Space debris regulations and approaches under International Law

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Space debris regulations and approaches

under International Law

Master Thesis Supervisor: dr. Cathrine Brölmann

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Space flight is confronted with a huge problem: It smothers in a sea of its own refuse. In the last decades thousands of satellites have been launched and lot's of them are not working anymore. This space debris is increasingly becoming a problem. There is a danger that future space activities could suffer loss of capability, loss of income, and even loss of life as a result of collisions between spacecrafts and space debris. Experts strongly agree that immediate action for the removal and future avoidance of space debris is necessary. However, the threat of space debris also raises legal questions. Does the removal of space debris pose legal problems? Which rules exist for mitigating debris in orbit? Who is liable when a satellite is hit by space debris? Space debris represents one of the greatest challenges in Space law. This thesis aims to identify and analyse existing law that meets the problem of space debris.

structure and methodology

What is special about this approach is that background information are explained in more depth as the problem of space debris is not an isolated field but must be seen in the broader context. This also includes political issues: Although, the international space community has been cognizant of the growing threat of an overfilled orbit, action to address the problem did not begin until 1993. Referring to newspaper reports and other available sources I will carve out why this is so.

Furthermore, as Space law does not represent daily business for most lawyers, the basics of this body of law will be described in more detail. At the same time profound knowledge of the basics of Space law is essential for the understanding of future developments in legal regimes surrounding the problem of space debris. This will be mainly explained in Chapter B. Special emphasis is given to technical and physical background information in Chapter A due to the fact that this is also mandatory in order to understand the issue of space debris. Chapter C examines what kind of legal instruments exist to mitigate the hazard to outer space activities and thus for the functioning of infrastructure on earth. This research will analyze the relevant instruments with regard to mitigation of space debris, removal of space debris and liability for damage caused by space debris. After the evaluation of possible drawbacks of these instruments, a recommendation can be given for future legal regimes. These possible solutions will be examined in Chapter D. At the same time, it constitutes the concluding remarks of this work.

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A. The Problem of Space Debris

Mankind pollutes it's environment as long as anyone can remember. Since mankind reached the outer space with the Soviet Sputnik 1 satellite in the year 1957 - this has marked the beginning of space flight era - space debris in different sizes is left in space. Space debris is the most prominent environmental problem related to space activities and it becomes a serious threat.1 This applies in particular for the earth near orbit where

satellites are placed. Satellites are of the utmost importance for various activities on earth: communication satellites connect different communities, which are isolated2,

remote sensing satellites are used for intelligence (espionage), meteorology, cartography and other more specialized branches3, and GPS satellites are an

indispensable element of navigation4. These are only few examples for the importance

of satellites for economy or science.

Satellites belong to so called critical infrastructures.5 The European Union critical

infrastructures include resources, technology facilities, networks and infrastructures, which, if destroyed would have a serious impact on the health, security, economic or social well-being of the Member States of EU.6 By reason of that significant value,

satellites as critical infrastructures needs to be protected in an adequate way.7

I. Definition of space debris

Space debris can generally be described as manmade Space objects which are out of service and thus have no further function. The 1959 established Committee on the Peaceful Use of Outer Space (COPUOS), consisting of two standing subcommittees (the Scientific and Technical Subcommittee and the Legal Subcommittee) composed a definition of space debris in its UN Space Debris Mitigation Guidelines of 2007:8

1 _{See Viikari, L., "The Environmental Element in Space Law", Boston 2008, p. 31.}

2 _{D.R. Cheruku, "Satellite Communication", I.K. International Publishing House Pvt. Ltd., 2009, p.}

18.

3 _{Further details see Reinhardt, E.," Technische Grundlagen der Fernerkundung", in:}

Deutsch-polnische Begegnung zu Wissenschaft und Forschung im zusammenwachsenden Europa, Gilbert H. Gornig (eds), Band 12, 2014, p. 34.

4 _{The Global Positioning System is a 24-satellite constellation that can tell you where you are in}

three dimensions, G.S. Rao, Global Navigation Satellite Systems, Tata McGraw-Hill, New Dheli 2010, p.2.

5 _{See Commission for the European Communities, green paper on a European programme for}

critical infrastructure protection, Brussels, 17.11.2005, p. 24.

6 _{For full definition see Commission for the European Communities, green paper on a European}

programme for critical infrastructure protection, Brussels, 17.11.2005, p. 7.

7 _{For detailled terminology see Schulze, Tillmann: Bedingt abwehrbereit, Schutz kritischer}

Informations-Infrastrukturen in Deutschland und den USA, 2006 p. 115, 120.

8 _{See Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United}

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"Space debris is defined as all man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non functional."9

It should be emphasized that only objects created by human activity are included in this definition. Objects of natural origin like asteroids and meteorites are consequently excluded.10 Another terminology is used for instance in the USA. There is a distinction

between "orbital debris" and "space debris". Orbital debris according to this are objects manufactured by human beings and placed in the orbit, and space debris also covers meteorites.11

II. Space debris as threat.

What is the practical relevance of space debris? First of all space debris can create dangers for Outer Space activities and for the Earth.12

a. There are some cases of space debris falling back to Earth. The following events represent some of these examples as dangers by debris from space:

-The first known ground fatality occurred in 1960 when parts of an crashing American rocket killed a cow in Cuba.13 Fidel Castro interpreted this incident as an imperialistic

aggression by the United States.14

-A more serious accident occurred on 5 June 1969, when a small Japanese freighter near the coast of Siberia was struck by fragments of a Soviet satellite.15 Five members

of the crew were injured.16

-A especially great danger can occur when a satellite with a nuclear power source (NPS) crashes on earth. The first satellite with a NPS was launched in the early 1960s.17

Cosmos 954, a Soviet nuclear powered naval surveillance satellite was launched in

9 _{COPUOS, Space Debris Mitigation Guidelines, Report of 15 June 2007.}

Nations Law, Vol. 17, 2013, p. 65.

11 _{Böckstiegel, K-H., "Space Law, Basic Legal Documents", Volume 1, Eleven International}

Publishing, Utrecht 2005, p. 3.

12 _{See C.Q. Christol, "Jurisdiction and Control: Premissible Unilateral Responses to Dangerous}

Space Debris", in: M. Benkö/ W. Kröll (eds), Air and Space Law in the 21st Century, 2001, p. 303.

13 _{N. Yusof, "Space Warfare, High-Tech War of the Future Generation", Penerbit, Skudai Malaysia}

1999, p. 332.

14 _{See Kiesow, R. M., "der Tod der kubanischen Kuh",}

www.spiegel.de/unispiegel/jobundberuf/0,1518,634590,00.html (available on 27. October 2015).

