (SCOPE).
7
See the proceedings of the 1970 International Symposium on Environmental
Disruption in the Modern World, held at Tokyo under the auspices of the
International Social Science Council; cf. Kapp, " Environmental Disruption and
Social Costs: A Challenge to Economics" (1970) 23 Kyklos p. 833.
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Space Programmes
45
impact is their coexistence with each other and with an infinite
variety of unrelated other types of environmental impact (human and
natural), all of which may have cumulative and possibly synergetic
effects on the biosphere. Perhaps the most urgent problem, thcretore,
is monitoring of all conceivable types of impact, quite regardless of
their individual significance.
INCIDENTAL INTERFERENCE WITH THE EARTH'S ENVIRONMENT
In this first category we shall include those interfering (polluting)
side-effects of space programmes which are not part of the intended
objectives of such programmes. The term " incidental " interference
seems more appropriate than the frequently used term " inadvertent,"
for in most cases the interfering party is quite aware of the interference he causes, although he may not consider it as significant from
his viewpoint and consequently will treat it as a calculated (sometimes unavoidable) risk of his space programmes.
Pollution from terrestrial sources
Hardware
With the increasing number of space launchings, returning space
instrumentalities, boosters and debris have become a problem in
the Earth's airspace and on the surface.* The current procedure of
UN registration of launchings, in spite of several shortcomings,9 at
least helps to keep an ex post facto record of how much hardware
is going up, and the new UN Convention on International Liability
for Damage Caused by Space Objects 10 will take care of legal
responsibility for surface and collision damage, including explosion of
unexpended fuel."
« There have been at least 12 reported incidents since 1958 of debris from space
instrumentalities crashing on the surface, including satellite fragments of various
sizes, contrary to earlier scientific assurances that orbiting hardware would burn
up upon re-entry in the atmosphere; see the list in Lay and Taubenfeld, op. clt.
supra, n. 1, pp. 137-138, n. 7.
0
The "public registry" kept by the UN Secretary-General pursuant to General
Assembly Resolution 1721 (XVI) of Dec. 20, 1961, only lists objects launched
into orbit or beyond. E.g., the monthly information provided by the U.S.
Department of State contains the international designation number, the name of
the launching vehicle, the satellite category (or type of debris), the date of
launching, and various orbital characteristics. Not registered are sub-orbital
sounding rocket launchings, type or amount of rocket fuels or exhausts, chemical
or radioactive payloads, etc.—in short, anything that actually or potentially
affects the terrestrial environment.
'o Text in 8 UN Monthly Chronicle No. 7 (July 1971) p. 19, as approved by the
Legal Sub-Committee of the UN Committee on the Peaceful Uses of Outer Space
on June 29, 1971, endorsed by the Committee in Sept. 1971, adopted by the UN
• General Assembly on Nov. 30, 1971 by Resolution 2777 (XXVI) and recommended
for ratification by all lUtes.
11
On the explosion risks of the highly inflammable propellents and liquid oxygen,
see Lay and Taubenfeld {op.'clt. tupra, n. 1) pp. 138-139. The Soviet Union
was originally opposed to the' inclusion of risks connected with nuclear fuels; see
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International and Comparative Law Quarterly [VOL. 21
Rocket-exhausts
Neither the UN registration system nor any other international
data exchange system" includes information on the nature and
amount
•
s of pollutants introduced into the atmosphere by space
instrumentalities. Pursuant- to the U.S. National Environmental
Policy Act of 1969, and the Executive Order on "Protection and
Enhancement of Environmental Quality " of 1970.13 NASA is now
under an obligation to submit to the Council on Environmental
Quality (CEQ) " environmental impact statements " for any major
.project significantly affecting the quality of the human environment.
NASA has issued policy guidelines for the preparation of these statements." and has already submitted in draft form statements for 21
projects, including on-going programmes for rocket engine testing and
altitude exhaust system testing.1' Although some of the statements are
extremely general and were actually returned to NASA by the
CEQ for more detailed redrafting, they provide useful illustrative
data. For example, the Draft Environmental Impact Statement for
the Apollo Programme (submitted in February 1971), lists the amounts
of pollutants released in the course of a normal Saturn V launch (see
table on page 47).
The statement adds that material released above the stratosphere
(60 Km) " will effectively never reach sea level," because its residence
time at this altitude is in excess of ten years.
Normally, an additional amount of residual kerosene (RP-1 fuel)
" not exceeding 5,000 gallons " is dispersed at the time of first stage
separation, and ends up as a thin film on the ocean surface covering
approximately one square mile. In the case of an aborted flight,
however, a maximum of 230,000 gallons of RP-1 could reach the
Zhukov, Weltraumrecht (1968) p. 209 (German translation revised by the author
in the light of the UN drafting discussions; the original Russian book, Kosmtchetkoe pravo (1966) at p. 63, and its English translation, Space Law (1969)
at p. 158, is somewhat different); however, Art. X of the final text now includes
potential nuclear risks. See n. 63 infra.
" E.g., the reports published in the COSPAR Information Bulletin, pursuant to the
Guide to Rocket and Satellite Information and Data Exchange, adopted at the
10th COSPAR Meeting (July 1967).
13
"National Environmental Policy Act of 1969," US. Public Law 91-190, Jan. 1,
1970; Executive Order 11514 (35 Fed.Reg. 4247), March 5, 1970; Council on
Environmental Quality Interim Guidelines for Environmental Statements (35
Fed.Reg. 7390), April 30, 1970.
'* NASA Policy Directive 8800.6, Oct. 13, 1970; NASA Management Instruction
8800.7, Jan. 7; 1971 ("Guidelines for the Preparation of Environmental Statements Required by the National Environmental Policy Act of 1969"); reprinted
in U.S. Congress, Hearings before the Subcommittee on Fisheries and Wildlife
Conservation of the Committee on Merchant Marine and Fisheries (Dingell
Committee on " Administration of the National Environmental Policy Act"),
• H.R., 91st Cong. 2nd Sen., Serial No. 91—41 Part 2 (1971) pp. 577-587.
>» Council on Environmental Quality, (1971) 1 Environmental Impact Statements:
102 Monitor No. 5, 87 and cf. for tubsequent action, Final Environmental
Impact Statement, NASA Lewis Research Center (July 1971).
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1972]
Space
Programmes
. . .
4 7
Weight in Pounds a; Function of Altitude i
0-20 KM
0-10-8 NM
20-67 KM
1O8-36-2 NM
' Above 67 KM
Above362 NM
623,720
1,398,840 •
734,420
36,200
'
4,000
19,440
9,200
68,660
133,000
—
—
—
—
—
—
—
—
316,860
699,420
367,210.
18,100
2,000
9,720
4.600
34,330
67,000
—
—
—.
—
—
—.
—
—
890
40
• 0
643,560
37,800
—
—
—
—
—
14
112
427
42
83
1,029
107
"5
Product
Carbon Dioxide"
Carbon Monoxide •
Water
Hydrogen (Hi)
Hydrogen (H)
Oxygen (Oj)
Oxygen (0)
Hydroxyle Radical (OH)
Carbonaceous Products
Carbonyl Sulfide
Hydrogen Sulfide
. Nitrogen
Sulfur Dioxide'
Sulfur (Si)
Hydrogen Chloride .
Aluminium Oxide
Metal Oxides
1 KM^O-53961 NM
ocean.: In addition, approximately 170 pounds of toxic propellant
are combusted or evaporated at the time of re-entry of the Apollo
command.module, starting at an altitude of about 10,000 feet (3 Km).
Based on these and other data, NASA concluded that the
quantities, released " are two; or more orders of magnitude below the
recognised levels for concern " 1 § and that the Apollo Programme
" does not have any significant detrimental impact on. the human
environment."
..
On the whole, this conclusion (repeated in virtually all NASA
statements) would seem to confirm the earlier1 general conclusions
of the COSPAR, " Consultative Group on Potentially Harmful Effects
of Space' Experiments," " 'which in 1964 had examined reports on
rocket pollution of the upper atmosphere18 and reported to the UN
'• Draft Environmental Impact Statement for NASA's Apollo Programme (Feb.
1971) p. 3, comparing the data submitted to the findings'of the M.I.T. William!
town Study of Critical Environmental Problems (SCEP), Man's Impact on the
Global Environment (1970). See n. 34 infra.
'•
17
On the establishment and functions of COSPAR and its Consultative Group within
the International Council of Scientific Unions (ICSU), see U.S. Senate Committee
on Aeronautical and Space Sciences, Staff Report on -" International Cooperation
and Organisation for Outer Space," 89th Cong.'1st Sess., Doc. No. 56 (1963)
'• pp. 378, 390.- A predecessor of the Group was the Inter-Union Committee on
• Contamination by Extra-terrestrial Exploration (CETEX);
• •
11
Particularly, a report on rocket pollution of the upper atmosphere by Pressman,
Reid
•
y and- Link (Institute-of Aerospace Science,'4963) and'a rnore'op'tfm'irtic
counter-report by Kellogg (National Center for Atmospheric Research, Draft
1963), who was a member of the Group.
• '• • '
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International and Comparative Law Quarterly
[VOL. 21
Committee on the Peaceful Uses of Outer Space that " harmful
contamination of the upper atmosphere on a long-term global basis
is unlikely on present and expected scale of firings of super rockets
and the release of experimental seeding." "
However, the COSPAR group had made it clear then that its
study did not include three possibly significant contingencies: (a)
the use of nuclear-powered rockets and nuclear reactors in satellites;
(b) the extensive use of high-flying supersonic transport aircraft; (c)
the extensive use of completely disintegrating meteorological rockets.
It also recommended continued studies of the following matters: (a)
evaluation of exchange times between the various regions of the
upper atmosphere, especially between 60 and 100 Km; (b) short- and
long-term local and zonal effects of rocket contamination in the
upper atmosphere; (c) the possibility of any catalytic effects which
might trigger chemical and photochemical processes in the upper
atmosphere; and (d) radiation balance in the upper atmosphere and
its dependence on changes in composition there.
