Space Law: The Problem of Space Debris in Earth’s Orbit
By Patrick Beauchamp
Earth’s orbit is becoming more and more crowded all the time with space debris.[1] A half century of activity by the spacefaring nations has left in orbit a trail of objects that range in size from millimeters to meters across.[2] These objects or space debris consist of “intact satellites, rocket bodies, fragments from exploded rocket bodies, fragments from collisions, and objects from extracurricular activities.”[3] One estimate puts the number of objects in orbit that are larger than a centimeter—making them lethal at orbital speeds—at somewhere around 600,000.[4] However, only roughly 19,000 of these objects can be reliably tracked today.[5] Such space debris is becoming an increasing threat to satellites, and more importantly, to astronauts and the International Space Station (ISS).[6] It is now a routine procedure for satellites and the ISS to move in order to avoid the debris.[7] In some cases, astronauts must take the precautionary measure of entering the station’s emergency lifeboat when they are unable to maneuver out of the way of incoming space debris.[8] Thus, the collection and disposal of space debris has become an important objective if the human race is to continue to explore space.
With the advent of space exploration came the novel legal field of space law. “’Space Law’ refers to the body of international and national laws and customs that govern human activities in outer space.”[9] The first international treaty concerning space law was the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.[10] That treaty set forth a few provisions that are relevant to the discussion of remediation of space debris. First, it set forth that “states shall retain jurisdiction and control over their space objects and any personnel thereon.”[11] Second, the treaty established that “states shall be liable for damage caused by their space objects.”[12] And third, the treaty mandated that “states shall avoid the harmful contamination of outer space.”[13] In 1972, the Convention on International Liability for Damage Caused by Space Objects further defined nations’ responsibilities in space concerning space debris by stating that countries will be held liable for negligently created space debris that causes damages to either the surface of the earth or other space craft.[14]
The above mentioned measures seem to have been crafted in anticipation of the current environment found in Earth’s orbit. First the treaty provides that nations should avoid creating more debris than is necessary and none that is harmful.[15] The drafters surely assumed that this would have helped prevent the buildup of space debris found in Earth’s orbit. However, this article has failed at achieving this goal. Next, as a deterrent, the treated provided that those nations that do provide harmful contamination of the orbit would at least be held liable for their wrongs.[16]
Unfortunately, the above-mentioned measures do not go far enough to solve the problem of the increasing amount of space debris and may actually complicate the problem. One issue is that there currently does not exist a standard with which to judge the actions of countries who operate spacefaring activities.[17] Without a standard, proving whose actions produced the space debris will be very difficult to determine. Thus, the liability provision of the 1967 Treaty and the negligence formula proposed in the 1972 Convention have proven ineffective.
Another obstacle comes from the 1967 treaty which provides that “states shall retain jurisdiction and control over their space objects.”[18] This provision was written into the 1967 Treaty in order to protect the intellectual property rights of the owners of the space debris and thus limits who may take control of space debris.[19] Because of this provision other nations are forbidden from taking control of and disposing of wayward space debris.
One way to deal with this problem would be to implement policy similar to that which is the basis for the law of salvage in maritime law.[20] The law of salvage “adheres to the . . . concept of ownership by possession.”[21] The law of salvage allows the salvor to take possession of and be rewarded for items that the salvor has made an effort to possess.[22] Such a system would allow for a much speedier system of space debris remediation. But first, it would also require Article VIII of the 1967 Treaty to be revised. Though it does not address the intellectual property concerns mentioned above, it would be a good first step in the right direction towards clearing up and making safer Earth’s orbit.
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[1] Matthew Kleiman, Space Law 101: An Introduction to Space Law, American Bar Association http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/space_law_101_an_introduction_to_space_law.html (last visited Nov. 13, 2016).
[2] Michael Listner, Legal issues surrounding space debris remediation, The Space Review, Aug. 6, 2012 http://www.thespacereview.com/article/2130/1.
[3] Id.
[4] Kleiman, supra note 1.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, U.N. 610 U.S.T. 8843.
[11] Id. at art. VIII.
[12] Id. at art. VII.
[13] Id. at art. IX.
[14] Convention on International Liability for Damage Caused by Space Objects, U.N. Mar. 29, 2016, G.A. Res. 2777 (XXVI).
[15] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, supra note 10, at art. IX.
[16] Id. at art. VII.
[17] Kleiman, supra note 1.
[18] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, supra note 15, at art. VIII.
[19] Listner, supra note 2.
[20] See Lawrence J. Lipka, Abandoned Property at Sea: Who Owns the Salvage “Finds”?, 12 Wm. & Mary L. Rev. 1 (1970).
[21] Id. at 98.
[22] Id.