15 _{See. Cheng, C., "The Use of Air and Outer Space, Cooperation and Competition", Kluwer Law}

International, The Hague, 1998, p. 313, fn. 15.

16 _{Willisch, J., "State Responsibility for Technological Damage in International Law", Duncker und}

Humblot, Kiel (Germany) 1987, p. 8.

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1977.18 The satellite carried 50 kg of uranium 235 in its reactor and put several countries

into jeopardy before it scattered over a sparsely populated area in the northern territory of Canada.19 This incident resulted in the radioactive pollution of an area the size of

Austria.20 The Soviet government paid a sum of 3 million Canadian dollars for incurred

damages as compensation.21 The Canadian government was reported to have spent some

14 million dollars on the search for the satellite fragments.22

b. Space debris constitutes a bigger threat to outer space activities than directly on earth. Debris moves in the orbit at relative speeds of as much as 15-20km/s (equivalent up to 72.000 km/h). At this speed even small particles have a enormous kinetic energy.23

Concerning large mass body impacts, five accidental collisions in outer space have been identified.24

-The first collision between satellites took place in the year 1991 by the retired Russian navigation satellite Cosmos 1934 and debris of its sister satellite Cosmos 926. However, this incident was recognized first in 2005.25

-The first official and verified case of a collision between catalogued objects was in 1996.26 The French microsatellite Cerise was hit by a fragment from an Ariane rocket.27

The collision produced only a single piece of debris large enough to be tracked. This piece was the upper portion of the gravity-gradient boom (stabilization mast) of the cerise satellite.28

-The first collusion between two intact satellites took place in 2009. The US communication satellite Iridium 33 collided with the Russian reconnaissance satellite Cosmos 251 over northern Siberia at a height of 800 kilometers.29 The impact produced

18 _{Cheng, C., "The Use of Air and Outer Space, Cooperation and Competition", Kluwer Law}

International, The Hague, 1998, p. 313.

19 _{Willisch, (n. 16), p. 9.}

20 _{Huewitz, B., "State Liability of Outer Space Activities in accordance with the 1972 Convention}

on International Liability for Damage caused by Space Objects", Martinus Nijhoff Publishers, 1992, p. 2.

21 _{Yusof (n. 13) p. 332.} 22 _{Willisch, (n. 16), p. 9.}

23 _{Rathgeber, W. / Schrogl, K.-U. / Williamson, R.A., "The Fair and Responsible Use of Space, An}

International Perspective", Springer Verlag, Vienna 2010, p. 63.

24 _{Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, A., "Spacecraft thermal control", Woodhead}

Publishing, Philadelphia 2012, p. 35.

25 _{Rathgeber, W. / Schrogl, K.-U. / Williamson, R.A (n. 23.), p. 64.} 26 _{See ibid.}

27 _{See Fry, Carolyn, "CO2 prolongs life of 'space junk'", BBC News, Thursday, 5 May 2005,}

http://news.bbc.co.uk/2/hi/science/nature/4486049.stm (available 28.10.2015).

28 _{"History of On-Orbit Satellite Fragmentations", 14th Edition, NASA Orbital Debris Program}

Office, June 2008, p. 368.

29 _{See Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, A., "Spacecraft thermal control", Woodhead}

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an immense number of space debris. A total of 5579 fragments have been cataloged. Furthermore thousands of fragments down to the millimeter size regime were also generated during the breakups. These fragments are too small to be tracked, but still large enough to be a safety concern for space activities in low Earth orbit. This incident represents one of the worst satellite breakups in history.30

-In 2005 an US Rocket body was hit by a cataloged debris from a Chinese rocket stage. -In 2007 the active Meteosat 8 satellite was hit by an object large enough to change its orbit.31 Other collisions may have taken place and an increase in the likelihood of

collisions is expected.32

As mentioned above, not only mass body impacts constitute threats, but also small pieces of debris constrain space activities. Impacts of such small pieces can be seen on any surface that have been brought back to the ground from orbit. For instance impacts were found on the Endeavour Shuttle after its flight in August 200733 or on the

International Space Station (ISS), caused by objects with the size of some millimeters.34

The inspections after flight of Space Shuttles have shown that in average one window must be replaced after each mission due to impact damage.35 If the likelihood of a

collision exceeds an given threshold or if the distance to a trajectory of space debris is too low, then an evasive maneuver is an option for the ISS or satellites with such capacity. The ISS for instance was forced to fly in total 14 evasive maneuvers (status as of 2012).36

c. The danger of a collision with space debris depends among other things on its size. Therefore debris can be divided into the following three groups:

1. Group: Particles with the size smaller than 0,01cm. They can cause surface erosions on layers of paint, plastic and metal parts.

2. Group: Particles with a size between 0,01cm-1cm. These particles can cause serious damage to the spacecraft and endanger its mission. 3. Group: Objects bigger than 1cm can lead to a catastrophic damage.37

30 _{See "An update of the FY-1C, Iridium 33, and Cosmos 2251 Fragments". In: NASA: Orbital}

Debris Quarterly News, Vol. 17, Issue 1, January 2013, p. 4.

31 _{For an overview see Swan et. al., "Space Elevator Survivability, Space Debris Mitigation",}

International Space Elevator Consortium, Fall 2010, Lulu.com 2011, p. 13.

32 _{Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, (n. 29.) , p. 36.}

International Perspective", Springer Verlag, Vienna 2010, p. 63.

34 _{The ISS can handle impacts by debris with a size of one centimeter, see Metz, M.,}

"Weltraummüll-Forschung", Deutsches Zentrum für Luft und Raumfahrt (DLR), online http://www.dlr.de/rd/desktopdefault.aspx/tabid-2265/3376_read-5091/ (available 28.10.2015).

35 _{Rathgeber, W. / Schrogl, K.-U. / Williamson, R.A (n. 33), p. 63.}

36 _{Klinkrad, H., "Weltraummüll, Eine Gefahr für die Raumfahrt", Physik Unserer Zeit 2/2012 (43),}

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The damage depends also on the angle of impact and the orientation of the space craft.38

d. Risk and probability of damage caused by space debris.

The risk of direct damage by space debris on earth is relatively low. The chances of being hit by debris is fewer than getting the world's rarest disease or being killed by a falling coconut if only visited a tropical paradise of only for 1h in an entire lifetime.39

The reason is that in the vast majority of cases where objects from the orbit falling down to earth, will burn up in the atmosphere or disappear somewhere in the oceans. Therefore the real risk is addressed to outer space activities.