Although this report was endorsed by the UN Committee on the
Peaceful Uses of Outer Space," it does not seem to have generated
any international follow-up action since 1964. The fact that pollution by rocket exhausts should continue to be a matter of concern
(particularly with the prospect of rocket "shuttles" multiplying the
present volume of space traffic through the atmosphere) was underscored in 1966 by a report from the U.S. National Academy of
Sciences on " Weather and Climate Modification: Problems and
Prospects." " While tentatively discarding the likelihood of appreciable disturbance by supersonic transport aircraft (a conclusion which
may have to be qualified in the light of more pessimistic recent
evaluations),11 the .report continues:
Rocket-exhaust contamination of the higher atmosphere is, however, a
much more complex problem, primarily because the chemistry of the
mesosphere and thermosphere (including the radiational roles played by
the minor constituents), and the processes in those regions that disperse or
remove impurities are so little understood. Since rocket activity will
increase, and since we are already capable of doubling, in a single year,
>* See tbe Resolution adopted by the COSPAR Executive Committee on May 20,
1964, on the Report of the Consultative Group, Appendix 1 (" Statement on
Upper Atmospheric Pollution by Rocket Exhaust and Chemical Injection
Experiments") of May 16, 1964; reprinted in U.S. Senate Committee on Aeronautical and Space Sciences, Staff Report, cited supra, n. 17, at pp. 394-396.
" UN Doc. A/5785, Nov. 13, 1964 (Report to the General Assembly on International Co-operation in the Peaceful Uses of Outer Space).
11
U.S. National Academy of Sciences—National Research Council, "Weather and
Climate Modification: Problems and Prospects," Publication No. 1350 (1966),
Vol. I, at pp. 11-12. A new report by the Committee on Atmospheric Sciences,
- - Weather and Climate Modification: Policies and Programs, will be forthcoming
in 1971.
« See infra, nn. 34 and 35.
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Space Programmes
49
the quantity of some exotic constituents (e.g., atomic sodium), vigorous
investigation of aeronomy and high-atmosphere dynamics is a clear prerequisite to settling the issue of rocket-caused contamination.
Radiation
Nuclear radiation is the least publicised among the environmental
hazards of space programmes." The small radioisotope thermoelectric generators (RTG). which provide electrical power for Apollo
lunar experiments, use a fuel capsule containing eight pounds of 238
Plutonium Dioxide Microspheres, which involves exposure to neutron
emission and gamma rays during normal operations." The added
risk of accidental burning (short of nuclear explosions, which would
require about four times that amount of fuel) was illustrated when
two pounds of 238 Plutonium aboard a satellite vaporised upon reentry in April 1964, distributing the material in the atmosphere for
an estimated residence time of two years.18 Far more serious
operational safety problems will arise with the advent of nuclear
propulsion systems for rockets (and particularly with nuclear
explosion propulsion), the development of which currently accounts
only for some cryptic references in the environmental impact statements filed by NASA research centres." According to von Braun,
" the problems of man-made radiation connected with these space
ships will prove far more challenging in the long run than those of
the natural radiation in space." 1T .
Pollution from extra-terrestrial sources
Back contamination
Both the U.S.S.R. and the U.S. until recently conducted intricate
quarantine and decontamination measures to safeguard returning
space instrumentalities against the risk of contaminating the biosphere by extra-terrestrial micro-organisms." Article IX of the
" Treaty on Principles Governing the Activities and the Use of Outer
Space Including the Moon and Other Celestial Bodies " J 0 provides
13
See Lay and Taubenfeld (op. dt. supra, n. I) p. 140.
-* Draft Environmental Impact Statement, cited supra, n. 16, at pp. 6-7.
« Lay and Taubenfeld (op. dt. supra, n. I) pp. 14, 189, n. 40; see also Lee, "The
Legality of Nuclear Tests and Weapons" (1968) Oesterreichlsche Zeltschrift futr
Oeffentliches Rechl 307.
" E.g., see the statement cited supra, n. 15, at p. 15.
»' New York Times, Oct. 13, 1964, at p. 18.
« See especially Phillips, " Back Contamination " (1971) 1 Environmental Biology
and Medicine pp. 121-160, who defines the term as "contamination of the
terrestrial biosphere with organisms or materials returned from outer space that
are capable of potentially harmful terrestrial activity." The problem is distinct
from the concern with out-bound contaminatidn of other planets: see generally
Planetary Quarantine: Principles, Methods and Problems (Hall ed. 1971).
" Signed on Jan. 27, 1967; T.I.A.S. No. 6347; on the background and drafting of
the Treaty, see Lay and Taubenfeld (op. dt. supra, n. 1) pp. 63, 214, and the
bibliography at pp. 329-330.
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International and Comparative JMW Quarterly
[VOL. 21
that all States Parties to the Treaty shall conduct exploration of outer
space and celestial bodies, and shall make use of those resources, in
such a manner " as to avoid their harmful contamination and also
adverse changes in the environment of the Earth resulting from
the introduction of extra-terrestrial matter and, where necessary,
shall adopt appropriate measures for this purpose." It has been
pointed out, however, that the Treaty's subsequent provisions for
consultation only relate to " interference . . . in the peaceful exploration and use of outer space," but do not technically apply to potential
contamination of the Earth from extra-terrestrial matter." In the
United States, an Interagency Committee on Back Contamination
(ICBC) was established in August 1967, "in order to protect the
public's health, agriculture, and other living resources against the
possibility of contamination resulting from returning lunar astronauts
or lunar exposed materials."" NASA's environmental impact
statement for the Apollo Programme in February 1971 concluded
that there had been " no evidence of any possible contaminants " and
noted that deletion of the quarantine procedure was already under
consideration; quarantine and decontamination for lunar missions
was actually discontinued after Apollo 14, and beginning with the
return of Apollo 15 in August 1971." This decision was taken
unilaterally and without international consultations.
Radiation
Contrary to the more optimistic conclusions of the U.S. National
Academy of Sciences in 1966," the Willramstown " Study of Critical
30
Lay and Taubenfeld (op. dl. supra, n. 1) p. 191, referring to the 3rd and 4th
sentence of Article IX; they continue, however (at p. 191, n. 54): "It Is
probably not safe to assume that this distinction represents a carefully considered
opinion that dangers on earth from extraterrestrial contamination are nonexistent, but as evidence mounts against the probability of extraterrestrial life in
the solar system, the danger of contamination of earth seems less."
11
Preamble to the Interagency Agreement (between NASA, the Department of
Agriculture, the Department'of Health, Education and Welfare,-the Department
of the Interior, and the National Academy of Sciences) effective Aug. 24, 1967;
seo Robinson, " Contamination of Earth's Ecosystem by Extraterrestrial Matter:
United States Authority to Promulgate and Enforce Quarantine Regulations"
(McGlll University .thesis 1970), and Robinson, " Earth Exposure to Extraterrestrial Matter: NASA's Quarantine Regulations " (1971) J International
Lawyer 219 at 221.
»» NASA Press Release No. 71-78 (April 28, 1971), quoting NASA Acting Administrator Low as follows: "The analysis of quarantine information from Apollo 14
has now been completed. On the basis of this analysis, as well as the results
from Apollo II and Apollo 12 flights, we have concluded that there is no hazard
- to man, animal, or plants in the lunar material. These results have been reviewed
by. the [United States] Interagency Committee on Back Contamination, and. thai
committee has recommended that further lunar missions need not be subject to
quarantine." Accordingly, the press release states, ". the National Aeronautics
'• • anil Space Administration has decided to discontinue quarantine of the returned
nstronauU, spacecraft and lunar materials for the remaining three Apollo flights."
(Emphasis and brackets mine).
" Supra,- n. 21.
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Space Programmes
51
Environmental Problems " (SCEP) in July 1970 found that the cdmbustion products (particularly water vapour) of supersonic air transport in the stratosphere could produce significant environmental
disturbance, including increases in stratospheric cloudiness, alterations
of the stratospheric heat balance (" greenhouse " effect) and depletion
of the ozone cover which shields the earth from harmful ultraviolet
radiation." The Stockholm " Study on Man's Impact on Climate "
(SMIC) in July 1971 endorsed these conclusions." with additional
emphasis on the need for further research on the problem of ozone
depletion and its potential health consequences. If the a fortiori
reasoning of the U.S. National Academy of Sciences regarding rocket
exhausts" is correct, these recommendations are equally applicable
to space programmes; i.e., " answers to these questions should be
produced before large-scale aircraft operation [or space shuttle operation] in the stratosphere becomes commonplace." "
DELIBERATE INTERFERENCE WITH THE EARTH'S ENVIRONMENT
In this category we shall include those space programmes which are
intended to create certain environmental effects, for experimental or
operational purposes. " Deliberate interference" thus refers to all
man-made alterations of the ecological balance, whether their objecttive is perceived as beneficial or detrimental (the typical source of
legal problems will in fact be deliberate interference perceived as
beneficial by some and as detrimental by others)."
Interference by terrestrial means
Hardware
A notorious example of man-made space objects deliberately
" dumped " in orbit was Project West Ford, the ill-fated attempt to
place a band of copper needles (dipoles) around the Earth for communication purposes." The project was severely criticised because
34
11
Report of the Study of Critical Environmental Problems (SCEP), " Man's Impact
on the Global Environment: Assessment and Recommendations for Action"
(1970) pp. 15-17, 100-107. Of the three possible effects, the ozone problem was
then considered the least significant; on the basis of subsequent new information,
the 1971 Stockholm Study {Infra, n. 35) revised its own conclusions which were
otherwise a confirmation of the SCEP report.
Report of the Study of Man's Impact on Climate (SMIC), Inadvertent Climate
Modification (1971) p. 22.
** Supra, n. 21.
" SMIC Study (supra, n. 35)' p. 23 (brackets mine).
»• C/. the related *tudy by Rita Taubenfeld, "Social Norms, the Public Interest,
and the Regulation of Weather Modification," in Controlling the Weather: A
Study of Law and Regulatory Processes (H. Taubenfeld ed. 1970) p. 47.
]
* See Johnson, "Pollution and-Contamination in Space," in Law and Politics In
• Space (Cohen ed. 1964) p. 37. The 350 million needles launched on Oct 21,
1961, reached orbit, but failed to leave the package. A second attempt on May 12,
1963, succeeded in releasing the dipoles, but appears to have failed to produce
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International and Comparative Law Quarterly
[VOL. 21
of its potential interference with radio astronomy,40 the radiospectrum
being viewed as a protected environmental " resource." 4I
Chemicals
While cloud-seeding by chemicals has become a widespread
method of experimental and operational weather modification in the
lower atmosphere/ 1 no attempts appear to have been made to use
space technology for artificial weather or climate modification as
envisaged in theory.48 However, several of NASA's sounding rockets
I he results (benefit or damage) predicted; see the report of the COSPAR Group
(supra, n. 19) pp. 396-397 (Appendix 2 : " Statement on Belt of Orbiting
Dipoles"), recommending nevertheless " that any future experiments with this
general character be given the benefit of a thorough evaluation by the international scientific community and notably by the International Astronomical
Union in order to check in advance their harmlessness to other scientific research."
