Emerging Issues in Space Law: Space Debris

By Brad Bourne

Space law, generally speaking, “refers to the body of international and national laws and customs that govern human activities in outer space.”[1] A seemingly straightforward definition, there is some dispute amongst international lawyers as to where the Earth’s atmosphere ends, and where the key phrase in this definition—“outer space”—begins.[2] One proposed solution to resolving the ambiguity of the term “outer space”—a solution that has been widely adopted within the scientific community—has been to use the “Kármán line” to delineate outer space from Earth’s atmosphere.[3] Adopted by the Fédération Aéronautique Internationale,[4] the Kármán line—approximately sixty-two miles above the surface of Earth[5]— is the point where outer space begins. At this altitude, aeronautical flight becomes physically impossible—the atmosphere disappears.[6] The Kármán line, for legal purposes, separates Earth’s atmosphere from outer space and, as a result, defines a physical boundary as to where international space law is applicable.

Although space law is similar to other areas of international law in that it is comprised, at least in part, of international agreements, national laws, conventions, and treaties, international space law is rooted in the activities of the United Nations.[7] The field of space law, more specifically, is derived from international standards and rules which “appear[] in the five international treaties and five sets of principles governing outer space which have been developed under the auspices of the United Nations.”[8] These treaties and principles concentrate on issues that include “the preservation of the space and Earth environment, liability for damages caused by space objects, the settlement of disputes, the rescue of astronauts, the sharing of information about potential dangers in outer space, the use of space-related technologies, and international cooperation.”[9] More fundamentally, the driving principle behind space law is that outer space does not discriminate: every state is free to explore outer space—it does not belong to anyone.[10] Space law exists so that states with the resources and inclination for outer space exploration can do so freely and without interference from other states.

Since it was widely recognized in the mid-twentieth century, space law has adapted to emerging concerns. In today’s society, for example, one emerging concern within the realm of space law is how to approach the issue of space debris. Earth’s orbit, simply put, is polluted with space debris. At orbital velocity, a piece of debris that is at least one centimeter would almost surely be lethal.[11] Today, moreover, there are approximately 600,000 objects of this scale orbiting Earth at a given time,[12] over 9,000 of which weigh more than five metric tons.[13] Space debris includes gloves and cameras that were dropped by astronauts, old rocket launchers, remnants of exploded space craft, [14] and remnants of space objects—like satellites—that collided.[15] Not to mention, the potential for more space debris is always increasing: there are more than 200 inactive satellites in orbit that continue to collide with other space debris and create new accumulation.[16] Space debris is a well-established problem that will only worsen in the future if it continues to collect around Earth’s orbit. If it continues to amass around Earth, moreover, there is fear that so much debris will accumulate that it will be impossible to send new objects into space without instantaneous damage being inflicted.[17]

Space debris is an issue that the current state of international space law does not sufficiently address.[18]  “Under the 1972 [Convention on International Liability for Damage Caused by Space Objects], countries are liable for damage caused to other spacecraft only if they act negligently.”[19] The more space debris that accumulates, therefore, the more difficult it will be to establish liability. Is one’s failure to remove space debris from orbit considered negligent? How will it be determined what piece of space debris caused the alleged damage? The ambiguity of these questions, among others, is not resolved when consulting the 1971 Liability Convention—the most expansive outer space liability treaty. As is the case, a means for removing space debris or a change in the current state of international law is necessary if future damage to property and people is to be avoided.

 

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[1] Matthew J. Kleiman, Space Law 101: An Introduction to Space Law, ABA, https://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/space_law_101_an_introduction_to_space_law.html.  

[2] See Dan St. John, Where Does Outer Space Begin?, Denv. J. Int’l L. & Pol’y (2013), http://djilp.org/3891/where-does-outer-space-begin/.

[3] Dr. S. Sanz Fernández de Córdoba, 100km Altitude Boundary for Astronautics, Fédération Aéronautique Internationale, http://www.fai.org/icare-records/100km-altitude-boundary-for-astronautics.

[4] The Fédération Aéronautique Internationale is an international organization that keeps space flight records and establishes international standards for astronautics and aeronautics.

[5] Sanz Fernández de Córdoba, supra note 3.

[6] Id.

[7] Space Law, UN Off. for Outer Space Aff., http://www.unoosa.org/oosa/en/ourwork/spacelaw/index.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Robin McKie & Michael Day, Warning of Catastrophe from Massive “Space Junk”, The Guardian (Feb. 23, 2008) http://www.theguardian.com/science/2008/feb/24/spaceexplorationspacejunk.

[14] Id.

[15] See Kleiman, supra note 1.

[16] See McKie & Day, supra note 13.

[17] See Kleiman, supra note 1.

[18] Id.

[19] Id.