Authors: Swathi Shreeram Kumar, Somepalli Alekhya & Akash Agarwal, Students at Alliance School of Law, Alliance University, Bangalore.
The growth of orbital space debris is both a consequence of and a potential hindrance to space activities. The risks posed by space debris highlight the need to adequately address the challenges posed to the sustainability in outer space. The preservation of the access to and usability of outer space in the long-term requires that action is taken for existing and future space missions. As the enforcement of such technical measures will depend on adequate regulation, they need to be approached also from a legal perspective. The deficiencies in law for space debris remediation mechanisms originate from the fact that although technical concepts have been developed, the legal framework for space activities does not impose any legal obligations for debris removal. An overview of the relevant legal framework shows that there is a legal basis for the protection of the outer space environment which can be substantiated in more concrete terms by the formulation of a specialised and impregnable legal framework focusing on the issue of space debris aiding the sustainability in the global environment. This article profoundly analyses the effectiveness of the existing international conventions and treaties and their legal response to the issues of space debris. This research provides for a potential solution to the issues of space debris both prospectively and retrospectively. Prospectively, the article suggests the need for an international legal framework to regulate the issues regarding space debris. Retrospectively, the article suggests the need to constitute a body to initiate the remediation process, giving combined responsibility to the global states. The escalating issues of space debris poses a significant threat to the global environment. Hence this article deals with the same subject confining the scope to the legal response and provides suggestions to deal with the issue in harmony with principles of international law.
Keywords: Space debris, Environment, Outer space.
Space debris can also be called space junk. It is the artificial material that is circling the earth but is no longer functional in as any regards. Space debris can be anything ranging from a large discarded rocket to a microscopic chip of paint. The growth of orbital space debris is both a consequence of and a potential hindrance to space activities. The risks posed by space debris propagation in the most used orbital regions highlight the need to adequately address the challenges posed to the sustainability in outer space. The preservation of the access to and usability of outer space in the long-term requires that action is taken which has to be the result of both mitigation and remediation measures for existing and future space missions. As the enforcement of such technical measures will depend on adequate regulation, they need to be approached also from a legal perspective. The deﬁciencies in law for space debris remediation mechanisms originate from the fact that although technical concepts have been developed, the legal framework for space activities does not impose any legal obligations for debris removal and on-orbit servicing. Nevertheless, an overview of the relevant legal framework shows that there is a legal basis for the protection of the outer space environment which can, as has already been the case with space debris mitigation guidelines, be substantiated in more concrete terms by the formulation of voluntary, non-binding instruments and included in national legislation. The legal framework for outer space activities consists of ﬁve international treaties(the 1967 Outer Space Treaty (OST), the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Agreement) adopted in the period between 1967 and 1979, resolutions of the General Assembly of the United Nations adopted since 1982, and the national space legislation of more than 20 countries. Since 1996, a tendency can be observed to adopt sets of measures and instruments on the international level that re-interpret concepts entailed in earlier Treaties. The Outer Space Treaty is sometimes referred to as a “Constitution” of space law as it contains the basic principles for space activities, provides the basis for the next four treaties, and has gained signiﬁcant support, with 107 signatories as of January 2018. Thereby the Outer Space Treaty is considered to contain principles of customary international law, which bind not only state parties to the treaty but also non-signatories. Such customary principles are Articles I–IV, VI, VII, VIII and arguably also Art. IX OST and have served as a basis for the development of the further treaties on space law.
- What is the present legal response to the issues of space debris in the international sphere?
- Is there a need for new binding legal framework to deal with the issues of existing space debris?
- Is there a need for an effective legal framework as a precautionary measure to control the escalating issues of space debris?
