What just happened?
The European Space Agency has confirmed that the world's First Space Debris Removal is expected to launch by 2025. The mission is being undertaken by ClearSpace, a startup-led commercial consortium to service orbital tourism, including Debris Removal.[1]
What does this mean?
SpaceX launched humans into the Earth's orbit. British billionaire Richard Branson, who had been at the forefront of providing space tourism to paying customers, once stated: "Space is hard, but worth it, we will persevere and move forward together." Today we are closer to the goal as we revisit the unexplored area of space pollution.[2]
Initially, Space debris referred to natural waste in the solar system - asteroids, comets, or meteorites. The typical definition refers to the remains of something broken down or destroyed. In recent years, the definition has evolved to include the mass of defunct, artificially created objects in space, especially Earth's orbit. These include old satellites and spent rocket stages, as well as the fragments from their disintegration and collisions.[3] Routine ground-based radar and optical measurements performed by many countries' space surveillance systems allow the tracking and cataloguing of objects orbiting around the Earth.[4]
The space debris issue has become more pressing than ever; we currently have more than 3000 non-functional space satellites, which will increase over time. There is a need for a tow truck to remove such waste from this highly trafficked region. It isn't an option to destroy large objects in the orbit itself since it would disintegrate into smaller pieces and increase the risk of collision.[5] As Luisa Innocenti, the head of ESA's clean space initiative states, technologies need to develop to avoid generating excess waste, and the existing garbage needs to be cleared out.[6]
The ClearSpace project involves building a spacecraft that will extend its robotic arms in space, grab the redundant part of the ESA's Vega launcher 2013, which would approximately weigh 100 kg. The object will then be sent hurling back to the Earth from an altitude up to 800 km so that it could burn harmlessly in the upper atmosphere.[7]
How does it affect the legal industry?
The Outer Space Treaty(OST) is a significant instrument in space law and like most multilateral treaties, the OST has issues with specificity and interpretation. The treaty is written in a vague language that isn't prepared to deal with the rapid advances that could be anticipated in space travel.[8]
The first issue is the lack of a coherent definition of space debris. "Technical and non-binding Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) defines the nature of the space debris human-made, and non-functional. However, this does not amount to an internationally accepted definition." The treaty regards the debris as a space object and does not explain what may constitute as an object. Terms in treaties have legal consequences attached to them. The treaty in itself does not explore the aspect of the functionality of the space object. There isn't a distinction between a worthless material in space and a potentially functional machine.[9]
The treaty, however, provides for ownership rights of the object. The State that registered the object would retain legal control and de facto jurisdiction on the space object. In the scenario of ClearSpace, if the initiative would like to remove a particular object belonging to another country, it needs to follow complex procedures to do so, unless the countries have a prior agreement with one another. Even if the State that registered the object has jurisdiction, it might lose technical control to operate a non-functioning object.[10]
One suggestion to rectify this scenario is to adopt the concept of Salvage from Maritime law, where any state could remove a part of space debris, which may pose a threat to Earth's orbit. This, however, may instigate unnecessary hostile conflict in space. The treaty further adds to the interpretive troubles through its liability regime for states that own the non-functional space objects. States which launch the device are internationally liable for damage caused by either government or private actors involved in the launch of the spacecraft.[11] If SpaceX generates any harmful debris, the US government must bear the costs. Furthermore, states could further use the cleanup technologies to tamper with surveillance systems or gain access to data of a hibernating device.
Most of these issues can be solved if there is a distinction between a space object and space debris. Questions regarding the size, the weight, the altitude, velocity, and function need to be standardised to facilitate the removal of the debris. Any treaty must look at providing binding provisions on the above questions rather than implementing soft law guidelines. Even if this issue is resolved, there is still no regulator of satellites or objects in space—neither NASA nor the ESA control space traffic. With the advent of space tourism, we could expect the development of international legislative instruments in this area.[12]
Here at LawMiracle, we are positive about the future of space travel. However, space travel needs urgent legislation to catch up with developing technologies.
Written by Srinidhi Dhulipala
(This is the second edition of the three-part series called ‘ The Space Exploration Series)
References:
[1] ESA, “ESA seeking company to develop space debris removal mission”, ESA.int (Safety and Security, 2013)
[2] Australian Associated Press, “Richard Branson's Virgin Galactic space flights criticised as 'dangerous, dead-end tech'”, (The Guardian, 2018)
[3] Kessler Effect: Once past a certain critical mass, the total amount of space debris will keep on increasing: collisions give rise to more debris and lead to more collisions, in a chain reaction. So Clean Space is seeking not just to cut debris production from future ESA missions but to reduce the total mass of current debris, such as the robotic salvage of derelict satellites. ESA “What is Space Debris”, ESA.int (Frequently Asked Questions)
[4] Louis de Gouyon Matignon, “THE LEGAL STATUS OF SPACE DEBRIS”, (SpaceLegalIssues.com, 2019)
[5] Rafael Cereceda, “'We're heading for disaster' over space junk warns top ESA space debris official”, (EuroNews, 2019)
[6] Ibid.
[7] Hannah Devlin, “European Space Agency to launch space debris collector in 2025”, (The guardian, 2019)
[8] Joanne Wheeler, “Space debris: The legal issues”, (AeroSociety, 2019)
[9] Ward Munters “Space debris conundrum for international law makers” (Room.EU, 2016)
[10] Ibid.
[11] Ibid.
[12] Ibid.
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.