1. Point Nemo and Space Debris
What does the remotest area in the sea, farthest away from any land, have in common with Space? Point Nemo – the spacecraft cemetery.
Point Nemo, the ‘point of inaccessibility’, is an area about halfway between Chile and New Zealand and marks the area in the Ocean that is furthest away from any land.[1] While one might imagine this place to be the most pristine part of planet Earth, untouched by humankind, humans managed to interfere with this remote part of the Pacific Ocean with galactic force. Since 1971 the USA, Russia, Japan and Europe have dumped at least 263 pieces of defunct space objects at Point Nemo (more than 190 by Russia, 52 by the USA, eight by Europe and six by Japan).[2]
Space debris are artificial, man-made objects that are out of function and orbit the Earth or re-enter the atmosphere.[3] Such objects include but are not limited to old satellites in parts or in whole, carrier rockets, space stations and ruins that were produced by former collisions of decayed space objects. More than 30.000 pieces of space debris are currently being tracked by space surveillance networks. The true number of objects (larger than 1 cm in size), however, is likely to be over one million.[4]
In January 2022, NASA announced to dump the International Space Station (ISS), the largest space object ever to be deorbited, at Point Nemo at the end of 2031, which has sparked a (surprisingly little) discussion amongst marine scientists on the effects on the marine environment.[5] From a legal perspective, experts like Prof. Dr Marcus Schladebach from the University of Potsdam in Germany deal with the very difficult question if the current legal system can meet the challenge of dealing with space debris.[6] One conclusion seems to be unanimous: there is an undeniable need to establish an obligation for the removal of space debris due to the danger of a collision from the growing number of objects orbiting Earth.[7] Accordingly, the 2007 UN Space Debris Mitigation Guidelines, which were only adopted 60 years after the launch of the first space satellite, provide guidance such as on de-orbiting space objects to mitigate the growing problem of colliding space debris. Debris is to be redirected into Earth’s atmosphere where it burns up. Objects, however, such as the ISS, that are so large that they do not entirely burn up and survive the re-entry into the Earth's atmosphere, require a controlled re-entry into Earth’s atmosphere above specific, uninhabited regions: Point Nemo in the Pacific Ocean.
Yet, is the dumping of space junk at Point Nemo in the Pacific Ocean even allowed? To anticipate the result: all States are under a customary obligation to protect and preserve the marine environment in all zones of the sea – even at Point Nemo. The following article will outline the empiric evidence that dumping space junk in the ocean, even more than 2.000 km off the coast of any land, is not allowed under international public law and must be prohibited.
2. Impact on the Marine Environment
The natural specifics of Point Nemo are largely undiscovered. It lies about 2.700 kilometres from any land and is 4.000 metres deep.[8] If experience, however, has taught one thing: the ocean is not scarce of life in any of its parts. Already in the 1960ies, scientists proved the rich marine life in the bathypelagic zone of the ocean, which lies between 1000-4000 metres in depth. While it is mainly home to small animals such as worms, clams, snails and crustaceans, also larger animals such as the giant squid, the largest known cephalopod, lives in these areas of the ocean.[9] Highly migratory fish, such as tunas, swordfish, sharks, and billfish can migrate up to 8.000 kilometres across the oceans and back.[10] Already before, people have overfished, overexploited and over polluted areas before they even knew about the species and the harm they cause. If humankind should have learned one lesson, it is not to exploit and destroy nature, blindly claiming that there is nothing to destroy, before they have even explored it.
Risks to the marine environment from submerged space debris include but are not limited to the erosion of large amounts of metal, leaking of toxic substances like hydrazine and other fuel.[11] The ISS, for instance, consists of more than 420 tons of metal which will erode in the ocean and is larger than the size of one football field.[12] Environmentalists, therefore, fear that the continuous use of Earth's oceans as dumping sites for space debris will have an adverse effect on the ocean and its ecosystem.[13] As Ocean Plastics Research for the Ocean Conservancy senior manager Britta Baechler says, it is not sustainable to keep putting waste into the ocean and expect it to function the same way as it always has.[14]
3. Legal Obligation to Protect and Preserve the Marine Environment
The legality of dumping space debris in the ocean can be addressed from two interrelated areas of public international law: Space Law and the Law of the Sea.
