Sanya D. Kishwar* and Shivansh Nangia**
This is a two-part blog. The authors discussed the ramifications of space debris as an environmental pollutant in the first part. The second part discusses international legal framework with recommendations.
Key Words: Common heritage – IADC – ILA Draft Convention on Space Debris – Nuclear Power Source Principles – Partial Nuclear Test Ban Treaty
Part II: Discussing the Inadequacy of the Existing Legal Framework to Address Space Debris as an Environmental Pollutant
Position of International Law on Space Debris Pollution
There is a major incoherence in international scholarship regarding what the term ‘Environment’ means. Different disciplines point towards different interpretations, thus lacking a cohesive definition. Various treaties, for examplethe Partial Test Ban Treaty, implicitly suggest a distinction between the natural environment and space. In scholarly writings on the meaning and scope of the term space, space has been seen as separate from the environment, and hence, it is not subject to environmental laws. This is due to a variety of reasons inter alia that space has a very different habitat as compared to that of the Earth. The interaction of humans with space functions very differently from their interactions with the Earth. Hence, the ‘natural environment’ is considered from the ground to the lower atmosphere. Similarly, the law has made a very clear distinction between the natural environment that we live in and outer space owing to political, scientific and reasons of sheer convenience.
There are a variety of international treaties and principles, as well as organisations working endlessly to protect the environment from the repercussions of outer space activity. The Partial Nuclear Test Ban Treaty of 1963 is a very prominent and successful piece of international law. It essentially prohibits nuclear weapons tests “or any other nuclear explosion” in outer space. In effect, the treaty helps prevent nuclear contamination of the environment. Having been signed by all the countries capable of harnessing nuclear power, the treaty has set up a robust system of international monitoring stations. It, however, falls short in achieving its intended effect as inter alia:
- it only prohibits explosion and not the deployment/carriage/uses of nuclear matter such as propulsion and transportation and;
- it does not address the nuclear matter already present in space and applies only to ones being launched after the treaty was signed.
The Liability Convention, as discussed in Part I, is responsible for assigning liability to a party for the repercussions of its actions related to the use of outer space. Article XXI of the Liability Convention is important when it comes to State assistance in events of damage caused by a space object, where such damage poses a large-scale danger to human life or interferes seriously with the living conditions of the population or interferes with the functioning of vital centres. However, it is important to note that the Convention does not fix any liability on the State; the State assistance being reduced to a non-mandatory clause. The Convention also does not address environmental degradation and related effects in the strict sense as a large-scale danger to human life is a relative phrase, which may be subject to varied interpretations. Another inadequacy of the Convention is that it only mentions damage caused by “space objects”, which might end up eliminating many types of debris from its ambit.
The Principles Relevant to the Use of Nuclear Power Sources in Outer Space (Nuclear Power Source Principles) is a set of principles adopted by the UN General assembly in 1993, which reflect the common practices for the use of nuclear power sources in outer space. It calls for various design, regulatory, and safety mechanisms and recommends for their adoption to protect individuals, populations, and the biosphere against radiological hazards. However, Principle 3.1.a of the Nuclear Power Source Principles clarifies that they are just a set of recommendatory principles that may be followed and have no binding value.
Some organisations have also attempted to draft principles which directly or indirectly deal with space debris management. Importantly, the International Law Association (ILA) formed the ILA Draft Convention on Space Debris, which was adopted in 1994. It sets out to bridge the deficiencies of the Liability Convention. It applies to “space debris which causes or is likely to cause direct or indirect, instant or delayed damage to the environment, or to persons or objects”. This Draft Convention adopts a broader understanding of the damage to include indirect damage, unlike the Liability Convention, which only identifies direct damage. National space organisations, like the Federal Aviation Administration, British National Space Centre and Italian Space Agency, are working endlessly to create pragmatic yet effective methods to prevent debris mitigation and management. This is done through their assessment and licensing standards which incorporate quantitative and qualitative analysis. They aim at formulating guidelines for testing the amount of combustible material on board and identifying particular facets of an asset, as well as the launch processes and other stages that have the potential for generating debris. For instance, Inter-Agency Space Debris Coordination Committee(IADC) focuses on codifying principles of space debris mitigation that are binding on all IADC member agencies such as NASA, ESA, ISRO etc. The IADC is essentially very effective in its approach, even though it is not binding since it is just an intergovernmental forum. Still, due to its close-knit functioning, the member States’ organisations do end up following it. Making such principles binding would further empower such bodiesto impose sanctions for non-compliance.
Thus, two major gaps exist in the existing legal framework to address space debris pollution. First, there is a lack of a uniform definition of the environment, which makes it difficult for many international environmental law principles to apply to outer space. Second, the lack of a dedicated and binding instrument recognising space debris as an environmental pollutant and fixing State liability makes it difficult to assign debris cleaning duties to the pollutant State.
The Way Forward
The Inmarsat Space Sustainability Report 2022 identifies a need for more technical strategies and regulatory mechanisms to clean the LEO of stray satellites and the debris they create. Need for more accurate data on space contaminants is very essential for taking any measure. The inaccuracy of data is primarily due to the absence of internationally agreed-upon standards to define and characterise space contaminants. It is of utmost importance to start with regulating space exploitation with an attempt to mandate orbit cleansing obligations on the launching State. Launching States should be held responsible for the non-returning satellites, requiring them to record reasons for such orbit defiance. Additionally, the launching States should be obliged to take steps in locating the stray satellite, confining them, and ensuring their return or safe disposal without creating debris, either in space or upon its entry into the upper atmosphere. International treaties should restrict deliberate and unplanned destructions of defunct satellites by States. State liability in such cases should be the same as that provided for environmental pollution with the knowledge of the polluting State. Additionally, setting an upper limit on the number of satellites that a country could launch in a year would check and balance monopolisation attempts by government and private satellite operators. It is very crucial to monitor the commercialisation of space operations. A communal exploratory system will help reduce the number of unnecessary trips and would help minimise space debris creation and the probability of damage by the debris.
It is very important for States to agree upon a clear and unambiguous definition of ‘environment’. It is suggested that States may include LEO within the definition of environment and regulate space debris pollution within LEO as environmental pollution. This will encourage the application of customary principles of international environmental law and ensure stricter State liability. There is also a need for recognising outer space as a common heritage of mankind and an extended application of the “common heritage” principle to regulate outer space pollution. Overall, the theoretical and legal frameworks need to be revised in order to reduce the impact of space debris in the LEO, outer space and the Earth’s surface.
It is pertinent for countries to realise that there is a valid concern for the long-term usability and sustainability of Earth’s orbits, the Lower Earth Orbit being at the highest risk. The environment cannot be understood as exclusive of space, thus, making it pivotal for the exploration and exploitation of space to be regulated. Space sustainability is a goal that should be rendered important just as environmental sustainability sincespace pollution is capable of catalysing climate change and inducing health hazards for the existing and future generations.
* Lecturer, Jindal Global Law School, O. P. Jindal Global University, Sonipat (India).
** Student, LL.B. (Hons.), Jindal Global Law School, O. P. Jindal Global University, Sonipat (India).