40
Lovell and Ryle, " Interference to Radio Astronomy from Belts of Orbiting
Dipoles (Needles)" (1962) 3 Journal of the Royal Aeronautical Society 100;
Blackwell and Wilson, " Interference to Optical Astronomy from Belts of
Orbiting Dipoles (Needles)," ibid, at p. 109; Ryle, "The Effects on Astronomy
of Tests in Earth's Environment,1' In the report of the 1964 Conference on Law
and Science (David Davits Memorial Institute of International Studies) p. 17;
and cf. Stagg, " Possible Effects on Climate of Contamination of the Upper
Atmosphere," ibid, at p. 12. See also Zhutov, " Za chistotu kosmosa: o
predotvrashchenii potentsial'no vrednykh eksperimentov v kosmose" (For
Cleanliness of Outer Space: On Averting Potentially Harmful Experiments in
Outer Space) (1965) No. 11 A vialsiya i Kosmonavtika 39; and Zhukov, Space
Law (op. cit. supra, n. 11) p. 156. But cf. the COSPAR report (supra, n. 39)
and Shapiro, "Last of tbe West Ford Dipoles," 140 Science (Dec. 16, 1966) 1445.
«• McDougal, Lasswell and Vlasic, Law and Public Order in Space (1963) p. 751
include " the spectrum of radio frequencies as well as a resource now common to
the whole earth-space community "; cf. Fawcelt, International Law and the Uses
of Outer Space (1968) p. 62; Lay and Taubenfeld (op. cit. supra, n. 1) p. 107.
42
On the international aspects, see World Meteorological Organisation (WMO),
Second Report on the Advancement of Atmospheric Sciences and Their Application In the Light of Developments in Outer Space (1963) p. 19; Taubenfeld,
" Weather Modification and Control: Some International Legal Implications "
(1967) 55 California Law Review 493; Taubenfeld, "The International Lawyer
and Weather Modification," in Human Dimensions of Weather Modification
(Scwcll cd. 1966) p. 197; R. and H. Taubenfeld, "Some International Implications of Weather Modification Activities " (1969) 23 International Organization
808; Mcnon, "Some Legal Aspects of Rain-Making From Clouds" (1968) 8
Indian
43
Journal
of
International
Law
417;
Moses
and
Corbridge,
"Legal
Structures For International Supervision of Weather Modification Techniques,"
Proceedings of the Inttmatlonal Conference on Water for Peace, Vol. 2
(1967) p. 410; Y. and A. Baskin, " Mezhdunarodnopravovye aspekty iskustvennogo vozdeistviya na pogodu" (International Legal Aspects of Artificial
Interference With the Weather) (1968) Pravovcdenle No. 1. 103; J. and A.
Baskin, " La technique des phenomenes atmoipheriquej artificicls: aspects de
droit international " (1970) 74 Revue Cintrale de Droll International Public 674;
Sand, " Internationaler Umweltschutz und neue' Rechtsfragen der AtmosphSrennutzung " (1971) 30 Zeittchrift fuer Lu/trechl und Weltraumiechlsfragen
109; Hassejt, "Weather Modification «nd Control: International Organizational
Prospects " (1971) 7 Texas International Law Journal 89. .
Haley, Space .Law and Government (1963) p. 271; see also Durante, Responsabllita Internationale e attivita cosmiche (1969) p. 31, and Vasilevjkaya,
" Perspektivy pravovogo regulirovaniya kosmicheskoy meteorologyi " (Prospects
for Legal Regulation of Space Meteorology) (1966) 36 Sovetskoe Cosudarstvo I
Pravo No. 2, 64. The WMO, despite its reference to space developments in
connection with weather modification (supra, n. 42), does not consider the
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are being used to release chemicals at various altitudes, for the purpose of determining the composition and dynamic behaviour of the
atmosphere and the characteristics of the Earth's magnetic field.
The chemicals used are sodium, lithium, cesium, barium, nitric
oxide and tri-methyl aluminium. For example, the joint U.S.German Barium Ion Cloud Project (BIQ launched in September
1971, successfully released 36 pounds of barium-copper oxide mixture
at an altitude of 20,000 miles over Central America (a previous
release in March 1969 involved 6 pounds of barium at 46,000 miles).44
The barium project was reviewed and cleared by a committee report
on potential contamination and interference from space experiments
by the U.S. National Academy of Sciences in July 1967; and NASA
claims in its draft environmental impact statements that all these
chemical releases are negligible in comparison with the overall
amounts of chemicals released by meteorite burning and other natural
sources, and in any event are rapidly dispersed and removed by oxidation and precipitation. The least that can be said about this claim is
that the natural occurrence of these exotic constituents is very low at
the specific altitudes given (which is the very reason why an artificial
release is readily observable) and that there are major uncertainties
about their residence times, mixing and removal processes.4' The
disquieting aspect of these chemical releases, again, is not their
individual environmental significance but the fact that in spite of
their unquestionably " global " effects and mounting frequency (NASA
alone launches approximately 80 sounding rockets annually from
bases in the U.S., Canada,'Sweden, Brazil and India), they do not
appear to be subject to any standard procedure of international consultation ex ante, nor even to the UN system of registration ex post
(which only records the hardware launched).
matter to be anywhere near the stage of International regulation at this time and
has expressed strong reservations regarding a recent proposal by Samuels, Draft
Protocol on Weather Modification, World Peace Through Law Centre Pamphlet
Series No. 15 (1971); see Notes Prepared by the Secretariat of the World
Meteorological Organisation on the " Draft Protocol on Weather Modification of
the World Peace Through Law Centre " (197!), and cf. Resolution No. 13 of ths
1971 Belgrade Conference on World Peace Through Law (" Weather Modification
Control"). The above-cited proposal by Vasilevskaya for an international
agreement is criticised by the more recent Soviet writers (father and son) Baskin
(op. di. supra, n. 42), who concede the potential usefulness of some " declaration
of principles," though.
«« NASA Press Release No. 71-61 (April 14, 1971) 2, 4; and cf. final NASA Press
Release No. 71-181 (Sept. 21, 1971). The Joint project (developed by Prof. LUst
of the Max-Planck-Institute for Extra-Terrestrial Physics in Munich, on the basis
of previous experiments at altitudes up to 600 miles) falls within the legal framework of a " Memorandum of Understanding" between the German Federal
Ministry for Scientific Research and NASA (concluded by exchange of letters
dated Oct. 25 and Dec. 3, 1968).
*' See particularly the report by the U.S. National Academy of Sciences (cited
supra, n. 21) Vol. II, at pp. 99-103 (" Contamination of the Very High
Atmosphere ").
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International and. Comparative Law Quarterly
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Radiation
The high-altitude nuclear explosions carried out by the major
space powers prior to 1963 *• and other tests by France and the
People's Republic of China4T were at least partly designed as
unilateral " environmental experiments" in the global dispersion
of radioactive matter. Against this deliberate interference, the 1963
Nuclear Test Ban Treaty strongly emphasised what has since become
known as the " ecological" viewpoint." In spite of its incomplete
political success, the Test Ban Treaty may thus in many respects be
considered as the first powerful manifestation of contemporary international concern with the human environment.
Interference by extra-terrestrial means
Following the classification suggested by von Ciriacy-Wantrup " and
adopted by McDougal and others," the resources of extra-terrestrial
space which are potentially amenable to human use may be divided
into two major categories: stock resources (i.e., non-renewable
resources such as solid minerals) and flow resources (i.e., renewable
resources such as cosmic radiation).41
Stock resources
In view of present technological limitations, the risk of upsetting
the Earth's ecological balance by the introduction and commercial
exploitation of extra-terrestrial stock resources is as remote as the
" On the international legal aspects, see Lee (op. cit. supra, n. 25); Johnson
(op. cit. supra, n. 39); McDougal and Schlei, "The Hydrogen Bomb Tests in
Perspective: Lawful Measures for Security '" (19JJ) 64 Yale Law Journal 648;
Taubenfeld, "Nuclear Testing and International Law" (1962) 16 Southwestern
Law Journal 365.
*' Cf. the Note, " French Nuclear Testing and International Law " (1969) 24 Rutgers
Law Review 144.
** Treaty Banning Nuclear Weapon Tests in the Atmosphere, In Outer Space, and
Under Water, of August 5, 1963; 480 U.N.T.S. 43. Sec particularly the final
part of the Preamble: " and desiring to put an end to the contamination of man's
environment by radioactive substances." For a recent assessment of our present
position vis-Jt-vis this ultimate goal, see the report of an inter-agency conference
' sponsored by the International Atomic Energy Agency (IAEA), Environmental
Contamination by Radioactive Materials (1969).
*• Von Ciriacy-Wantrup, Resource Conservation: Economics and Policies (3rd ed.
1968) p. 35.
" McDougal, Lasswell and Vlasic (op. clt. supra, n. 41) pp. 776, 806; McDougal,
Lasswell, Vlasic and Smith, " The Enjoyment and Acquisition of Resources in
Outer Space" (1963) 111 University of Pennsylvania Law Review 521 at 547,
575; Goedhuis, "Legal Aspects of the Utilisation of Outer Space" (1970)
Nederiands Tildsclirift voor Intemallonaal Recht 25.
« The further category of " spatial-extension resources," which is not part of the
original Ciriacy-Wantrup model and was added by McDougal and his associates,
may be disregarded for our purposes.
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prospects of lunar mining.51 There is, however, the related contingency that even minor quantities of such matter may have physical/
chemical characteristics so " beneficial" lor specific purposes on
Earth (on a somewhat less innocuous scale than the unusual fertilising qualities reportedly found in lunar dust) that they can indeed be
utilised with significant environmental effectiveness. At that point,
a case may have to be made for international ecological controls on
utilisation.
Flow resources
Our major and vital extra-terrestrial flow resource is, of course,
solar radiation. Proposals to utilise space technology for " beneficial " interference with this resource have seriously envisaged orbiting reflecting satellites (" space mirrors") to illuminate the dark
areas of the world at night," to melt the polar ice caps, or literally
to burn an enemy country on Earth." While the latter folly at
least seems to be ruled out by the 1967 Space Treaty," other methods
of tapping solar and non-solar radiation in space for energy production and utilisation in the biosphere may indeed become available in
the more distant future," which could potentially affect the energy
balance of the Earth.
