By: Lilian Srour, Junior Research Associate, PILPG-NL
Since the first satellite, Sputnik 1, entered interplanetary space in 1957, the Space Age has allowed for remarkable scientific progress and discovery. However, more recent space activities have generated widespread condemnation and shed light on challenges that remain to be addressed in the legal framework governing these endeavors. For instance, on November 15, 2021, Russia launched a direct-ascent anti-satellite (DA-ASAT) test to destroy one of its own defunct satellites. This drew condemnation from the international community because of the uncontrollable space debris that it created, which threatens to endanger space objects and human spaceflight for years ahead. The Russian ASAT test is not the first activity of its kind – China and India have launched ASAT tests in 2007 and 2019 respectively, both of which have increased the risk of collision with other spacecrafts and added to the growing problem of space debris.
Space debris
Space debris, also known as “space junk” or “space garbage”, refers to all non-functional man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere. Space debris is dangerous for space activities for several reasons. For instance, space debris travels at a high speed in orbit, leading to the possibility of destroying or damaging satellites, even with the smallest pieces, with which they may collide. Furthermore, space debris can remain in high altitudes for years, accumulating and growing in size. This growth increases the risk of colliding with other satellites and it also affects the overall accessibility to space.
Even though space debris has already been an area of concern since the 1960s, humanity finds itself facing the consequences of not having mitigated the matter further. Researchers have expressed that if we do not address the growing issue of space debris appropriately, “we will reach a point of no return.” With this in mind, what laws address this topical matter?
The legal framework
The UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) was created by the General Assembly to review international cooperation in the peaceful uses of outer space, to study activities that could be carried out by the UN regarding space, to encourage space research programs and to study legal problems arising from space related conduct. The term “space law” is most often associated with the rules, principles, and standards of international law, included in the five international treaties and five sets of principles governing outer space, developed under the auspices of the United Nations (UN). These treaties are complemented by several bilateral and multilateral agreements concluded outside the UN and the domestic laws adopted on outer space. Of these treaties, the 1967 Outer Space Treaty (OST) is still very relevant today, and often considered a constitution by space lawyers, in the sense that all international and national advancements on space activities should be measured against this standard.
While space debris is not explicitly mentioned in any space law treaty, Article IX OST requires states to conduct their outer space activities “with due regard to the corresponding interests of all other States Parties.” In this pursuit, states shall be guided by the principles of cooperation and mutual assistance. Regarding potentially harmful activities by states, the OST stipulates that harmful contamination of outer space shall be avoided, and that when activities could be harmful, prior international consultations should be undertaken before proceeding with any activity. Nevertheless, these provisions do not explicitly prohibit the creation of space debris, nor do they impose an obligation on states to remove space objects.
Opportunities to develop an approach
Despite efforts to mitigate the amount of space debris generated, these have not provided a sustainable solution. The recent Russian ASAT test underlines the need for a clear legal framework that regulates the conduct of states in space. Accordingly, scientists have long expressed the need to prioritize the development of additional measures to the current framework for the protection of the space environment, which include a prohibition on the use of destructive ASAT tests.
Scholars and practitioners have presented different arguments on how to address the matter of space debris. On the one hand, it has been suggested that a new treaty needs to be created to regulate space activities and space debris. On the other hand, scholars have held that such a treaty is not necessary, suggesting that the current framework provides for a legal basis to tackle the growing space debris, adding that new non-binding instruments could help guide states in their space activities.
At present, space faring powers have shown reluctance to agreeing to new legally binding instruments. Thus, to encourage uniform state practice, the current legal framework’s enforceability and implementation ought to be revisited to ensure that we begin remedying the consequences of space debris. For instance, in discussions going forward, space debris could be further addressed through the current framework by considering Article IX OST as the basis for environmental protection. Furthermore, soft law instruments issued by UNCOPUOS, such as the space debris mitigation guidelines need to be taken into account when planning future space endeavors. Regarding the recent use of destructive ASAT tests, it has been suggested that states could make a claim that Russia did not conduct international consultations as required under the OST prior to carrying out the activity. This provides an opportunity for states to develop practice on addressing the issue of space debris and regulating the conduct of states in space through addressing the use of ASAT tests in view of the current framework.