ARTICLES REFERRED TO:
1) Popova RV Schaus; The Legal Framework For Space Debris Remediation As A Tool For Sustainability In Outer Space; (2018) 5 Aerospace:
This article proposes the need and capacity of a legal framework for space debris remediation as an aid and tool for sustainability in outer space. Space debris is an urgent matter and an issue of global importance for space activities. While the conflict between the use and the protection of outer space which results in the current trends of exponential and non-reversible growth of space debris is a pressing problem, the author states that the legal response hitherto has not been ineffective so as to offer binding rules for space debris mitigation and remediation. It is true that a solution to such a complex problem cannot evolve only on a regulatory basis and requires technical, financial and political approaches, which, if implemented together with an adequate legal framework, can resonate the dimensions of orbital space debris pollution. Thus, the crux becomes the heart of the research problem in the proposed article. The urgency of the problem cannot be overestimated and the need for action is vital for the use of near-Earth space. Thus, this article stands as an example in putting forth a critically acclaimed idea that raising issues of space debris hindering the sustainability in outer space shall be regulated through the initiation of providing a legal framework.
2) Muñoz-Patchen C, Regulating The Space Commons: Treating Space Debris As Abandoned Property In Violation Of The Outer Space Treaty; (2018) 19 Chicago Journal of International Law:
This article argues that the solution to the issue of space debris requires calling upon spacefaring nations to comply with the existing requirements of the space treaty regime, particularly the first principles of the Outer Space Treaty, to preserve the free use of space for all. In order to solve this tragedy of the commons, this article recommends regulating the use of this common resource. This article argues that space debris is abandoned property by combining the current definition of space debris and the doctrine of abandonment. Finally, the article proposes creating a market-share liability regulatory regime requiring abandoners to fund debris clean-up.
3) A SPACE LAW AND ORBITAL DEBRIS, Orbital Debris: A Technical Assessment (National Research Council 1995):
This article briefly summarizes some of the existing space law potentially applicable to the debris issue and discusses some of the activities currently under way that may affect future international rule making on orbital debris-related issues. More detailed discussions of the legal regime and its application to the debris issue are contained in this article. This article helps get a deeper understanding of the present legal regime. It helped conclude that the present legal system is ineffective in dealing with the problem of space debris.
4) Malhotra K, Outer Space Law And The Problem Of Space Debris – Academike (Academike, 2015), https://www.lawctopus.com/academike/outer-space-law-problem-space-debris/> accessed 19 August 2019:
This paper discusses the legal status of Outer Space and it also undertakes the observation of five elemental treaties pertinent with Space Law. More specifically, this paper attempts to deliberate the impact of Space Debris. Various conventions have been implemented to tackle this problem however, the author has a strong conviction that this problem hasn’t been resolved. Further, this paper presents solutions with regards to the several problems while dealing with space debris. Hence, this paper further emphasis the argument being made by the article presented.
5) Wheeler J, Space Debris: The Legal Issues (aerosociety.com, 2019) <https://www.aerosociety.com/news/space-debris-the-legal-issues/>> accessed 19 August 2019:
This article was written in 2014 and published in the royal aeronautical societies yearbook and is a fore runner as it introduces the concept of Kessler effect and acts as an eye opener suggesting the need for regulating framework to deal with the issue of space debris.
SCOPE AND OBJECTIVES
The growth of orbital space debris is both a consequence of and a potential hindrance to space activities. The risks posed by space debris highlight the need to adequately address the challenges posed to the sustainability in outer space. The preservation of the access to and usability of outer space in the long-term requires that action is taken for existing and future space missions. As the enforcement of such technical measures will depend on adequate regulation, they need to be approached also from a legal perspective. The deficiencies in law for space debris remediation mechanisms originate from the fact that although technical concepts have been developed, the legal framework for space activities does not impose any legal obligations for debris removal. An overview of the relevant legal framework shows that there is a legal basis for the protection of the outer space environment which can be substantiated in more concrete terms by the formulation of a specialised and impregnable legal framework focusing on the issue of space debris aiding the sustainability in the global environment. This research provides for a potential solution to the issues of space debris both prospectively and retrospectively. Prospectively, the article suggests the need for an international legal framework to regulate the issues regarding space debris. Retrospectively, the article suggests the need to constitute a body to initiate the remediation process, giving combined responsibility to the global states.
This research will be conducted in a systematic way to provide practical solution to the international environmental threat.
