There is a long-standing dispute between states regarding the use of nuclear power and the protection of the environment. On the one hand, scientific developments are supported while on the other, the protection of the environment is becoming more and more essential. Recently, an interesting decision was taken by the government of the United Kingdom (UK) on meeting the energy needs necessary for humans to work and even survive on the Moon. Within the scope of this decision, it was stated that the communication, life and experimental requirements needed for space missions could be supported by nuclear energy.
In this context, the UK plans to have a reactor ready to send to the Moon by 2029. Some time after this decision was taken by the UK, the National Aeronautics and Space Administration (NASA) announced a similar decision that a nuclear thermal rocket engine would be used for the Mars mission. In fact, for decades, states have been discussing the use of nuclear power in order to make progress in space activities. There are certain legal consequences to using nuclear power, despite the fact that it is thought of as a resource-saving measure for the operations they would like to perform in space.
In the context of International Space Law, the use of nuclear power while conducting space activities raises crucial considerations pertaining to a variety of issues, including the safety and security of the environment. It is necessary to take into account certain international regulations regarding the use of nuclear energy in space. The Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) and the United Nations General Assembly resolution on Principles Relevant to the Use of Nuclear Power Sources in Outer Space, are the two most significant of these regulations. In this article, the use of nuclear power in space will be discussed in the light of the Outer Space Treaty and the UN General Assembly resolution. It will focus on the importance of protecting the environment in space.
Evaluation in the Context of the Outer Space Treaty
The norm that there should be peaceful use of outer space is one of the basic principles of space law which is provided for under Article 4 of the Outer Space Treaty as: “The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.” The principle of using space for peaceful purposes is a very important principle for the healthy development of space activities. A Committee on the Peaceful Uses of Outer Space (Committee on the Peaceful Uses of Outer Space) has also been established within the UN in order to develop the implementation of this principle. It is even argued that this principle has now become international customary law today. However there is ongoing discussion on whether ‘peaceful’ means non-militarization or non-aggression. Unlike the peaceful purposes principle found in Article 88 of the United Nations Convention on Law of the Sea (UNCLOS), it is claimed that the principle of peaceful use introduced under the Outer Space Treaty prohibits all kinds of military activities.
When discussing the use of nuclear power in space, it must be noted that the Outer Space Treaty in Article 4, Para.1 prohibits the placement of nuclear weapons on celestial bodies: “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.”
As it can be understood from the text of the article, if an object carrying nuclear energy is used for peaceful purposes in space, it will not fall within the scope of this regulation. However, this situation does not change the fact that careful attention should be paid to the use of nuclear energy in space. As a matter of fact, some argue that it must be guaranteed that such a technology will not allow for its dual use, (peaceful or aggressive).
The use of nuclear power in space also poses a threat to the protection of the environment. Article 9 of the Outer Space Treaty clearly states that states should conduct their activities in a way that does not lead to pollution in outer space. For this reason, it is of particular importance for states to act in a way that does not harm other states or the environment while carrying out space activities. In addition, if the activity carried out with nuclear energy is considered an environmental modification technique according to the 1978 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) may also be on the agenda. According to Art.2 of the ENMOD “the term “environmental modification techniques” refers to any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.” The United Kingdom is also party to this treaty. Since space is also included in the scope of the text of the article, the activities carried out in this context must also ensure that environmental modification techniques do not harm other states parties in accordance with the first article of the convention.
Evaluation in the Context of the UN General Assembly Resolution
When examining the use of nuclear energy in space, in addition to the regulations introduced in the context of the Outer Space Treaty, it is necessary to make an assessment within the framework of the declaration “Principles Relevant to the Use of Nuclear Power Sources in Outer Space” adopted by the UN General Assembly on February 23, 1993. The Resolution in question clearly states that the use of nuclear power by countries in space must comply with provisions of international law and space law (See, principle 1). In addition, it further states that the use of nuclear power can be used only in case of necessity: “In order to minimize the quantity of radioactive material in space and the risks involved, the use of nuclear power sources in outer space shall be restricted to those space missions which cannot be operated by non-nuclear energy sources in a resealable way.”
As a follow-up to this principle, certain obligations that states must consider in operations utilizing nuclear power are also established. In this matter it can be said that the UN General Assembly resolution mandates that the systems must be constructed relatively safely to anticipate any accidents (see, principle 3 and 4). In particular, it refers to the international security standards established around the globe. In this case, space activities carried out using nuclear power should be subject to stricter measures compared to the space activities carried out without the use of nuclear power. To sum up, it can be argued that space activities carried out using nuclear power should be subject to more stringent regulations than space activities carried out without the use of nuclear power.
Another point that should be considered within the scope of the UN General Assembly resolution is that other states should be informed while these activities are being carried out. In this context, the state that carries out space activities involving nuclear power must inform other states that the spacecraft it owns carries nuclear power and can enter the earth’s surface (see, principle 5 and 6). This principle is also in line with the principle of co-operation and mutual assistance introduced within the scope of Art. 9 of the Outer Space Treaty.
Last but not least, the UN General Assembly resolution includes parallel principles with some provisions of the Outer Space Treaty. For instance, according to the Resolution, the appropriate state authorizes and continuously supervises the implementation of these activities (See, principle 8) and the launching state would be liable in case of any damage (See, principle 9) like in the OST. The Resolution furthermore has introduced a definition: “state which exercises jurisdiction and control over a space object with nuclear power sources on board…” (See, principle 2 paragraph 1) as provided by the OST.
Although the UN General Assembly resolution is a non-binding soft law instrument, it is important for the international community to express its sensitivity to the use of nuclear energy in space. As a matter of fact, it is accepted that soft law regulations have important effects within the scope of space law or environmental law. In this case, it is possible to expect the UK to implement this project by considering this Resolution since it voted in favor of the Resolution during the voting process.
The main purpose of the UN General Assembly resolution is to prevent the nuclear contamination of outer space which can also affect the surface of the earth (it has also been proven by historical events that contamination in space can also have significant effects on the earth’s surface in an Iridium-Cosmos collision.). Considering that nuclear contamination can have serious effects, it can be seen how important it is to prevent any possible contamination.
Considering the fact that space activities are risky activities and require special care, the need for hard regulation related to the protection of the environment in space should be on the international community’s agenda. It can be argued that environmental protection requires strict regulations in areas that are outside the national jurisdiction of states, such as outer space. One of the vital examples of this is the Ocean Treaty adopted recently. It can be argued that this treaty will be a perfect guide for the protection of the environment in areas that are outside state jurisdiction, such as space. Currently, liability for environmental damage in space is not possible since environmental damage is not included in the definition of damage in the context of Article 1 of the Liability Convention. An international treaty similar to the Global Ocean Treaty may introduce certain provisions regarding the liability of states for environmental damage. This may be in the form of new obligations to prevent environmental damage or to eliminate environmental damage, as in Article 39 of the Draft of the Global Ocean Treaty. In addition, similar to Article 40 of the Draft Treaty of the Global Ocean Treaty, states may be required to submit periodic reports stating that their space activities will not cause environmental damage.
To conclude, although the use of nuclear power in space operations is not prohibited, governments are currently subject to a severe obligation of due diligence. In this context, it is very important that space activities involving the use of nuclear power, unlike normal space activities, comply with the decision of the UN General Assembly as well as the Outer Space Treaty and necessary care must be taken to avoid any serious damage. For this reason, it is necessary to emphasize again the need for a specific international regulation in the field of environmental protection in outer space. Due to the lack of strict and precise rules at the moment, the protection of the environment in space remains an abstract field. However, in my opinion, the international community is taking good steps in this regard though much is still left to be done.