Space debris regulations and approaches under International Law

Eugen Reinhardt Student-Nr.: 10967915 28.07.2016, Amsterdam Space debris regulations and approaches under International Law Master Thesis Supervisor: dr Cathrine Brölmann Faculty of Law - University of Amsterdam II Contents Research question and relevance Structure and methodology A The Dilemma of Space Debris I Definition of Space Debris II Space debris as threat a) Damage on earth .3 b) Damage in outer space c) Categories of space debris d) Risk and probability of damage .6 III Origin of Space debris IV Location and localization of Space Debris V Mitigating the risk VI Summary Chapter A 10 B Space Debris and international law .11 I The development of space law 11 II The Outer Space Treaty and supplemental treaties 12 III Set of UN Principles 13 IV Definition of space 14 V Applicability of international law in outer space 14 VI Environmental Law in outer space 15 VII Summary Chapter B 16 C Legal instruments relating to space debris 16 I Mitigation 17 a) Treaty law .17 b) Customary law .20 c) Legal initiatives 20 d) National instruments 22 II Removal of space debris 23 a) Treaty law .23 b) Customary law .24 c) Legal initiatives 25 III Liability and responsibility .25 IV Summary Chapter C 27 D Reasons for the lack of regulations and possible solutions 28 I Reasons for the lack of regulations 28 II Possible Solutions .28 a) A new treaty 29 b) Bearing the costs 30 Research question and relevance 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 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 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 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 branches 3, and GPS satellites are an indispensable element of navigation These are only few examples for the importance of satellites for economy or science Satellites belong to so called critical infrastructures 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 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 See Viikari, L., "The Environmental Element in Space Law", Boston 2008, p 31 D.R Cheruku, "Satellite Communication", I.K International Publishing House Pvt Ltd., 2009, p 18 Further details see Reinhardt, E.," Technische Grundlagen der Fernerkundung", in: Deutschpolnische Begegnung zu Wissenschaft und Forschung im zusammenwachsenden Europa, Gilbert H Gornig (eds), Band 12, 2014, p 34 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 See Commission for the European Communities, green paper on a European programme for critical infrastructure protection, Brussels, 17.11.2005, p 24 For full definition see Commission for the European Communities, green paper on a European programme for critical infrastructure protection, Brussels, 17.11.2005, p For detailled terminology see Schulze, Tillmann: Bedingt abwehrbereit, Schutz kritischer Informations-Infrastrukturen in Deutschland und den USA, 2006 p 115, 120 See Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United Nations Law, Vol 17, 2013, p 65 "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." 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 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 COPUOS, Space Debris Mitigation Guidelines, Report of 15 June 2007 See Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United Nations Law, Vol 17, 2013, p 65 11 Böckstiegel, K-H., "Space Law, Basic Legal Documents", Volume 1, Eleven International Publishing, Utrecht 2005, p 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 17 Viikari, L., "The Environmental Element in Space Law", Boston 2008, p 45 10 launched in 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 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 18 19 20 21 22 23 24 25 26 27 28 Cheng, C., "The Use of Air and Outer Space, Cooperation and Competition", Kluwer Law International, The Hague, 1998, p 313 Willisch, (n 16), p 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 Yusof (n 13) p 332 Willisch, (n 16), p Rathgeber, W / Schrogl, K.-U / Williamson, R.A., "The Fair and Responsible Use of Space, An International Perspective", Springer Verlag, Vienna 2010, p 63 Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, A., "Spacecraft thermal control", Woodhead Publishing, Philadelphia 2012, p 35 Rathgeber, W / Schrogl, K.-U / Williamson, R.A (n 23.), p 64 See ibid See Fry, Carolyn, "CO2 prolongs life of 'space junk'", BBC News, Thursday, May 2005, http://news.bbc.co.uk/2/hi/science/nature/4486049.stm (available 28.10.2015) "History of On-Orbit Satellite Fragmentations", 14th Edition, NASA Orbital Debris Program Office, June 2008, p 368 Cosmos 251 over northern Siberia at a height of 800 kilometers 29 The impact produced 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 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 2007 33 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: Group: surface 29 30 31 32 33 34 35 36 Particles with the size smaller than 0,01cm They can cause erosions on layers of paint, plastic and metal parts See Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, A., "Spacecraft thermal control", Woodhead Publishing, Philadelphia 2012, p 36 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 For an overview see Swan et al., "Space Elevator Survivability, Space Debris Mitigation", International Space Elevator Consortium, Fall 2010, Lulu.com 2011, p 13 Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, (n 29.) , p 36 Rathgeber, W / Schrogl, K.-U / Williamson, R.A., "The Fair and Responsible Use of Space, An International Perspective", Springer Verlag, Vienna 2010, p 63 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) Rathgeber, W / Schrogl, K.