" E.g., see Cole, " Application of Planetary Resources " (AIAA International Aerospace Abstracts No. A66-13577, 1966); but cf. Lay and Taubenfeld (op. ch.
supra, n. 1) p. 182, n. 5 ("space science fiction rather than serious scientific
literature "). For recent serious discussion, see Kiss, " Le Riglme Juridique applicable aux Mate'riaux provenant de la Lune et del autres Corps Celestes" (1970)
16 Annuaire francais de droll in-emotional 764.
" S e e Nelson, "Reflecting Satellite: NASA Study Causes Concern among
Astronomers," 155 Science 304 (Jan 20, 1967). A report by the Committee on
Potential Contamination and Interference from Space Experiments (Space Science
Board of the National Academy of Sciences—National Research Council) in
May 1967 recommended that such a satellite not be considered in the future
unless the ability to'destroy it by ground signals were an inherent part of the
design and unless detailed studies of its effects on ecology, biology and astronomy
were previously conducted and made public. As a result of the' report, the
NASA project has apparently been abandoned; see Lay and Taubenfeld (op. ell.
supra, n. 1) p. 18, n. 32. On the reaction of the International Astronomical Union,
see Ringeard, " La Participation des Attronomes a l'Elaboration du Droit des
Usages de I'Espace " (1971) 34 Revue Gtntrale de I'Air et de rEspace 137 at 140.
M
On a proposal by Oberth to this effect (using a mirror of some 60 miles in
diameter), see Cox and Stoiko, Spacepower (1938) p. 16; cf. Halacy, The
Weather Changers (1967) p. 159.
« " Supra, n. 29, Art. IV: " States Parties to the Treaty undertake not to place in
orbit around the earth any objects carrying nuclear weapons or any other kinds
of weapons of mass destruction, install such weapons on celestial bodies, or
station such weapons in outer space in any other manner."
• ;.
'• A catalogue of potential uses of radiations,; for energy production (for power,
light, heat, processing of local raw materials,', growth of plants, etc.) in connection
with space programmes may be found in McDougal el al. (op. cit. supra, nn. 41
and 50) p. 751.
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International and Comparative Law Quarterly [VOL. 21
CONCLUSIONS
In quantitative perspective, space programmes may still be ranked
comparatively low on the priority list of global environmental problems. There are, however, two non-quantifiable symptoms of the
space race which should be of concern to ecologists:
First, the continued development of space technology primarily
depends on extra-economic factors of international military strategy
and political prestige. The precedent of the Test Ban Treaty indicates that these factors tend to make the technologically " marginal "
Powers actually more reluctant than the super-Powers to submit to
global environmental restraints, and while the Non-Proliferation
Treaty may have stopped a cancerous growth process of new marginal
nuclear Powers, the number of marginal space Powers can safely be
expected to multiply within the foreseeable future.
Second, the emotional new-frontier appeal of space technology,
manipulated by mass propaganda from all space Powers, has effectively turned the large majority of non-space nations from passive
victims (sharing the global environmental risks of that technology)
into more or less active associates (or accomplices?), as documented
by official international reactions ranging from euphoric declarations
of solidarity for Sputnik or Apollo to unabashed claims for a share
of the loot.
Both these symptoms would indicate resistance to international
environmental restraints on current space activities, and both
symptoms show an upward trend in long-term projection.
Available sources of law
.
The basis of positive international law to protect the terrestrial
environment against incidental or deliberate interference by space
programmes is narrow indeed. The only outright prohibitions of
environmentally hazardous activities in space are contained in the
1963 Test Ban Treaty (for nuclear explosions)" and in the 1967
Space Treaty (for military weapons)." The Space Treaty's mild
attempt to prevent " adverse changes in the environment of the
Earth " limits itself to the problem of back contamination by extraterrestrial matter " ; the manner in which lunar quarantine procedures
were unilaterally discontinued by the United States " not only underscores the defects of the Treaty's consultation provisions, but the
absence of any foreign protest against this way of proceeding also
"
Supra, n. 48.
Supra, nn. 29 and 33; cf. the bibliography on military uses in Lay and TaubenfcJd (op. cli. supra, n. 1) pp. 319-321.
6
» See text of Art. IX at n. 29, tupra.
•° Supra, O. 32.
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seems to indicate a lack of international concern over these defects.
The only international body appointed for the purpose of considering
potentially harmful effects of space experiments, the COSPAR group,"
has been virtually inactive with regard to Earth protection since its
1964 report." The three UN agencies (WHO, WMO, IAEA) who
according to legal commentators would be expected to bear responsibility for studying " measures for preventing adverse effects of space
experiments upon terrestrial environment"" have not shown any
greater interest in the matter.
As regards State responsibility, the new UN Convention on
Space Objects" may be interpreted as establishing the " launching
State's" absolute liability for all damage, including environmental
damage, caused to other States, persons or organisations,*3 and in this
regard would obviate the need to rely on legal precedents and
analogies drawn from the law of international aviation, air pollution,
water resources, nuclear energy or telecommunications." A similar
argument for extensive interpretation of the term " damage" (as
including proven environmental damage) can be made for a number
of bilateral agreements where the term occurs in connection with
space activities." This does not, however, cover potential damage
caused by space programmes to such common international resources
•' Supra, n. 17.
" Supra, n. 19; that report was largely an ad hoc response to international concern
over the West Ford project (supra, nn. 39 and 40).
•a Vlasic, " The Growth of Space Law 1957-65: Achievements and Issues " (1965)
Yearbook of Air and Space Law 365 at 392, relying on the survey of agency
statements summarised in the Staff Report of the U.S. Senate Committee on
Aeronautical and Space Sciences (supra, n. 17) p. 293 (WMO), p. 322 (IAEA),
p. 350 (WHO).
•* Supra, n. 10.
" The summary records of the Legal Sub-Committee of the UN Committee on the
Peaceful Uses of Outer Space at its 8th session in June-July 1969 (UN Doc.
A/AC.1O5/C.2/SR.11I"-131, 1969) reflect a broad consensus to include all types
of damage, after the U.S.S.R. gave up its earlier opposition to tbe inclusion of
nuclear damage (supra, n. 11); e.g., see the statement by Piradov, at p. 82.
" Cf. the literature on space liability listed in Lay and Taubenfeld (op. clt. supra,
n. 1) pp. 317-319. The usefulness of models from traditional international "air
law " is limited by their use-orientation (towards the techno-economic problems
of aviation, evident from virtually all tr
ۺ۠ۦۙۨۦٷ۩ۏ
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ۙۦۙۜڷ۟ۗ۠Өڷۃۧۨۦۙ۠ٷڷ۠ٷۡٮ
ۙۦۙۜڷ۟ۗ۠Өڷۃۣۧۢۨۤۦۗۧۖ۩ۑ
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ۘۢٷۑڷғٱڷۦۙۨۙێ
Ғڷڿۀڷۤۤڷۃھۀۂڽڷۺۦٷ۩ۢٷЂڷҖڷڽڼڷۙ۩ۧۧٲڷҖڷڽھڷۙۡ۩ۣ۠۔ڷҖڷۺ۠ۦۙۨۦٷ۩ۏڷ۫ٷۋڷ۪ۙۨٷۦٷۣۤۡӨڷۘۢٷڷ۠ٷۣۢۨٷۢۦۙۨۢٲ
ڼڿ
ہڼڼھڷۺۦٷ۩ۢٷЂڷۀڽڷۃۣۙۢ۠ۢڷۘۙۜۧ۠ۖ۩ێڷۃڿۀғڽғڽھ۞Җٷۥ۠ۗҖڿۂڼڽғڼڽڷۃٲۍө
ۂۀڼہھڼڼڼڿۂہҢڼھڼڼۑٵۨۗٷۦۨۧۖٷۛҖۦۣۘۛۙғۦۖۡٷۗ۠ۧғٷۢۦ۩ۣ۞ҖҖۃۤۨۨۜڷۃۙ۠ۗۨۦٷڷۧۜۨڷۣۨڷ۟ۢۋ
ۃۙ۠ۗۨۦٷڷۧۜۨڷۙۨۗڷۣۨڷۣ۫ٱ
ۣۨۢۙۡۢۦ۪ۢٮڷ۠ٷۣۢۨٷۢۦۙۨۢٲڷۘۢٷڷۧۙۡۡٷۦۣۛۦێڷۙۗٷۤۑڷғۀھۀۂڽڿڷۘۢٷۑڷғٱڷۦۙۨۙێ
ڼڿҒڿۀڷۤۤڷۃڽھڷۃۺ۠ۦۙۨۦٷ۩ۏڷ۫ٷۋڷ۪ۙۨٷۦٷۣۤۡӨڷۘۢٷڷ۠ٷۣۢۨٷۢۦۙۨۢٲڷۣۢғۣۨۗۙۨۦێ
ڿۀғڽғڽھ۞Җٷۥ۠ۗҖڿۂڼڽғڼڽۃۣۘ
ۙۦۙۜڷ۟ۗ۠Өڷۃڷۣۧۢۧۧۡۦۙێڷۨۧۙ۩ۥۙې
ڿڽڼھڷۢٷЂڷڽڿڷۣۢڷҢۂڽғۂҢғҢۂғۀۂڽڷۃۧۧۙۦۘۘٷڷێٲڷۃۏۋٲۛҖۦۣۘۛۙғۦۖۡٷۗ۠ۧғٷۢۦ۩ۣ۞ҖҖۃۤۨۨۜڷۣۡۦۚڷۘۙۘٷۣۣ۠ۢ۫ө
SPACE PROGRAMMES
AND
INTERNATIONAL ENVIRONMENT PROTECTION
By
PETER H. SAND*
INTRODUCTION
THE " human environment" has become fashionable with lawyers, at
a price: chances are that the volume of legal theory surrounding and
obscuring the topic will soon outscore the comparable record achievements of space law. Before joining in the endeavour, it may be
useful to define the subject of this paper by way of progressive
elimination.
First, a distinction needs to be drawn between the cosmic environment at large and our terrestrial environment stricto sensu. With
due respect to the scientific merits of a " clean universe," and without
attempting to draw another magic line, we may conveniently exclude
from our present discussion the legal problems pertaining to what
Jenks describes as the " cluttering and contamination" of outer
space and celestial bodies,1 and concentrate instead on matters directly
relevant to the quality of life on Earth.
