Proceedings of the Workshop - United Nations Office for Outer ...

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212 MAINTAINING THE SPACE ENVIRONMENTCommentary PaperMaureen WilliamsThe leitmotiv of this Session was the need for a moreprecise legal framework for the protection of the spaceenvironment from damage caused by activities in outerspace. Even though the accent was put on preventionand the need to respect the precautionary principle,there was general agreement on the obscurity of theexisting rules o f international law applicable to thisquestion, both in the 1967 Space Treaty and in theLiability and Registration Conventions. Some practicalresponse is urgently called for in a field where mankindcannot afford further risks.The pillars of Session 8 were basically three. Thefirst was Dr. Perek's discussion paper entitled, as theSession, "Maintaining the Space Environment" . Thesecond was the text, scope and implications of theInternational Instrument on the Protection of theEnvironment from Damage Caused by Space Debris(hereinafter referred to as the "International Instrumenton Space Debris"), adopted by the International LawAssociation at its 66th Conference (Buenos Aires1994). The third -and particularly enlightening- pillarwas the series of lively comments from the floor wherethe interdisciplinary nature of this subject turned out tobe a glaring example o f international cooperationbetween space lawyers and scientists.First, I shall briefly streamline the major pointsinvolved in Dr. Perek's very scholarly discussion paperand the ensuing remarks made by the appointedcommentators, Dr. Lafferranderie, ProfessorBöckstiegel and the present writer. I shall then pauseon some of the striking features and drafting history ofthe Buenos Aires International Instrument on SpaceDebris, a text which is kept under permanent review bythe ILA Space Law Committee and which, to the bestof our knowledge, is the first of its kind. This was theessence of the present writer's paper as commentator ofSession 8 which, for practical reasons, forms part ofthe present Report.A recurring note o f the discussion paper -in alanguage reminiscent o f the 1992 UN Earth Summit inRio- was a question usually described as"intergenerational responsibility" which, in itsapplication to outer space, should be read together withthe need for the space environment to be "kept fit" (inthe words o f the author) for space activities o f futuregenerations. This issue was closely linked by Dr. Perekto the very legal topics of responsibility and liabilityover which, as experience has often shown, the lawyersand the scientists have argued for years on end and areonly just managing to come to terms on some aspects,such as prevention and precaution.Dr. Perek fully supported the work done so fa r byCOPUOS, particularly by its Scientific and TechnicalCommittee, and by other governmental and privatebodies. All these studies and debates provide anappropriate background for assessing the problem inits proper light. In this sense, and as a starting point,the above-mentioned author supported theencouragement o f technical solutions to prevent, toreduce, and even to remove, space debris.On this point the present writer is reminded of thethesis put forward by Dr. Perek -who is one of thescientific consultants, indeed a very active one, of theabove-cited ILA Space Law Committee. Dr. Perek hasalways shown concern for the extreme flexibility of thesystem laid down by the 1975 Registration Conventionand, with the aim of having more agile mechanisms,suggested the procedure described hereunder, whichwas outlined at the beginning of this last decade of thecentury. Let us briefly review this stand.At the root o f the question was the importance ofprotecting space objects provided this protection wasin the mind of the launching country. To this end, Dr.Perek proposed the publication, by every launchingstate, of a list o f all its active satellites and/or inactivespace objects (in this case only those it really wantedto protect) and the declaration, by that state, that onlythe objects on that list should remain protected underthe terms o f article VIII o f the 1967 Space Treaty. Anyother space objects which had been launched by thatstate would, consequently, not be covered by articleVIII. It was estimated -at the time of the drafting of theILA International Instrument, early nineties- that the