THE EXISTING LAWS WITH RESPECT TO SPACE DEBRIS
There is no mention of the word “space debris” in any of the five major space law treaties in the context of International law. These five treaties are as follows –
- Outer Space Treaty – This treaty is called the “constitution” or the “grandfather” of all space law treaties as it laid down the first and basic principles of international space law which are used in many subsequent treaties. The treaty came into effect in 1967. This treaty has certain articles which indirectly can be used in the context of space debris-
- Article 1 of the treaty states that the outer space and the celestial bodies are beyond any national sovereignty and belong to the whole “province of mankind”. This implies that all states have equal rights of commercial, non-commercial, scientific exploration, and scientific investigation without any discrimination. The concept of “province of mankind” or common heritage of all mankind is also found in the United Nations Convention on the Law of the Seas, Preamble of Antarctic Treaty etc. This article is complemented by Article 2 which further states the absence of sovereignty of any nation in the outer space. This makes the issue of space debris an issue of all nations.
- Article 3 and Article 4 highlight the principle of usage of outer space for “peaceful purposes only”. Article 3 gives the right to all states to explore and use outer space in accordance with the international laws for peaceful purposes, while Article 4 expressly prohibits any kind of militarization of the outer space by any nations. It allows for the military personnel and necessary equipment in the outer space for peaceful purposes and scientific research. This indirectly prevents any destruction due to weapons in the outer space which could have led to much more space debris.
- Article 6 provides for the responsibility of a state party for all its national activities in the outer space, whether by governmental entities or non-governmental entities. Article 7 and 8 provides the states with jurisdiction over an object sent to space by the concerned state as per its national registry. Thus, the states have the power to provide for rules and regulations with respect with the sent object in space to minimize any damage that might be caused by the space debris.
- Article 9 is the most important clause when it comes to space debris. It states that whenever there is a potential risk or danger with respect to a space venture which is foreseeable by the concerned state, the said state shall consult on the same with the other states which are likely to get affect by the said foreseeable consequence. The said consequence can be said to include issues with regard to space debris.
- The Agreement on the Rescue of Astronauts, Return of Astronauts and Return of Objects Launched into space (the “Astronaut Rescue and Return Agreement”) – This agreement came into force in 1968. It provides for the assistance for the safe return of the astronauts and the space objects to enter into the atmosphere and for safe arrival. It provides for return of the space objects of another state found on the lands of another state. This treaty doesn’t deal with the issue of space debris.
- Convention on International liability for Damage Caused by Space Objects (the “Liability Convention”) – This agreement came into force in 1972 which dealt with the liabilities of the states with respect to space objects. Space debris being a part of space objects, the states may be held liable for the damages caused by such space debris theoretically. Practical implementation of this may be very difficult.
- Convention on Registration of Objects Launched into Outer Space (the “Registration convention”) – This treaty came into force in 1976 was an expansion of Article 6 of the Outer Space Treaty 1967 which provided for the state’s jurisdiction over the space objects sent by it into the space. It mandates the registration of the space objects with a UN register to legitimize the nation’s jurisdiction over a space object sent to outer space. This along with the Liability Convention 1972 maybe used to hold states liable for damages caused by the space debris from the registered space object of the state. The problem still will persist is identifying a space debris with any nation.
- Agreement governing the activities of States on Moon and Other Celestial Bodies (the “Moon Agreement”) – This treaty came into force in 1979. It provides for the above-stated principles of the Outer-space Treaty 1967 with respect to the moon.
- UN General assembly Resolution 62/217 – “International cooperation in the peaceful uses of outer space” provides for voluntary guidelines for the mitigation of space debris. The guidelines are as follows –
- 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.