The risk of a collision can be defined as the product of the amount of damages and the probability of occurrence (risk = amount of damage x occurrence probability).40

-The amount of damage in case of a collision with space hardware like satellites and space debris will be demonstrated with the following example: a piece of debris with the mass of a 0,33l Heineken beer can and a relative speed of 15km/s would have a kinetic energy on impact of 42,18 Mega joule.41 This is equivalent to nearly 10kg TNT42.

It may be expected that a satellite hit by such a piece would be completely destroyed. -The probability of occurrence of a collision has two aspects: The first aspect is the threat by the now existing space debris in orbit. In 50 years of space activities more than 4900 launches have taken place and 6600 satellites were brought into orbit, of which about 3600 are still in space.43 In addition a debris population of more than

600.000 with the size bigger than 1cm (as at May 2005)44 and more than 170 million

with the size bigger than 1mm45 is located in orbit. The ISS for instance may be struck

by an object measuring over 1cm every 71 years and the Hubble telescope has a 4% chance of being hit by such an object during a theoretical 17 year lifespan.46 Due to the

number of space hardware in orbit collision events occur once per decade. Based on the above mentioned fact that even small pieces of debris can destroy an multimillion Euro 37 _{Messerschmid, E / Bertrand, R., "Space Stations, Systems and Utilization", Springer Verlag,}

Berlin 1999, p. 98.

38 _{See ibid. p. 353f.}

39 _{Pelton, J.N., Space Debris and Other Threats from Outer Space, Springer Briefs in Space}

Development, 2013, p. 1.

40 _{Mutscher, M., "Risiken für die Weltraumnutzung", SWP Studie, März 2013, p. 7.}

41 _{W(kin)= 0,5*0,375 kg (mass of debris) * 15000 m/s² (speed converted to m/s) = 42,18 Mega}

joule.

42 _{1kg TNT is equivalent to 4,184 Mega joule.}

43 _{See "About Space Debris", 18 April 2013 European Space Agency, http://www.esa.int/Our_Activi}

ties/Operations/Space_Debris/About_space_debris (available 31.10.2015).

44 _{See Table 2.3 in Musgrave et. al. "Safety Design for Space Systems", Elsevier, 2009, p. 20.} 45 _{http://www.esa.int/Our_Activities/Operations/Space_Debris/FAQ_Frequently_asked_questions}

(available 31.10.2015).

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space hardware, the probability of occurrence of even one collision per decade suddenly becomes very serious.47 The second aspect is the expected increase of space activity and

thus the increase of space debris. Every year at least 100 new satellites are launched.48

The debris density at some altitudes could become supercritical. It is feared that some orbits could not be used for space activities due to too much debris. The frequency of collisions between objects would then increase. This would produce further debris which then would lead to a higher frequency of collisions. The result would be a chain reaction or cascade which would cause even more impacts. This scenario is also called the Kessler syndrome after Donald Kessler, who studied this model in the 1970s.49

III. Origin of space debris

Collisions between space objects and debris are now indeed one of the major causes for space debris and it is to be expected that more fragments will be generated in this way. The primary source of debris in space results from about 4900 launches since the beginning of space flight era. When space hardware breaks up (accidental or intentional) and thus loses its function, it becomes space debris. Another source in this context is that debris is released intentionally during operation of launches where orbital stages50 or associated mission related objects, such as coverage or launch adapters,

remain in orbit. Other objects were released accidently, for instance screwdrivers or protective gloves during extra vehicular activities of astronauts or cooling liquids spilled out from Russian satellites.51

Further threats for space activities can be seen in arms race in outer space. The use of Anti Satellite Weapons will not only endanger international peace and security but also produce space debris when satellites would be destroyed by such weapons.52 China for

instance tested an anti satellite missile in 2007 and destroyed its own weather satellite „Fengyun 1C". With more than 3300 tracked fragments this test created not only one of the largest debris clouds in history, but also on an altitude high enough that many of these fragments will remain in orbit for decades.53

47 _{See Darrin, A. / O'Leary, B. "Handbook of Space Engineering, Archaeology, and Heritage", CRC}

Press, 2009, p. 372.

48 _{Finkleman, D., "The Dilemma of Space Debris", American Scientist, Volume 102, 2014, p. 27.} 49 _{Wright, D., "Space Debris" in: Physics Today, October 2007, American Institute of Physics, 2007,}

p.37-38.

50 _{See United Nations Office for Outer Space Affairs, Space Debris Mitigation Guidelines of the}

Committee on the Peaceful Uses of Outer Space, Vienna 2010, p. 1.

51 _{See Klinkrad, H., "Space Debris, Models and Risk Analysis", Praxis Publishing, Chichester UK,}

2006, p. 5.

52 _{Mutscher, M., "Risiken für die Weltraumnutzung", SWP Studie, März 2013, p. 5.}

53 _{Johnson, N., "Cleaning Up Space, The Development of International Space Debris Policies",}

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IV. Location, orbital lifetime and localization of space debris

One could raise the question why debris is a problem at all in consideration of the fact that the outer space is practically infinite. Is there a spatial problem in universe? The universe might be infinite, however the room around the earth - the orbit - is limited. The lowest orbit has a height of 200km; it takes then 90 minutes for an object to revolve around the earth. The higher the orbit, the longer it takes to revolve the earth. Thus, the altitude of the orbit is crucial for the task a space hardware have.54 The spatial

density of space debris varies with the altitude as well. Therefore the risk of a collision with debris depends on the altitude of orbit. Close to the earth in low earth orbits in a altitude up to 2000km, the amount of space debris produced by human activities is larger than the amount of micrometeoroids.55

The figure shows the density of debris as a function of height.56 It can be identified that

in a height of 900km and 1400km the density of debris is at their highest. The more an orbit is used for space activities, the higher is the density of debris. The lifetime of debris also depends on the altitude of orbit and thus on how strongly it is affected by atmospheric drag.57 The atmosphere of the earth helps mitigating space debris because

the debris and air molecules create a drag that leads to burn up of debris.58

Unfortunately, such atmospheric removal of debris only works effectively for orbits under 2000km. Furthermore, the space flight activities of the past decades have

54 _{Reinhardt, E.," Technische Grundlagen der Fernerkundung", in: Deutsch-polnische Begegnung zu}

Wissenschaft und Forschung im zusammenwachsenden Europa, Gilbert H. Gornig (eds), Band 12, 2014, p. 30.

55 _{Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, A., "Spacecraft thermal control", Woodhead}

Publishing, Philadelphia 2012, p. 35.

56 _{Völker, Uwe, "Laser-based space debris monitoring", Handout, Deutsches Zentrum für Luft- und}

Raumfahrt, Stuttgart 2010 pdf online at http://www.dlr.de/tp/ PortalData/39/Resources/handouts2010/Handout_SSA.PDF (available 01.11.2015)

57 _{Wright, D., "Space Debris" in: Physics Today, October 2007, American Institute of Physics, 2007,}

p. 39.

