Rising Menace Of Space Debris: Understanding the International Legal Jurisprudence to Regulate Space Debris and Subsequent Challenges

Abstract

There has been immense technological development in the space sector in the past few decades, which has created a situation where the sustainability of the space sector is in question. Space preservation becomes even more pivotal as it is intrinsically linked with our future; hence, this paper aims to explore the intricate nuances of space exploration and the subsequent debris generated from it, the Indian perspective, and the role played by the international legal system. This paper also reflects the failure of international law and the means that could be employed to redress the issue. The paper also presents a point of view of the third-world economies and argues for not only a sustainable space but for a consensus where the management of space debris also allows for equality.

Keywords: Space debris, Outer Space Treaty, Liability Convention, Space inequality.

Introduction

The rapid advancement of space technology in the recent years has unlocked unprecedented opportunities for humanity. These advancements hold the promise of benefiting all nations worldwide. However, alongside these advantages, also lies a looming danger: the potential monopolization of space applications by a few nations, leading to exacerbated inequalities among the majority of the countries. This inequality is starkly evident in the distribution of research and development capabilities, with industrialized nations conducting the lion’s share—approximately 95 percent—of the world’s research and development, while third-world countries, representing 70 percent of the global population, contribute a mere 5 percent.

One of the paramount challenges facing Space Law today is the protection of the outer space environment. A crucial aspect of this challenge is the proliferation of space debris—a consequence of human-made objects launched into the outer space.  “An alarming event that underscored the vulnerability of space, occurred on January 11, 2007, when China conducted a ground-based missile test, successfully destroying the Fengyun-1C spacecraft—a weather satellite orbiting at an altitude of over 500 miles since 1999. While the test demonstrated China’s military prowess, it also raised serious concerns within military and scientific communities.^[1] The destruction of Fengyun-1C generated a substantial debris cloud, endangering various satellites and space-based systems in its path.^[2]”

By 2022, the U.S. Orbital Debris Quarterly News unit of NASA had identified over 5216 debris fragments of sizes capable of causing significant collision risks^[3]. The test highlighted the inadequacy of current systems in preventing space debris generation and underscored the weaknesses of the existing treaties and conventions governing outer space activities. These legal frameworks often fail to cover critical issues like space debris or face challenges in enforcement.

While space technology offers immense potential for human progress, it also presents complex legal and ethical dilemmas. Addressing these challenges requires concerted international efforts to protect the space environment and ensure equitable access to space resources for all nations.

Categorisation of Space Debris: What is it?

It is a fact that space is infinite, and there are no scientific denominations to measure the length and breadth of space; even rough assumptions expound the area of space to be infinite, but the orbit of our earth is limited and restricted in nature. Hence, the objects that revolve in the Earth’s atmosphere remain in the atmosphere of the Earth. The menace of space debris in times cannot be ignored.

Space debris refers to any non-functional, human-made objects in Earth’s orbit or/and unwanted waste material and objects re-entering the atmosphere.^[4] This includes fragments and elements of spacecraft, satellites, spent rocket bodies, and other materials released during space operations. The Outer Space Treaty of 1967, a multilateral treaty, though did not explicitly mention space debris but it emphasised the need to avoid harmful contamination and adverse changes in the Earth’s environment resulting from the introduction of extra-terrestrial matter.

There have been approximately 6,300 successful rocket launches since 1957, resulting in around 5,000 objects remaining in space, with only about 1,950 of them still functioning. Space surveillance networks have catalogued around 32,300 debris objects, and there have been an estimated 630 collisions, break-ups, explosions, or other events leading to fragmentation^[5].

Legal experts have also categorised space debris as

1. “Inactive Payloads or Inoperative Objects: Satellites that have run out of fuel or have malfunctioned, rendering them incapable of manoeuvring, besides satellites that are currently not under supervision or control.
2. Operational Debris: Consists of intact objects or component parts launched into space during normal operations, with intact rocket bodies being a significant subset.
3. Fragmentation Debris: Generated when space objects break apart due to explosions, collisions, or other causes. Collisions are a significant source of this type of debris.
4. Micro Particulate Matter: Comprises fine particles generated from surface degradation of spacecraft due to environmental factors such as radiation and micro-meteoroids.