SPACE DEBRIS REMEDIATION
Littering in the orbit of the earth from dis-functional satellites to flecks of paper is escalating the problem of space debris and its ill effects on the space faring nations. Space debris is an alarming issue and ought to be immediately addressed by the space faring nations in order to promote the peaceful and uninterrupted use of outer space. It is observed that the legal response to the exponential and irreversible growth of the quantum of space debris is not effective although sufficient legal provisions for the conservation and sustainable use of space is provided in various conventions and treaties regulating peaceful usage of space as a common heritage of mankind. This chapter provides for an alarmingly urgent need for a legal regulatory framework binding and effective on the spacefaring nations to deal with the existing quantum of space debris. This suggestion is provided on the basis that although many technical, financial and political approaches are postulated, legal framework is essential for the validation of other counterparts. This chapter recommends the international legal framework to define space debris and create a regulatory framework and market-share and collective liability regime that treats the existing quantum of space debris as abandoned property, facilitating space debris remediation. It shall be observed that space debris being the current and increasingly alarming issue in the space regime has no solution as far as the current existing legal regime is considered. Many scholars have called for a new regime or a regulatory framework to clean up the existing junk or revise the existing legal regime. It shall also be noticed that the existing legal framework doesn’t not define space debris or provide for the doctrine of liability. According to the Treaty On Principles Governing the Activities of States in the Exploration and Use of Outer Space(Outer Space Treaty) every spacefaring nation has an equal right to free access of the space since space is considered to be the common heritage of mankind. Similarly, tragedy of such commons shall also be considered severely in violation of the Outer Space Treaty.
UNITED NATIONS APPROACH TO THE EXISTING SPACE DEBRIS ISSUE
The resolution of 1993 by the UN general assembly has been considered as a milestone in the international sphere as it is the first step taken by the international law towards dealing with the exponential growth of space debris. This resolution considered space debris as an “issue concerning all nations” and called for the constitution of the Scientific and Technical Subcommittee (STS) to the COPOUS to formalise space debris as an agenda worthy issue. Subsequently, space debris was made as an agenda in 1994’s STS session. The STS concurred that the issue of space debris is an alarming one and needs to be addressed immediately and international cooperation is required by all member states to bring in an effective and efficient system to tackle the exponentially rising issue. The STS in 1998 session tried to define space debris and formally discussed the space debris remediation and mitigation process. There was plethora of conflicting opinions from the delegates. A few opinions are listed as below:
- Elimination of space debris shall be a primary concern for the space faring nations.
- Though the clean-up shall not be economically and technically feasible, the global community shall consider this a serious issue.
- Constitution of an organisation to arrange and organise international funding for the mitigation and removal process is essential.
- It shall not be appropriate to discuss the issue in the legal subcommittee of the COPOUS since no such legal mechanism is founded in the STS. Due to the insufficient and intermittent focus of UN and the space debris working group of the STS, the review procedure for the draft measures took a span of 7 years.
NEED FOR AN INTERNATIONALLY BINDING AGREEMENT TO DEAL WITH EXISTING ISSUES OF SPACE DEBRIS
In February 2008, the UN general assembly adopted and endorsed COPOUS guidelines. The great defunct of these guidelines is that they are non-binding in nature. Despite UNGA calling for intensive and profound research, technically, economically and scientifically, the legal enforcement being non-binding in nature is considered to be a deal breaker in the international sphere. A few jurists have an opinion that though these guidelines are non- binding, with continued and customary practices, it shall become a part and parcel of the customary international law, however, scientifically and astronomically, space debris is an issue that ought to be addressed immediately. Hence, through article strongly proposes that the legal subcommittee of the COPOUS shall propose a binding agreement to deal with the issue of space debris. It is therefore suggested that this opportunity provided to the legal subcommittee of the COPOUS shall be taken seriously and the committee shall declare the existing legal frameworks insufficient and propose a binding and ardent legal framework to deal with the existing quantum of space debris. It shall be observed that the existing conventions and legal frameworks including the Liability convention fails to provide and create an obligation on the states for clean up of the junk, although this convention creates a liability when the identifiable debris involves in accidents and the fault shall be attributed to the space faring nation. There exists a lot of issues in dealing with the problem of space debris which are addressed as below:
OWNERSHIP AND DOCTRINE OF ABANDONMENT
An immediate issue that shall be addressed is the ownership of the space debris. Although no individual liability or responsibility has been created by the liability convention or any other legal framework for clean-up and remediation process of the existing junk of space debris, the individual country or an organisation willing to clean up the junk is restricted by the fear regarding the ownership of the space debris as there exists no clear and defined meaning of space debris and interference with other nation’s space object could cause disputes among the space faring nations. Hence, this fear limits the voluntary clean-up. Also, no incentive is provided to the willing nations or organisations for voluntarily performing the activity. It shall be noted that the Liability convention and Convention on Registration defines space object but doesn’t specify if the object necessarily be functional or non-functional. Space debris being a part of the launched space object creates a confusion whether belong to the launch nation or not. It is also of the view of the jurists that under the convention on registration that every object being launched shall be registered and that the launching states shall have absolute jurisdiction over the objects being registered and launched, and that this provision doesn’t consider the fact whether the object returns or not or if the object is functional or defunct. This theory creates the responsibility on the launching states that the object that turn into debris belong under the ownership of the launching nation.