The second distinction concerns the information impact and the
action impact of space technology. Space Science has begun to make
important contributions to Earth Science: besides a certain amount
of technological spin-off, the data obtained by application satellites
for meteorology, earth resources and pollution monitoring arc
becoming a vital basis for environmental decision-making, possibly
including " anthropogeneous modification of the environment." *
* Legal Officer, FAO, Rome; Guest Scholar in Environmental Studies (1971),
Woodrow Wilson International Centre for Scholars, Washington. Views and
opinions expressed in this paper are strictly personal and are not to be attributed
to any organisation or institution with which the author is associated.
1
Jenks, Space Law (1963) pp. 280-282. For recent surveys of the law relating to
(out-bound) pollution of the cosmic environment, lee Lay and Taubenfeld, The
Law Relating to Activillei of Man in Space (1970) pp. 189-191, and Chichvarin,
Okhrana prirody i mezltdunarodnyye otnoiheniya (Nature Conservation and International Relations, 1970) pp. 252-255.
1
See the series of technical papers on application satellites submitted at the
recent 22nd International Astronomical Congress, and especially Vinogradov,
Anlhropogeneous Modification of the Environment from the Data of Space
Photography (1971).
43
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International and Comparative Law Quarterly [VOL. 21
Yet the legal consequences of this new " information impact" are
not essentially an environmental problem, but rather part of a more
general problem of international law and politics: viz. the sharing
of knowledge which directly equates power {Wissen ist Macht, from
some horse's mouth).3 This problem is substantially beyond the
scope of the present paper.4
Having thus narrowed down the subject, we can now focus our
attention on a different, but equally important, environmental
dimension of current space programmes. Beyond the neutral tasks
of scientific observation and data-gathering, space technology is
gradually advancing towards a position from where it can actively
interfere with the natural condition of our biosphere—for better or
worse. Experimentally, accidentally, and for the most part inadvertently, certain space activities have already begun to affect the terrestrial environment; and ultimately, outer space may indeed become
another medium for planned " ecomanagement." 8 This change' of
roles, from exploration to interference, from reflection to action, is
the real innovation.
The environmental impact of space programmes may be incidental
(i.e., unintended), or deliberate; it may be caused by terrestrial
sources utilised in the course of space activities, or by extra-terrestrial
sources introduced into the biosphere as a result of such activities.
Rather than summarily ranking these types of impact on a blacklist
of " global threats to the environment,"' each should be viewed as
part of a continuum, within which its environmental significance
may vary from zero to kogai (the now proverbial Japanese term for
environmental disruption).'
What aggravates the potential risk from individual types of
-1 According to Teller, in Peacetime Uses of Outer Space (Ramo ed. 1961) p. 261,
the thing of value to be brought back from space is knowledge, not gold,
uranium or diamonds.
* See the papers submitted by Cocca, Emine, Meloni, Vereshchetin, at the 22nd
International Astronautical Congress, Brussels (Sept. 1971). Cf. the proceeding*
of the 1968 UN Conference on Space Exploration and Applications, and the
note " Sharing the Practical Benefits of New Technology in the Peaceful Uses of
Outer Space" (1970) 62 Department of State Bulletin No. 1595, p. 63. See also
Brocks, "New Developments in Earth Satellite Law" (1970) 65 Northwestern
University Law Review p. 65, commenting on the recent Argentine proposal in
the Legal Subcommittee of the UN Outer Space Committee, regarding compulsory disclosure of resource information obtained by remote-sensing satellites
(UN Doc. A/AC.105/85. Annex 2, 1970).
3
Mayda, Environment and Resources: From Conservation to Ecomanagement
(1968, 2nd ed. 1972).
« £.£., see the report to the International Council of Scientific Unions, ICSUBulletin No. 19 (ryov. 1969) p. 26, which became the agenda of the new " Special
Committee on Problems of the Environment " (SCOPE).
7
See the proceedings of the 1970 International Symposium on Environmental
Disruption in the Modern World, held at Tokyo under the auspices of the
International Social Science Council; cf. Kapp, " Environmental Disruption and
Social Costs: A Challenge to Economics" (1970) 23 Kyklos p. 833.
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Space Programmes
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impact is their coexistence with each other and with an infinite
variety of unrelated other types of environmental impact (human and
natural), all of which may have cumulative and possibly synergetic
effects on the biosphere. Perhaps the most urgent problem, thcretore,
is monitoring of all conceivable types of impact, quite regardless of
their individual significance.
INCIDENTAL INTERFERENCE WITH THE EARTH'S ENVIRONMENT
In this first category we shall include those interfering (polluting)
side-effects of space programmes which are not part of the intended
objectives of such programmes. The term " incidental " interference
seems more appropriate than the frequently used term " inadvertent,"
for in most cases the interfering party is quite aware of the interference he causes, although he may not consider it as significant from
his viewpoint and consequently will treat it as a calculated (sometimes unavoidable) risk of his space programmes.
Pollution from terrestrial sources
Hardware
With the increasing number of space launchings, returning space
instrumentalities, boosters and debris have become a problem in
the Earth's airspace and on the surface.* The current procedure of
UN registration of launchings, in spite of several shortcomings,9 at
least helps to keep an ex post facto record of how much hardware
is going up, and the new UN Convention on International Liability
for Damage Caused by Space Objects 10 will take care of legal
responsibility for surface and collision damage, including explosion of
unexpended fuel."
« There have been at least 12 reported incidents since 1958 of debris from space
instrumentalities crashing on the surface, including satellite fragments of various
sizes, contrary to earlier scientific assurances that orbiting hardware would burn
up upon re-entry in the atmosphere; see the list in Lay and Taubenfeld, op. clt.
supra, n. 1, pp. 137-138, n. 7.
0
The "public registry" kept by the UN Secretary-General pursuant to General
Assembly Resolution 1721 (XVI) of Dec. 20, 1961, only lists objects launched
into orbit or beyond. E.g., the monthly information provided by the U.S.
Department of State contains the international designation number, the name of
the launching vehicle, the satellite category (or type of debris), the date of
launching, and various orbital characteristics. Not registered are sub-orbital
sounding rocket launchings, type or amount of rocket fuels or exhausts, chemical
or radioactive payloads, etc.—in short, anything that actually or potentially
affects the terrestrial environment.
'o Text in 8 UN Monthly Chronicle No. 7 (July 1971) p. 19, as approved by the
Legal Sub-Committee of the UN Committee on the Peaceful Uses of Outer Space
on June 29, 1971, endorsed by the Committee in Sept. 1971, adopted by the UN
• General Assembly on Nov. 30, 1971 by Resolution 2777 (XXVI) and recommended
for ratification by all lUtes.
11
On the explosion risks of the highly inflammable propellents and liquid oxygen,
see Lay and Taubenfeld {op.'clt. tupra, n. 1) pp. 138-139. The Soviet Union
was originally opposed to the' inclusion of risks connected with nuclear fuels; see
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International and Comparative Law Quarterly [VOL. 21
Rocket-exhausts
Neither the UN registration system nor any other international
data exchange system" includes information on the nature and
amount
•
s of pollutants introduced into the atmosphere by space
instrumentalities. Pursuant- to the U.S. National Environmental
Policy Act of 1969, and the Executive Order on "Protection and
Enhancement of Environmental Quality " of 1970.13 NASA is now
under an obligation to submit to the Council on Environmental
Quality (CEQ) " environmental impact statements " for any major
.project significantly affecting the quality of the human environment.
NASA has issued policy guidelines for the preparation of these statements." and has already submitted in draft form statements for 21
projects, including on-going programmes for rocket engine testing and
altitude exhaust system testing.1' Although some of the statements are
extremely general and were actually returned to NASA by the
CEQ for more detailed redrafting, they provide useful illustrative
data. For example, the Draft Environmental Impact Statement for
the Apollo Programme (submitted in February 1971), lists the amounts
of pollutants released in the course of a normal Saturn V launch (see
table on page 47).
The statement adds that material released above the stratosphere
(60 Km) " will effectively never reach sea level," because its residence
time at this altitude is in excess of ten years.
Normally, an additional amount of residual kerosene (RP-1 fuel)
" not exceeding 5,000 gallons " is dispersed at the time of first stage
separation, and ends up as a thin film on the ocean surface covering
approximately one square mile. In the case of an aborted flight,
however, a maximum of 230,000 gallons of RP-1 could reach the
Zhukov, Weltraumrecht (1968) p. 209 (German translation revised by the author
in the light of the UN drafting discussions; the original Russian book, Kosmtchetkoe pravo (1966) at p. 63, and its English translation, Space Law (1969)
at p. 158, is somewhat different); however, Art. X of the final text now includes
potential nuclear risks. See n. 63 infra.
" E.g., the reports published in the COSPAR Information Bulletin, pursuant to the
Guide to Rocket and Satellite Information and Data Exchange, adopted at the
10th COSPAR Meeting (July 1967).
13
"National Environmental Policy Act of 1969," US. Public Law 91-190, Jan. 1,
1970; Executive Order 11514 (35 Fed.Reg. 4247), March 5, 1970; Council on
Environmental Quality Interim Guidelines for Environmental Statements (35
Fed.Reg. 7390), April 30, 1970.
'* NASA Policy Directive 8800.6, Oct. 13, 1970; NASA Management Instruction
8800.7, Jan. 7; 1971 ("Guidelines for the Preparation of Environmental Statements Required by the National Environmental Policy Act of 1969"); reprinted
in U.S. Congress, Hearings before the Subcommittee on Fisheries and Wildlife
Conservation of the Committee on Merchant Marine and Fisheries (Dingell
Committee on " Administration of the National Environmental Policy Act"),
• H.R., 91st Cong. 2nd Sen., Serial No. 91—41 Part 2 (1971) pp. 577-587.
>» Council on Environmental Quality, (1971) 1 Environmental Impact Statements:
102 Monitor No. 5, 87 and cf. for tubsequent action, Final Environmental
Impact Statement, NASA Lewis Research Center (July 1971).
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1972]
Space
Programmes
. . .
4 7
Weight in Pounds a; Function of Altitude i
0-20 KM
0-10-8 NM
20-67 KM
1O8-36-2 NM
' Above 67 KM
Above362 NM
623,720
1,398,840 •
734,420
36,200
'
4,000
19,440
9,200
68,660
133,000
—
—
—
—
—
—
—
—
316,860
699,420
367,210.