-U / Williamson, R.A (n 33), p 63 Klinkrad, H., "Weltraummüll, Eine Gefahr für die Raumfahrt", Physik Unserer Zeit 2/2012 (43), Wiley-VCH Verlag, Weinheim (Germany) 2012, p 68 Group: Particles with a size between 0,01cm-1cm These particles can cause serious damage to the spacecraft and endanger its mission Group: Objects bigger than 1cm can lead to a catastrophic damage 37 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 37 38 39 40 41 42 43 44 Messerschmid, E / Bertrand, R., "Space Stations, Systems and Utilization", Springer Verlag, Berlin 1999, p 98 See ibid p 353f Pelton, J.N., Space Debris and Other Threats from Outer Space, Springer Briefs in Space Development, 2013, p Mutscher, M., "Risiken für die Weltraumnutzung", SWP Studie, März 2013, p W(kin)= 0,5*0,375 kg (mass of debris) * 15000 m/s² (speed converted to m/s) = 42,18 Mega joule 1kg TNT is equivalent to 4,184 Mega joule 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) See Table 2.3 in Musgrave et al "Safety Design for Space Systems", Elsevier, 2009, p 20 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 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 stages 50 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 45 46 47 48 49 50 51 http://www.esa.int/Our_Activities/Operations/Space_Debris/FAQ_Frequently_asked_questions (available 31.10.2015) Rathgeber, W / Schrogl, K.-U / Williamson, R.A., "The Fair and Responsible Use of Space, An International Perspective", Springer Verlag, Vienna 2010, p 63f See Darrin, A / O'Leary, B "Handbook of Space Engineering, Archaeology, and Heritage", CRC Press, 2009, p 372 Finkleman, D., "The Dilemma of Space Debris", American Scientist, Volume 102, 2014, p 27 Wright, D., "Space Debris" in: Physics Today, October 2007, American Institute of Physics, 2007, p.37-38 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 See Klinkrad, H., "Space Debris, Models and Risk Analysis", Praxis Publishing, Chichester UK, 2006, p 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 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 52 53 54 55 56 Mutscher, M., "Risiken für die Weltraumnutzung", SWP Studie, März 2013, p Johnson, N., "Cleaning Up Space, The Development of International Space Debris Policies", Harvard International Review, Spring 2012, p 70 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 Meseguer, J./ Pérez-Grande, I./Sanz-Andrés, A., "Spacecraft thermal control", Woodhead Publishing, Philadelphia 2012, p 35 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) 22 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 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 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 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 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 130 Pelton, J.N., New Solutions for the Space Debris Problem, p.72 Masson-Zwaan, T., Space Junk and the Law, http://leidenlawblog.nl/articles/space-junk-and-thelaw (available 28.05.2016) 132 Weeden, B., "Overview of the legal and policy challenges of orbital debris removal", in: Space Policy 27, Elsevier, 2011, p 41 133 Although, these ILC Articles does not constitute treaty law, they are nonetheless generally considered as rules of customary international law 131 23 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 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 nonfunctional space debris.136 This constitutes an obstacle for the removal of debris because states could consider their 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 134 135 136 137 138 Weeden, B., "Overview of the legal and policy challenges of orbital debris removal", in: Space Policy 27, Elsevier, 2011, p 42 ibid, p 41 ibid p 40 Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United Nations Law, Vol 17, p 72 Mejia-Kaiser, Informal Regulations and Practices in the Field of Space Debris Mitigation, p 28 24 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 The above mentioned UN Space Debris Mitigation Guidelines advice the reduction of space debris However, they not promote any guidance on the removal of space debris The ILA 1994 Draft does also not contain provision on the removal of orbital debris Although, legal initiatives are not present, technical initiatives does not lack in suggestions III Liability and responsibility Any discussion of legal issues of space debris would not be complete without noting the issue of liability and responsibility The concepts of responsibility and liability under international law are distinct and separate Responsibility relates to the obligation to regulate and monitor activities and assume overall charge of the conduct of space activities Liability refers to the obligation to pay or remedy harm caused to another State The general rule in outer space is that states bear international responsibility for activities in space (Article VI Outer Space Treaty) Article VII establishes the international liability of launching states The launching state is liable for damage caused by space objects or its components on earth, in air or in outer space to other parties or its subordinates The Convention on International Liability for Damage Caused by Space Objects from 1972 (also known as Space Liability Convention) complements these provisions by setting out more detailed rules for cases where damage in space occurs 141 It establishes two separate regimes of liability The first is absolute liability and applies in cases of damage caused by a space object on the surface of the Earth or to aircraft flights (Article II) This liability regime is absolute - meaning that the country that launched 139 140 141 Schladebach, M., (n 137), p 83 ibid, p 75 Viikari, L., "The Environmental Element in Space Law", p 65-66 25 the spacecraft is liable for damages, even if there was no negligence 142 The second is based on fault liability which applies when the damage occurs in outer space (Article III) Thus, the launching state is liable "only if the damage is