On the other hand, another set of jurists are in the view that the definition of space objects as provided in the conventions doesn’t include space debris. This chapter tries to propose that the ownership of the space debris shall be considered different from the ownership of the space objects. It is hereby proposed that the concept of the ownership of the space debris shall be revised and the space debris shall be considered as abandoned property and non- functional in nature. It is hereby proposed that the concept of space debris shall be associated to adopt the STRAHILEVITZ’S VIEW: according to which once the chattels are abandoned, they are owned by no one and shall be freely cleaned or used by any other party. One proposed solution is that the debris would be checked and also the satellites intact and the doctrine of abandonment is applied and tested. Once the doctrine is established, any party willing to clean up shall proceed with the same.
MARKET SHARE LIABILITY AND UN RUN FUND AS ESSENTIAL FEATURES FOR THE IMPLEMENTATION OF THE OBLIGATION TO CLEAN UP DEBRIS
Space debris is a serious and exponentially increasing threat that interferes with the peaceful and continued use of outer space. This chapter introduces a twofold concept of 1. Market share liability and 2. UN organised funding mechanism that shall distribute the funds to the parties undertaking the responsibility of cleaning up the space debris. Market share liability concept shall be incorporated as a part of regulatory mechanism with a view of reducing the quantum of existing space debris instead of using it as compensation for loss. Understanding the difficulty in figuring out the ownership of the space debris, an essential suggestion of using the concept of market share liability shall be resorted to as an aid for creating an obligation to clean up the space debris. Market share liability has been victoriously applied in many dangerous situations where the parties ascertain the risk and agree for the apportionment of the responsibilities where the identification of ownership is impossible and tedious.
Market share liability created in the case of SINDELL V ABBOTT LABORATORIES shall be incorporated to the concept of space debris remediation. Peter T Limperis, in his article on space debris suggested the adoption of market share liability concept. He also noted that whenever a collision between a functional space object and unidentifiable piece of debris, the compensation and liability shall be apportioned among the space faring nations equivalent to the quantum of percentage of total debris for which that nation is responsible. This principle negates the tedious process of proving causation. It shall also be noted that creation of market share liability shall not be tough provided the accuracy of information regarding the models and other records available with the UN from the registry etc. This solution is more viable and shall be accepted by powerful space faring nations like US, Russia and China due to their increased interest in advanced use of space and the fact that their space activity is threatened by the proliferation of space debris. This doctrine provides for a long-term solution acceptable by all space faring nations since the compensation received to clean up is essential and attractive. This remedy is considered regulatory and solves the issue of the tragedy of commons. Under this solution, the parties willing to clean up are provided incentives and compensation for the operations where they would not feel that they are freely rode by the other nations. This enables a compensation mechanism from the responsible party. Market share liability is a two way concept that provides for the compensation to the victims of the debris collision and also incentivise the nations to avoid creation of debris in future.
Market-share liability will benefit the space industry by (1) providing compensation to the injured party where none existed before, (2) creating an incentive for states to mitigate debris production, (3) creating an equal incentive to remove existing debris, (4) promoting the registration and tracking of space objects, (5) encouraging states to cooperate in the prevention of collisions, and (6) ultimately lowering the economic barrier to entering the space industry.
