Legal issues surrounding space debris remediation
by Michael Listner
|Without consent from the nation that launched and operates or otherwise owns the satellite or space object, it cannot be disposed of or otherwise interfered with.|
Addressing the issue of space debris is two-fold. First, there is mitigation, which through practices by space-faring nations such the space debris mitigation guidelines promulgated by the UN.1 These guidelines are not binding upon member states of the UN and only a few of the spacefaring nations have implemented them as mandatory requirements into their space programs. However, remediation or removal of existing space debris is another matter, and the methodologies of which are still in its infancy and face substantial technical, financial and political hurdles. Additionally, space debris remediation also faces major legal issues. The purpose of this essay is to attempt to identify and briefly discuss some of those legal challenges and their potential solutions, including a definition of space debris that could facilitate space debris remediation. This essay is should not be considered and exhaustive discussion on the topic.
The most prominent issue surrounding cleanup of orbital space debris rests with Article VIII of the Outer Space Treaty, in which space objects, including nonfunctioning satellites and other space debris, continue to belong to the country or countries that launched them.2 There is no right of salvage analogous to the right found in maritime law, which means that even though a satellite or some other space object may not be functioning, it does not imply that it has been abandoned by the nation that launched it. Without consent from the nation that launched and operates or otherwise owns the satellite or space object, it cannot be disposed of or otherwise interfered with. This is further complicated by the fact that international space law deems fragments and components from space objects as individual space objects in and of themselves, which would require identification to determine the owner and either individual or blanket consent to remove it from orbit.
Ancillary to ownership are issues dealing with licensing and compliance with International Traffic in Arms Regulations (ITAR). Methodologies to remove intact derelict satellites may include the use of mechanisms that will rendezvous, attach, and physically move the derelict from a stable orbit to either a graveyard orbit, where it will not interfere with other space objects, or into a less stable orbit that would ensure the destruction of the derelict within a short period of time. This methodology of space debris removal requires an intimate knowledge of the spacecraft so that an effort to remove it would not result in fragmentation and the creation of additional space debris, which in the case of space objects belonging to the United States could trigger ITAR.
Compounding the ITAR issue is that of intellectual property rights. Disclosure of sufficient technical details regarding a derelict spacecraft could implicate intellectual property, including confidential and proprietary technical information as well as patents. Licensing agreements between the owners and former operators of the derelict satellites would have to be negotiated, as would confidentiality and nondisclosure agreements to protect the rights of the owners. Furthermore, ITAR issues could arise if a derelict satellite registered to the United States is slated for removal by a methodology operated by a foreign government, especially if exporting of spacecraft-related technical data outside the United States is involved. Before such exporting and subsequent satellite disposal could take place, licenses or other waivers would be required to address these issues.
Any discussion of legal issues would not be complete without noting the issue of liability. Removal of space debris will presumably be carried out by governmental organizations and nongovernmental organizations (NGOs), either exclusively or concurrently. Removal of space debris is not without risk, and regardless of whether NGOs or governmental organizations are performing the activity, Article VI of the Outer Space Treaty requires that the country under whose jurisdiction they fall retain responsibility for their activities and any accidents during their activities.3 Complicating the responsibility under Article VI of the Outer Space Treaty, the Liability Convention takes the issue of liability in Article VII of the Outer Space Treaty a step forward.
The Liability Convention envisions two scenarios where damage could be caused by a space object. The first scenario envisions a space object that causes damage to the surface of the Earth or an aircraft in flight, which applies a strict liability standard. The second scenario envisions an event where a space object causes damage someplace other than the surface of the Earth, i.e. outer space or another celestial body, and applies a fault standard.4
|One of the more vexing issues of space debris general is finding a suitable definition.|
It would be the second scenario of the Liability Convention that would be the applicable standard for accidents related to space debris removal if an accident created additional space debris or damaged a functioning spacecraft, either through accidents that cause further space debris contamination or the inadvertent loss of space objects not marked for disposal. The inherent risk to the nation sponsoring space debris remediation would present governmental organizations and particularly NGOs with significant liability and may require substantial third-party liability insurance to cover potential incidents.
One of the more vexing issues of space debris general is finding a suitable definition. The term “space debris” is used commonly enough when discussing the veritable junkyard of expended space objects in orbit as or even naturally occurring objects such as asteroids or meteors. While there is yet to be an acceptable legal definition of what space debris is there have been proposals for defining space debris but mostly in the context of legally binding treaties and liability for space debris.
For example, Lieutenant Colonel Joseph S. Imburgia suggests a definition of space debris that could be used in a legally binding treaty.5 Lt. Colonel Imburgia proposes the following definition of space debris to include:
…all man-made objects, including fragments and elements thereof, in Earth orbit or reentering the atmosphere, that are non-functional, regardless of whether the debris is created accidently or intentionally; the term includes but is not limited to, fragments of older satellites and rocket boosters resulting from explosions or collisions, as well as any non-functional space object, such as dead satellites, spent rocket stages or other launch vehicles, or components thereof;
This technical description of space debris is part of a draft of a proposed international treaty to deal with space debris in the context of liability and responsibility for the present and future crop of space debris in orbit. The current treaty proposals to deal with space debris, including the draft proposed by Imburgia focus on the current problem of responsibility and liability for damages caused by space debris and do not create a solution in terms of remediation. Furthermore, a strictly legal approach in the form of a treaty focused at the UN level has little chance of being implemented any time soon given the competing geopolitical interests of the various nations who make up the UN as well as the Committee on the Peaceful Uses of Outer Space (COPUOS).