due to its fault or the fault of persons for whom it is responsible" Unfortunately, the Space Liability Convention provides no guidance how to determine fault in this context Analogy with fault regimes from earth cannot simply be applied to outer space because standard of practice in outer space yet does not exist Thus, the definition of fault could be endlessly debated without any clear result Another problem is already mentioned before Liability under the Space Liability Convention is based on ownership of the objects in question However, the origin of a space object not always known Furthermore, the exact origin of the vast majority of debris objects is also unknown Even if the origin of a particular space debris can be addressed to a launching state, the question arises whether space debris can be understood as space object in the meaning of this convention Liability only applies to damage "caused by a space object" The only definition the convention gives for the term space object is that it includes "component parts of a space object as well as its launch vehicle and parts thereof" (Article I.d) Inactive satellites could thus be considered as space objects Things get more complicated when considering smaller pieces of debris that resulted from fragmentations The question remains whether such small objects constitute a space object It seems debatable whether small pieces of fragmentation debris can be seen as space objects or a component part 143 If space debris does not qualify as a space object, the Space Liability Convention becomes largely meaningless in establishing liability for space activities 144 Therefore, it has been argued that "anything which has been launched into outer space whatever its size [ ] qualifies as space object" 145 A space object then can be as large as an intact satellite or as small as a fragment or screw An example of this is the Chinese metrological satellite FY-1C, which was fragmented into thousands of pieces by anti-satellite missile test in 2007 FY-1C was registered in the Registry of Space Objects After its fragmentation, each individual piece became a space object under the definition of the Liability Convention 146 But even if all debris regardless of its size would fall under the definition of space object, difficulties would still remain in establishing liability In most cases it is impossible to prove that the 142 Merges, R.P./ Reynolds, G.H., Rules of the Road for Space, p Viikari, L., "The Environmental Element in Space Law", p 70 144 ibid 145 ibid footnote 60 146 Listner, M., Revisiting the Liability Convention: reflections on ROSAT, orbital space debris, and the future of space law, The Space Review, available online: http://www.thespacereview.com/article/1948/1 (on 28.05.2016) 143 26 damage was caused by space debris, that a particular piece of debris is part of a registered space object of a state Furthermore, fault by the state in question have to be proved.147 Things are less complicated if debris causes damage on earth's surface This risk however is not that high, as explained in Chapter A The Space Liability Convention, if at all, can provide a legal basis for the compensation of damages Repressive measures are important as they could lead to a more responsible conduct in outer space However, the Space Liability Convention is simply not designed to manage the problem of space debris IV Summary Chapter C In the absence of any clear and binding rules for space debris in particular, the legal efforts have so far largely focused on using the concepts of liability under the Space Liability Convention and on registration for purposes of identifying the owner of space objects Problems have arisen in regard the term of fault concerning the liability for damage caused by a pieces of debris and the identification of such Efforts have been made to draft new instruments, addressing in particular the mitigation of the generation of new space debris Examples of this approach include the UN Space Debris Mitigation Guidelines, which governs how to minimize the generation of new debris Although these guidelines are not legally binding, they resulted in some cases into binding requirements under national law D Reasons for the lack of regulations and possible solutions I Reasons for the lack of regulations In the UN Committee on the Peaceful Uses of Outer Space some states tabled a proposal for a legally binding instrument in order to avoid the pollution of the orbit by space debris Other states disagreed on that proposal reportedly on the ground of fear that the progress of space technology or the development of a space industry in some states could be slowed down 148 In regard to the removal of debris a number of stakeholders claim that the removal of inactive satellites or debris would be too expensive 149 A rule under international law would force space faring nations to make expensive modifications on their spacecrafts 147 Viikari, L., "The Environmental Element in Space Law", p 71 Marboe, I., Weltraummüll - Umweltproblem im All, p 13 149 Schladebach, M., "Space Debris as a Legal Challenge", in: Max Planck Yearbook of United Nations Law, Vol 17, Footnote 47 148 27 They are thus reluctant to rules under international law However, the picture changes slowly as the states have recognized that without any change space activities will become much more expensive on the long run 150 Another reason is that the political pressure surrounding the problem of space debris is still quite weak 151 "In Many cases, mankind only becomes active when greater damage has occurred", as Schladebach noted.152 Indeed, irrespective of those incidents mentioned in Chapter A, no big accident has occurred yet An unconventional view of the topic emerges when one thinks about space weapons and debris Space debris could not only be considered