3.1. Space Law
There is no specific legal hard law concerning the issue of marine pollution by space debris, or legally binding obligation to conduct an environmental impact assessment before dumping space debris in the ocean under Space Law. Pursuant to Art. 6 of the 2007 UN Space Debris Mitigation Guidelines, spacecrafts that have terminated their operational phases should be removed from orbit in a controlled fashion, while ‘due consideration should be given to ensure that debris that survives to reach the surface of the Earth does not pose an undue risk to people or property, including through environmental pollution caused by hazardous substances.’ However, these guidelines are voluntary and not legally binding.[15]
3.2. Law of the Sea
The obligation of States in the sea varies according to the zone of the sea and the respective jurisdiction of the States. Point Nemo is located in the High Sea, which is governed by the principle of the Freedom of the High Sea. The Freedom of the High Sea is one of the oldest concepts in the Law of the Sea, dating back at least to Hugo Grotius' famous dissertation Mare Liberum in 1609.[16] The customary rule is now codified in the 1982 UN Convention on the Law of the Sea (UNCLOS), according to which no State may appropriate any parts of the High Sea to its Sovereignty (Art. 89 UNCLOS).[17]
The Freedoms of the High Sea, however, are not granted limitless. Art. 87 UNCLOS enumerates single freedoms inconclusively and stipulates under Art. 87 (1) (2nd sentence) UNCLOS that the Freedom of the High Seas are to be exercised under the conditions laid down by the UNCLOS and by other rules of international law. Furthermore, under Art. 87 (2) UNCLOS, the Freedoms of the High Sea have to be exercised with due regard for the interests of other States in their exercise of the Freedom of the High Seas. The Freedoms of the High Sea, therefore, are not granted limitless but are conditioned. Furthermore, as per the wording ‘inter alia’, the Freedoms listed in Art. 87 (1) (3rd sentence) UNCLOS are enumerated exemplarily.[18] Art. 87 UNCLOS thus does not provide a comprehensive list and includes any activity in the sea. The dumping of space debris in the High Sea, therefore, generally falls under the Freedoms of the High Sea, however, is to be exercised under the conditions of the UNCLOS and other rules of international law.
3.3. Specific Law of the Sea (Section 5, Part XII UNCLOS)
Part XII UNCLOS deals with the protection and preservation of the marine environment. While Section 1 (Art. 192 ff. UNCLOS) contains general regulations to this end, Sections 5 and 6 specifically deal with the pollution of the marine environment. The dumping of space debris in the ocean could fall under Art. 212 UNCLOS, pollution from and through the atmosphere, and/or Art. 210 UNCLOS, pollution from dumping. Atmospheric pollution in the meaning of Art. 212 UNCLOS (arguably) refers to pollution from the atmosphere such as persistent organic pollutants and greenhouse gases, or through the atmosphere, such as acid rain. The dumping of man-made objects in the ocean is dealt with in Art. 210 UNCLOS.
Dumping is defined in Art. 1 (5) (a) UNCLOS and includes not only the dumping of material from vessels but also under Art. 1 (5) (a) (ii) UNCLOS, any deliberate disposal of a vessel, aircraft, platform or other man-made structure at sea. As man-made structures, satellites, spacecrafts and other space debris, therefore, falls under the definition of dumping of pollution under Art. 210, 1 (5) (a) (ii) UNCLOS.
Under Art. 210 (1) UNCLOS States shall adopt national laws and regulations to prevent, reduce and control pollution of the marine environment by dumping and, under Art. 210 (4) UNCLOS, acting especially through competent international organizations or diplomatic conferences, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution.
Hitherto this moment, States have not adopted specific regulations to manage and control the pollution of the marine environment from pollution of dumping space crafts in the sea and therefore are in breach of their obligation under Art. 210 (4) UNCLOS. The obligation under Art. 210 UNCLOS, however, does not stipulate the prohibition of dumping itself and only obliges States to adopt regulations to this end. The legality of dumping spacecrafts at sea, therefore, needs to be examined under the general obligation of States under Part XII UNCLOS.
3.4. General Law of the Sea (Part XII UNCLOS)
The General Obligation for the protection and preservation of the marine environment is regulated in Part XII UNCLOS. While Art. 194 UNCLOS stipulates measures to prevent, reduce and control pollution of the marine environment, Art. 192 UNCLOS entails the general obligation of States to protect and preserve the marine environment.