18,100
2,000
9,720
4.600
34,330
67,000
—
—
—.
—
—
—.
—
—
890
40
• 0
643,560
37,800
—
—
—
—
—
14
112
427
42
83
1,029
107
"5
Product
Carbon Dioxide"
Carbon Monoxide •
Water
Hydrogen (Hi)
Hydrogen (H)
Oxygen (Oj)
Oxygen (0)
Hydroxyle Radical (OH)
Carbonaceous Products
Carbonyl Sulfide
Hydrogen Sulfide
. Nitrogen
Sulfur Dioxide'
Sulfur (Si)
Hydrogen Chloride .
Aluminium Oxide
Metal Oxides
1 KM^O-53961 NM
ocean.: In addition, approximately 170 pounds of toxic propellant
are combusted or evaporated at the time of re-entry of the Apollo
command.module, starting at an altitude of about 10,000 feet (3 Km).
Based on these and other data, NASA concluded that the
quantities, released " are two; or more orders of magnitude below the
recognised levels for concern " 1 § and that the Apollo Programme
" does not have any significant detrimental impact on. the human
environment."
..
On the whole, this conclusion (repeated in virtually all NASA
statements) would seem to confirm the earlier1 general conclusions
of the COSPAR, " Consultative Group on Potentially Harmful Effects
of Space' Experiments," " 'which in 1964 had examined reports on
rocket pollution of the upper atmosphere18 and reported to the UN
'• Draft Environmental Impact Statement for NASA's Apollo Programme (Feb.
1971) p. 3, comparing the data submitted to the findings'of the M.I.T. William!
town Study of Critical Environmental Problems (SCEP), Man's Impact on the
Global Environment (1970). See n. 34 infra.
'•
17
On the establishment and functions of COSPAR and its Consultative Group within
the International Council of Scientific Unions (ICSU), see U.S. Senate Committee
on Aeronautical and Space Sciences, Staff Report on -" International Cooperation
and Organisation for Outer Space," 89th Cong.'1st Sess., Doc. No. 56 (1963)
'• pp. 378, 390.- A predecessor of the Group was the Inter-Union Committee on
• Contamination by Extra-terrestrial Exploration (CETEX);
• •
11
Particularly, a report on rocket pollution of the upper atmosphere by Pressman,
Reid
•
y and- Link (Institute-of Aerospace Science,'4963) and'a rnore'op'tfm'irtic
counter-report by Kellogg (National Center for Atmospheric Research, Draft
1963), who was a member of the Group.
• '• • '
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International and Comparative Law Quarterly
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Committee on the Peaceful Uses of Outer Space that " harmful
contamination of the upper atmosphere on a long-term global basis
is unlikely on present and expected scale of firings of super rockets
and the release of experimental seeding." "
However, the COSPAR group had made it clear then that its
study did not include three possibly significant contingencies: (a)
the use of nuclear-powered rockets and nuclear reactors in satellites;
(b) the extensive use of high-flying supersonic transport aircraft; (c)
the extensive use of completely disintegrating meteorological rockets.
It also recommended continued studies of the following matters: (a)
evaluation of exchange times between the various regions of the
upper atmosphere, especially between 60 and 100 Km; (b) short- and
long-term local and zonal effects of rocket contamination in the
upper atmosphere; (c) the possibility of any catalytic effects which
might trigger chemical and photochemical processes in the upper
atmosphere; and (d) radiation balance in the upper atmosphere and
its dependence on changes in composition there.
Although this report was endorsed by the UN Committee on the
Peaceful Uses of Outer Space," it does not seem to have generated
any international follow-up action since 1964. The fact that pollution by rocket exhausts should continue to be a matter of concern
(particularly with the prospect of rocket "shuttles" multiplying the
present volume of space traffic through the atmosphere) was underscored in 1966 by a report from the U.S. National Academy of
Sciences on " Weather and Climate Modification: Problems and
Prospects." " While tentatively discarding the likelihood of appreciable disturbance by supersonic transport aircraft (a conclusion which
may have to be qualified in the light of more pessimistic recent
evaluations),11 the .report continues:
Rocket-exhaust contamination of the higher atmosphere is, however, a
much more complex problem, primarily because the chemistry of the
mesosphere and thermosphere (including the radiational roles played by
the minor constituents), and the processes in those regions that disperse or
remove impurities are so little understood. Since rocket activity will
increase, and since we are already capable of doubling, in a single year,
>* See tbe Resolution adopted by the COSPAR Executive Committee on May 20,
1964, on the Report of the Consultative Group, Appendix 1 (" Statement on
Upper Atmospheric Pollution by Rocket Exhaust and Chemical Injection
Experiments") of May 16, 1964; reprinted in U.S. Senate Committee on Aeronautical and Space Sciences, Staff Report, cited supra, n. 17, at pp. 394-396.
" UN Doc. A/5785, Nov. 13, 1964 (Report to the General Assembly on International Co-operation in the Peaceful Uses of Outer Space).
11
U.S. National Academy of Sciences—National Research Council, "Weather and
Climate Modification: Problems and Prospects," Publication No. 1350 (1966),
Vol. I, at pp. 11-12. A new report by the Committee on Atmospheric Sciences,
- - Weather and Climate Modification: Policies and Programs, will be forthcoming
in 1971.
« See infra, nn. 34 and 35.
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the quantity of some exotic constituents (e.g., atomic sodium), vigorous
investigation of aeronomy and high-atmosphere dynamics is a clear prerequisite to settling the issue of rocket-caused contamination.
Radiation
Nuclear radiation is the least publicised among the environmental
hazards of space programmes." The small radioisotope thermoelectric generators (RTG). which provide electrical power for Apollo
lunar experiments, use a fuel capsule containing eight pounds of 238
Plutonium Dioxide Microspheres, which involves exposure to neutron
emission and gamma rays during normal operations." The added
risk of accidental burning (short of nuclear explosions, which would
require about four times that amount of fuel) was illustrated when
two pounds of 238 Plutonium aboard a satellite vaporised upon reentry in April 1964, distributing the material in the atmosphere for
an estimated residence time of two years.18 Far more serious
operational safety problems will arise with the advent of nuclear
propulsion systems for rockets (and particularly with nuclear
explosion propulsion), the development of which currently accounts
only for some cryptic references in the environmental impact statements filed by NASA research centres." According to von Braun,
" the problems of man-made radiation connected with these space
ships will prove far more challenging in the long run than those of
the natural radiation in space." 1T .
Pollution from extra-terrestrial sources
Back contamination
Both the U.S.S.R. and the U.S. until recently conducted intricate
quarantine and decontamination measures to safeguard returning
space instrumentalities against the risk of contaminating the biosphere by extra-terrestrial micro-organisms." Article IX of the
" Treaty on Principles Governing the Activities and the Use of Outer
Space Including the Moon and Other Celestial Bodies " J 0 provides
13
See Lay and Taubenfeld (op. dt. supra, n. I) p. 140.
-* Draft Environmental Impact Statement, cited supra, n. 16, at pp. 6-7.
« Lay and Taubenfeld (op. dt. supra, n. I) pp. 14, 189, n. 40; see also Lee, "The
Legality of Nuclear Tests and Weapons" (1968) Oesterreichlsche Zeltschrift futr
Oeffentliches Rechl 307.
" E.g., see the statement cited supra, n. 15, at p. 15.
»' New York Times, Oct. 13, 1964, at p. 18.
« See especially Phillips, " Back Contamination " (1971) 1 Environmental Biology
and Medicine pp. 121-160, who defines the term as "contamination of the
terrestrial biosphere with organisms or materials returned from outer space that
are capable of potentially harmful terrestrial activity." The problem is distinct
from the concern with out-bound contaminatidn of other planets: see generally
Planetary Quarantine: Principles, Methods and Problems (Hall ed. 1971).
" Signed on Jan. 27, 1967; T.I.A.S. No. 6347; on the background and drafting of
the Treaty, see Lay and Taubenfeld (op. dt. supra, n. 1) pp. 63, 214, and the
bibliography at pp. 329-330.
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International and Comparative JMW Quarterly
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that all States Parties to the Treaty shall conduct exploration of outer
space and celestial bodies, and shall make use of those resources, in
such a manner " as to avoid their harmful contamination and also
adverse changes in the environment of the Earth resulting from
the introduction of extra-terrestrial matter and, where necessary,
shall adopt appropriate measures for this purpose." It has been
pointed out, however, that the Treaty's subsequent provisions for
consultation only relate to " interference . . . in the peaceful exploration and use of outer space," but do not technically apply to potential
contamination of the Earth from extra-terrestrial matter." In the
United States, an Interagency Committee on Back Contamination
(ICBC) was established in August 1967, "in order to protect the
public's health, agriculture, and other living resources against the
possibility of contamination resulting from returning lunar astronauts
or lunar exposed materials."" NASA's environmental impact
statement for the Apollo Programme in February 1971 concluded
that there had been " no evidence of any possible contaminants " and
noted that deletion of the quarantine procedure was already under
consideration; quarantine and decontamination for lunar missions
was actually discontinued after Apollo 14, and beginning with the
return of Apollo 15 in August 1971." This decision was taken
unilaterally and without international consultations.
Radiation
Contrary to the more optimistic conclusions of the U.S. National
Academy of Sciences in 1966," the Willramstown " Study of Critical
30
Lay and Taubenfeld (op. dl. supra, n. 1) p. 191, referring to the 3rd and 4th
sentence of Article IX; they continue, however (at p. 191, n. 54): "It Is
probably not safe to assume that this distinction represents a carefully considered
opinion that dangers on earth from extraterrestrial contamination are nonexistent, but as evidence mounts against the probability of extraterrestrial life in
the solar system, the danger of contamination of earth seems less."
11
Preamble to the Interagency Agreement (between NASA, the Department of
Agriculture, the Department'of Health, Education and Welfare,-the Department
of the Interior, and the National Academy of Sciences) effective Aug. 24, 1967;
seo Robinson, " Contamination of Earth's Ecosystem by Extraterrestrial Matter:
United States Authority to Promulgate and Enforce Quarantine Regulations"
(McGlll University .thesis 1970), and Robinson, " Earth Exposure to Extraterrestrial Matter: NASA's Quarantine Regulations " (1971) J International
Lawyer 219 at 221.