58 _{Darrin, A. / O'Leary, B. "Handbook of Space Engineering, Archaeology, and Heritage", CRC}

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produced much more debris at this altitude than were eliminated by the atmosphere.59

For higher orbit it takes hundreds to thousands of years for objects to re-enter Earth's atmosphere. In GEO orbit with a height of about 36.000 km it takes many millions of years.60

V. Mitigating the risk

Because of the long-life cycle of space debris it is important to monitor as many objects as possible in order to ensure the possibility of early warning. The knowledge of space debris is based largely on ground based radar and optical measurements. It is possible to identify objects with the size of 5cm or smaller in an orbit under 2000 km by using radar.61 One major problem is that lots of particles are too small to be tracked.

There are many different entities monitoring space objects maintain various catalogues. The US and Russian militaries currently have the most complete catalogues.62 The most

powerful observation system is the US Space Surveillance Network (US SSN). It has a worldwide network of ground based radar and telescopes. After an object is identified, it will be add in the SSN database. There are currently more than 20.000 registered objects.63 The first object catalogued in this database was not Sputnik 1, but the rocket

body which placed this satellite into orbit.64

There are further various approaches to mitigate the risk of a collision with space debris. As mentioned above, some spacecrafts can conduct an evasive manoeuvre if the risk of a collision reaches a given mission related threshold. However there is also the need to take active steps in order to mitigate the complex of problems. The UNCOPUOS worked out Space Debris Mitigation Guidelines. Stages of modern rockets for instance can be slowed down after their launch into orbit by an additional ignition and so they can re-enter the atmosphere and burn up. Retired satellites could be placed into an graveyard orbit which is few hundred kilometres above the operational orbit. Lots of other active initiatives and creative approaches to remove debris from

59 _{See Messerschmid, E / Bertrand, R., "Space Stations, Systems and Utilization", Springer Verlag,}

Berlin 1999, p. 98.

60 _{Pelton, J. N., "Space Debris and Other Threats from Outer Space", Springer Briefs in Space}

Development, 2013, p. 8.

61 _{See Musgrave et. al. "Safety Design for Space Systems", Elsevier, 2009, p. 18.}

62 _{Weeden, B., "Overview of the legal and policy challenges of orbital debris removal", in: Space}

Policy 27, Elsevier, 2011, p. 41.

63 _{Klinkrad, H., "Weltraummüll, Eine Gefahr für die Raumfahrt", Physik Unserer Zeit 2/2012 (43),}

Wiley-VCH Verlag, Weinheim (Germany) 2012, p. 65.

64 _{Johnson, N., "Cleaning Up Space, The Development of International Space Debris Policies",}

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space exist as well. Space faring nations widely agree that mitigation of space debris is a necessary procedure.65

VI. Summary Chapter A

More than 50 years of space activity leads to a critical concentration of space debris in low earth orbit. Collisions between debris leads to a higher number of objects which, when breaking into smaller and smaller pieces, are more difficult to be tracked and observed. Even small particles can have a destructive force because of the high relative speed in outer space. This debris remains in orbit for thousands of years and constitutes increasingly a threat to outer space activities. Satellites for instance are of an utmost significance for nowadays life on earth. It is generally recognized that space debris represents a serious risk and that counteractive measures needs to be taken. Various approaches already exists to mitigate the risk (avoidance and active removal), but some questions still remain open.

B. Space Debris and international law

Space debris transboundary in character, it is created by many states, it physically exists outside of states and it does not recognise national flags.66 Even the strongest states are

so heavily reliant upon its satellite-based systems that it needs to work within an international legal framework.67 It is thus in the interests of all states to address this

issue on an international plane. Before giving a short explanation of space law, it must be observed that it is a part of international law and is no more exotic than its terrestrial equivalent. It governs the exploration and exploitation of space by human beings. It is not to govern encounters with "little green men".68

Public international law covers relations between states in all their myriad forms.69

Space law, as part of international law thus applies only to those recognised as international persons. This mainly means states.70

I. The Development of space law

60 years ago outer space was only accessible through telescope observation. Legal rules for outer space therefore were not necessary. With the development of space law the 65 _{Klinkrad, H (n. 63), p. 69.}

66 _{Brearley, A., Faster than a speeding bullet: orbital debris, p. 1.} 67 _{See Vogler, J., The Global Commons, p. 193.}

68 _{Brearley, A., Faster than a speeding bullet: orbital debris, p. 14.} 69 _{Shaw, M., International Law, p. 2.}

70 _{Non-state actors are also addressed by space law, however they are to be governed by states and}

states have to answer for the conduct of those actors, see Brearley, A., Faster than a speeding bullet, p. 14.

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international community responded the come into existence of the use of space, which began with the launch of satellites by the Soviet Union and the United States in 1957-1958.71 This was the first time that rules for the peaceful use of outer space were

needed. For that reason, the United Nations General Assembly established a permanent committee in 1959 shortly after the launch of the first satellite Sputnik72: The United

Nations Committee on the Peaceful Uses of Outer Space (COPUOS). COPUOS was entrusted with the elaboration of an international legal system for outer space. The Soviet Union and the United States strived to promote this initiative.73

II. The 1967 Outer Space Treaty and supplemental treaties

The work of the COPUOS resulted in the Outer Space Treaty74 in 1967. At present, 103

states are parties to the treaty.75 The treaty states in Article I that the exploration and use

of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind. Further principles in the treaty are for instance the ban of national appropriation by claim of sovereignty of the outer space including the moon and other celestial bodies (Article II), or the duty of mutual assistance (Article V). Furthermore, the participation of non-state actors is addressed in the treaties. Article VI states that states parties shall bear international responsibility for national activities in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities. In addition, Article VII governs liability for damages caused by space objects and Article VIII generates an obligation to register objects that were launched into space. The protection of the environment is codified in Article IX. It states that states shall avoid harmful contamination and also adverse changes in the environment of the earth resulting from the introduction of extraterrestrial matter. The Outer Space Treaty is worded in general terms. Therefore, further provisions are necessary. That's why further (supplemental) treaties were concluded between 1968 and 1984:

71 _{However, the first man-made artificial space object that reached outer space was the A4 rocket}

(also known as V2) developed by Werner von Braun 1942 in Germany. The Rocket reached an altitude of 184 Kilometers.