The Inequity of Space Debris: A Question on the Liability of the Space Debris

It is a fact that the space arena across the globe is managed by just a few powerful nations with the technological prowess to ensure an atmosphere where rocket science and space technology can thrive and this creates an inherent inequality where most nations, especially third world nations today are dependent on a few technologically advanced nations like the USA, China and the European Union. Indian satellites and launching equipment have gained traction only in the past decade. This creates an imbalance in the society as a virtual monopoly is created with the barriers to enter the space sector, so high only the very few with an immense wealth of resources can be successful.

It needs to be strongly emphasised that while there is a much stronger need for adequate mechanisms to ensure a safer space, there is also a requirement to ensure that the liability is proportionate to the pollution caused in space. Third-world countries with their limited missions and the major powers in the space sector with missions lasting over five to six decades cannot be equated with each other.

The Threat of Space Debris

Space debris, in multiple instances, has proved to be fatal. In the last century, there have been multiple recordings of such crashes, most of which go unnoticed because of a variety of factors, including the burning of the debris as it enters the earth’s atmosphere or it falling in areas which are uninhabited. Some instances have been particularly poised to be deadly.^[6] These include the Kosmos 954 when it entered the atmosphere and entered the Canadian territory, causing radioactive pollution. Similarly, there have been multiple instances of collision as well. ^[7]

The Consensus under International Law

To address this pressing concern, experts across the globe have curated several treaties to ensure a safer space for all. These ideas are based on various charters of the United Nations, which call for an equitable world and advocate for sustainable living.

The UN Committee on Peaceful Uses of Outer Space (“COPUOS”) has formulated comprehensive Space Debris Mitigation Guidelines^[8]. These guidelines provide a framework for mission planning and spacecraft operation to reduce the generation of space debris. Key measures include limiting debris release during spacecraft operations, minimising the potential for break-ups, avoiding collisions, and preventing intentional destruction. These guidelines serve as a cornerstone for international cooperation in managing space debris.^[9] While this was a treaty which is the first of its kind, it can be argued that it has several lacunae in it. NASA’s stringent regulations assess the possibility of any debris flying into a satellite or the International Space Station, this has also provided a headway to other nations to create and formulate norms for hardware pollution in the space.^[10]

The Convention on International Liability for Damage Caused by Space Objects, in force since September 1st, 1971, aims to address damages caused by space objects and is often considered an elaboration of Article VII of the Outer Space Treaty. It defines “damage” as encompassing various forms of harm to life, health, or property. The Convention holds launching states accountable for damages caused by their space objects.^[11]

However, Articles III and IV(b)^[12] introduce fault-based liability for damages occurring elsewhere than on Earth’s surface. Article III holds a launching state liable only if the damage to another state’s space object, persons, or property aboard such object was caused by its fault or the fault of persons for whom it is responsible. In the context of space debris, a state is only liable if the debris from its space object causes damage due to its fault.^[13]

This convention again became crucial because it was the first in its sphere to ascertain liability in such great depth to ensure that in case a collision occurs, a proper mechanism exists to ensure a sustainable pathway in this sphere for dispute resolution and payment in case of damages.

The European Union too has made protocols for the removal and management of debris in space. The ESA, which is constituted of 19 countries, piloted the first such mission that took the issue of space debris cleaning, which is a crucial effort which indeed is first of its kind.^[14] This mission which will aim to pick up a 112-kilogram fragment of the European Vega rocket booster – which has been in orbit since 2013 at an altitude of 660 kilometres. This acts a much need step in the right direction.

