Geetanjali R Kamat*
Key Words: Space debris; Sustainability; Non-binding mitigation guidelines; COPUOS; Standardization
The twenty-first century is witnessing the emergence of a new era with countries striving to leave their mark in outer space. With more nations willing to compete in the global space race, the future of space exploration looks promising. At the same time, countries are increasingly becoming concerned of the consequences of such activities on the space and the earth’s environment. One such issue is that of “space debris” – a topic which has been subject to years of scientific research and several discussions. In May 2021, the debris from China’s Long March-5B rocket, used to launch its new space station (Tiangong), crashed into the Indian Ocean near Maldives.[ii] Although instances of space debris resulting in damage to spacecrafts, or territories on the earth’s surface are not unprecedented, this incident reiterated the absence of binding international law regarding space debris.
Presently, international space law requires States to (a) bear international responsibility for conducting national activities in outer space[iii]; and (b) return space objects, if found within their territory, to the state of registry.[iv] In terms of liability, a “launching state” is absolutely liable for damage caused to another State, by its space object, on the earth’s surface or to aircraft in flight.[v] However, in case of damage caused by a space object of one launching state to a space object, or to a person or property on board a space object of another launching state in outer space or in airspace, a fault-based standard of liability will be imposed on the former.[vi]
Apart from the Outer Space Treaty and the Liability Convention, we have bodies such as the Inter-Agency Space Debris Coordination Committee (hereinafter ‘IADC’) and the Committee on the Peaceful Uses of Outer Space (hereinafter ‘COPUOS’), along with national and international space agencies, working on this problem. In 2002, IADC issued the Space Debris Mitigation Guidelines (hereinafter ‘IADC Guidelines’), focusing on aspects such as minimizing the potential for on-orbit break-ups and post-mission disposal.[vii] In 2004, the European Space Agency and the national space agencies of France, Germany, the UK, and Italy adopted the European Code of Conduct for Space Debris Mitigation (hereinafter ‘the European Code of Conduct’), which is in alignment with the IADC Guidelines. Apart from providing for management measures, such as the appointment of the ‘Space Debris Manager’, the European Code of Conduct consists of design and operational measures for space debris mitigation.[viii] Similarly, using the IADC Guidelines as a starting point, COPUOS endorsed certain guidelines (hereinafter ‘the COPUOS Guidelines’) in 2007. Given the non-binding nature of the COPUOS Guidelines, member States were expected to implement “national mechanisms” with an objective to enforce space debris mitigation procedures.
The Outer Space Treaty is guided by principles of co-operation and mutual assistance whereby all outer space activities are to be carried out with “due regard” to the corresponding interests of other member States.[ix] Therefore, the freedom of scientific investigation must be balanced with the larger interests of the international space community. Further, a member State is entitled to request consultation concerning the outer space activity with another member State if it has “reason to believe” that such activity would cause potentially harmful interference with the peaceful exploration of outer space.[x] While a member State is, in theory, permitted to exercise such a diplomatic tool, the extent of its enforceability and the effectiveness of such dialogue are uncertain.
Another important facet of the international approach to long-term sustainability of space activities includes the comprehensive set of standards provided by the International Organization for Standardization (hereinafter ‘the ISO Standards’). The ISO Standards specify prudent measures for designing and operating spacecrafts in a safe manner with an objective to prevent creation of space debris. In the past, the ISO Standards have benefitted Ukraine, which used these standards to conduct space debris mitigation evaluations of its launch vehicle systems.[xi] Therefore, it is crucial that States strictly comply with the ISO Standards or alternatively, formulate their own measures to implement a procedural framework for space debris mitigation which regulates different stages of space systems. However, if States adopt vastly different standards, this may potentially lead to inconsistent compliance and varying interpretation of “sufficient” space debris mitigation measures.
Incentivizing space debris mitigation
In a welcome move, the ‘Global Future Council on Space Technologies’ has developed the concept of Space Sustainability Rating (hereinafter ‘Sustainability Rating’), which is expected to come into effect early next year. The Sustainability Rating seeks to encourage responsible behaviour in outer space by increasing the transparency of the debris mitigation efforts.[xii] There is a possibility that in the near future, rankings in terms of Sustainability Ratings may even provide a hierarchy of “ethical spacefaring nations” and incentivize States to pay greater attention to space debris mitigation.
