By Kunwar Malhotra, UILS
Editor’s Note: This paper discusses the legal status of Outer Space and it also undertakes the perception of five elemental treaties pertinent with Space Law. More specifically, this paper attempts to discuss the impact of Space Debris. Various conventions have been implemented to tackle this problem however, the author believes that this problem hasn’t been resolved. Further, this paper presents solutions with regards to the various problems while dealing with space debris.
Space has always thrilled the humankind. U.S.S.R became the first nation to send man into space and thus provoked the concept of Space Law. Consequently, the race for space exploration kicked-off. There have been a number of advancements in space exploration since then. From multi-fold categories of satellites, to International Space Station and from establishing foot on the moon, to anticipating the approaching threats from the outer space, humans have achieved a tremendous success all the way.
With many countries proficient enough to carry out the space exploration, the need for enactment of universal Space Law was felt. In the absence of prominent case laws, the current Space Law is endorsed by various treaties and conventions only. First key treaty was Outer Space Treaty, which came into force in 1967. As we go from bi polar world to multi polar world, many treaties came in way but the main purpose was the ‘peaceful utilization of space and space resources’ for the welfare of mankind.
“Earth is a small town with many neighborhoods in a very big universe.” -Ron Garan[i]
CONCEPT OF OUTER SPACE
Before discussing Space Law, it is necessary to know the concept of Outer Space. There is not a single accepted and technical definition of Outer space. There are some proposed definitions of Outer Space, like: Any region of space beyond limits determined with reference to the boundaries of a celestial body or system, especially:[ii]
- The region of space immediately beyond Earth’s atmosphere.
- Interplanetary or interstellar space.
1.1 Urgent need for accepted definition:
There are different opinions and definitions of Outer Space and upper Atmosphere as given in relation to legal language. There are interchangeable terms having different legal and scientific meaning like Space, Outer Space, Air Space, Extra-Territorium Space, Cosmic Space, Extra-Atmospheric Space, World Space, Contiguous Space, Territorial Space etc. So there is urgent need to have a single universally accepted definition of Outer Space, to distinguish it from other terms and also as due to rapid development of space and aviation technology that gives aircrafts, the capacity to reach certain parts of outer space. The universally accepted definition will reduce the conflict in the interpretation of the law. In addition a clear definition of Outer Space can help us having the definition of “Space Object”. The specification of air and space boundaries by U.N will help in broaden the scope of peaceful activities in outer space.
1.2 Divisions of Atmosphere:
According to some there are three general divisions of atmosphere: Troposphere, Stratosphere and Ionosphere. According to others there are four divisions, Troposphere, Stratosphere, Ionosphere and Exosphere. While John C. Hogan adopts fivefold division:[iii]
- The Troposphere is nearest to the earth and is the lower most layer of the atmosphere. It has been studied more than any other sector of atmosphere. It is a region that modern aircraft, both jet and conventional, fly. Its height extends up to 7 miles and is highest at Equator and decreases to 28,000 feet at the poles.
- The Stratosphere is the next higher region and though treated often as dynamically different from troposphere, but essentially of similar characteristics. It extends up to 7 to 19 miles. Ozone is generated in the higher segment of stratosphere.
- The Mesosphere extends up to 19 to 50 miles. This also doesn’t differ much from those of underlying atmosphere. The highest limit of this region has been placed at between 375 and 500 kilometers. This sector has been called ‘the aeropause’ or a point where pilot and his airship enters into outer space.
- The Ionosphere is the next higher region in the space. This region extends to the altitude of 400 miles in an air mass. In this region the gravitational force of earth is very slight. Beyond this phase, there is vast unknown of the infinity called ‘Exosphere’.
- Magnetosphere is the latest discovery by scientists and has been added to the earth’s atmosphere. NASA announced on Jan. 19, 1962 that the earth was not surrounded by 2 radiation belts but by one large band, named Magnetosphere. It starts at the height of 400 miles and extends up to 40,000 miles.
Even after the various divisions of the atmosphere, the question still persists: What is the legal limit of the atmosphere?
Further John C. Hogan adopts the three terms which are based on the classification of astronomy and can be used in law in reference to the regions beyond the earth’s atmosphere:[iv]
- Interplanetary Space: This term applies to the sun and those bodies which revolve around it. In law term it would refer to the area of the ‘solar system’, for example: orbit of the moon and the orbit of earth around the sun.