72 _{UN Resolution 1472 (XIV).}

73 _{See Dahm, G./Debrück, J./Wolfrum, R., Völkerrecht, p. 438.}

74 _{Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer}

Space, including the Moon and Other Celestial Bodies. Opened for signature by the three depository Governments (the Russian Federation, the United Kingdom and the United States) in January 1967 and entered into force in October 1967. The Treaty was largely based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which had been adopted by the General Assembly in its resolution 1962 (XVIII) in 1963, but added a few new provisions. See http://www.unoosa.org/oosa/en/ourwork/spacelaw/ treaties/ introouterspacetreaty.html (available 20.07.2016).

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-Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968)

-Convention on International Liability for Damage Caused by Space Objects (1972)

-Convention on Registration of Objects Launched into Outer Space (1976) -Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979)

All four of the above mentioned treaties have entered into force, however the latter agreement has only been ratified by ten states.

The 1967 Outer Space Treaty came into existence in a period where the extent of the use of outer space was not predictable. Thus, its provisions are party vague and of an general nature; the Treaty should be considered as a guideline for successive treaties.76

Nonetheless, it's legal effect should not be underestimated. By codifying general principles in the treaty, the will of the parties to the treaty attains a meaning far beyond this general principles, according to Article 32 of the Vienna Treaty Convention: The development of successive and more specific treaties in this field will be limited to the scope in a way that the general principles of the Outer Space Treaty will prevail.77

Because of the fact that the legal principles are of a general nature, the Outer Space Treaty becomes also binding for those states, who are not party to the treaty.78 The

following illustration explains why:

According to Article 34 Vienna Treaty Convention, States not party to a treaty are not bound by the treaty. But states are bound by customary international law. Customary international law can establish a legal link between a contracting state and a non-contracting state. Customary international law arises from two elements: state practice and opinio iuris by the majority of states concerned.79 In the present case, the element of

opinio iuris of the general principles in the Outer Space Treaty was present at first. Opinio iuris is however not only determined by the ratification of the Outer Space Treaty, but also determined by previous UN Resolutions, diplomatic correspondence and the non-existence of protest. After opinio iuris, the second element "state practice" came into existence with the development of relevant space flight technology. This state practice was shaped by opinio iuris. So, the general principles in the Outer Space Treaty 76 _{See Dahm, G./Debrück, J./Wolfrum, R., Völkerrecht, p. 440.}

77 _ibid.

78 _{See Brünner, C., Weltraum, p. 86.} 79 _{See Shaw, M., International Law, p. 53f.}

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became customary international law. Thus, the treaty is also binding for states which are not party to the treaty. Usually the element of state practice comes first and the element opinio iuris is following. The Outer Space Treaty thus serves as an example for a development of customary international law, where opinio iuris first emerges and state practice follows.

III. Set of UN Principles

Not all problems concerning the use of outer space could have been sold by the UN Member States for lack of consensus. Some issues that could not have been sold by the above mentioned treaties are addressed by legal principles by the United Nations General Assembly. However, these are only General Assembly Resolutions and as such they are not legally binding.80 That does not mean that they are without any effect:

These principles does not only constitute moral obligations but can also be used for the interpretation of treaties. Such declarations often constitute a fundament for later treaties.81 None of these principles relate specifically to space debris. Therefore they will

not be examined further. IV. Definition of space

The territorial scope of application of space law is the outer space. This area has to be distinguished from national airspace that is under the sovereign jurisdiction of states. There is no definition of the term outer space in the treaties but it is regarded as given. International lawyers have been unable to agree on a uniform definition. Space faring nations are generally interested in demarcation between outer space and (national) airspace at low altitude for the permissible overflight.82 The rest of states in contrast are

interested in a demarcation located as high as possible.83 There are currently over 35

theories about the issue of demarcation between outer space and national airspace. Particular worthy of mention is the so called Kármán line. It lies at an altitude of 100 kilometers above the Earth's sea level. At this height the atmosphere becomes too thin to support aeronautical flight.84 Most international lawyers agree that national airspace

ends at the altitude of the Kármán line, approximately 100 kilometers over sea level.

80 _{Cheng, C., "The Use of Air and Outer Space, Cooperation and Competition", Kluwer Law}

International, The Hague, 1998, p. 160.

81 _{See Brünner, C., Weltraum, p. 88.}

82 _{This is especially relevant for remote sensing activities.} 83 _{See Classen, C. D., Fernerkundung und Völkerrecht, p. 38.}

84 _{As Kármán noted: "This is certainly a physical boundary, where aerodynamics stops and}

astronautics begins, and so I thought why should it not also be a jurisdictional boundary?" in Theodore von Kármán with Lee Edson, The Wind and Beyond (1967), p. 343.

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The lack of a precise definition has not triggered great controversy. Therefore, it is partly supposed that this issue is of a purely academic nature.85

V. Applicability of international law in outer space

International law is a legal system between (mainly) states on earth. One could therefore raise the question whether international could be applicable outside of earth. One could argue that international law has evolved on earth, it's focus is on earth and therefore it cannot be simply extended to the rest of the universe. However, "International law is 'ipso jure' applicable extra-terrestrially.", as Professor Goedhuis declared in 1967.86 The relevant rules of international law must be taken to regulate

international relations wherever such relations take place. The aim of international law is to regulate the behavior of states towards other states and therefore must be applied with respect to the behavior of states in outer space.87 Thus, as nations move into space,

in so doing they take international law with them.88 This does not mean that

international law will be extended to the universe in total, but the relevant rules will apply where outer space activities by human beings take place. Article III of the Space Treaty for instance provides that states shall carry on activities in the exploration and use of outer space in accordance with international law including the UN Charter. But even before treaties like this came into force outer space was also not a legal vacuum, as explained before. All treaties regarding the interaction between nations are as applicable in space as they are on the earth.89

VI. Environmental Law in outer space

The protection the environment needs an international legal approach for two obvious reasons. First, pollution generated by a particular state has often serious impact upon other states. Secondly, it is now apparent that environmental problems cannot be resolved by states acting individually.90 This is also true for outer space activities.

Although, there is no ecosystem in space91, this area is nonetheless in need of

85 _{See Vitt, E., Grundbegriffe und Grundprinzipien des Weltraumrechts, p. 46.}

86 _{Some Suggestions regarding the interpretation and the implementation of the United Nations}

Outer Space Treaty of 13 December 1966, by Professor Dr. D. Doedhuis.

87 _{Ogunsola, O., International Law and Outer Space Activities, p. 24-25.} 88 _{Brearley, A., Faster than a speeding bullet: orbital debris, p. 15.} 89 _{Cheng, B., Studies in International Space Law, p. 228.}

90 _{Shaw, M., International Law, p. 614.}

91 _{An ecosystem is a community of living organisms in conjunction with the nonliving components}

of their environment (things like air, water and mineral soil), interacting as a system. In: Tansley, A.G. , "The use and abuse of vegetational terms and concepts". Ecology Vol. 16, No. 3, p. 299. This does not apply to orbits around the earth as it mainly consists of vacuum.

