What is the legal recourse if a future lunar base does environmental damage of some kind? (credit: NASA)

Environmental liability on the Moon

by Urbano Fuentes
Monday, November 2, 2015

On March 24, 1989, the Exxon Valdez spilled at least 260,000 barrels of crude oil into the Gulf of Alaska. Until the Deepwater Horizon oil spill, the Exxon Valdez incident was the worst case of a human-caused environmental disaster, covering more than 2,000 kilometres of coastline and damaging severely the habitat of seals, otters, and other endemic species. Consequently, Exxon was taken to court and, to this day, it has paid more than $500 million in reparation expenses. The United States Congress later approved the Oil Pollution Act of 1990, a legal framework governing civil liability from oil spills as well as mitigation and prevention measures for oil vessels, including the double hulling requirement.

But before the Exxon Valdez incident, a more obscure accident took place in the polar regions. On January 28 of the same year, the Polar Transporter Bahia Paraiso shipwrecked while en route to resupply scientific installations on Palmer Station. The Bahia Paraiso incident was significantly less severe than the Exxon Valdez; 600,000 liters of diesel and other petroleum products were spilled in the Antarctic coast, greatly affecting a natural environment that had remained unspoiled until that day. Argentina, the flag country, and the United States government took immediate measures to clean the oil spill, succeeding to some extent to mitigate the effects of the incident. The Bahia Paraiso incident was not as relevant as the Exxon Valdez accident, mainly because it was not as severe as the Exxon Valdez disaster. But given the legal consequences that took place after the Exxon Valdez accident, the international community raised questions about liability of the Bahia Paraiso incident.

Antarctica is one of the regions of the planet that, by virtue of its legal status, is outside any national jurisdiction. It is true that several countries have had made legal claims over the sovereignty of the Antarctic continent, but none of these claims has reached the status of law. Like Antarctica, the Moon, and everything else beyond Earth, are regions that are not currently under any national sovereignty, making the question of environmental liability in this area unclear.

With the potential development of mining endeavors to extract the natural resources in the Moon, the question about the liability that could apply there becomes more important. This paper first recaps of the legal status of the Moon, the concept of environmental damage and the existing framework, and some of the legal figures that could aid in the construction of a proper lunar liability legal regime.

Areas outside national jurisdiction

National demarcations on land were always relatively straightforward, following geographical divisions first and being developed throughout the centuries until the formation of modern states. However, there are areas that have never been entirely delimitated. These areas remain outside the sphere of the jurisdiction of any country, despite various claims. They include the deep seabed area, the ocean outside the exclusive economic zone, Antarctica, and the Moon. Different regimes apply to these areas, but they all share the same characteristic of being outside the traditional concept of national jurisdiction.

In his very influential article, “The tragedy of the commons,” Garret Hardin addressed the situation of these areas.¹ He examines the concept of “global commons”, natural and cultural resources that no one owns and that should be available for everyone. There is the metaphor of a pasture open for everyone, and everyone trying to get as many cattle on it as possible, a scheme that will work for a while. However, due the non-stop population growth of humans and cattle, eventually the pasture will collapse, leading to what he describes as an “inevitable tragedy.” Perhaps the description made by Hardin was too melodramatic, but for purposes of this study, we will focus in the fact of the lack of ownership of the Moon, with the subsequent absence of a legal subject entitled to demand liability in case of damages caused by human activities, and the potential role of the actio popularis as a possible response to this situation.

The Moon and the outer space

Unlike the high seas, the deep seabed, and the polar regions, the Moon and outer space are not governed by a solid legal regime, and there are not current discussions on the subject. Nevertheless, the potential economic value of the resources of the Moon are a clear indication that, even if there is not a clear date for the first endeavors to exploit lunar assets, at some point the need of a proper legal regime will push forward the creation of scheme of utilization.

The 1967 Outer Space Treaty, the current legal framework governing the outer space, the Moon and other celestial bodies, indicates that none of these areas could be subjected to any claims of sovereignty.² There is a newer and more comprehensive treaty, the 1979 Moon Treaty, but to this day it is “soft law,” since few nations, including no major spacefaring ones, have ratified it. The 1979 Moon Treaty establishes a system similar to the parallel exploitation regime in the Deep Sea Bed Area, and it considers the Moon as common heritage of mankind. But since in theory the Outer Space Treaty remains as the positive framework governing the activities in outer space, the res communis humanitatus concept does not apply; in any case, the Moon and outer space are still zones outside national jurisdiction, and could be consider either res nullis or res communis.

Environmental damage

Environmental damage could be defined as the adverse effects on protected species and natural habitats and on water and land.³ To this definition, the suffix of “significant” should be added, since in order to be considered as a liability, the damage needs to be significant and related to human activities. A distinction needs to be made when the environmental damage is classified as international, meaning that the source of the damage is originated in the territory of one country, affecting another nation.