Failure of the International Law

The current framework for managing space debris has been ineffective, yielding minimal tangible progress over the past two decades. Both commercial and government space launches continue contributing to space debris without significant regulation, exacerbated by increasing international rivalries. The lack of binding regulations, such as the Outer Space Treaty’s failure to address anti-satellite testing, allows countries to conduct debris-generating activities without violating international law.^[15]

Efforts at the United Nations have resulted in non-binding guidelines for space debris mitigation, which some nations argue are insufficient. There is a push for a legally binding regime to more effectively address the issue, and discussions within UN bodies like the Scientific and Technical Subcommittee of the UNCOPUOS are ongoing about elevating these guidelines to a draft resolution of the General Assembly.^[16]”

Moreover, there’s a growing sentiment among certain nations that those most responsible for creating space debris should bear a greater burden in mitigating its effects.^[17] Proposals for establishing a set of rules and a legal framework to govern space debris mitigation efforts are gaining traction as a means to address these concerns and promote responsible behaviour in space activities, but the progress has been limited. “As of today, the international space law jurisprudence is guided by five treaties and the most critical issue remains that not enough nations see this as an evolving concern as debate and discussion on the subject has been limited. There needs to be frameworks which consider the evolving technologies and upcoming concerns.^[18] Moreover a big drawback remains that there is discussion on how to manage the old debris but very little understanding to do with the new space debris as it is a fact that the number of satellites would only be increasing in space in the coming years.^[19]”

Even today, the global understanding of the management of resources and the research to be carried out in space remains low. There exists no such global minimum programme which aims to involve third-world countries in policies for space; this top-down mechanism of policy implementation has a cascading effect.

The India Way of Space Debris Management

India has an established protocol which aims for the reduction of debris from the space and there have been timely amends to the same. In the past two decades the policy has been expounded greatly. It has also called on stakeholders to be an active participant in this cause of space preservation.^[20] The Directorate of Space Situational Awareness and Management at ISRO Headquarters oversees the overall coordination of Indian efforts in ‘Space Situational Awareness (SSA) at the SSA Control Centre in Bengaluru. As part of the Network for Space Objects Tracking and Analysis project, ISRO has taken up the construction of a Space Surveillance and Tracking network using RADARS and Optical Telescopes (“NETRA”). Expanding and strengthening the network of observing facilities is crucial to analysing and evaluating possible risks to spacecraft in operation and achieving self-reliance in protecting the ^[21]priceless space assets.^[22]

The Way Forward: Looking For Solutions

One of the most important steps towards fully comprehending and regulating the space debris environment is the establishment of a standardised database under the supervision of the secretariat of the United Nations Office for Outer Space Affairs (“UNOOSA”). Data collected from many sources, such as space agencies, observatories, tracking networks, and satellite operators worldwide, will be pooled and consolidated in this single repository. Through the compilation of data on the traits, paths, and positions of space debris particles, this database would offer priceless insights into the condition of orbital clutter at the moment and make it easier to evaluate possible hazards and patterns in the spread of debris over. ^[23]

Another crucial method for the management of space debris would be to ensure the reduction of space collisions of debris and satellites; this can be best done by time-sharing agreements and bringing more transparency into the international framework. The best remedy to ensure that a menace is not caused is to create a proper discussion forum for an increased consensus. The platform should be inclusive and should also provide a proper platform where the issues of the nations from the third-world countries also gain a say on these global commons.

Conclusion

The exploration and utilization of outer space hold immense promise for human advancement, offering unprecedented opportunities for scientific discovery, technological innovation, and economic growth. However, alongside these opportunities come significant challenges, chief among them being the proliferation of space debris.

Despite the efforts of international organizations and individual nations to address the issue of space debris, the current legal framework governing outer space activities still needs to be improved. Existing treaties and conventions need more comprehensive coverage of space debris mitigation and enforcement mechanisms, leaving significant gaps that allow for the continued generation of space debris without limits.