»» NASA Press Release No. 71-78 (April 28, 1971), quoting NASA Acting Administrator Low as follows: "The analysis of quarantine information from Apollo 14
has now been completed. On the basis of this analysis, as well as the results
from Apollo II and Apollo 12 flights, we have concluded that there is no hazard
- to man, animal, or plants in the lunar material. These results have been reviewed
by. the [United States] Interagency Committee on Back Contamination, and. thai
committee has recommended that further lunar missions need not be subject to
quarantine." Accordingly, the press release states, ". the National Aeronautics
'• • anil Space Administration has decided to discontinue quarantine of the returned
nstronauU, spacecraft and lunar materials for the remaining three Apollo flights."
(Emphasis and brackets mine).
" Supra,- n. 21.
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Space Programmes
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Environmental Problems " (SCEP) in July 1970 found that the cdmbustion products (particularly water vapour) of supersonic air transport in the stratosphere could produce significant environmental
disturbance, including increases in stratospheric cloudiness, alterations
of the stratospheric heat balance (" greenhouse " effect) and depletion
of the ozone cover which shields the earth from harmful ultraviolet
radiation." The Stockholm " Study on Man's Impact on Climate "
(SMIC) in July 1971 endorsed these conclusions." with additional
emphasis on the need for further research on the problem of ozone
depletion and its potential health consequences. If the a fortiori
reasoning of the U.S. National Academy of Sciences regarding rocket
exhausts" is correct, these recommendations are equally applicable
to space programmes; i.e., " answers to these questions should be
produced before large-scale aircraft operation [or space shuttle operation] in the stratosphere becomes commonplace." "
DELIBERATE INTERFERENCE WITH THE EARTH'S ENVIRONMENT
In this category we shall include those space programmes which are
intended to create certain environmental effects, for experimental or
operational purposes. " Deliberate interference" thus refers to all
man-made alterations of the ecological balance, whether their objecttive is perceived as beneficial or detrimental (the typical source of
legal problems will in fact be deliberate interference perceived as
beneficial by some and as detrimental by others)."
Interference by terrestrial means
Hardware
A notorious example of man-made space objects deliberately
" dumped " in orbit was Project West Ford, the ill-fated attempt to
place a band of copper needles (dipoles) around the Earth for communication purposes." The project was severely criticised because
34
11
Report of the Study of Critical Environmental Problems (SCEP), " Man's Impact
on the Global Environment: Assessment and Recommendations for Action"
(1970) pp. 15-17, 100-107. Of the three possible effects, the ozone problem was
then considered the least significant; on the basis of subsequent new information,
the 1971 Stockholm Study {Infra, n. 35) revised its own conclusions which were
otherwise a confirmation of the SCEP report.
Report of the Study of Man's Impact on Climate (SMIC), Inadvertent Climate
Modification (1971) p. 22.
** Supra, n. 21.
" SMIC Study (supra, n. 35)' p. 23 (brackets mine).
»• C/. the related *tudy by Rita Taubenfeld, "Social Norms, the Public Interest,
and the Regulation of Weather Modification," in Controlling the Weather: A
Study of Law and Regulatory Processes (H. Taubenfeld ed. 1970) p. 47.
]
* See Johnson, "Pollution and-Contamination in Space," in Law and Politics In
• Space (Cohen ed. 1964) p. 37. The 350 million needles launched on Oct 21,
1961, reached orbit, but failed to leave the package. A second attempt on May 12,
1963, succeeded in releasing the dipoles, but appears to have failed to produce
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International and Comparative Law Quarterly
[VOL. 21
of its potential interference with radio astronomy,40 the radiospectrum
being viewed as a protected environmental " resource." 4I
Chemicals
While cloud-seeding by chemicals has become a widespread
method of experimental and operational weather modification in the
lower atmosphere/ 1 no attempts appear to have been made to use
space technology for artificial weather or climate modification as
envisaged in theory.48 However, several of NASA's sounding rockets
I he results (benefit or damage) predicted; see the report of the COSPAR Group
(supra, n. 19) pp. 396-397 (Appendix 2 : " Statement on Belt of Orbiting
Dipoles"), recommending nevertheless " that any future experiments with this
general character be given the benefit of a thorough evaluation by the international scientific community and notably by the International Astronomical
Union in order to check in advance their harmlessness to other scientific research."
40
Lovell and Ryle, " Interference to Radio Astronomy from Belts of Orbiting
Dipoles (Needles)" (1962) 3 Journal of the Royal Aeronautical Society 100;
Blackwell and Wilson, " Interference to Optical Astronomy from Belts of
Orbiting Dipoles (Needles)," ibid, at p. 109; Ryle, "The Effects on Astronomy
of Tests in Earth's Environment,1' In the report of the 1964 Conference on Law
and Science (David Davits Memorial Institute of International Studies) p. 17;
and cf. Stagg, " Possible Effects on Climate of Contamination of the Upper
Atmosphere," ibid, at p. 12. See also Zhutov, " Za chistotu kosmosa: o
predotvrashchenii potentsial'no vrednykh eksperimentov v kosmose" (For
Cleanliness of Outer Space: On Averting Potentially Harmful Experiments in
Outer Space) (1965) No. 11 A vialsiya i Kosmonavtika 39; and Zhukov, Space
Law (op. cit. supra, n. 11) p. 156. But cf. the COSPAR report (supra, n. 39)
and Shapiro, "Last of tbe West Ford Dipoles," 140 Science (Dec. 16, 1966) 1445.
«• McDougal, Lasswell and Vlasic, Law and Public Order in Space (1963) p. 751
include " the spectrum of radio frequencies as well as a resource now common to
the whole earth-space community "; cf. Fawcelt, International Law and the Uses
of Outer Space (1968) p. 62; Lay and Taubenfeld (op. cit. supra, n. 1) p. 107.
42
On the international aspects, see World Meteorological Organisation (WMO),
Second Report on the Advancement of Atmospheric Sciences and Their Application In the Light of Developments in Outer Space (1963) p. 19; Taubenfeld,
" Weather Modification and Control: Some International Legal Implications "
(1967) 55 California Law Review 493; Taubenfeld, "The International Lawyer
and Weather Modification," in Human Dimensions of Weather Modification
(Scwcll cd. 1966) p. 197; R. and H. Taubenfeld, "Some International Implications of Weather Modification Activities " (1969) 23 International Organization
808; Mcnon, "Some Legal Aspects of Rain-Making From Clouds" (1968) 8
Indian
43
Journal
of
International
Law
417;
Moses
and
Corbridge,
"Legal
Structures For International Supervision of Weather Modification Techniques,"
Proceedings of the Inttmatlonal Conference on Water for Peace, Vol. 2
(1967) p. 410; Y. and A. Baskin, " Mezhdunarodnopravovye aspekty iskustvennogo vozdeistviya na pogodu" (International Legal Aspects of Artificial
Interference With the Weather) (1968) Pravovcdenle No. 1. 103; J. and A.
Baskin, " La technique des phenomenes atmoipheriquej artificicls: aspects de
droit international " (1970) 74 Revue Cintrale de Droll International Public 674;
Sand, " Internationaler Umweltschutz und neue' Rechtsfragen der AtmosphSrennutzung " (1971) 30 Zeittchrift fuer Lu/trechl und Weltraumiechlsfragen
109; Hassejt, "Weather Modification «nd Control: International Organizational
Prospects " (1971) 7 Texas International Law Journal 89. .
Haley, Space .Law and Government (1963) p. 271; see also Durante, Responsabllita Internationale e attivita cosmiche (1969) p. 31, and Vasilevjkaya,
" Perspektivy pravovogo regulirovaniya kosmicheskoy meteorologyi " (Prospects
for Legal Regulation of Space Meteorology) (1966) 36 Sovetskoe Cosudarstvo I
Pravo No. 2, 64. The WMO, despite its reference to space developments in
connection with weather modification (supra, n. 42), does not consider the
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are being used to release chemicals at various altitudes, for the purpose of determining the composition and dynamic behaviour of the
atmosphere and the characteristics of the Earth's magnetic field.
The chemicals used are sodium, lithium, cesium, barium, nitric
oxide and tri-methyl aluminium. For example, the joint U.S.German Barium Ion Cloud Project (BIQ launched in September
1971, successfully released 36 pounds of barium-copper oxide mixture
at an altitude of 20,000 miles over Central America (a previous
release in March 1969 involved 6 pounds of barium at 46,000 miles).44
The barium project was reviewed and cleared by a committee report
on potential contamination and interference from space experiments
by the U.S. National Academy of Sciences in July 1967; and NASA
claims in its draft environmental impact statements that all these
chemical releases are negligible in comparison with the overall
amounts of chemicals released by meteorite burning and other natural
sources, and in any event are rapidly dispersed and removed by oxidation and precipitation. The least that can be said about this claim is
that the natural occurrence of these exotic constituents is very low at
the specific altitudes given (which is the very reason why an artificial
release is readily observable) and that there are major uncertainties
about their residence times, mixing and removal processes.4' The
disquieting aspect of these chemical releases, again, is not their
individual environmental significance but the fact that in spite of
their unquestionably " global " effects and mounting frequency (NASA
alone launches approximately 80 sounding rockets annually from
bases in the U.S., Canada,'Sweden, Brazil and India), they do not
appear to be subject to any standard procedure of international consultation ex ante, nor even to the UN system of registration ex post
(which only records the hardware launched).
matter to be anywhere near the stage of International regulation at this time and
has expressed strong reservations regarding a recent proposal by Samuels, Draft
Protocol on Weather Modification, World Peace Through Law Centre Pamphlet
Series No. 15 (1971); see Notes Prepared by the Secretariat of the World
Meteorological Organisation on the " Draft Protocol on Weather Modification of
the World Peace Through Law Centre " (197!), and cf. Resolution No. 13 of ths
1971 Belgrade Conference on World Peace Through Law (" Weather Modification
Control"). The above-cited proposal by Vasilevskaya for an international
agreement is criticised by the more recent Soviet writers (father and son) Baskin
(op. di. supra, n. 42), who concede the potential usefulness of some " declaration
of principles," though.
«« NASA Press Release No. 71-61 (April 14, 1971) 2, 4; and cf. final NASA Press
Release No. 71-181 (Sept. 21, 1971). The Joint project (developed by Prof. LUst
of the Max-Planck-Institute for Extra-Terrestrial Physics in Munich, on the basis
of previous experiments at altitudes up to 600 miles) falls within the legal framework of a " Memorandum of Understanding" between the German Federal
Ministry for Scientific Research and NASA (concluded by exchange of letters
dated Oct. 25 and Dec. 3, 1968).