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protection.92 Environmental problems in outer space can be divided in three groups:

environmental damage caused on or to other planets as a result of human exploratory activity, environmental damage caused on earth as a result of man-made objects falling from space and orbital space debris.93 For the purpose of this thesis only the latter will

be considered. With regard to damage to the orbital environment by space debris, it is necessary to clarify that the environment of the orbit is not per se subject of protection. Rather, it is the benefit of orbital use for space faring nations. There is a danger that future space activities could suffer loss of capability, loss of income, and even loss of life as a result of collisions between spacecrafts and orbital debris.94 Consequently,

damage to orbital environment means restricted use of some orbits (for decades). VII. Summary Chapter B

Space debris represents one of the greatest challenges in Space law.95 Space law is part

of international law; both are applicable in outer space, as the Outer Space Treaty provides. Basic principles of the Outer Space Treaty became customary international law, thus they are also binding for states not party to the treaty. As a legal framework, it limits the scope of later following legal instruments in the light of basic principles laid down in the Outer Space Treaty. Although, there is a urgent need for a legal instrument, no such instrument exists that meets all the problems of space debris. One reason is that treaties regarding outer space were written when the problem of space debris was not identified as such.

C. Legal instruments relating to space debris

When the increase of debris in orbit is as rapid as today, then outer space activities will be not feasible in 50 years. It is therefore surprising that there is no agreement that

comprehensively meets these orbital environment problems in a satisfactory manner.96 It

seems to be a paradox situation: space faring nations are trying on the one hand to avoid legally binding rules, on the other hand these nations are most suffering because of the threat of collusion with debris. Nonetheless, one has to ask what sort of contribution in the today's existing law can offer to meet the issue of space debris. The following evaluation will face the following legal aspects of space debris:

92 _{See Vitzthum, W., Völkerrecht, p. 398.}

93 _{Sands, P., Principle of International Environmental Law, p. 382.}

94 _{U.S. Congress, Office of Technology Assessment, Orbiting Debris: A Space Environmental}

Problem-Background Paper, OTA-BP-ISC-72 (Washington, DC: U.S. Government Printing Office, September 1990), p. 1.

95 _{See D. Alwes/ M. Benkö/ K.U. Schrogl, "Space debris: An item for the future", in: M.}

Benkö/K.U. Schrogl (eds), International Space Law in the Making, 1993, p. 233.

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-Avoidance and mitigation of space debris (for instance minimizing space debris by precaution for future space flights. Satellites after their the end of life could be brought down into the ocean. This has already done by some International Space

Station service missions.97

-Removal of space debris (means active removal of retired satellites or bigger parts of it. A space vehicle could approach to such objects, slow them down and finally bring them down. This is a complex procedure, although ESA is planning such missions for 2018.98

-Liability and responsibility for damages caused by space debris

As already mentioned before, the legal regime addressing the issue of space debris should be preferably international. In this thesis I choose to proceed from Art. 38 ICJ Statute. The search for relevant international law has thus to orientate in these categories.

I. Mitigation of space debris a) Treaty law

The 1967 Outer Space Treaty represents the main convention regarding outer space activities. Article I states that the exploration and use of outer space "shall be carried out for the benefit and in the interests of all countries [..] and shall be the province of all mankind". Outer space can therefore be understood as common heritage of mankind. One could argue that the pollution of space with debris violates this common heritage since such pollution is not for the benefit and in the interest of all countries.99 However,

the provision laid down in Article I Outer Space Treaty should be understood as a criterion of balancing and interpretation.100 The wording is indeed more of an

ceremonial character that is often used at the beginning of major legal codes with no clear provisions or definitions. That does not mean that they are irrelevant; such declarations serve as interpretation aid for other treaties or provisions within the treaty. Thus, it is questionable whether this provision can create a legal obligation in relation to pollution with space debris.

Article VI Outer Space Treaty states that "States Parties to the Treaty shall bear international responsibility for national activities in outer space [..] whether such 97 _{See Giesler, Johannes, "Houston, wir haben ein Impact-Problem" in die Welt online, 2016}

http://www.welt.de/wissenschaft/weltraum/article151123781/Houston-wir-haben-ein-Impact-Problem.html (available 20.07.2016).

98 _ibid.

99 _{Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United}

Nations Law, Vol. 17, p. 69.

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activities are carried on by governmental agencies or by non-governmental entities". The question is, whether this provision can constitute an obligation for the states party to the treaty to direct non-governmental entities under their jurisdiction to avoid the creation of space debris, and in case of non performance whether these nations are responsible for those private entities creating space debris. Indeed, outer space activities are nowadays conducted more often by private companies than ever before. The provision in Article VI can constitute a legal link between the private entity in question and the launching state. This makes sense especially against the background of long lasting missions where private companies can become insolvent and thus are not capable to pay compensation in case of the breach of a duty. But does this provision make the state responsible for the pollution of space by its private entities? There is no evidence indicating this. Responsibility for the pollution of space by private companies, and thus the obligation to mitigate space debris does not follow from this provision.101

Article VII Outer Space Treaty states that the launching state is liable when a space object causes damage to another state or its subordinates. Technically speaking, this does also not constitute an obligation to avoid the increase of space debris.

Article VIII Outer Space Treaty provides that the launching state shall retain jurisdiction and control over Space objects. This also applies to objects that became inactive. For this, the registration of the relevant object in accordance with the Convention on Registration of Objects launched into Outer Space 1975102 is required.103

Just like before, this provision does not represent an obligation to avoid debris.

In contrast, Article IX Outer Space Treaty relates more directly to the prevention of damage caused by space debris. It provides that in the exploration and use of space are states required to act "with due regard to the corresponding interests of States Parties to the Treaty". Therefore, the pollution of outer space is prohibited in general. Since the 1972 UN Stockholm Conference on the Human Environment the concept sic utere tuo ut alienum non ladeas (use your property so as not to injure your neightbour) has existed within international law.104 It is however worth to highlight that Article IX Outer

Space Treaty offered environmental protection long time before the Stockholm Conference laid down environmental protection in its declaration.105 Article IX Outer

101 _{See ibid.}

102 _{Registration Convention from 14 January 1975, entered into force 15 September 1976.}

104 _{Baker, H.A., Regulation of Orbital Debris, in Simpson, p. 183.}

105 _{Consequently, ti is wrong to provide that environmental law starts with the Stockholm}

Declaration, Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United Nations Law, Vol. 17, p. 70.