3.4.1. Measures to Prevent, Reduce and Control Pollution (Art. 194 UNCLOS)
Under Art. 194 (1) UNCLOS, States shall take all measures that are necessary to prevent, reduce and control pollution of the marine environment from any source and they shall endeavour to harmonize their policies in this connection. Like Section 5 of Part XII UNCLOS, Art. 194 (1) UNCLOS also obliges States to establish regulations to manage and control the pollution of the marine environment through dumping of space debris. The regulation itself, however, does not prohibit the mere act of dumping space debris.
3.4.2. The Obligation to Protect the Marine Environment (Art. 192 UNCLOS)
The legality of dumping space debris in the sea itself, however, could be comprised under Art. 192 UNCLOS, according to which States are obliged to protect and preserve the marine environment. To this end, it needs to be established which States are bound by this regulation and if the obligation prohibits the dumping of space debris in the sea.
3.4.2.1. Erga Omnes Obligation with Jus Cogens Status
Generally, international treaties can only bind their State parties under Art. 34 of the 1969 Vienna Convention on the Law of Treaties (VCLT). However, the conduct and discourse of States, including the UNCLOS non-member States such as the USA and Turkey, show that the regulation of Art. 192 UNCLOS exceeds its status as conventional regulation and evolved into a customary rule of International Law. Because there are no persistent objectors to this regulation, this rule, furthermore, erga omnes binds the whole States community.[19] Because of the fundamental value for humankind that is protected by Art. 192 UNCLOS, the rule, furthermore, evolved into a peremptory norm of international law, from which no derogation is permitted and which can only be modified by a subsequent norm having the same character under Art. 53 (2nd sentence) VCLT (jus cogens).[20] Concludingly, the obligation under Art. 192 UNCLOS binds the international State community as a whole, irrespective of their signatory status to the UNCLOS, and cannot be derogated by derivative norms of international law.
3.4.2.2. The Prohibition to Dump Space Debris under Art. 192 UNCLOS
As to the specific content of the obligation to protect and preserve the marine environment, it needs to be addressed if the dumping of space debris violates this obligation. The specific content of international rules is derived through their interpretation according to their wording, systematic embedding and context to other regulations, their purpose (telos) and history (Art. 31 ff. VCLT).
3.4.2.2.1. Other Branches of International Law
The PCA held in its South China Sea Arbitration that the specific content of the obligation to protect and preserve the marine environment is specified in other regulations of the UNCLOS, as well as other rules of international law.[21] This framework is very broad and contains customary and conventional global, regional and national rules for the protection of the marine environment in general or regarding specific issues, species or regions. The UNCLOS itself, as shown, does not contain specific regulations on the legality of the dumping of space debris.
Relevant Customary International Law is the precautionary principle, which puts States under the duty to take preventive measures and perform due diligence assessments in cases in which there is scientific uncertainty as to the effects of activities on the (marine) environment;[22] the ecosystem approach, which aims to manage human activities to support the conservation, sustainable use and integrated management of land, water and living resources (although its normative content is not yet clear);[23] environmental impact assessment, which are procedures to determine the beneficial and adverse consequences of decisions, policies, programmes or projects on the environment, including socio-economic, cultural and human-health impacts; [24] and branches outside the traditional canon of the Law of the Sea, such as Human Rights Law. In the Legality of the Threat or Use of Nuclear Weapons, the ICJ established that ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.[25] In the Case concerning the Gabčíkovo-Nagymaros Project the ICJ stated that ‘[t]he Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.‘[26] Thus, if States want to conduct an activity that ought to influence the marine environment, they are obliged to assess the activity under the precautionary principle, sustainable development principles, and ecosystem approach and conduct an environmental impact assessment, none of which has been provided before dumping space debris at Point Nemo. States are therefore in breach of their obligation to protect and preserve the marine environment when dumping space debris in the ocean.
3.4.2.2.2. Interpretation of Art. 192 UNCLOS Itself
The compatibility of activities in the sea, such as dumping of space debris and the obligation to protect and preserve the marine environment, must be evaluated and substantiated by experts, such as marine biologists and geologists, on a case-by-case basis. As recent discoveries in science show, more and more marine life is being discovered even in the remotest areas of the sea. It seems very likely, therefore, that it is possible to evidence that the dumping of space debris negatively harms the marine environment and collides with the obligation to protect and preserve the marine environment. Opposing interests in law, such as the free usage of the sea to dump space debris and the protection of the marine environment, need to be equilibrated.
