Tamara Blagojevic

Having in mind that the environment itself consists of different ecosystems, whether on earth, in the air or even in space, and considering that their similarities are preconditioned by their belonging to the natural environment – it would be hard not to conclude that a multidisciplinary approach and transplanting adequate regulation in comparable situations, would be not just applicable, but highly desirable in the fast changing and developing society where technology and industry keep winning the race with regulation.

Such examples might be the achievements made in the space industry, which, good or bad, still are subject to regulation. In an address to the United Nations General Assembly, after mentioning the pandemic and the climate crisis, the Secretary-General António Guterres singled out “billionaires joyriding to space” as one of the symptoms of growing mistrust the world’s population has toward governments and other institutions, Not long ago, Elon Musk proposed “nuking Mars” in order to terraform the Planet and make an atmosphere. At the same time he promised not to apply the “Earthly laws”. Jeff Bezos spent millions of dollars, only to hover near LEO for the whole 4 minutes, money that arguably could have been used to help assist with issues such as the COVID-19 pandemic, global hunger or mitigation of the environmental crisis. In July 2021, Branson’s Virgin Galactic mission VSS Unity proceeded ahead despite some technical issues that could have caused safety concerns.

Therefore, to remedy the “black holes” of law, we must turn to the basic principles, in order to create a network of just mechanisms which would prevent the existence of any legal ambiguities and gaps in the future. As in other ecosystems and areas of law, the general concept of Justice needs to be expanded and elaborated in the area of Space as well.

A good place to begin is with the concept of Sustainable Development. Sustainable Development is a framework norm with three pillars – economic, social and environmental, it allows connecting different areas of law with taking into account other sciences. Considering this principle as an “umbrella norm“, also enables harmonization and standardization of the principles of related branches of law, non-compliance with which would lead to environmental damage. Given that sustainable development extends pro futuro to the rights of future generations, it implies that breaching environmental laws, simultaneously constitutes breaches of e.g. the right to life, and right to health, and vice versa. With that in mind, sustainable development could be considered to be a kind of connective tissue, or legal nexus.

Space law  officially emerged with customs, as the first space flight was crowned by the latter emergence of the first formal space principle through a U.N. General Assembly resolution which, due to the balance of powers and the arms race, immediately proclaimed “The peaceful exploration of outer space”.

But, the justification for the application of the principle of sustainable development and other relevant “Earthly Laws” to outer space began with the adoption of other significant resolutions, which proclaimed theextension of international law and the U.N. Charter to outer space, prohibition of national appropriation of outer space and its resources, international cooperation in the peaceful use of space, refraining from placing nuclear weapons and any other type of weapons of mass destruction in orbit around the Earth or installing such weapons on celestial bodies and placing them in space in any other way. These principles are elaborated in the Outer Space Treaty, followed by subsequent treaties as Liability Convention, Rescue Agreement, Registration Convention and the Moon Agreement. These main sources of space law are then elaborated with soft law, such as the Code of Conduct against Ballistic Missile Proliferation, the Draft Code of Conduct for Space Activities and Space Debris Mitigation Guidelines which further crystallize the said principles.

Moreover, the Moon Agreement even incorporates the principle of sustainability by foreseeing 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 in accordance with the Charter of the United Nations.” Furthermore, the Agreement takes into account the development of the space industry on the Moon, anticipating the need to establish an international regime and procedures for managing the exploitation of natural resources on the Moon, being the common heritage of mankind. The goals of this regime are orderly, safe, and rational development and management of Moon’s natural resources, as well as their fair distribution among all States Parties, taking into account, especially, the interests and needs of developing countries and the efforts of the countries that have contributed to the exploration of the Moon. In such provisions we can see the intertwinement of various principles, but also their correlation with sustainable development.

Similarly to the Moon Agreement, the Treaty on the Prohibition of Experiments on Nuclear Weapons in the Atmosphere, Outer Space and Underwater and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, by formally extending their scope to outer space, also link these branches of law by linking their basic principles related to the prevention of arms race, environmental contamination with the peaceful exploration of outer space, which all together fall under the goal of the principle of sustainable development.

This expansion of the validity of the principle is possible by utilizing evolutionary interpretation in good faith. This would provide for interpreting space law provisions with a bit of a wider approach, in order to subsume principles which would allow it to develop. Such an opportunity is visible with the undefined ambiguous principle of peaceful exploration of outer space. This principle is problematic due to the incomplete demilitarisation of outer space, and especially in the light that similar issues also exist on Earth, and subsequent impossibility to transplant a legally binding principle. This can be mended by taking into consideration the principles of Nuclear Law related to the use of weapons, such as the principles of humanity, military necessity, distinction, and proportionality. Having in mind the extension of the scope of International Law to outer space, and International Humanitarian Law being a part of it, it is clear that it consequently also extends to outer space.

These principles, when considered under the umbrella of sustainable development of earth and space, should altogether create a good example of what space justice as a concept should presume, and subsequently safeguard the environment of seemingly improperly protected areas, until better, legally binding solutions are brought.