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Space Treaty could also be applicable to space debris. States party to the treaty are under an obligation to conduct their outer space activities in a way that does not interfere negatively with other state's activities. Space debris does so und thus, it could be a breach of this provision. Although, this interpretation is made in the light of the treaty, it is still questionable whether it would be accepted in general.106 Other

interpretations tends to the conclusion that there is no legal incentive to avoid generating space debris in this provision.107

In summary, it can be seen that the Outer Space Treaty was not established with a focus of space debris prevention. But some provisions can be applied to space debris. However, the legal consequences of an application in general are rather low.108

Another convention worth mention is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979, the so called Moon Treaty.109 Article 7

prohibits the harmful contamination of the moon. It further states that nations shall take measures to avoid harmfully affecting the environment of the earth through the introduction of extraterrestrial matters. However, the Moon treaty has no importance and can be generally seen as failed110 because it has only 15 parties.

The Test Ban Treaty111 bans nuclear explosions also in outer space in order to avoid

uncontrolled release of radioactive debris. It is obvious that the application to space debris is limited to explosions of objects with a nuclear power source, but it is worth to mention that lots of satellites launched in the 1970s and 1980s are equipped with such NPS (nuclear power sources).112 Most sources of space debris does not fall under this

Treaty.

b) Customary law

The duty to avoid space debris could be established under customary international law.

106 _{Brearley, A., Faster than a speeding bullet: orbital debris, p. 17.}

107 _{US Congress, Office of Technological Assessment, Orbiting Debris, A Space Environmental}

Problem - Background Paper (Washington, DC: US Government Printing Office, 1990), note 12, p. 10.

108 _{Schladebach, M., (n. 105), p. 70.}

109 _{The Moon Agreement was considered and elaborated by the Legal Subcommittee from 1972 to}

1979. The Agreement was adopted by the General Assembly in 1979 in resolution 34/68. It was not until June 1984, however, that the fifth country, Austria, ratified the Agreement, allowing it to enter into force in July 1984. See http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/ intromoon-agreement.html (available 20.07.2016).

110 _{See Vitzthum, W., Völkerrecht, p. 442.}

111 _{Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water,}

opened for signature in August 1963, entered into force in October 1963, see https://treaties.un.org/pages/showDetails.aspx?objid=08000002801313d9 (available 20.07.2016).

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Principle 21 of the earlier mentioned Stockholm Declaration of 1972 is considered by a number of Resolutions by the UN General Assembly as a rule of customary international law. It states that nations have the responsibility to ensure that "activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction". This provision is open to a wide range of interpretation, however it cannot offer clear legal guidance to deal with space debris.113 The same result follows from other principles of environmental law: The

precautionary principle, the principle of preventive actions, the cooperation principle, the polluter-pays-principle and the integration principle cannot, and indeed are also not intended, to offer clear legal arguments or rules to deal with the concrete legal question of the avoidance of space debris.114

c) Legal initiatives

Space debris represents a serious problem to outer space activities and it is to be expected that the concentration of debris will rise. From a legal standpoint, things are even worse as there are no clear legal rules. As reaction to this legal situation some institutions have taken initiatives for the mitigation of orbital debris.115

The International Law Association (ILA) promoted a possible legal solution after several years of work on this subject.116 In 1994 the ILA adopted the draft convention on

a conference in Buenos Aires. The draft convention defines debris as "man-made objects in Outer Space, other than active or otherwise useful satellites, when no change can reasonably be expected in these conditions in the foreseeable future".117 Article 3

and 4 establishes a duty to prevent space debris. Article 7 repeats rules from the Outer Space Treaty in relation to responsibility and Article 9 establishes rules on dispute settlement concerning the obligations of this convention.118 In the following years the

draft gained support from various circles involved with space law. It is frequently recommended as a basis for discussing space debris on the intergovernmental level, namely at the Legal Subcommittee of COPUOS. ILA has kept this instrument under permanent review considering that, so far, it should be kept in its present reading.119

From the current point of view, drawbacks to the draft can be seen in the absence of any

113 _{ibid., p. 73.} 114 _{ibid., p. 74.}

115 _{Technical initiatives will be not considered here.}

116 _{Böckstiegel, K.H., ILA Draft Convention on Space Debris, ZLW 44, p. 29.} 117 _{Article 1 ILA Draft Convention on Space Debris.}

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regulation on the removal of orbital debris.120 At the ILA Conference in The Hague in

2010, the Space Law Committee the ILA was given the task of preparing some amendments to the 1994 Draft. This implies that the ILA is still working on the subject.121 Although this instrument does not constitute law and does not address the

technical means to reduce the creation of space debris, it could potentially serve as a first step in moving the debris issue into a legal regime.122

Some years later the Inter-Ageny Space Debris Coordination Commmittee (IADC) created guidelines for the mitigation of debris in orbit. The IADC is an inter-governmental agency whose aim is to coordinate efforts to deal with debris in orbit. It has thus no legal personality under international law. Members of the IADC are space agencies of all leading space faring nations like NASA, ESA, the German DLR, the Russian Roskosmos or the Japan Aerospace Exploration Agency. The IADC Space Debris Mitigation Guidelines 2002 served as model for the UNCOPUOS Space Debris Mitigation Guidelines 2007 by the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS).123 The UNCOPUOS Space Debris Mitigation Guidelines

include seven regulations which should be considered for the mission planning, design, manufacture and operational phases of spacecraft and launch vehicle orbital stages. Article 1 states that Space systems should be designed not to release debris during normal operations. Article 2 provides that Spacecrafts and launch vehicle orbital stages should be designed to avoid failure modes which may lead to accidental break-ups. Article 4 states that the intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other activities that generate long-lived debris should be avoided. Article 6 provides that space objects that are no longer in use should be removed in a controlled fashion. In sum, the focus of this document lies in the mitigation of space debris. In 2007 the General Assembly of the United Nations adopted its Resolution 62/217. This Resolution approves the UNCOPUOS Mitigation Guidelines and agrees that they reflect the existing practice as developed by a number of national and international organizations. It invited the Member States to implement these guidelines into national law.124 These Guidelines strictly speaking constitute only a

recommendation to the Members of the UN. Thus, they are not legally binding under

120 _{Malanczuk, P., Review of the Regulatory Regime Governing the Space Environment. The}

Problem of Space Debris, ZLW 45, 1996. p. 59.

121 _{Schladebach, M., (n. 118), p. 78.}

122 _{National Research Council. Orbital Debris: A Technical Assessment. Washington, DC: The}

National Academies Press, 1995, p. 187.