3.4.2.3. Balance of Opposing Interests
The UNCLOS is the broadest and widest accepted treaty concerning the regulation of the sea and is therefore commonly referred to as the Constitution of the Ocean.[27] It aims to strike a balance between the desire to protect the ocean on the one hand and the use of ocean spaces on the other.[28]These two opposing poles are clearly apparent when it comes to the protection of the ocean and the interests in the free use of ocean space, such as through the dumping of decayed space crafts. In order to find out, whether a relevant normative conflict of two norms arises, both regulations have to be interpreted harmoniously in good faith, whereby both norms shall be restricted as little as possible. Only if the harmonious interpretation shows that the normative content of one norm infringes the normative content of the other norm, both regulations need to be balanced by means of proportionality.[29]
3.4.2.3.1. Jus Cogens Status of Art. 192 UNCLOS
In this regard, the special status of the obligation to protect and preserve the marine environment as jus cogens regulation needs to be taken into account, as derivative norms of international law are not capable to derogate jus cogens regulations under Art. 53 (2nd sentence) VCLT. There are strong indications that the obligation under Art. 192 UNCLOS has evolved into a peremptory norm of international law.[30] As Art. 87 UNCLOS already per its wording contains a limitation (Art. 87 (1) 2nd, (2) UNCLOS), it cannot possibly evolve into a jus cogens regulation, because peremptory norms of international law are precisely not open to such limitations. If the freedom to dump space debris, therefore, normatively collides with Art. 192 UNCLOS, it needs to be assessed if the UNCLOS is void under Art. 53 (1st sentence) VCLT.
Art. 53 VCLT does not prohibit the interpretation of jus cogens regulations. Through a harmonious interpretation, it needs to be assessed in the following, whether the obligation to protect and preserve the marine environment and dumping of space debris under Art. 87 UNCLOS normatively collide. Both regulations have to be interpreted in good faith in a way that leads to the broadest possible application of both norms.[31]
3.4.2.3.1.1. Higher Status of Art. 192 UNCLOS
While the customary obligation as stipulated under Art. 192 UNCLOS to protect and preserve the marine environment is granted limitless, the Freedoms of the High Sea are not granted in an absolute manner, but according to Art. 87 (1) 2nd sentence UNCLOS must be exercised in accordance with the UNCLOS and other rules of international law. This shows, that while the Freedoms of the High Sea must respect the obligation to protect and preserve the marine environment, the latter obligation must not be limited by activities in the sea and prevails. It is generally elevated above the free usage of the High Sea under Art. 87 UNCLOS, which indicates that both norms cannot possibly collide, rather, Art. 192 UNCLOS is elevated above Art. 87 UNCLOS.
This is further reiterated by the regulation of Art. 193 UNCLOS, according to which activities in the sea must be carried out in accordance with the obligation of States to protect and preserve the marine environment. The wording of Art. 193 UNCLOS and the subordinating of the Freedoms of the High Sea pursuant to Art. 87 (1) 2nd sentence UNCLOS under the obligation to protect and preserve the marine environment thus stipulate a hierarchy, by which the obligation to protect the ocean is elevated above the free use and activities in the ocean.
A normative conflict between the freedom to dump space debris in the ocean and the obligation to protect and preserve the marine environment is therefore not possible. Much more, in exercising their freedoms, such as dumping space debris, States must ensure that their activities do not violate their obligation to protect and preserve the marine environment.
