Beyond Planetary Protection? Article IX of the Outer Space Treaty as a Foundation for an International Environmental Law for Outer Space

The Outer Space Treaty of 1967 predated the environmental movement and as a result lacks environmental protection provisions included in later international instruments, including the ill-fated Moon Agreement. However, it does contain a kernel of environmental concern. Article IX of the Outer Space Treaty urges States to avoid the 'harmful contamination' of the Moon and other celestial bodies. It also stipulates that States should avoid 'harmful interference' with the activities of other States and to give 'due regard' to the "corresponding interests of all other States Parties." To date application of Article IX has been limited to concern about 'biological' contamination and found expression in the wildly respected, albeit non-binding, COSPAR Planetary Protection guidelines. However, this paper will consider whether a broader 'environmental' remit is warranted and whether Article IX can provide the basis for establishing a framework of 'international environmental law' for outer space. This paper will consider the value of the Moon Agreement as evidence of 'subsequent developments', particularly the provisions of Article 7 of that treaty. This paper will take the view that the Outer Space Treaty is well suited to the 'evolutionary approach' to treaty interpretation, as a result this paper will explore whether the developments in space law such as the Moon Agreement and the Space Debris Mitigation Guidelines as well as the developments in the wider sphere of international law provide sufficient basis for the establishment for an framework for environmental law in outer space. It will examine existing instruments such as those for the Earth's polar regions as potential models for an environmental protection regime for outer space and the celestial bodies. The Outer Space Treaty of 1967 preceded the environmental movement however Article IX may still provide a foundation for a framework of international environmental law for outer space.