“Due Regard” in Space Activities:
Avoiding Harmful Contamination in the
Exploration and Use of Outer Space
John D. Rummel
East Carolina University and the
McGill University Institute of Air and Space Law
The Chicago Convention on
International Civil Aviation (1944)
•
Part 1, Article 3(a)) The “convention shall be applicable
only to civil aircraft, and shall not be applicable to state
aircraft.”
•
Part 1, Article 3(d) “contracting States undertake, when
issuing regulations for their state aircraft, that they will
have due regard for the safety of navigation of civil
aircraft.”
•
Part 1, Article 3bis(a) “the contracting States recognize
that every State must refrain from resorting to the use
of weapons against civil aircraft in flight . . . .”
The Outer Space Treaty (OST, 1967) and the
Moon Agreement (MA, 1979)
• In the OST (Article IX) and in the Moon Agreement
(Article 2; Article 15(2)), it is stated that States will act
with “due regard to the corresponding interests of all
other States Parties”
• The MA (Article 4) also has a provision that “due regard
shall be paid to the interests of present and future
generations as well as to the need to promote higher
standards of living and conditions of economic and
social progress and development”
• Which considerations are intended to be of a contemplative
and progressive nature (but require future knowledge)
The Outer Space Treaty (OST, 1967), the
Moon Agreement (MA, 1979), etc., continued
•
Giving “due regard to the corresponding interests of all other
States Parties,” with an emphasis on “all other” may also be a
challenge
•
OST Article IX focuses on specific activities and on studies of
the Moon and other celestial bodies
• OST says, “avoid their harmful contamination” and also
• “adverse changes in the environment of the Earth resulting from the
introduction of extraterrestrial matter,”
•
•
the MA adds “or otherwise”
The implications of Article XXI of the Liability Convention
suggest that the avoidance of environmental damage that could
be caused by a space object is of equal concern
Responsibilities Under the Outer Space
Treaty (OST, 1967)
•
OST Article VI notes that States Parties bear international
responsibility for national activities in outer space
•
UN Resolution 59/115 of 10 December 2004 encourages States
Parties to “consider enacting and implementing national laws
authorizing and providing for continuing supervision of the
activities in outer space of non-governmental entities under their
jurisdiction”
•
Implementation coverage is spotty, and inconsistent, and for
some spacefaring nations, virtually non-existent—at least in
some areas
The United States as an Example
•
The US FAA’s Office of Commercial Space Transportation
(OCST) is charged with regulating the U.S. commercial space
transportation industry and licensing commercial space
launches under the US Code’s Commercial Space Launch Act
• Vertical or horizontal launches
• Commercial re-entries
•
The Commercial Space Launch Act also requires the FAA to
consult “with the US Department of State to determine whether
a license application presents any issues affecting U.S. foreign
policy interests or international obligations”
•
The FAA and OCST work under the US National Environmental
Policy Act (NEPA)
NEPA and Commercial Launch Regulation
•
OCST meets its NEPA obligations with the production of
several programmatic Environmental Impact Statements (EISs)
•
•
•
•
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For “Commercial Reentry Vehicles,” (1992)
For “Licensing Launches,” (2001) covering vertical launches
For “Horizontal Launch and Reentry of Reentry Vehicles,” (2005), and
For “Streamlining the Processing of Experimental Permit Applications,”
(2009)
Tiered from those are a number of EISs that cover the local
environmental effects of space launches and the development
of launch and landing sites.
• There is a mandatory public comment period on a draft EIS which allows
comment from all entities—one way that fine-scale considerations of “the
corresponding interests of all other States Parties” can be captured in
the US commercial launch licensing process
NASA (and OCST) and NEPA
•
NASA is also bound by the NEPA process and if major
procurements are planned involving commercial space
transportation entities, NASA join with OCST on NEPA
• For example, NASA has previously announced (2014) that it “has
selected 12 technology experiments to fly on the first commercial
research flight on Virgin Galactic's SpaceShipTwo”
•
The environmental effects of this use of SpaceShipTwo (and its
successors) could require new justification, depending on the
status of the environmental review of the launch/landing site
• E.g., the perceived pollution effects of the use of nitrous oxide as an
oxidizer and aluminum polyamide as a fuel, something not yet finalized
by Virgin Galactic
•
Such a review might be simple or tangled in concerns about
the atmosphere and its load of particulates
NASA, NEPA, and Avoiding Adverse Effects
•
NASA, of course, is no stranger to NEPA, with perhaps the
largest NASA EIS focused on the Space Shuttle Program (1978)
•
Numerous EISs and Environmental Assessments have been
issued for all major missions and numerous minor actions
•
A commitment to its due regard of the interests of “all other
States Parties” was spelled out in the Final Rule published on
NASA’s Procedures for Implementing NEPA (2012)
•
Under “Actions normally requiring an EIS,” it gives the example:
• Development and operation of a space flight project/program which would
return samples to Earth from solar system bodies (such as asteroids,
comets, planets, dwarf planets, and planetary moons), which would likely
receive a Restricted Earth Return categorization. . . from the NASA
Planetary Protection Office or the NASA Planetary Protection
Subcommittee”