The prominent advantage of market-share liability will be the mechanism of a compensation system. Now, the victims of unidentified debris damage must accept the cost of any collision while the parties who created the debris incur no liability. A market-share liability amendment will fill this gap in the Liability Convention.
Through this article, the authors strongly propose that an internally binding agreement be made to deal with the space debris. This segment of the article tries to suggest certain terms that shall be considered to be included in the agreement to internationally regulate the space debris issue.
- The agreement shall define the following terms 1. Space debris 2. Damage. This provision including the definitions of these terminologies is extremely important as “space debris” has not been accurately defined by the international law. For these purposes, “space debris” shall include all human made objects, in the earth orbit or reentering the atmosphere that are non-functional, irrespective of whether they are created intentionally or not. “Damage” shall include the inability to access space by a nation resulting from the creation of space debris by another nation. Damage also includes loss of life or impairment of health; or loss of or damage to the property of states or of persons of the space faring nations in space.
- The agreement shall define the rights and duties of all the states with respect to all aspects in relation to space debris. Provisions relating to the obligation to take measures to limit the creation of space debris from the space missions and responsibility to clean up the debris created shall be included in the agreement. For instance, the states shall agree to contribute towards research and development and enforcement of space debris remediation and mitigation processes through national and international programs.
- To ensure sustainability in outer space, a supervisory body that shall be called the space sustainability authority shall be constituted for aiding the space debris remediation and mitigation activities. The authority shall also be responsible for collection and distribution of revenues and expenses.
- The agreement shall provide for liabilities of the state(s) in case of any damage incurred by another state due to the collisions with any space debris released by a state(s). The agreement shall provide for conditions for applicability of apportionment of damages and of equal liability for damages in respective situations. There shall be provisions for joint liability in cases of collaborative space missions and debris created as a result of such missions.
- The process of dispute resolution shall be mentioned in the agreement and the process shall be through peaceful means in concurrence with the provisions of the UN charter. To facilitate the process of dispute resolution, an independent body or a tribunal for the law of outer space shall be constituted through a separate document. The agreement shall also provide jurisdiction to the International Court of Justice and the Permanent Court of Arbitration to resolve the disputes.
SPACE DEBRIS MITIGATION
Numerous issues were explained since man-made items were launched into the outer space, yet a perilous danger is likewise expanding to the earth because of standards of certain nations, which oversee the Space Debris in space, which is presenting risk to whole future space investigation and launching of new projects. Space debris is treated as one of the most prominent issues in the arena of outer space safety and security. Space debris is the biggest problem that affects not only extra-territorial environment but also the territorial environment. There is no denying that the danger of space debris is increasing rapidly and threatens the sustainable use of outer space by all the spacefaring countries. Several authoritative studies have indicated that if the existing space debris is not removed then the sustainable use of the outer space will be seriously jeopardized. The importance to sustainable use of outer space for the present as well as the future generations has gained international recognition from a technical, legal and policy perspective. However, studies modelling the orbital evolution of space debris show that the application only of mitigation measures will not suffice to ensure the future access and usability of outer space. Thus, the future of not only space debris remediation (SDR) but also space debris mitigation (SDM) will play an essential role for the sustainability of outer space and thus, must become a vital part of the legal framework regulating its use.
EXISTING LEGAL GUIDELINES FOR FUTURE SPACE LAUNCHES
Addressing the issue of space debris is twofold. First, removal/remediating of the existing space junk which has been created by the spacefaring nations. Second, there is mitigation, which the united nations discussed in the year of 2007. COPUOS in the year 2007 provided non-binding guidelines for mitigating the space debris to the general assembly for its consideration and further implementation. COPUOS considered the immediate implementation of these measures “a prudent and necessary step towards preserving the outer space environment for future generations.” The biggest problem however is the fact that these 7 guidelines provided by COPUOS is non-binding in nature and therefore do not have any real legal consequences. Although these non-binding principles can become binding principles according to the customary international law, over a period of repeated use, the problem of space debris must be met now.
Technological advancement is absolutely necessary for the removal of space debris without causing any more harm to the outer space. According to the European space agency, as of January 2019 there are about 128 million debris of the size 1mm to 1cm, 9 lakh objects of the size 1cm to 10cm and 34,000 objects with are above the size of 10cms. Added to this if the new launches into space are considered then the numbers don’t stay the same.