*' See particularly the report by the U.S. National Academy of Sciences (cited
supra, n. 21) Vol. II, at pp. 99-103 (" Contamination of the Very High
Atmosphere ").
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International and. Comparative Law Quarterly
[VOL. 21
Radiation
The high-altitude nuclear explosions carried out by the major
space powers prior to 1963 *• and other tests by France and the
People's Republic of China4T were at least partly designed as
unilateral " environmental experiments" in the global dispersion
of radioactive matter. Against this deliberate interference, the 1963
Nuclear Test Ban Treaty strongly emphasised what has since become
known as the " ecological" viewpoint." In spite of its incomplete
political success, the Test Ban Treaty may thus in many respects be
considered as the first powerful manifestation of contemporary international concern with the human environment.
Interference by extra-terrestrial means
Following the classification suggested by von Ciriacy-Wantrup " and
adopted by McDougal and others," the resources of extra-terrestrial
space which are potentially amenable to human use may be divided
into two major categories: stock resources (i.e., non-renewable
resources such as solid minerals) and flow resources (i.e., renewable
resources such as cosmic radiation).41
Stock resources
In view of present technological limitations, the risk of upsetting
the Earth's ecological balance by the introduction and commercial
exploitation of extra-terrestrial stock resources is as remote as the
" On the international legal aspects, see Lee (op. cit. supra, n. 25); Johnson
(op. cit. supra, n. 39); McDougal and Schlei, "The Hydrogen Bomb Tests in
Perspective: Lawful Measures for Security '" (19JJ) 64 Yale Law Journal 648;
Taubenfeld, "Nuclear Testing and International Law" (1962) 16 Southwestern
Law Journal 365.
*' Cf. the Note, " French Nuclear Testing and International Law " (1969) 24 Rutgers
Law Review 144.
** Treaty Banning Nuclear Weapon Tests in the Atmosphere, In Outer Space, and
Under Water, of August 5, 1963; 480 U.N.T.S. 43. Sec particularly the final
part of the Preamble: " and desiring to put an end to the contamination of man's
environment by radioactive substances." For a recent assessment of our present
position vis-Jt-vis this ultimate goal, see the report of an inter-agency conference
' sponsored by the International Atomic Energy Agency (IAEA), Environmental
Contamination by Radioactive Materials (1969).
*• Von Ciriacy-Wantrup, Resource Conservation: Economics and Policies (3rd ed.
1968) p. 35.
" McDougal, Lasswell and Vlasic (op. clt. supra, n. 41) pp. 776, 806; McDougal,
Lasswell, Vlasic and Smith, " The Enjoyment and Acquisition of Resources in
Outer Space" (1963) 111 University of Pennsylvania Law Review 521 at 547,
575; Goedhuis, "Legal Aspects of the Utilisation of Outer Space" (1970)
Nederiands Tildsclirift voor Intemallonaal Recht 25.
« The further category of " spatial-extension resources," which is not part of the
original Ciriacy-Wantrup model and was added by McDougal and his associates,
may be disregarded for our purposes.
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Space Programmes
55
prospects of lunar mining.51 There is, however, the related contingency that even minor quantities of such matter may have physical/
chemical characteristics so " beneficial" lor specific purposes on
Earth (on a somewhat less innocuous scale than the unusual fertilising qualities reportedly found in lunar dust) that they can indeed be
utilised with significant environmental effectiveness. At that point,
a case may have to be made for international ecological controls on
utilisation.
Flow resources
Our major and vital extra-terrestrial flow resource is, of course,
solar radiation. Proposals to utilise space technology for " beneficial " interference with this resource have seriously envisaged orbiting reflecting satellites (" space mirrors") to illuminate the dark
areas of the world at night," to melt the polar ice caps, or literally
to burn an enemy country on Earth." While the latter folly at
least seems to be ruled out by the 1967 Space Treaty," other methods
of tapping solar and non-solar radiation in space for energy production and utilisation in the biosphere may indeed become available in
the more distant future," which could potentially affect the energy
balance of the Earth.
" E.g., see Cole, " Application of Planetary Resources " (AIAA International Aerospace Abstracts No. A66-13577, 1966); but cf. Lay and Taubenfeld (op. ch.
supra, n. 1) p. 182, n. 5 ("space science fiction rather than serious scientific
literature "). For recent serious discussion, see Kiss, " Le Riglme Juridique applicable aux Mate'riaux provenant de la Lune et del autres Corps Celestes" (1970)
16 Annuaire francais de droll in-emotional 764.
" S e e Nelson, "Reflecting Satellite: NASA Study Causes Concern among
Astronomers," 155 Science 304 (Jan 20, 1967). A report by the Committee on
Potential Contamination and Interference from Space Experiments (Space Science
Board of the National Academy of Sciences—National Research Council) in
May 1967 recommended that such a satellite not be considered in the future
unless the ability to'destroy it by ground signals were an inherent part of the
design and unless detailed studies of its effects on ecology, biology and astronomy
were previously conducted and made public. As a result of the' report, the
NASA project has apparently been abandoned; see Lay and Taubenfeld (op. ell.
supra, n. 1) p. 18, n. 32. On the reaction of the International Astronomical Union,
see Ringeard, " La Participation des Attronomes a l'Elaboration du Droit des
Usages de I'Espace " (1971) 34 Revue Gtntrale de I'Air et de rEspace 137 at 140.
M
On a proposal by Oberth to this effect (using a mirror of some 60 miles in
diameter), see Cox and Stoiko, Spacepower (1938) p. 16; cf. Halacy, The
Weather Changers (1967) p. 159.
« " Supra, n. 29, Art. IV: " States Parties to the Treaty undertake not to place in
orbit around the earth any objects carrying nuclear weapons or any other kinds
of weapons of mass destruction, install such weapons on celestial bodies, or
station such weapons in outer space in any other manner."
• ;.
'• A catalogue of potential uses of radiations,; for energy production (for power,
light, heat, processing of local raw materials,', growth of plants, etc.) in connection
with space programmes may be found in McDougal el al. (op. cit. supra, nn. 41
and 50) p. 751.
-
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International and Comparative Law Quarterly [VOL. 21
CONCLUSIONS
In quantitative perspective, space programmes may still be ranked
comparatively low on the priority list of global environmental problems. There are, however, two non-quantifiable symptoms of the
space race which should be of concern to ecologists:
First, the continued development of space technology primarily
depends on extra-economic factors of international military strategy
and political prestige. The precedent of the Test Ban Treaty indicates that these factors tend to make the technologically " marginal "
Powers actually more reluctant than the super-Powers to submit to
global environmental restraints, and while the Non-Proliferation
Treaty may have stopped a cancerous growth process of new marginal
nuclear Powers, the number of marginal space Powers can safely be
expected to multiply within the foreseeable future.
Second, the emotional new-frontier appeal of space technology,
manipulated by mass propaganda from all space Powers, has effectively turned the large majority of non-space nations from passive
victims (sharing the global environmental risks of that technology)
into more or less active associates (or accomplices?), as documented
by official international reactions ranging from euphoric declarations
of solidarity for Sputnik or Apollo to unabashed claims for a share
of the loot.
Both these symptoms would indicate resistance to international
environmental restraints on current space activities, and both
symptoms show an upward trend in long-term projection.
Available sources of law
.
The basis of positive international law to protect the terrestrial
environment against incidental or deliberate interference by space
programmes is narrow indeed. The only outright prohibitions of
environmentally hazardous activities in space are contained in the
1963 Test Ban Treaty (for nuclear explosions)" and in the 1967
Space Treaty (for military weapons)." The Space Treaty's mild
attempt to prevent " adverse changes in the environment of the
Earth " limits itself to the problem of back contamination by extraterrestrial matter " ; the manner in which lunar quarantine procedures
were unilaterally discontinued by the United States " not only underscores the defects of the Treaty's consultation provisions, but the
absence of any foreign protest against this way of proceeding also
"
Supra, n. 48.
Supra, nn. 29 and 33; cf. the bibliography on military uses in Lay and TaubenfcJd (op. cli. supra, n. 1) pp. 319-321.
6
» See text of Art. IX at n. 29, tupra.
•° Supra, O. 32.
81
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Space Programmes
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seems to indicate a lack of international concern over these defects.
The only international body appointed for the purpose of considering
potentially harmful effects of space experiments, the COSPAR group,"
has been virtually inactive with regard to Earth protection since its
1964 report." The three UN agencies (WHO, WMO, IAEA) who
according to legal commentators would be expected to bear responsibility for studying " measures for preventing adverse effects of space
experiments upon terrestrial environment"" have not shown any
greater interest in the matter.
As regards State responsibility, the new UN Convention on
Space Objects" may be interpreted as establishing the " launching
State's" absolute liability for all damage, including environmental
damage, caused to other States, persons or organisations,*3 and in this
regard would obviate the need to rely on legal precedents and
analogies drawn from the law of international aviation, air pollution,
water resources, nuclear energy or telecommunications." A similar
argument for extensive interpretation of the term " damage" (as
including proven environmental damage) can be made for a number
of bilateral agreements where the term occurs in connection with
space activities." This does not, however, cover potential damage
caused by space programmes to such common international resources
•' Supra, n. 17.
" Supra, n. 19; that report was largely an ad hoc response to international concern
over the West Ford project (supra, nn. 39 and 40).
•a Vlasic, " The Growth of Space Law 1957-65: Achievements and Issues " (1965)
Yearbook of Air and Space Law 365 at 392, relying on the survey of agency
statements summarised in the Staff Report of the U.S. Senate Committee on
Aeronautical and Space Sciences (supra, n. 17) p. 293 (WMO), p. 322 (IAEA),
p. 350 (WHO).
•* Supra, n. 10.
" The summary records of the Legal Sub-Committee of the UN Committee on the
Peaceful Uses of Outer Space at its 8th session in June-July 1969 (UN Doc.
A/AC.1O5/C.2/SR.11I"-131, 1969) reflect a broad consensus to include all types
of damage, after the U.S.S.R. gave up its earlier opposition to tbe inclusion of
nuclear damage (supra, n. 11); e.g., see the statement by Piradov, at p. 82.
" Cf. the literature on space liability listed in Lay and Taubenfeld (op. clt. supra,
n. 1) pp. 317-319. The usefulness of models from traditional international "air
law " is limited by their use-orientation (towards the techno-economic problems
of aviation, evident from virtually all tr