Legal Complications Surrounding Space Debris Remediation – Does a Viable Solution Exist?

Introduction- Gravity of the Issue

There exists unanimous agreement amongst the international community that space or orbital debris poses a growing threat to space operations and constitutes a matter of great concern requiring immediate attention.[1] Space debris, although effectively without a legally binding and consensual definition among the nation-states[2], popularly is defined as “man-made objects including fragments and elements thereof, in Earth Orbit or re-entering the atmosphere, that are non-functional”[3] It is globally recognised that space debris causes harm to the sustainable use of outer space and is hazardous insofar as it affects the outer space activities and effective utilisation of outer space capabilities.[4]

In the present-day context, the problem of space debris is not merely confined to an academic or legal debate but rather has reached a tipping point considering that the overpopulation of the space orbit with the debris now amplifies its potential to damage and destroy operational, high-value satellites launched by nation-states into space.[5] The glaring examples of the grievous situation are reflected in the explosion of the operative Chinese weather satellite during an Anti-Satellite mission (ASAT) with a Russian rocket (2007)[6], the violent collision of the defunct Russian Cosmos 2251 with the operational U.S. satellite Iridium-33 (2009)[7], to cite a few.

The situation worsens as the debris population increases with each collision between a redundant and active object launched into space, thereby creating more debris. Interestingly, while the 1986 UN-Committee on the Peaceful Uses of Outer Space (COPUOS) was of the view that the then space debris problem required immediate attention for it posed an imminent threat to the space environment[8], almost 33 years later, the concern stands still the same, now, more serious than before. Statistically speaking, presently only 6% of the space orbit is functional objects, while of the non-functional objects, 21000 are larger than 10 cm, 6,00,000 up to 1 cm and about 150 million larger than 1 mm.[9]

This begs the need for active space debris remediation than space debris mitigation whereby emphasis needs to be on active debris removal or remediation from the orbit as mitigation or wilful prevention of the creation of more debris in itself cannot ensure a stable and safe space environment in the long-standing future.[10] While there is an evident need for space debris remediation, the most important question to address in such a scenario is the legal complications arising from the active removal of debris by states keeping in view the viability of the remediation action in light of the existing legal framework concerning space debris.

International Legal Framework Concerning Space Debris

In the international realm, the two key treaties that govern the liability of nation-states in outer space activities are the Outer Space Treaty, 1967 and the Liability Convention, 1972. Both the treaties place nation-states in the centre of the spectrum.

Outer Space Treaty (OST)

Article I para 1 of the OST lays down the principle that the use and exploration of outer space is the “province of all mankind”[11], thus making the global common remain beyond national jurisdiction and claims of national sovereignty.[12] However, it requires that exploration of outer space shall be in accordance with international law[13] for peaceful purposes[14] with states being liable for the damage caused by its space object to the space object of another state[15] for they shall avoid harmful contamination of the outer space by their activities insofar as it interferes with the rights of other states to exploration[16] while the states retain jurisdiction and control over objects launched by it in the outer space.[17]

1972 Liability Convention

The convention affixes a fault-based liability on states for damages caused elsewhere than the earth’s surface to another states space object or person or property on board of a space object by its space object[18]. It also creates absolute liability for damages caused to the surface of the earth or aircraft by space’s space object.[19]

1975 Registration Convention

Built on the principle of OST, the Registration Convention requires that states should furnish the details regarding the orbit of each space objects to be registered in the national registry of states, requiring the name of the launching state, territory and date of launch, function of the object among a few.[20] It is based on the belief that the UN registry could help minimise weapons of mass destruction being put into orbit and creating an efficient system of registration so as to determine and identify efficiently a spacecraft causing damage.