123 _{Marboe, I., Weltraummüll - Umweltproblem im All, p. 13.}

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international law. However, the UN Space Debris Mitigation Guidelines represent the currently most important initiative on the avoidance of space debris.125 These guidelines

can become binding through incorporation into national law, and could become customary law with sufficient state practice and opinio iuris. Of course, a treaty would be a better solution in the long term. States however show a reluctance to sign an international space treaty: the last space treaty (Moon Treaty) dates back to 1979 and has only 15 members.126 The prospects are not necessary bad in considering the fact that

some voices demanded legally binding rules at the session of the UNCOPUOS in June 2012.127 "Some delegations expressed the view that the Space Debris Mitigation

Guidelines of the Committee should be further developed" and that "the Scientific and Technical Subcommittee and the Legal Subcommittee should cooperate in developing legally binding rules relating to space debris."128. Furthermore, 60% of nowadays space

missions comply with the above mentioned voluntary guidelines.129

d) National instruments

Other sources of space debris regulations can be found in national law. A number of space faring nations have adopted national space law that governs issues like liability or due diligence to limit the creation of space debris. The French Operation Space Act for instance is perhaps the most explicit and serves as model of other national laws for space faring nations. This however cannot be considered as a source of international law. Due to the lack of new outer space treaties for many years, the establishment of such national rules regarding space debris can help to develop international norms.130

II. Removal of space debris

Calculation indicate that if 5 large objects are removed each year, the Kessler effect could be prevented. 10 large objects need to be removed each year to reverse the trend. Hence, active debris removal (ADR) should be the next step.131 The removal of old

satellites and other space objects raise legal questions. a) Treaty law

125 _{ibid., p. 78.}

126 _{Masson-Zwaan, T., Space Junk and the Law,}

http://leidenlawblog.nl/articles/space-junk-and-the-law (available 28.05.2016).

127 _{Schladebach, M., (n. 124), p. 82.}

128 _{COPUOS A/67/20 para. 115, 116, see http://www.unoosa.org/pdf/gadocs/A_67_20E.pdf}

(available 21.07.2016).

129 _{See Giesler, Johannes, "Houston, wir haben ein Impact-Problem" in die Welt online, 2016}

http://www.welt.de/wissenschaft/weltraum/article151123781/Houston-wir-haben-ein-Impact-Problem.html (available 20.07.2016).

130 _{Pelton, J.N., New Solutions for the Space Debris Problem, p.72.}

131 _{Masson-Zwaan, T., Space Junk and the Law,}

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There is no such treaty that governs the removal of debris from outer space. Instead, legal problems arise from existing treaties in regard to the removal of space debris. Article XIII of the Outer Space Treaty provides that a state party to the treaty shall retain jurisdiction and control over such objects. "Ownership of objects launched into outer space [..] is not affected by their presence in outer space [..] or by their return to the Earth". Article I of the Convention on International Liability for Damage Caused by Space Objects defines the term "Launching State" as a "State which launches or procures the launching of a space object" or as "A State from whose territory or facility a space object is launched". These two provisions constitute, that a space object is forever under the jurisdiction and control of the Launching State. That leads to the conclusion that any attempt by a third party to remove this object in question could be interpreted as a breach of sovereignty.132 The breach of an obligation not to interfere

would then entail the responsibility of that state under Article 1 and 12 ILC Articles on State Responsibility. This in turn would trigger legal consequences like the duty of reparation for the state that have breached its obligations (Article 28 ILC Articles on State Responsibility).133 It is obvious that there is no breach of sovereignty if the state

whose space object has to be removed will consent in doing so. At first sight, it seems to be a comfortable solution for a state to let other state do the cleanup efforts. This, however could also have negative effects for the state whose space objects have to be removed. As the active debris removal technology requires close approach to the target object in order to determine spin state, stability and structural integrity, this procedure could reveal patents or trade secrets with regard to material science, design, or payload configuration.134 No space faring nation is interested in the disclosure of its satellite

know-how. The issue is however not limited to this. Another problem is that it is often unknown who the owner of an object in question is. Article II of the Registration Convention states that a Launching State shall register space objects that have been launched into space. Although most states do register their space objects, it is not universal state practice to register all objects, including debris.135 Another issue in this

context is that no existing space treaty provides a definition of space debris. There is thus no clear distinction between functional satellites and non-functional space debris.136

This constitutes an obstacle for the removal of debris because states could consider their 132 _{Weeden, B., "Overview of the legal and policy challenges of orbital debris removal", in: Space}

133 _{Although, these ILC Articles does not constitute treaty law, they are nonetheless generally}

considered as rules of customary international law.

134 _{Weeden, B., "Overview of the legal and policy challenges of orbital debris removal", in: Space}

135 _{ibid, p. 41.} 136 _{ibid. p. 40.}

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space objects as backup satellites that were inactive for years for instance while other parties could interpret inactive satellites as being space debris.

Satellites that fall back to earth could also fall in the application scope of other law regimes. As the surface of the earth consists of 70 percent of water, space debris could be a hazard to the environment by falling into the sea.137 Article 192 of the UN

Convention on the Law of the Sea (UNCLOS) 1982 provides the protection and preservation of the marine environment: " States have the obligation to protect and preserve the marine environment." It appears questionable whether space debris then becomes sea debris with the obligation to remove or whether the Launching State remains in ownership with all the above mentioned consequences. The probability for that scenario should be low. Therefore, this issue will not be further explained here. b) Customary law

The removal of space debris could be seen as an obligation of customary international law. Plenty of authors support this view. This is based on the fact that in Low Earth Orbit and the Geostationary Orbit some old satellites were removed to higher orbits.138

States, international organizations and private entities have demonstrated practice by actually removing retired satellites by performing passivation maneuvers. One has to consider that the removal of retired satellites into higher orbits does not constitute a removal of space debris from the orbit. Space debris remains in orbit. As explained in Chapter A, the lifetime of debris depends on the altitude of orbit. The higher the debris is placed, the longer it stays in orbit. Thus, removing old satellites to a higher orbit only transfers the problem to future generations. "Hiding a problem does not constitute solving that problem", as Schladebach noted.139 Furthermore, it is questionable whether

there is also opinio iuris for removing retired satellites and other debris from space. Several national legal initiatives and international guidelines indicate a conviction that the removal of debris is needed by the international community. However, with around two or three actions to bring retired satellites into higher orbits, it is not possible to identify state practice and the relevant opinio iuris in regard to the obligation to remove space debris from orbit.140 Hence, the duty to remove debris from space does not exist

under customary international law. c) Legal initiatives

138 _{Mejia-Kaiser, Informal Regulations and Practices in the Field of Space Debris Mitigation, p. 28.} 139 _{Schladebach, M., (n. 137), p. 83.}

Space debris regulations and approaches under International Law

Space debris regulations and approaches

under International Law

Contents