A more practical approach to remediation of space debris is to apply a quasi-legal definition that directly addresses the problem of ownership. As mentioned above, one the primary issue with removing space debris is that there are no salvage rights to space debris because of the ownership issues related to Article VIII of the Outer Space Treaty. Therefore, before space debris can be removed from orbit, the ownership issue must be addressed. To that end a definition of space debris taking into account the following elements may be appropriate:
“Space debris” is:
Incorporating provisions of the Liability Convention and the Registration Convention are sure to controversial since the effectiveness of both treaties is a matter of debate. More so, is the definition of “space object”. A “space object” is similarly defined by both of these treaties, and it includes not only objects launched into space by a launching state but also components from the object. There is debate about the definition of “space object” in the context of both these treaties in that it is vague as to its meaning; however, the use of the term and definition in the domestic space laws of some nations makes the case that the term as defined has legal precedent.6
The challenge with such a definition is that in and of itself it does not solve all the issues surrounding space debris removal. This definition also does not address the issue of space objects whose national origin and hence their launching state is unknown.7
|What is certain is that the question of space debris removal is an unconventional one and as such will require unconventional means to address the question.|
Defining space debris in this manner not only will take into account the current body of international space law, but will also provide the basis of decision making for a nation to determine whether a particular object has value, and whether it can be expressly abandoned and subsequently disposed of.8 More so, a definition incorporating these elements is not an end-all for solving the legal issues surrounding space debris remediation, but rather it would need find itself as part of a quasi-legal protocol or as part of an annex to one or more of the existing space law treaties to set out the rules and protocols for space debris removal. Regardless, the idea of a definition of space debris that focuses on the issues surrounding remediation instead of placing blame is a proactive one and one that is needed to address the present and future situation.
A final legal hurdle that must be addressed is the legal act of removing space debris. This act in the context of space debris as defined for remediation does not have sufficient legal precedent to be performed en masse. However, before discussing this issue in earnest, it is recognized that the retrieval of space object belonging to another nation is not entirely without precedent.
In February 1984, the commercial satellite Palapa B2 was launched for the Indonesian government on STS-41B, but it failed to reach geosynchronous orbit due to a malfunction of its perigee motor stage. While it was circling the earth in a useless orbit, the satellite was purchased by Sattel Technologies of California from the insurance group that covered the loss. Sattel subsequently contracted with NASA to retrieve the satellite, which it did in 1984.
Sattel then contracted with Hughes Aircraft Company, which originally manufactured the satellite, and McDonnell Douglas, which was the launch service provider, to refurbish and re-launch the satellite. The satellite, which was renamed Palapa B2-R, was successfully re-launched in April 1990. After the re-launch title of the satellite was transferred back to Indonesia.9
While this instance of retrieval can be considered legal precedent for the practice of remediation of space debris, more is needed to cement the concept in the current legal and policy environment. It is the Swiss and their proposed mission with CleanSpace One who may provide the precedent that is necessary to cement a customary rule allowing a nation to perform active removal of space debris both of its own space objects and those belonging to other nations. (See “Swiss space debris effort could open the political door to space debris removal”, The Space Review, February 27, 2012.) The Swiss effort stands to have the same legal impact on the issue of space debris removal that the launch of Sputnik 1 had on the issue of free access and navigation of outer space.
The issue of space debris removal is an unconventional one the likes of which the legal and policy environment has yet to encounter. The issues surrounding space debris are in their infancy, and the solutions to those issues can only be had once the issues themselves are clearly defined. What is certain is that the question of space debris removal is an unconventional one and as such will require unconventional means to address the question.
2 See Outer Space Treaty, Article VIII.
3 Id. at Article VI.
4 It’s notable that current efforts to address space debris ignore the applicability of the Liability Convention. The perception seems to be that the Liability Convention is so lacking in specificity that it cannot be used to address space debris. This author disagrees and suggests that the recently enacted Optional Rules for Arbitration of Outer Space Activities could be used to clarify the short-comings of the Liability Convention instead of discarding it completely.
5 Space Debris and Its Threat to National Security: A Proposal for a Binding International Agreement to Clean up Junk, Vanderbilt Journal of Transnational Law, Volume 44:589.
6 For example, Austria’s recently adopted domestic space law defines “space object” as an “...object launched or intended to be launched into outer space, including its components.” This definition falls in line with the definition found in both the Liability Convention and the Registration Convention and represents a precedent for the customary use of the term.
7 In this case, there could be a provision to the protocol or annex to which the definition is incorporated stating that a space object with no national registration that has no apparent function would be considered abandoned and fair game for removal.
8 The method of expressly abandoning a space object varies. One method being discussed is for a nation to sign a legal waiver for one space object or a group of space objects. This could have the legal effect of expressly abandoning the space object or objects as the case may be. There have been other suggestions that existing “space debris” could be unilaterally declared as abandoned by the United Nations or another international body; however, depending on how space debris is defined, many nations could object to such a blanket classification as an infringement on their sovereignty.
9 The author wishes to express his thanks to a senior level official from the Office of the Secretary of Defense who related this story during a recent reception at the Canadian Embassy in Washington DC.