- Interstellar Space: This term applies to the arrangement of ‘Milky Way’. Sun and many other millions of stars are the part of the ‘galactic system’. According to him, this term in law would refer to the areas beyond the solar system. The vast spaces intervening between the stars which make up the ‘galactic system’, and those spaces, which are not entirely empty, but contain dust and gas, are known as ‘Interstellar Space’.
- Extragalactic Space: In law, this term would apply to the whole region outside the galactic system.
- Space Law (“kosmicheskoe pravo”): It is very true that wherever Humans go, the Law follows. The term “Space Law” was not focused upon till October 4, 1957, when an artificial satellite was launched by Soviet Union, named “Sputnik 1”. There was hardly any legal status of outer space. Since then, the activities in space have been increasing year by year. The term Space law couldn’t resemble Air Law because it would have been violation of International Law of sovereignty, when satellites pass over other countries. The “Space Law” was born.
Space law, an aspect of international law has grown under the aegis of United Nations. A 1963 U.N declaration states that the exploration and the use of outer space would be for the benefit and in the interest of all people; that no sovereignty could be claimed in the space; that the objects and persons launched into space would be returned promptly and safely, if the landed in a foreign country, and that nations launching objects would be responsible for damages caused by them. [v]
The “Space Law” refers to the human activities in outer space with relation to National and International law. When Space Law was discussed at United Nations, many treaties, resolutions, international space organizations, agreements on space activities etc, were originated. Previously, most of the space related operations were conducted by govt. agencies but now in this new era, many private companies are preparing for their own missions and some have started making collaborations with govt. agencies. Space law never emerged as a private subject of law and from very beginning many other topics became part of space law. Radio frequencies, International Telecommunication Law, Telecommunication Union, Military activities, Agreements on major arms control etc. became part of space law. With further passing of time, commercialization and privatization started in many space related activities. The concept of Jurisprudence in Space Law ultimately originated. Many other new issues born in this field, like, Issue of Space tourism, Satellite remote sensing, Satellite communications, Space resource utilization, Dispute settlement issues, Satellite navigation, Satellite launching, Military use of outer space, Space station operations, Space project financing, Space debris and its mitigation etc.
2.1 Legal Status of Outer Space:
Treaties and conventions are the important source of Space Law. Due to lack of many case laws and customs, treaties are majorly regarded as the sources. These maintain an Office of Outer Space (OOSA) in Vienna, Austria.
The summary of five basic Treaties:
(A) Outer Space Treaty: This is regarded as the Master Treaty of all in Space Law; this may be called “The Grandfather Treaty”. It came into effect in 1967. The pressure for passing such kind of treaty grew during 60’s, when Humans were close to set foot on Moon. It reflected the concern of two superpowers (U.S and Soviet Union) at that time. This treaty was signed for the benefit of entire mankind and majorly focused upon the concept of weapons of mass destruction in space. This treaty also roughly resolves the issue of claim of sovereignty in space and it also dealt with registration of Space Objects.
This treaty included many principles, which were used in many other international treaties. These principles include:[vi]
- The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind;
- Outer space and celestial bodies are free for exploration and use by all states;
- Outer Space and celestial bodies are not subject to national appropriation;
- No Weapons of Mass Destruction are permitted in the outer space.
- The moon and other celestial bodies shall be used exclusively for peaceful purposes;
- States shall be responsible for their national activities in outer space, whether carried on by governmental or non governmental entities;
- The activities of non governmental entities in outer space shall require the authorization and continuing supervision by appropriate state;
- States shall retain jurisdiction and control over their space objects and any personal thereon;
- States shall be liable for the damage caused by their space objects; and
- States shall avoid the harmful contamination of outer space.
(B) Agreement on the Rescue of Astronauts, Return of Astronauts and Return of Objects Launched into space (the “Astronaut Rescue and Return Agreement”)[vii] :
- States Parties are to render humanitarian assistance to astronauts in distress or who have made an emergency or unintended landing on their territory, and to return the astronauts to the launching authority.
- States Parties are to return objects launched into outer space or their component parts to the launching authority if they land on their territory.