The recent advancements in space technology, including the involvement of private companies and the militarization of space, further complicate the issue, necessitating urgent and effective action on a global scale. While international efforts, such as the Space Debris Mitigation Guidelines developed by the UNCOPUOS, represent a step in the right direction, they need to provide a legally binding framework to address the challenges posed by space debris.

Furthermore, there is a pressing need to address the underlying inequalities in the distribution of space resources and capabilities, ensuring equitable access to space for all nations and peoples worldwide. Only through collective action and shared responsibility can we effectively mitigate the threats posed by space debris and safeguard the future of humanity’s exploration and utilization of outer space.

This article is a part of the DNLU-SLJ (Online) series, for submissions click here.

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[2] Leonard David, ‘China Anti-Satellite Test Worrisome Debris Cloud Circles Earth’ (Space.com, 24 January 2007 <https://www.space.com/3415-china-anti-satellite-test-worrisome-debris-cloud-circles-earth.html> accessed 22 March 2024.”

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[5]Alessandro Cacioni, ‘How Much Space Junk Is There?’ (Inmarsat, 8 June 2022) <https://www.inmarsat.com/en/insights/corporate/2022/how-much-space-junk-is-there.html> accessed 17 July 2024.

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[7] Leonard David, ‘Space, China Anti-Satellite Test: Worrisome Debris Cloud Circles Earth’ (Space.com, 17 November 2021) <https://www.space.com/3415-china-anti-satellite-test-worrisome-debris-cloud-circles-earth.html> accessed 17 July 2022.

[8] United Nations Office for Outer Space Affairs, ‘Status of International Agreements relating to Activities in Outer Space’ (United Nations, 2022) <https://www.unoosa.org/pdf/publications/st_space_49E.pdf> accessed 17 July 2024.

[9] “United Nations High-Level Political Forum, ‘Committee on the Peaceful Uses of Outer Space (COPUOS)’, (United Nations, 2022) <https://hlpf.un.org/inputs/committee-on-the-peaceful-uses-of-outer-space-copuos> accessed 27 March 2024.”

[10] White House Government, ‘U.S. National Space Policy’ (2006) < U (archives.gov)> accessed 17 July 2024.

[11] United Nations Office for Outer Space Affairs, ‘Liability Convention’ (United Nations Office for Outer Space Affairs, 2024) <https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html> accessed 17 July 2024.

[12] Articles III and IV(b), Liability Convention 1971.

[13]“United Nations Office for Outer Space Affairs (UNOOSA), ‘Committee on the Peaceful Uses of Outer Space (COPUOS)’ <https://www.unoosa.org/oosa/en/ourwork/copuos/index.html> accessed 17 July 2024.  

[14] European Space Agency, ‘ESA Commissions World’s First Space Debris Removal’ (European Space Agency, 9 December 2019) <https://www.esa.int/Newsroom/Press_Releases/ESA_commissions_world_s_first_space_debris_removal> accessed 17 July 2024.

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[17]World Economic Forum, ‘Crowding and Competition in Space’ (World Economic Forum, 11 January 2022) <https://www.weforum.org/publications/global-risks-report-2022/in-full/chapter-5-crowding-and-competition-in-space/> accessed 17 July 2024.

[18] United Nations General Assembly, ‘General Assembly Adopts Resolution on the Global Sustainable Development Agenda’ (United Nations, 22 July 2014) <https://press.un.org/en/2014/gaspd.doc.htm-0> accessed 17 July 2024.

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[22] Indian Space Research Organisation (ISRO), ‘Space Situational Awareness (SSA)’ (Indian Space Research Organisation, Department of Space) <https://www.isro.gov.in/SSA.html> accessed 27 March 2024.

[23] United Nations Office for Outer Space Affairs (UNOOSA), ‘Committees and Subcommittees’ (United Nations Office for Outer Space Affairs) <https://www.unoosa.org/oosa/en/ourwork/copuos/comm-subcomms.html> accessed 27 March 2024.

Digvijay Singh

Student, Gujarat National Law University