It is a generally agreed principle that damage to the outer space environment does not directly fall within the scope of the Liability Convention.[xiii] Accordingly, accidents which occur due to a space object, either in outer space, to an aircraft in flight, or on the earth’s surface, warrant a separate framework for assessing “damage” and providing “standards of liability”. It is prudent that a stricter framework for liability pertaining to the outer space environment, which also provides for reasonable exceptions, should be drafted in order to enforce an otherwise soft law. Another question worth considering is the stage at which States ought to be held accountable for undertaking space exploration activities in a reckless manner. Instead of risking damage to lives and property owing to an unpredictable trajectory, there should be a uniform mechanism for settling apprehensions in this regard.
Steps taken by India
The Indian Space Research Organization has been an active member of IADC since 1996. As of June 2021, India is in the process of formally adopting a national mechanism on space debris mitigation and strengthening the domestic requirements for Indian entities.[xiv] In the same month, the Department of Space circulated the Draft National Space Transportation Policy, 2020, (hereinafter ‘the NSTP’) for public comments.[xv] The pro forma for obtaining authorizations for launches and sub-orbital launches in the NSTP requires the relevant launching entity to provide a “space debris mitigation plan”. Thus, the fact that applicants are required to provide their “space debris mitigation plans” signifies the proactive approach by the Indian government towards minimization of space debris.
The existing standards and guidelines in respect of space debris mitigation are revised on a periodic basis to accommodate new developments in this regard. For instance, the IADC Guidelines were revised in June 2021 to provide clarifications on parameters such as operational phases and re-entry risks. Similarly, the ISO Standards were revised in July 2019. Hence, it is crucial that countries also make corresponding revisions to their national policies and frameworks concerning mitigation of space debris and implement effective measures.
Currently, there is no internationally binding treaty on space debris. Additionally, existing policies such as the IADC Guidelines, the COPUOS Guidelines and the European Code of Conduct are non-binding and voluntary in nature. The need of the hour is to evaluate the extent to which existing guidelines, standardization measures and best practices, for mitigating space debris, have proven to be helpful. If a majority of States have enforced useful robust national mechanisms, these guidelines may well have succeeded. However, in case these have been inadequate or unclear, a binding international legal instrument which would tackle such a problem in a uniform and coherent manner will need to be implemented. At the same time, one cannot lose sight of the fact that adopting mitigation measures, including compliance with the ISO Standards, may involve complex technology and high costs. Accordingly, the binding legal framework, if it were to be created, must uphold the overarching fundamentals of space law – principles of equality and non-discrimination.
[ii] See https://www.firstpost.com/world/debris-from-chinas-long-march-rocket-disintegrates-over-indian-ocean-lands-near-maldives-9605491.html. Last visited, 23 July 2021.
[iii] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) 1967, Art. VI.
[iv] Outer Space Treaty, Art. VIII.
[v] Convention on International Liability for Damage Caused by Space Objects (Liability Convention) 1972, Art. II.
[vi] Liability Convention, Art. III.
[vii] See https://www.unoosa.org/documents/pdf/spacelaw/sd/IADC.pdf. Last visited, 24 July 2021.
[viii] See https://www.unoosa.org/documents/pdf/spacelaw/sd/2004-B5-10.pdf. Last visited, 30 July 2021.
[ix] Outer Space Treaty, Art. IX.
[xii] See https://www.weforum.org/projects/space-sustainability-rating. Last visited, 25 July 2021.
[xiii] See https://www.princeton.edu/~ota/disk2/1990/9033/9033.PDF. Last visited, 24 July 2021.
[xiv] See https://www.unoosa.org/documents/pdf/spacelaw/sd/India.pdf. Last visited, 24 July 2021.
[xv] See https://www.isro.gov.in/sites/default/files/draft_national_space_transportation_policy.pdf. Last visited, 23 July 2021.