Environmental law principles as guidelines for protecting the outer space

Hopej, Kaja and Malinowska, Katarzyna (2023) Environmental law principles as guidelines for protecting the outer space. AGRÁR- ÉS KÖRNYEZETJOG / JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL LAW, 18 (35). pp. 18-30. ISSN 1788-6171

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Abstract

Sustainable development practices in the terrestrial environment have been implemented for a long time and, despite their lack of uniformity, have so far proven to be successful. Sustainability in the space environment is a concept that has been under development for over a decade and its implementation is much more difficult, given how challenging, from various perspectives, space domain is. Hence, sustainability in outer space depends on many factors, not only technological development, responsible approaches, and measures taken by all space stakeholders, but also on properly constructed legal foundations. The peculiarities of the space sector, especially from a legal perspective, are characterized by limited experience in regulating such a challenging area. There are a number of normalization activities in addition to Corpus Iuris Spatialis that contribute to a process of unification of space activities (at least at the technical level), even though they remain outside the strictly regulatory aspect. Therefore, lawyers dealing with the space domain frequently use analogies from various legal branches. In the study of space law, particular attention has been paid to aspects of the law of the sea (regulations of high seas) or mining law in the context of space resources. Nevertheless, owing to the increasing problem of the condition of the outer space environment (mainly due to the dangerous amount of space debris in orbit) references to environmental law are increasingly visible in legal research aimed at ensuring sustainable development in outer space. National Space Legislations (NSL) often refer to ‘soft law’ instruments in the form of internationally recognized and recommended guidelines and standards1. Nevertheless, the question arises regarding the extent to which such recommendations will be implemented and enforced, particularly given their diversity. To propose a potential solution, it is important to refer to the principles based on environmental protection law, which, according to the authors, could be analogously applied in the formulation of regulations protecting the outer space environment or at least act as an inspiration for searching for the best solution in the area of space law. Starting from the foundations of the concept of sustainability, in the following study, the authors focus on the Precautionary Principle as well as the Polluter Pays Principle through appropriate risk allocation between the state and non-governmental entities. Regulations at the global, European and national level are reviewed in order to introduce the evolution of the concept of sustainable development and its potential impact on the shaping of space law. This analysis aims to examine the functioning of environmental regulation at national supranational and international level, thereby creating potential guidance for the regulation of the protection of space environment.

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