as a threat for space faring activities in general It could also serve as an weapon against space faring nations in space An effective and cheap space weapon could be seen in the intentional release of debris clouds in Low Earth Orbit 153 This would destroy several satellites in this orbit The debris cloud would then grow due to further collision with operating satellites That would not only result in the destruction of satellite infrastructure itself, but also make the Low Earth Orbit unusable for a time Anti satellite missiles could, intentionally or not, lead to this scenario II Possible legal solutions To a certain degree the orbit is in possession of cleaning up himself Debris is losing altitude over time by drag with the atmosphere Most of the debris will burn up in the atmosphere and only a small fraction will reach the earth's surface That does obviously not mean that the problem of space debris is not self-regulating Legal instruments are still needed New provisions have to consider the technical possibilities The demand for the removal of orbital debris and to create a corresponding legal obligation could only be expressed seriously if there were existing working technical perspectives Dozens of possible methods have been suggested, and several are under development This confirms that space debris is not an isolated field but must be seen in the broader context a) A new treaty So, should a new legally binding international treaty be concluded? It is a long way for a treaty to enter into force The willingness to conclude a new space treaty is quite 150 Schrogl, K.U., The Fair and Responsible Use of Space, An International Perspective", p 605 Schladebach, M., (n 149), footnote 48 152 ibid p 76 153 Neuneck, G / Rothkirch, A., Weltraumbewaffnung und Optionen für präventive Rüstungskontrolle, Bundesstiftung Friedensforschung, avaliable online: http://www.bundesstiftung-friedensforschung.de/images/pdf/forschung/berichtneuneck.pdf (on 27.05.2016) 151 28 low, as can be seen on the Moon Treaty example, and the ratification procedure takes a relatively long time Soft law in contrast, is less painful for states and the establishment of such an instrument is much easier due to the fact that national ratification procedure is not needed.154 However, that also means that they are not legally binding and thus with very little practical effect 155 Therefore, a legally binding instrument appears to be the better solution Such an instrument needs to be filled with enforceable rules and definitions that provide certainty and accountability Furthermore, the compliance with the rules have to be monitored States should monitor each other by conducting space activities as the compliance with those rules is in their own interest This could by the way also increase transparency and establish more mutual trust In regard to the content of such a treaty, the following should be taken into consideration: -All objects launched into space have to registered in the UN Register of Objects Launched into Outer Space -The status of un-cataloged debris objects should be defined -States should clearly label their satellites as functioning or not In this regard a clear separation between spacecraft and non-functional space debris is needed -The protection of non-functional space objects by the Outer Space Treaty should be removed -Launching states have to ensure that launched satellites will be removed after their end of life It should considered as being obvious that this is not the place for the establishment of a new legal framework in detail But, from the authors view, the most significant issues have been addressed with it b) Bearing the costs Satellite launches could be taxed with higher fees if no precautions have been made to bring the satellite back to earth after its end of life 156 The question of bearing the cost for damages and the removal of debris with unknown origin remains Those states who benefit the most from outer space activities could pay the biggest sum to a common "space debris fond" After all, these states are suffering the most from the threat by space debris This principle could however be considered as random A more legally tenable solution could be based on the polluter pays principle Those states who 154 See Viikari, L., Making Space Law more effective, Space Policy 21, 2005, p Sand, P., Lessons learned in global environmental governance, p 16 156 Bradley, A.M./ Wein, L.M., Space Debris, Assessing Risk and Responsibility, in: Advances in Space Research, 43, 2009, p 155 29 polluted the orbit the most, should pay the biggest sum It is likely that no state will be marked as "polluter" However, these principle can serve as initial points for political debates Even if a treaty will not enter into force soon, soft law is still better than no law With the recognition of the issue of space debris by a widespread of states and the emergence of relevant state practice, customary international law could be established and one day codified in a treaty 30 Bibliography Baker, Howard A Regulation of orbital debris - 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April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008 Willisch, Jan "State Responsibility for Technological Damage in International Law", Duncker und Humblot, Kiel (Germany) 1987 Wright, David "Space Debris" in: Physics Today, October 2007, American Institute of Physics, 2007 Yusof Nordin "Space Warfare, High-Tech War of the Future Generation", Penerbit, Skudai Malaysia 1999 ... 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... the Space Debris Problem, p.72 Masson-Zwaan, T., Space Junk and the Law, http://leidenlawblog.nl/articles /space- junk -and- thelaw (available 28.05.2016) 132 Weeden, B., "Overview of the legal and. .. 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