3.4.2.3.2. The Obligation under Art. 192 UNCLOS is not too General
As to the specific content of the obligation to protect and preserve the marine environment, a frequent counter-argument to its application is that it is too general to be applied to a specific case. This, however, is not the case, as it has already been shown, that the specific content of the obligation to protect and preserve the marine environment can and must be precisely defined by experts on a case-by-case basis. As the PCA held in its South China Sea Arbitration the specific content obligation to protect and preserve the marine environment is specified in other regulations of the UNCLOS, as well as other rules of international law.[32]
3.4.2.3.3. No Unjustifiable Interference
Under Art. 194 (4) UNCLOS, in taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with the UNCLOS. Due to its systematic embedding as a subparagraph of Art. 194 UNCLOS, paragraph 4 of this regulation can only apply to Art. 194 UNCLOS and not to the general obligation to protect and preserve the marine environment. Nonetheless (and if one was of another opinion),[33] under Art. 300 UNCLOS and the customary rule of Art. 26 VCLT, States Parties shall fulfil in good faith the obligations assumed under the UNCLOS and shall exercise the rights, jurisdiction and freedoms recognised in the UNCLOS in a manner which would not constitute an abuse of right. The general subordination of the Freedom of the High Sea, therefore, may not lead to an abuse of rights under Art. 300 UNCLOS. For this reason, balancing evaluations such as for unjustifiable interferences must be considered when interpreting the content of the obligation under Art. 192 UNCLOS.[34]
As the PCA established in consistent jurisprudence, just like the due regard and good faith obligation, the unjustifiable interference clause ‘requires a balancing act between competing rights, based upon an evaluation of the extent of the interference, the availability of alternatives, and the importance of the rights and policies at issue [...]’.[35] Therefore, competing interests must be balanced with regard to the nature and importance of the rights, the extent of the anticipated impairment and the availability of alternatives.[36] The exact content depends on the circumstances in each individual case and the nature of the right, while when in doubt, due to the cogent status of Art. 192 UNCLOS, the obligation to protect and preserve the marine environment prevails.[37]
3.4.2.3.4. Evaluation
One factor that needs to be taken into account is the availability of alternatives. The increasing perils of the growing number of space debris put scientists in a pickle, as there is no feasible solution of how to deal with the debris yet. It is obvious that leaving the debris in its orbit is no solution, as the amount of debris is growing to such an extent, that collisions between the non-functional space objects are inevitable, which causes more debris to be spread in the orbit, necessarily leading to more collisions and so on.[38]
Another option would be to try to send space debris into higher orbits, an alternative, that’s consequences are unknown yet. Many times before, people have blindly overexploited resources, overfished species and dumped waste into unknown places and do not know how to handle the consequences now. Barrels of nuclear waste lie on the ocean floor, waiting to erode and spill their toxic content. Is this the road humankind should go down again? In the light of this history, one might think that humankind should be strictly warned from dumping waste into spaces, that are entirely unexplored and consequences unknown. Furthermore, sending space debris into higher orbits does not solve the problem of their removal, as the debris still remains in space. The problem, therefore, is simply being relocated. Experts such as Prof. Schladebach, therefore, correctly demand a solution and a legally binding obligation of Sates to remove space debris in a sustainable way.[39]
Switzerland is currently working on the development of a cleaning satellite. ‘Clean Space One’ is a satellite, which approaches the debris, grabs hold of it and thrust it into the Earth’s atmosphere, where it burns up.[40] This, however, will lead to an enormous impact on the atmosphere, which was not designed to burn space debris on a continuous level and can only solve the problem of small space debris.
Nonetheless, simply because there are no feasible alternatives to sinking space debris in the ocean, does not guarantee its legality. The obligation to protect and preserve the marine environment still outweighs the free usage of the sea and must be respected. States are under an obligation to assess the consequences and the impact of dumping space debris in the ocean. It is upon marine scientists, such as biologists and geologists, to assess the specific consequences of such actions and whether dumping space debris can be harmonized with the protection of the ocean.
The only feasible thought therefore might be to regulate the problem at its origin and regulate the number of spacecrafts that are being sent into space in the first place, until there is a solution on how to deal with the debris when t is out there.
4. Conclusion
Concludingly, dumping of space debris in the ocean, even at the remotest point of it, is a violation of the erga omnes obligation of all States to protect and preserve the marine environment. States have not assessed the effects of dumping space debris under the precautionary principle, sustainable development principles, and ecosystem approach nor have they conducted an environmental impact assessment. Furthermore, States have not adopted specific regulations to manage and control the pollution of the marine environment from pollution of dumping space crafts in the sea and therefore are also in breach of their obligation under Art. 210 (4) UNCLOS. The breach of a legal primary obligation can be enforced in court and leads to the liability of States for any damage arising out of their wrongful act. As the obligation to protect and preserve the marine environment is an erga omnes obligation, any other State has a legal standing in a case brought against another State that violates this obligation (Art. 48 (1) (b) 2001 Articles on the Responsibility of States for Internationally Wrongful Acts).