(C) Convention on International liability for Damage Caused by Space Objects (the “Liability Convention”)
The convention has 28 Articles and took around a decade to develop. Prior to this treaty “Legal Principles Governing the Activities of State in Exploration and Usage of Outer Space”[viii] mentioned that the States will be responsible for activities in outer space. In 1969, the conference at New Delhi came up with “New Delhi points”[ix], discussed as follows:-
- Liability of international organizations.
- Nuclear damage
- Applicable law
- Limitations of financial liability
- Compulsory third party arbitration
Further the Liability Convention came up in 1972 and briefly discusses[x]:
- Procedures are created for presenting and resolving claims for damages caused by space objects on the Earth, to aircraft, or to other space objects.
- The launching state is absolutely liable for damage caused on Earth’s surface or to aircraft in flight; if the damage is caused elsewhere (e.g., in space), the launching state is liable only if the damage is due to its fault or the fault of persons for whom it is responsible.
(D) Convention on Registration of Objects Launched into Outer Space (the “Registration convention”)[xi]:
The major treaty, the 1976 Convention on the Registration of Objects Launched into Outer Space, expands on the 1967 principle that nations retain jurisdiction over and responsibility for their facilities and objects in space. It mandates that a nation register its launch with a U.N. Registry, and thereby legitimate that nation’s jurisdiction over the vessel or facility.
(E) Agreement governing the activities of States on Moon and Other Celestial Bodies (the “Moon Agreement”)[xii]:
- Exploration and use of the Moon shall be carried out for the benefit and in the interest of all countries, and due regard shall be paid to the interests of present and future generations.
- The Moon and its natural resources are the common heritage of mankind; neither the surface nor the subsurface nor any part thereof shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.
- States Parties shall undertake to establish an international regime to govern the exploitation of the Moon’s natural resources as such exploitation is about to become feasible. The regime’s purposes include the orderly and safe development of the Moon’s natural resources, the rational management of those resources, the expansion of opportunities to use those resources, and an equitable sharing by all States Parties in the benefits derived from those resources.
- States Parties bear international responsibility for national activities on the Moon, whether by governmental or non-governmental entities. Activities of non-governmental entities must take place only under the authority and continuing supervision of the appropriate State Party.
- All space vehicles, equipment, facilities, etc. shall be open to other States Parties so all States Parties may assure themselves that activities of others are in conformance with this agreement. Procedures are established for resolving differences.
The Problem in Outer Space (The Concept of Space Debris):
“Space Debris” is one of the biggest problems that are going to affect both extra-terrestrial and terrestrial environment. The major treaties which are dealing with space law along with the provisions of environment safety are: Outer Space treaty, 1967 and Moon Treaty, 1979. Further there are more treaties which more or less deals with such issue: The Environment Modification Convention 1977, Space Liability Convention 1972, The Rescue Agreement 1968 and The Space Registration Convention 1975.
Many problems were solved since man-made objects were launched in space but a hazardous threat is also increasing to the environment due to principles of some countries, which are responsible for the Space Debris in outer space, which is posing threat to entire future space exploration and launching programs. With the increasing number of space activities, the claims for the damage control have also grown. The size of Space Debris and the amount of threat pose by them are contrary. Even at present it is unfortunately, impossible to track and to keep record of all the data of Space Debris due to its size.
Many times, many missions have to be aborted due to Space Debris. A 0.5 mm paint chip travelling at 35,000 km/hr (10 km/sec) could puncture a standard space suit. [xiii]
No treaty deals with the universal definition of Space Debris. The word ‘Debris’ is derived from French word ‘Debriser’ which means to break down.
Carl Q. Christol suggests that ‘Debris” is something that possesses tangible, physical characteristics, of the kind that can be seen, touched, weighed and processed in the factories or analyzed in the laboratories. He suggests further that as a physical substance, ‘debris’ may consist of a space objects, including its component parts, or it may be composed of those fragments that are located in space or which endure the tests of the atmosphere and ultimately come to rest on the surface of the earth.[xiv]
According to the Report of Second U.N. Conference on Exploration and Peaceful Uses of Outer Space 1982, space debris consists of dead satellites, spent rocket motors, nuts and bolts etc.*
“Space debris” is:[xv]
- A space object as defined by Article I(d) of the Liability Convention and Article I(b) of the Registration Convention;
- That no longer performs its original function or has no tangible function;
- That either re-enters the atmosphere, remains in Earth orbit, in outer space or on the Moon or another celestial body,
- Is either created intentionally or through the actions or inactions of a launching state;
- May have economic value to a launching state;
- May have historical value to a launching state;
- And/or may have continued national security value to a launching state.