Legal Complications concerning Space Debris Remediation

1. Subsuming definitions of space debris and space object

A restrictive interpretation as is adopted by many suggests that space debris differs from space object insofar as the scope of space objects only encompasses non-fragmented satellites or their component parts, often functional. This thus makes space debris out of the purview of space object since, for example, the absence of a traceable tiny fragment to the original owner would defeat a uniform space debris clean-up merely as states would deny responsibility[21]. Moreover, since the customary treaties never conceived space debris and didn’t make an explicit reference to it while dealing with space-related problems, it shouldn’t be considered as a space object.[22] It is argued that such competing views make it difficult to harmonise or appreciate the difference between the two concepts, making remediation activity complex.

2. Debatable definition of space object & space debris – Inadequate standards

While the absence of a conclusive definition of a space object[23] is heavily criticised in the literature present on space debris, it is important to consider that an inconclusive definition of space debris coupled with a disputed definition of space object creates another legal anomaly regarding space debris remediation.  The anomalous definitions of the two make it difficult to set parameters to decide which object is space debris[24] and what is a valuable space asset.[25]

3. Difficulty in the ascertainment of eligibility for Space Debris Removal

While Art. II, III & IV of the Registration Convention provide for space objects to be registered in the national registry of states, requiring the name of the launching state, territory and date of launch, the function of the object and other requirements, it lacks in important information like functionality and present status of the object.[26] This thus makes it difficult to determine if the removal of particular fragments of debris poses a substantial risk or not while carrying out remediation.

4. Threat of more debris generation

Active debris removal from the space orbit involves inherently dangerous close operational manoeuvres to be undertaken. While experience suggests that these high-risk procedures have been successful, regardless there still runs a sizeable risk of failure with a potential of creating additional debris.[27] In such a scenario, if there arises serious damage to other space assets, the affixation of liability and bearing of losses amidst the collective effort to tackle a problem becomes problematic and vague.

5. Protection of sensitive information – a deterrent factor to collaborative remediation

Assuming the case that a State(s) salvages an asset effectually non-functional yet encompassing sensitive information belonging to another sovereign or intergovernmental or private entity of another state, the question of how to ensure the protection of such sensitive information becomes questionable[28]. It is argued that this provides a deterrent factor for states to engage in active space remediation in the absence of a conclusive legal framework.

6. Absence of national space legislation in majority states

With the growing commercialisation of space and an increase in private activities, it becomes easy for states to significantly become a launching state by fulfilling 4 criteria[29] and be involved in space activities. It also exposes the state to the risk of liability arising out of accidents caused due to private satellite collisions, thereby exposing them to bearing all costs. Thus, the need for stringent national space legislation is important to require private enterprises to adequately insure themselves.[30]

7. Economic Viability

While carrying out remediation serves in the common benefit of all, securing international cooperation as a part of the long-term solution is difficult because the cost of negotiating such agreement is costly and difficult in the absence of a clear legal framework.[31]

Conclusion

Evidently so, the problem of space-debris remediation is an urgent but complex one in the absence of a defined legal framework. While earlier actions by states focused primarily upon space debris mitigation, now there is a need to redirect the approach to remediation coupled with mitigation by state-actors. To successfully carry out the remediation activities requires states to take action to collaborate and come together to actively remove debris, however, a legal analysis of the viability of the action needs to be considered in light of the challenges. The analysis suggests that in the absence of a laid down legal framework, issues will persist. Regardless, states need to come together to unanimously harmonise the practical application of principles of use of conventional treaties to effectively mitigate the impending peril of space debris in case creation of a new treaty or amendment to existing ones is costly and not feasible for nation-states.

[1] James A. Vedda, Orbital Debris Remediation Through International Engagement, Center for Space Policy and Strategy, (2017), available at https://aerospace.org/sites/default/files/2018-05/DebrisRemediation.pdf

[2] Peter Stubbe, State Accountability for Space Debris: A legal Study of Responsibility for Polluting the Space Environment and Liability for Damage Caused by Space Debris, (Martinus Nijhoff, 2017) at ¶ 386.

[3] Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, as annexed to UN doc. A/62/20, Report of the COPUOS (2007).