The first recognized case with legal consequences was the Trail Smelter case.⁴ The well-known award that followed the dispute between a Canadian company, whose operations directly affected the environment of the United Sates, was a preamble of the definition of liability for environmental damages in a transboundary context. With the development of new technologies, pollution became more intensive, and as a consequence, the issue of environmental transboundary damages needed to be addressed.

The importance of this arbitral award was related to the establishment of the basic principle of the general duty from a state to protect other states from the negative effects caused by individuals or the state itself within its jurisdiction. The award includes the notion of “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequences and the injury is established by clear and convincing evidence.” The arbitral tribunal, without prejudice of the definition of what an injurious act is, recognized the need for states to enforce legislation aimed to establish reasonable precautions measures to prevent harm. If the state fails to do so, the environmental transboundary damage would be considered as a wrongful act.⁵

There is considerable legal documentation about state liability caused by human activities in a transboundary context. The state’s responsibility has been developed on several international norms and regulations, and depending on the nature of the activities,⁶ different regimes apply both to non-state actors as well as national subjects of law. Nonetheless, these regimes of liability function with a well-located source of pollution and clear outlet for the damage, like when the environmental damage originates in country A and affects country B. Even if the damage occurs outside an area of national jurisdiction, if it affects the territory of a given state, the liability will be with the source of the pollution. Invariably, the source pollution and the entity subjected to liability should be easily located. But there could be cases where even if the source of the damage is easily located, there is no clear legal subject affected and no specific forum to claim the damages. This would be the case of environmental damages caused beyond the Earth, such as on the Moon.

The existing legal framework regarding liability of the areas outside national jurisdiction

To start analyzing the nature of liability from environmental damages on the Moon, it is important to notice that the question focuses on the “who” is the plaintiff and “where” to solve the dispute. It is clear that even if there is a vast legislation, both domestic and international, about liability in areas outside national jurisdiction when affecting the property or environment of other states, there is still a significant lack of development for a liability regime beyond national jurisdiction.

Still, in regards of who is liable for wrongful performances, the Trail Smelter case established clear precedents, and principle 21 of the 1972 Stockholm Declaration also addresses the situation:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”

Furthermore, principle 22 indicates that:

“States shall cooperate to develop further international law regarding liability and compensation for environmental damages caused activities beyond national jurisdiction”.

Not a lot has been done in this matter, but in 2001, the International Law Commission drafted the “Responsibility of States for International Wrongful Acts”⁷ . It stated that:

“Every internationally wrongful act of a State entails the international responsibility of that State… there is an internationally wrongful act of a State when conduct consisting of an action or omission: if is attributable to the State under international law and constitutes a breach of an international obligation of the State.”

Although this declaration has not been yet adopted in any hard law framework, it does serves as lex ferenda and the International Court of Justice as quoted its early drafts in at least one of its awards.⁸ The 1972 Stockholm Declaration it is not the only treaty that addresses the need to legislate about liability in areas beyond national jurisdiction. The 1972 London Dumping Convention, the 1992 Convention on Biological Diversity, and the 1991 Protocol on Environmental Protection to the Antarctic Treaty all encouraged states to legislate in the matter. UNCLOS addresses the obligation to preserve and protect the marine environment with specific parameters for reduction, prevention, and control of pollution. The 1973/1978 MARPOL establishes obligations concerning vessel-source pollution in the high seas.

The three main frameworks concerning the areas that could be consider outside traditional national jurisdiction included provision aimed to prevent environmental damages and pollution caused by human activities. The 1982 Law of the Sea, the 1967 Space Treaty and the 1979 Moon Treaty and the 1991 Protocol on Environment Protection to the Antarctic, they all tend to empathize the importance of environmental protection, thus, reflecting the interest of the international community in the protection of the global commons, but there is still a lack of further development in a liability system that is both effective as functional.

The concept of actio popularis and the erga omnes obligations

There is not a clear understanding of how liability works in areas outside national jurisdiction. Even the concept of liability is relatively weak when the source of the obligation is something without clear ownership. Only the extinct 1988 Antarctic Mineral Convention addressed the situation directly. Similar to the Deep Sea Bed regime, it intended to established an external authority that would have dealt with events damaging the Antarctic. Ironically, the 1991 Protocol on Environmental Protection to the Antarctic Treaty superseded the Mineral Convention and, even though the current framework included several precepts of environmental protection, is not yet clear who could claim and where the dispute would be solved.

Since the Antarctic Mineral Convention is no more than an example of what could have been, there are other examples of legal figures that could provide an answer. These figures are the currently valid erga omnes obligations (those obligations owed by states to the whole international community) and the less accepted concept (at least in international environmental law) of actio popularis, where a third party brings an action on behalf of all.