The problem of how to deal with human junk has exceeded the boundaries of planet Earth to extra-terrestrial terrains. Nonetheless, satellites are being launched today more than ever.[41] Before we keep polluting planet Earth to such a degree that we cannot deal with its consequences anymore, one might think of nuclear waste in this regard, one might think that history has taught humans at least to stick to destroying planet Earth before shooting our junk into the universe with no consequences known. Finding a solution to the amount of pollution that humans cause every second, not only on planet Earth but including the galaxy, is a question so unsolvable that scientists of organisations such as ESA are yet to find an answer.[42] One thing, however, will always remain its truth: there is only as much rubbish as we put out there. Therefore, while looking for answers on how to deal with the disastrous state that we have put planet Earth and its orbit into already, it might be a wise action for every single one of us, for States and international organisations, to reduce pollution in the first place.
[1] It is located 2,688 kilometres from the nearest land, Ducie Island (Pitcairn Islands) to the north, Moto Nui (Easter Islands) to the northeast and Maher Island (Antarctica) to the south (NOAA, https://oceanservice.noaa.gov/facts/nemo.html, 02.05.2022). [2] https://www.inverse.com/science/why-nasa-uses-point-nemo-as-a-graveyard (02.05.2022); https://www.spacelegalissues.com/space-law-point-nemo-and-ownership-of-objects-launched-into-outer-space/ (02.05.2022). [3] COPUS, Space Debris Mitigation Guidelines, Report of 15 June 2007, as annexed to Doc. A/62/20; Schladebach, Marcus, Space Debris as a Legal Challenge, in: von Bogdandy, Armin/Wolfrum, Rüdiger, Max Planck Yearbook of United Nations Law, Vol. 17 (2013), p. 61-85 (65). [4] ESA, https://www.esa.int/Safety_Security/Space_Debris/ESA_s_Space_Environment_Report_2022 (02.05.2022). [5] NASA, International Space Station Transition Report pursuant to Section 303(c)(2) of the NASA Transition Authorization Act of 2017 (P.L. 115-10), p. 11 (https://www.nasa.gov/sites/default/files/atoms/files/2022_iss_transition_report-final_tagged.pdf, 02.05.2022); Faa, Marian/Seselja, Edwina, Why the International Space Station will crash down into the Pacific Ocean's 'spacecraft graveyard', ABC News, 11.02.2022 (https://www.abc.net.au/news/2022-02-12/spacecraft-graveyard-pacific-ocean-environmental-concerns/100817404, 02.05.2022); Hunt, Katie, NASA plans to retire the International Space Station by 2031 by crashing it into the Pacific Ocean, CNN February 2, 2022, https://edition.cnn.com/2022/02/02/world/nasa-international-space-station-retire-iss-scn/index.html (29.04.2022). [6] Schladebach, see fn. 3, p. 61-85. [7] Schladebach, see fn. 3, p. 61, 83; Böckstiegel, K.H., Perspektiven der Entwicklung des Weltraumrechts bis zum Jahre 2000, in: Börner, B./Jahrreiß, H./Stern, K., Einigkeit und Recht und Freiheit, Festschrift für Karl Carstens, Bd. 1, 1984, 307 et seq. (317); Frantzen, B. Umweltbelastung durch Weltraumaktivitäten, in: Böckstiegel, K. H., Handbuch des Weltraumrechts (1991), p. 632; Malanczuk, P., Review of the Regulatory Regime Governing the Space Environment. The Problem of Space Debris, ZLW 45 (1993), 37, 58; Hobe, S./Mey, J.H., UN Space Debris Mitigation Guidelines, ZLW 58 (2009), 288, et seq. [8] https://www.theguardian.com/science/2021/sep/04/thousands-of-kilometres-from-anywhere-lies-point-nemo-a-watery-grave-where-space-stations-go-to-die#:~:text=International%20Space%20Station-,Thousands%20of%20kilometres%20from%20anywhere%20lies%20Point%20Nemo%2C%20a%20watery,space%20stations%20go%20to%20die&text=At%20the%20furthest%20point%20from,sea%2C%20lies%20the%20space%20cemetery. (02.05.2022). [9] Rogers, Alex, The Deep (2019), p. 94; https://www.marinebio.org/species/giant-squid/architeuthis-dux/ (21.04.2021); https://www.marinebio.org/oceans/marine-zones/ (21.04.2021). [10] NOAA Fisheries, https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/west-coast-highly-migratory-species#:~:text=Highly%20migratory%20species%20include%20Pacific,species%20on%20the%20West%20Coast (02.05.2022); https://ocean.si.edu/ocean-life/fish/pacific-bluefin-tuna-migration#:~:text=Young%20Pacific%20Bluefin%20Tuna%20migrate,same%20trek%20but%20in%20reverse. (02.05.2022). [11] Faa/Seselja, see fn. 5. [12] https://www.spacelegalissues.com/space-law-point-nemo-and-ownership-of-objects-launched-into-outer-space/ (02.05.2022). [13] https://www.sciencetimes.com/articles/36491/20220308/dumping-old-spacecraft-point-nemo-good-idea-environmentalists-worry-affect.htm [14] https://www.sciencetimes.com/articles/36491/20220308/dumping-old-spacecraft-point-nemo-good-idea-environmentalists-worry-affect.htm [15] Schladebach, see fn. 3, p. 61, 65; De Lucia, Vito, Splashing down the International Space Station in the Pacific Ocean: Safe Disposal or Trashing the Ocean Commons?, Blog of the European Journal of International Law, 23 February 2022, https://www.ejiltalk.org/splashing-down-the-international-space-station-in-the-pacific-ocean-safe-disposal-or-trashing-the-ocean-commons/ (02.05.2022). [16] Deman Magoffin, Ralph, The Freedom of the Seas or the Right which belongs to the Dutch to Take Part in the East Indian Trade, A Dissertation by Hugo Grotius (2001); Rothwell, Donald R./Stephens, Timothy, The International Law of the Sea, 2. Edition (2016), p. 7; Tomuschat, Christian, Enforecement of International Law, ZaöRV 79 (2019), 579, 588. [17] Scovazzi, Tullio, Marine Protected Areas on the High Seas: Some Legal and Policy Considerations, The International Journal of Marine and Coastal Law (IJMCL), Volume 19, Issue 1 (2004), 1, 5; Matz-Lück, Nele, Meeresschutz, in: Proelss, Alexander, Internationales Umweltrecht (2017), p. 393, 411, mn. 38; McConnell, Moira L./Gold, Edgar, The Modern Law of the Sea: Framework for the Protection and Preservation of the Marine Environment, Case Western Reserve Journal of International Law, Volume 23, No. 1 (1991), 83, 89; Czybulka, in: Proelss, UNCLOS Commentary, Art. 192, mn. 10, 21; Roach, J. Ashley, Today's customary international law of the sea, Ocean Development and International Law (Ocean Dev. Int. Law), Volume 45, Number 3 (2014), 239-241; Sands, Phillippe, Principles of International Environmental Law, 3. Edition (2012), p. 396; Crawford, James R., Brownlie's Principles of Public International Law, 8. Edition (2012), p. 31 f.; Birnie, Patricia/Boyle, Alan/Redgwell, Catherine, International Law & The Environment (Int. and Comp. Law Quart), 3. Edition (2009), p. 387; Oude Elferink, Alex G./Rothwell, Donald R., Oceans Management in the 21st Century: Institutional Frameworks and Responses, Publications on Ocean Development, Volume 44 (2004), p. 167; Lagoni, Rainer, Die Abwehr von Gefahren für die marine Umwelt, in: Dolzer, Rudolf/Kreuzer, Karl/Kunig, Philip/Lagoni, Rainer/Lang, Winfried/Schack, Haimo, DGVR, Heft 32, 22. Tagung in Trier vom 10.-13- April 1991 (1992), 87,145. [18] Freestone, David, International Governance, Responsibility and Management of Areas beyond National Jurisdiction, IJMCL 27/2 (2012), 191, 201. [19] For empiric evidence of the evolution of Art. 192 UNCLOS into a rule of Customary International Law with jus cogens status, see my doctoral thesis ‘The Designation of Marine Protected Areas: A Legal Obligation’, which will be published at the end of this year. [20] ITLOS, Responsibilities and obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Report 2011, p. 59, para. 180; König, Doris, Marine Environment, International Protection, MPEPIL, 2001, 1594, para. 8; Scovazzi, see fn. 17, 1, 5 and 17; Matz-Lück, see fn. 17, p. 393, 411, mn. 38; McConnell/Gold, see fn. 17, 83, 89; Czybulka, see fn. 17, Art. 192, mn. 