[4] Draft International Code of Conduct for Outer Space Activities, 2014. Available at https://eeas.europa.eu/sites/eeas/files/space_code_conduct_draft_vers_31-march-2014_en.pdf

[5] Swiss Re, “Space Debris: On Collision Course for insurers- The Implications of debris colliding with operational satellites from a technical, legal and insurance perspective”, Available at https://www.swissre.com/dam/jcr:b359fb24-857a-412a-ae5c-72cdff0eaa94/Publ11_Space+debris.pdf.

[6] Lieutenant Colonel Joseph S. Imburgia, Space Debris and Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk, Vol. 44:589, Vanderbilt Journal of Transnational Law, ¶ 591, available at https://wp0.vanderbilt.edu/wp-content/uploads/sites/78/Imburgia-FINAL-CR-pdf.pdf.

[7] Guy Faulconbridge, U.S. and Russia track satellite crash debris, Thomson Reuters, February 12, 2009, https://www.reuters.com/article/us-space-collision/u-s-and-russia-track-satellite-crash-debris-idUSTRE51A8IA20090212.

[8] Supra note 6, at ¶592.

[9] Rada Popova & Volker Schaus, The Legal Framework for Space Debris Remediation as a tool for sustainability in Outer Space, Vol. 5 Issue 2, Aerospace Journal, (2018), available at https://www.mdpi.com/2226-4310/5/2/55 at ¶17.

[10] Supra note 1, at ¶4.

[11] Outer Space Treaty, Art. III.

[12] Jakhu, R, Legal issues relating to the global public interest in outer space, J. Space Law 2006, ¶32.

[13] Outer Space Treaty, Art. III.

[14] Outer Space Treaty, Art. IV.

[15] Outer Space Treaty, Art. V.

[16] Outer Space Treaty, Art. VII, IX, XI.

[17] Outer Space Treaty, Art. VIII

[18] Liability Convention, Art. III

[19] Liability Convention, Art. I & II.

[20] Erazem Bohinc, International space law: legal aspects of exploiting outer space”, available at http://www.unaslovenia.org/sites/default/files/file/Bohinc.pdf, ¶30.

[21] Chelsea Muñoz-Patchen, Regulating the Space Commons: Treating Space Debris as Abandoned Property in Violation of the Outer Space Treaty, Vol 19 No. 1, Chicago Journal of International Law, (2018), ¶246.

[22] Supra note 2.

[23] Ibid.

[24] Supra note 12.

[25] Ibid.

[26] Alexander William Salte, Space Debris: A Law And Economics Analysis Of The Orbital Commons, 19 STAN. TECH. L. REV. 221 (2016).

[27] Michelle Ancona Reynolds, Legal Aspects of Novel Alternatives to Address Space Debris Remediation, Institute Of Air And Space Law, McGill University, Montreal, (2015), available at http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs=1568197195856~280, ¶18.

[28] Supra note 26.

[29] Armel Kerrest, “Effectiveness of legal regime for responsibility and liability of national space activities. Assessment of gaps”, 10th United Nations Workshop on Space Law Contribution of Space Law and Policy to Space Governance and Space Security in the 21st Century Vienna 5-8 September 2016, available at http://www.unoosa.org/pdf/SLW2016/Panel6/2._Kerrest_Kerrest_Vienne_Resp_Liab_2016.pdf

[30] Stephan Hobe, The Impact of New Developments on International Space Law: New actors, commercialization, privatization, increase in number of “space-faring nations”, etc., The United Nations Office for Outer Space Affairs, available at http://www.unoosa.org/pdf/pres/2010/SLW2010/02-12.pdf

[31] Supra note 26.


ABOUT THE AUTHOR

Mahima Zamindar

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Mahima Zamindar is a third-year law student at Maharashtra National Law University, Mumbai. She can be contacted at mahimazamindar@mnlumumbai.edu.in.

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