3.2 The Scenario:
Currently there are millions of fragments orbiting around the earth. Greater part of these is result from the activities of very few countries, majorly China, U.S, Russia etc. Currently, the U.S Space Surveillance Network is tracking over 13,000 human-made objects larger than 10 cm in diameter orbiting the Earth.[xvi] In addition, there are over 100,000 objects measuring between one and ten cm in diameter and millions smaller than one cm.[xvii] It is estimated that 40 % of the tracked debris is the result of breakups of rockets and space craft bodies.[xviii]
Some examples are: In year 2013, the first and only satellite of Ecuador named Pegasus, was damaged by space debris. On 10th Feb. 2009, the first collision of two intact spacecraft occurred in the outer space. Iridium 33, US communication satellite and Cosmos, a Russian satellite collided as two objects passed over northern Siberia, it was the first ever accidental in-orbital collision between two satellites. Another recent incident that dramatically, increased in amount of catalogued fragmentation debris in outer space, and public interest, was the intentional destruction by China of its own orbiting Fengyun-1C weather satellite by an anti-satellite (ASAT) device in 2007. According to Nicholas Johnson, NASA’s chief scientist for orbital debris, this ASAT test, “is by far the worst satellite fragmentation in the history of the space age, in the past 50 years.”[xix]
Kinds of Debris:
Mainly there are two kinds of Debris (also named as space junk and space waste): Natural and Artificial.
- Natural Debris consists of natural bodies revolving around the sun, like, meteors and asteroids.
- Artificial Debris consists of man-made objects (usually non functional) which revolves around the Earth. (Therefore it is most commonly referred as Orbital Debris)
3.3 Liability for Damage Caused By Space Debris:
Article VI of ‘Outer Space Treaty’ describes, the “International Responsibility” for the activities conducted by the countries (govt. agencies or private) in outer space and for ensuring that such activities are obedient with Outer Space Treaty.
Further Article VII elaborates : ‘Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies’
Article VIII states: ‘A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object […] or on a celestial body. Ownership of objects launched into outer space, [….] and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth…’
Article VII of ‘Convention on International Liability for Damage Caused by Space Objects’ states: The provisions of this Convention shall not apply to damage caused by a space object of a launching State to:
(a) Nationals of that launching State;
(b) Foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching State.
3.4 Space Debris Mitigation and Removal:
There are basically two main ways to remove the space debris:
- Active Removal
Mitigation means reducing the further creation of space debris while Removal may be by a human made scheme. For this it is important to understand the Tracking of Space Debris and Sources of Space Debris.
Tracking of Space Debris is very important to have a rough overview of the situation of the problem. Tracking includes extreme calculations by sophisticated machines. It can further help us in avoiding major collisions in future. In the present time, there are some sensors put up for tracking space objects. The United States Space Surveillance Network, track, identify, and catalog all manmade objects orbiting the earth. It has a Radar Sensor system, Optical Sensor system, Air Force Space Surveillance system and works with Joint Space Operation Center (JSpOC).
In Resolution 62/217, “International cooperation in the peaceful uses of outer space”, the General Assembly endorses the Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space and agrees that the voluntary guidelines for the mitigation of space debris reflect the existing practices as developed by a number of national and international organizations, and invites Member States to implement those guidelines through relevant national mechanisms.[xx]
UN-Space Debris Mitigation Guidelines:[xxi]
- Limit debris release during nominal operations
- Minimize break-up potential during operations
- Limit accidental in-orbit collision probability
- Avoid intentional destruction & harmful activities
- Limit the probability of post-mission break-up
- Limit the long-term presence of spacecraft and launcher orbital stages in the LEO protected region re-entry objects resulting from this recommendation must not pose an undue risk to the ground population
- Limit the long-term interference of spacecraft and launcher orbital stages with the GEO protected region.
Active Removal of Space Debris:
Under this method the space debris is planned to be removed by the human made machines (spacecrafts). Many private companies even have entered into the contract with various space agencies to help in removing Space Debris. Only Mitigation Guidelines are not enough as there is urgent need to protect the outer space environment form space debris for further research and to ensure sustainability of these activities in future also.