10, 21; Roach, see fn. 17, 239, 241; Sands, see fn. 17, p. 31 f.; Birnie/Boyle/Redgwell, see fn. 17, p. 387; Oude Elferink/Rothwell, see fn. 17, p. 167; Lagoni, see fn. 17, 87, 145. [21] UNGA A/44/461, p. 5; PCA, South China Sea Arbitration, Philippines v. China (Award), p. 373 f., para. 941. [22] ITLOS, MOX Plant, Ireland v. United Kingdom, Provisional Measures (3. December 2001), sep. op. Judge Wolfrum, ITLOS Reports 2001, p. 133; ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Reports 2011, p. 10, 47, para. 135; dissenting: ITLOS, Southern Bluefin Tuna Cases, New Zealand v. Japan; Australia v. Japan, Provisional Measures, diss. op. Judge Laing, p. ITLOS Reports 1999, p. 311, fn. 6; Roach, Ocean Dev. Int. Law 45/3 (2014), 239, 241; Sands, Principles of International Environmental Law (2012), p. 272. [23] https://www.cbd.int/ecosystem/ (11.09.2021); Ryan Enright/Boteler, in: O’Higgins/Lago/DeWitt, Ecosystem-Based Management, Ecosystem Services and Aquatic Biodiversity (2020), p. 333, 333 ff.; UNGA A/61/156, p. 2, para. 6; Tanaka, ZaöRV 71(2011), 291, 305. [24] https://www.cbd.int/impact/whatis.shtml (10.09.2021); https://ec.europa.eu/environment/eia/index _en.htm (11.09.2021); ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Reports 2011, p. 10, 75 and p. 50, para. 145; ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14, 83, para. 204; Roach, Ocean Dev. Int. Law 45/3 (2014), 239, 241 and 250. [25] ICJ, Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, 241, para. 29; Sands, see fn. 17, p. 249. [26] ICJ, Case concerning the Gabčíkovo-Nagymaros Project, Judgement (Merits), ICJ Reports 1997, p. 7, 77 f, para. 140. [27] https://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf (08.03.2021); Mann Borgese, San Diego Law Review 15 (1978), 371, 371; https://ioc.unesco.org/topics/law-sea (10.10.2021); UNGA A/74/PV.42, p. 12. [28] UNGA A/44/461, p. 5 f., para. 9. [29] Vranes, Erich, The Definition of ‘Norm Conflict’ in International Law and Legal Theory, (EJIL 17/2 (2006), 395, 418; Dörr/Schmalenbach, in: Dörr, Oliver/Schmalenbach, Kirsten, Vienna Convention on the Law of Treaties – A Commentary, 2. Ed. p. 990, Art. 53, mn. 54; Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), p. 674, Art. 53, mn. 20; Linderfalk, Ulf, Normative Conflict and the Fuzziness of the International ius cogens Regime, ZaöRV 69 (2009), 961, 965 f. -977; UNGA A/74/10, p. 146 and p. 198 f. [30] For an empirical evidence that the obligation to protect and preserve the marine environment has evolved into a Customary International Law with cogent status, see my dissertation ‘The Designation of Marine Protected Areas: A Legal Obligation’, which is going to be published at the end of 2022. [31] UNGA A/74/10, p. 146, p. 199. [32] UNGA A/44/461, p. 5; PCA, South China Sea Arbitration, Philippines v. China (Award), p. 373 f., para. 941. [33] PCA, Chagos Marine Protected Area Arbitration, Mauritius v. UK (Award) 2015, p. 211, para. 538 and p. 128 f., para. 320. [34] PCA, Chagos Marine Protected Area Arbitration, Mauritius v. UK (Award) 2015, p. 203, para. 520. [35] PCA, Chagos Marine Protected Area Arbitration, Mauritius v. UK (Award) 2015, p. 202, para. 519 and p. 211, para. 540; PCA, South China Sea Arbitration, Philippines v. China (Award), p. 293, para. 742. [36] PCA, Chagos Marine Protected Area Arbitration, Mauritius v. UK (Award) 2015, p. 211, para. 540; PCA, South China Sea Arbitration, Philippines v. China (Award), p. 293, para. 742. [37] PCA, Chagos Marine Protected Area Arbitration, Mauritius v. UK (Award) 2015, p. 211, para. 541. [38] De Lucia, see fn. 15 [39] Schladebach, see fn. 3, p. 61, 83. [40] Schladebach, see fn. 3, p. 61, 84; https://actu.epfl.ch/news/orbital-cleanup-satellite-to-be-launched-in-partne/ (02.05.2022). [41] ESA, https://www.esa.int/Safety_Security/Space_Debris/ESA_s_Space_Environment_Report_2022 (02.05.2022). [42]