MAINTAINING THE SPACE ENVIRONMENT 213total number o f active satellites was in the region of250-300 satellites.10 Hence, one could safely assumethat the combined list of all launching states would notgo beyond a few hundreds o f items. The removal o fobjects included on that list would be thereforeconsidered free for any country having the technology.Naturally, these lists should be permanently updatedby computers which meant a relatively simple task.This theory, o f an essentially pragmatic nature, entails,o f course, a reasonable degree o f "space-policing"which would not be seen with favour by all countries.On this question, the present rapporteur is equallyreminded o f Professor Malanczuk's reasoning11 at theSymposium, organised in March 1995 in Vienna, bythe IISL under the auspices of COPUOS. On thisoccasion an analogy was drawn from the rulesapplicable in the field o f maritime law, which meantconsidering abandoned space objects as derelict and,consequently, the possibility o f removing themunilaterally.The Perek proposal was sometimes confrontedwith other suggestions such as, for example, theso-called "legal" ones. This would imply, in the mindof a number of international lawyers, imposing on alaunching state the obligation to remove the satellitefrom orbit once it became inactive. For the legal worldthis possibility appears absolutely consistent withinternational law and the principles of justice andequity which inspired, inter alia, article XII of theLiability Convention. Yet, the political winds whichblow in all direction within the framework ofinternational intergovernmental organisations areresponsible for this idea being left in abeyance. Andthere are legal and technical reasons as well.By way o f example, when Argentina recentlyinvited to tender for the construction o f its firstdomestic communications satellite to be launched intoGEO, the possibility o f imposing an "obligation toremove" as described in the previous paragraph wasthoroughly discussed. However, during the drafting of10 See Report of the 65th Conference of the ILA, Cairo 1992.Space Law Committee, p. 144.11 See Malanczuk, P., "Technical and Policy Issues related tothe Use of the Space Environment".the requirements and conditions it was perceived thatan obligation o f the kind would mean putting theoperator at handicap with respect to other operatorsinvolved in similar space activities and not bound byany such obligation. To say the least, the first operatorwould have to resort to the last bit (stock) of fuel tode-orbit the satellite with the ensuing reduction of thereal time of use o f the satellite. It seems fair to say thatobligations o f this type should be based on rules ofinternational law, binding for all, and where the "raisond'etre" should be, first and foremost, the protection ofthe environment. This is insofar as legal reasons areconcerned.As to the technical reasons, it is commonknowledge today that, because of the field ofgravitation o f the Earth, it is less costly to transferabandoned satellites to LEO, or send them beyondGEO12 than bring them back to Earth. In this case,space objects should already be prepared at the time oflaunching for any such orbital transfer.13Dr Perek continued the trend of his most recentwritings, particularly the paper submitted to the 40thColloquium o f the IISL, entitled "Outer Space Treatyin Perspective" (Torino 1997) where, with his usualclarity and without overlooking the interdisciplinarycharacter of the topic, he provided further informationon this question. In addition to stating that space debrisamounts to a 95% of all the objects presently in outerspace, Dr. Perek drew attention to the threat to activesatellites which results from this situation, aggravatedin the case o f manned space missions. In the interest ofprecision, this author strongly advocated the need tohave a uniform criterion to determine when a spaceobject may be considered as debris. This is essential toavoid confusions which might lead to chaos. To tinsend, at the Vienna meeting Dr. Perek resumed his traino f thought expressed at the Torino Colloquium whencomparing the very few definitions given so far on this12 See S.M . Williams, EL RIESGO AMBIENTAL Y SUREGULACION. DERECHO INTERNACIONAL YCOMPARADO. RESIDUOS ESPACIALES Y PROTECCIONDE LA CAPA DE OZONO, Abeledo-Perrot, Buenos Aires1998, p.51.13Ibid. In note 10 reference is made to the 64th Report of theILA (Queensland 1990), particularly Prof. Böckstiegel'sparticipation in the debate chaired by Lady Fox, pp. 174-180.
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ST/SPACE/2Office for Outer Space Af
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IntroductionThe Workshop on Space L
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CONCLUSIONS AND PROPOSALS OF THEWOR
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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SESSION FOURExpanding Global Remote
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SESSION SIXExpanding Global Navigat
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Page 203 and 204: SESSION EIGHTMaintaining the Space
Page 205 and 206: MAINTAINING THE SPACE ENVIRONMENT 1
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Page 226 and 227: 220Session 3: Wednesday. 21 July. 1
Page 229 and 230: 223Annex IITHIRD UNITED NATIONS CON
Page 231 and 232: 225No Name Address E-Mail27. Ersfel
Page 233 and 234: 227No Name Address E-Mail57. Koloso
Page 235 and 236: 229No Name Address E-Mail86. Noack,
Page 237 and 238: 231No Name Address E-Mail117. Steph
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