The following are some of the essential prerequisites for the conduct of active debris removal and on-orbit satellite servicing:[xxii]
- A “cost effective” technique;
- A proper legal and policy framework to protect the parties involved;
- Available and willing target for removal or customer for servicing;
- Someone to pay;
- Capability to locate, approach, connect deorbit/servicing device, control orientation and to move the target object to desired destination; and
- Safety of the public on ground, at sea and traveling by air.
There are some other ways to get rid of Space Junk like:
- Auto Detector Debris Satellites, which can auto-detect the space junk and either destroys it or take it back on Earth.
- Supersonic Laser, which can be use by placing it on Earth only, but it, will burn the space trash. These lasers have been put up in Australia.
- Artificial Robots, which can go to space and there only work will be to destroy orbital debris.
- Space Magnet, which can attract small pieces of debris and throw it out from Earth’s orbit.
- Space Bombs, which can burn the space junk, without harming any other satellites.
- Self De-Orbiting Mechanism, which can allow satellite to automatically go out of Earth’s orbit, after it is of no use.
Article VIII of the Outer Space Treaty, states that non functional satellites still belongs to its launching States , which further means without the consent of that State, no other country can interfere with it.
And it is equally possibility of accidents during the cleanup of space debris, Article VI of Outer Space Treaty states that the country under whose jurisdiction the satellite falls retains the responsibility of the activity and any accidents during their activities.
Law is very precise, but when we come to the concept of Space Law, we lack some precise definitions like Space Objects, Outer Space and Space Debris etc. The U.N Treaties, Agreements, Conventions etc, have given birth to legal aspects of space, termed as ‘Space Law’. But in spite of even a law, space is not free from problems. One such problem is ‘Space Debris’. The traffic in outer space is increasing every year. It is well established fact that anything that goes in space today will turn Space Debris one day. There is urgent need to improve the technology, so that it may reduce the amount of debris formation and also to clean the present orbital debris. The law and legal conventions should be in favor of ‘Future Generations’ also and shouldn’t be only for the present generation. Although, Liability Convention and other Space Treaties, no doubt were made for the best of mankind but analyzing the amount of risk, the Space Debris is posing to the future of mankind, it is necessary to solve the existing problems and finding more rational solutions. This problem requires all nations to agree on some universal measures, with international cooperation. All countries must focus on PDD (Planning, Drafting and then Developing) method.
Edited by Hariharan Kumar
[i] The Orbital Perspective: Lessons in Seeing the Big Picture from a Journey of 71 Million Miles
[iii] John C. Hogan in AJIL, No. 2, 1957, p 368.
[iv] John C. Hogan, op. cit., p 374
“Space Law.” The Columbia Electronic Encyclopedia®. 2013. Columbia University Press .
[ix] Damodar Wadegaonkar, “The Fundamental Principles of Space Law,” in, The Orbit of Space Law (1984), p. 23
[x] supra note 7
[xii] supra note 7
[xiii] Howard A. Baker, “Space Debris: Legal and Policy Implications 3”, (1989), p. 10
[xiv] Carl Q. Christol, “Protection of Space from Environmental Harms”, Annals of Air and Space Law, vol IV (1979), p. 434
[xvi] Stefan Lovgren, “Space Junk Cleanup Needed, NASA Experts Warn”, National Geographic News, January 19, 2006, http://news.nationalgeographic.com/news/2006/01/0119_060119_space_junk.html
[xvii] Brad Thomas, “STS 121,” “Space Center Roundup, Lyndon B. Johnson Space Center,” (April 2006), http://www.jsc.nasa.gov/roundup/online/2006/0406_p8_11.pdf, p.8
[xviii] Supra Note 16.
[xix] Ram Jakhu, “Legal Issues of Satellite Telecommunications, The Geostationary Orbit, and Space Debris,” Astropolitics: The International Journal of Space Politics & Policy, vol. 5(2), (2007), p. 192
[xxi] Sergio Marchisio, “Space Debris Mitigation And Space Law”, Session 10: Space Technology and Space Law , Mombasa, Kenya, (2011) , p. 8
Also, UNGA Res. 62/217 of 21 December, 2007.
[xxii] http://ploughshares.ca/wp-content/uploads/2013/02/Jakhu.pdf, p. 8