In a completely different context from environmental law, the International Court of Justice, in the 1970 case concerning Barcelona Traction and Power Company Ltd. regarding state responsibility, made a distinction between those obligations arising from a state vis-à-vis another state and the obligation towards the international community. The Court stated that, because of their nature, some obligations concern all states and included situations that involved, for example, genocide. This would be later known as obligation of erga omnes.⁹ Whether an environmental damage could be consider an obligation erga omnes would depend on a court intervention, but there is no clear precedent that indicates that an environmental disaster could be classified as one.

The International Court of Justice, in its decision concerning the South West Africa case, analyzed the concept of the actio popularis. As one of the contenders tried to summon actio popularis, the Court determined that “such right was not known to international law as it stood at present”¹⁰ and rejected the claim. However, it did recognize that a material interest was not a requisite for a state to stand in court if such state considered that it had a legal interest in the subject.¹¹

These two figures could provide a functional framework for a liability system in areas outside national jurisdiction, but being partially true that the obligations erga omnes are a well-established juridical figure, at least in international criminal law, actio popularis is not recognized by any international treaty in force.

Conclusions

Two things are needed to understand how a liability regime could be applied to environmental damages in the Moon. First, the question about liability does not depend directly on how to enforce the concept: to start with, such thing as liability might not even apply, since there is no one entitled to ask for payment when an incident happen. In other words, the Moon could be considered as res nullis or res communitatus and is not subject to any liability. In the hypothetical case of a massive environmental damage on the Moon, legally it would be very little room to claim liability. There are not currently binding frameworks to enforce a legal process. Even though there are multiple sources of law, both hard and soft, that deal with the topic, most of them are aimed to recommendations and mentions about the importance of taking effective measures to protect the environment.

This takes us to the second point to understand the current and future situation of liability for the Moon. As previously mentioned, since the current frameworks are not broad enough to deal with a major environmental disaster in the Moon, the question about the effectiveness and suitability of figures as the erga omnes obligations and the actio popularis is still debatable. The issue about the sovereignty of the Moon and the outer space is not yet well established and, at best, has reached a relatively stability. That is not because agreements were reached, but because it was not possible to achieve a regime that satisfied the parties.

It would be complicated to think an erga omnes regime that could be applied to environmental international law. The same apply to the actio popularis, a figure with no real presence in international law. It could be argued that any erga omnes obligation would indistinctly be coupled to an actio popularis figure. Yet, related to the current regime where the figure exists (international criminal law), when a legal machinery is set in motion to pursue a trail for one of the crimes that could generate an erga omnes obligation, there is normally a victim for whom the respondent should answer. But in a case of potential actio popularis for an environmental damage related claim, the question about “who” or “to whom” compensation should be asked for remains unclear. The erga omnes and the actio popularis figures could be an appropriate approach to create a liability regime, but not until they become a part of a stronger system that governs the Moon.

Undoubtedly, at some point the debate will open again, and when exploitation ventures ramp up operations, negotiations will accelerate in order to achieve a more understandable, comprehensive system. For the moment, there is a lack of development regarding environmental liability on the Moon likely because there are no current operations for exploitation of its natural resources.

Endnotes

1. Hardin, G., (1968) The tragedy of the commons, Science, Vol. 162, No. 3859. Retrieved on May 12, 2015.
2. Treaty of Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, article 2.
3. Remediation of significant environmental damage, (2012), Reports of the Ministry of Environment of Finland.
4. Trail smelter case (United States, Canada), 16 April 1938 and 11 March 1941, vol. III pp. 1905-1982.
5. Kiss. A., Shelton, D., (2007) Strict liability in international environmental law, the George Washington University law school, public law and legal theory working papers
6. A good example of how the nature of the activity affects the liability regime is the distinction made between limited responsibilities for damages caused by oil operation and the absolute liability in case of damages related to nuclear activities.
7. Responsibility of States for Internationally Wrongful Act.
8. (1997) Case concerning the Gabcikovo-Nagymaros project, International Court of Justice, reports of judgments, advisory opinions and orders, at p. 7.
9. Barcelona Traction, Light and Power Company, Limited, Judgement, C.I.J. Reports, 1970, at p. 32.
10. United Nations Juridical yearbook 1966, part three. Judicial decision on questions relating the United Nations and related Inter-governmental organizations, at p. 281.
11. United Nations Juridical yearbook 1966, part three. Judicial decision on questions relating the United Nations and related Inter-governmental organizations, at p. 281.

Urbano Fuentes has LLM in water law from the UNESCO Water Law Centre and the University of Dundee, and is currently based in Sweden, working at the Global Water Partnership.

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