The present problem of space debris is not only an issue of spacefaring nations but also non-spacefaring nations. It is therefore imperative that debris in orbit must be mitigated. For this purpose, various techniques, standards, procedures, guidelines and recommendations are being adopted and applied both at national and international levels. Most visible efforts in this regard can be viewed as coming from the Inter-Agency Space Debris Coordination Committee (IADC), which is an international forum or platform for governmental bodies created for the purpose of coordination in mitigation activities with regard to man-made space debris. According to the guidelines given by Inter-Agency Space Debris Coordination Committee every spacefaring nation must
- Avoid voluntary debris generation
- Avoid break-ups in orbit,
- Avoid long lived debris including stages themselves in the protected zones.
NEED FOR A LEGAL BINDING DOCUMENT FOR FUTURE SPACE DEBRIS
The existing legal norms provides with the main legal principles which sets the framework for human activities in outer space. However, these legal instruments do not provide for the protection of the space environment from space debris. Neither is space debris clearly been defined by any treaty or its production prohibited, nor are the legal instruments for the mitigation and remediation of space debris considered in the binding law. Thus, the production and the non-removal of space debris is not an unlawful act.
According to the principles established in the existing legal framework a third party needs prior permission of the launch country to remove the objects from outer space, doing so without the consent would be considered an internationally wrongful act. A third party even if wanted to, cannot remove the space debris which does not belong to them. This creates a situation where if the space debris is not cleared by the launching nation then cannot be done by any other party without prior permission. Thus, limiting the acts that can be done by a third party.
One of the present solutions provided for space debris remediation is the re-entry of the space objects into earth’s atmosphere. This solution gives rise to newer legal issues, such as objects surviving the re-entry and landing in a foreign country and causing damage to the property as well as people, which have not been addressed by the existing legal regime. It should be understood that removing an object from the space is a difficult endeavour, with an increased chance of liability, especially in orbits with maximum space objects and re-entry of the same can create liability situations which the present legal regime is not fit to deal with.
The united nations agreed that space debris is a problem for the further of the sustainable use of outer space and has discussed the need for a separate space debris treaty. As the existing legal system is insufficient to deal with the growing problem of space debris, it is recommended that the united nations legal subcommittee to declare that there is a substantial need for a new treaty which not only defines but also regulates and directs the removal of space debris both retrospectively and prospectively. The treaty must also emphasize the removal of space debris created whether such removal is cost-effective and technologically feasible or not and call for the creation of an international fund which to finance the necessary research required for the technical advancement for the removal of space debris. The treaty must also consider the implementation of the liability clause in case of damages caused either by the existing space debris or by the space debris created by the space launches in the present or future. It is extremely necessary to be able to track the existing and future space debris in order to provide for a better space awareness. Thus, the convention must also contain guidelines for a space registry which specifically has information related to the post- launch sequences.
The issue of space debris removal is an unusual one the likes of which the legal community has yet to encounter. The issues surrounding space debris are in their infancy, and the solutions to those issues can only be addressed once the issues themselves are clearly defined. What is certain is that the question of space debris removal is an unusual one and as such will require alternative methods to address the question.
Space debris is an urgent matter and issue for not only spacefaring nations but also non-spacefaring nations. There is always going to be a conflict between the further use of outer space and the protection from exploitation of the outer space which results in the current position of exponential and non-reversible growth in the amount of space debris. The legal response for the same has been inadequate due to the non-binding nature of these guidelines. The Inter-Agency Space Debris Coordination Committee (IADC) has provided with guidelines for the creation of space debris for the present as well as the future space launches but it does not bind the countries which are not apart of the committee. These non-binding guidelines and the inadequacy of the existing legal framework form a basis for the need to create a new legally binding framework for the sustainable use of outer space. The challenges for space debris removal is not only legal but also technological. It requires not only adequate framework but also technical, financial and political approaches, if all these implemented together, they can resonate with the different challenges posed by space debris.
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