International Space Law: Reviewing the Legal Framework for Space Debris Mitigation and the Pact for the Future

Half a century after the Space Race of the bipolar international system, today’s space race involves a broader range of actors, no longer limited to States. In fact, the new actors include private-public partnerships, multinational companies, and even start-ups. The relatively new entrepreneurs of this still underexplored sector engage in various different activities, ranging from the old-fashioned launching services including satellites and humans into space to newer endeavors of space mining and space tourism. With this rise of private actors alongside the diversifying activities in space, the need to regulate the sector has become more apparent. The European Commission has presented the EU Space Law as one of their policy priorities, which, although postponed to a later date, triggered legal academic work on space, alongside certain other States initiating their space strategy or legislation for the first time in their history, such as Türkiye, Portugal, Peru, and New Zealand. The increase in space investment has led arbitration panels to issue decisions concerning the protection of space-related investments. The PCA published its Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, whilst also concluding cases such as Devas v India, Deutsche Telecom v India, and ICSID concluding some others such as Eutelsat v Mexico.

With the increasing involvement of private actors in space activities, ensuring sustainable development in space has become a matter of utmost importance. Most recently on September 22, 2024, the UN General Assembly, with unanimous support from its 193 Member States, adopted the Pact for the Future. Among other key agenda items, the Pact extensively addressed the pressing need for space sustainability and underscored its pivotal role in achieving the 2030 Agenda. Further, it reaffirmed the importance of full compliance with the 1967 Outer Space Treaty and called for additional binding measures to mitigate the space debris. The concept of sustainability in space activities primarily concerns the mitigation of space debris, but it also extends to the registration of space objects, and indirectly, to international investment protection mechanisms. This commentary will delve into the legal framework surrounding space activities and examine the responsibility regime in international law, particularly in relation to the participation of private actors.

International Space Law Framework

An examination of the history of space law reveals that the journey of the United Nations in space exploration began in 1958 with the establishment of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS). This committee was a pivotal step in promoting international cooperation for the peaceful exploration and use of outer space. Another significant milestone followed in 1967 was the signing of the Outer Space Treaty (OST), which laid the foundational principles for space law, asserting that space should be free for exploration by all nations, and should benefit all of humanity. Over the decades, 5 international treaties (including the OST, the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement) have been established under the COPUOS to address various aspects of space activities. However, the practical application of these treaties has sometimes been challenging, as seen in the failed compliance with the 1975 Registration Convention, and states such as the US, the UK, Germany, and China not registering their satellites. Despite these challenges, COPUOS has continuously worked on developing guidelines to ensure that space remains accessible and safe for all. In 2019, UN Office for Outer Space Affairs has published Guidelines for the Long-term Sustainability of Outer Space Activities of the Committee on the Peaceful Uses of Outer Space. Despite its non-binding effect, UNOOSA continues its efforts to ensure the equitable and sustainable use of space.

Sustainable Space Exploration and Responsibility

In the context of space operations, sustainability means not only creating space missions that contribute to Earth’s improvement and offer sustainable solutions to global problems, but also ensuring that the missions themselves operate sustainably. This extends to the sustainability of space exploration as a whole. It can be said that sustainable space exploration has two limbs, first of which referring to the very purpose of certain space missions. Due to the growing urgency of climate change, space agencies have launched dedicated programs to monitor and track environmental shifts. Satellites from various agencies now collect crucial data on atmospheric chemistry, vegetation, and ocean dynamics, contributing to more accurate climate change assessments. This information is vital for government decision-makers who rely on it to shape policies related to mitigation and adaptation, as outlined in the Kyoto Protocol. Additionally, satellite applications are used to study the effects of global warming on ecosystems, such as wetlands, permafrost, and marine environments. They are further used to assess vulnerability to climate change and help identify adaptation measures, through their ability to offer real-time data on land use, urban migration and population growth. These initiatives highlight the intersection of space exploration with broader societal goals, making the pursuit of space not just about reaching new frontiers but about improving life on Earth.

Sustainable space exploration, as its second limb, signifies the transformation of space activities to involve sustainable practices, primarily, mitigating the risks associated with space debris. Space debris is defunct space junk that originates from unused space objects tore into pieces. The consequences of the space debris are varied. It could jeopardize space missions both during the launch and throughout its stay on the orbit, cause collisions, block the orbit to the extent to realize the Kessler Syndrome, and even cause political tension due to harm occurring on space objects launched by States. The UN has developed comprehensive guidelines for space debris mitigation, including recommendations on minimizing debris during satellite operations and promoting active debris removal technologies. However, progress in this area has been slow, and the increasing number of satellite launches exacerbates the problem. The ESA Space Environment report highlights that while there are more collision avoidance maneuvers, the adoption of debris mitigation measures remains insufficient to halt the growing amount of space debris. This issue underscores the need for international cooperation and the joint efforts between the policy makers and scientists in making effective changes to the current situation.

There is no treaty addressing space debris specifically. Nevertheless, it can be argued that the foundational framework for space debris mitigation can be found in the 1967 Outer Space Treaty, which was ratified by 115 States. In its Articles VI, VII, and VIII the Treaty provides for a liability regime for the damages caused by space objects. In virtue of Article VII, the State party that launches or procures the launching of an object into outer space is responsible for such damages. Therefore, Article VII attributes responsibility to the State party for the damages caused by its national space activities. On the other hand, Article VI focuses not only on activities carried on by the State (“by governmental agencies”), but also on those carried on by non-governmental entities, and finally, attributes international responsibility to States for both kinds of activities. According to Article VI, States “shall bear international responsibility for national activities in outer space… and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty”. For the activities carried on by non-governmental entities, the Article provides that their activities are subject to “authorization and continuing supervision by the appropriate State party to the Treaty”. In simpler terms, whether it is the State engaging in space activities or a private company, if space debris created by a launched space object causes damage, the state will be held responsible in any case. This principle set forth in the Outer Space Treaty contrasts with the traditional responsibility framework in general international law, where “direct state responsibility” applies only to actions directly attributable to states, and “indirect” or “due diligence” responsibility is assigned to states for actions carried out by private actors.

At this point, the attribution of space activities conducted by private or semi-public entities to the state, what is considered as “national activities” within the meaning of Article VI of the Treaty, is determined by the two following concepts: (i) which state has authorized and continuously supervised the mission, and (ii) which state’s jurisdiction the entity in question falls within.

i. Authorization and Continuing Supervision

Article VI places specific obligations on States concerning non-governmental space activities, mandating that such activities “shall require authorization and continuous supervision by the appropriate State Party to the Treaty.” The meaning of “appropriate State” is crucial to identify the State internationally responsible for the actions of non-governmental entities and is to be found in Article VIII of the Treaty.

ii. Jurisdiction and control

In virtue of Article VIII of the Treaty, a state retains jurisdiction and control over any object it registers that is launched into outer space, whether in space or on celestial bodies. Therefore, the State of registration shall be taken into account. This rule is in parallel with the res communis omniumprinciple that governs international space law. Outer space is considered as “province of all mankind”, and it is not subject to State sovereignty. Because no state has sovereign rights over outer space, the territoriality principle (which typically assigns responsibility based on a state’s jurisdiction over acts committed within its territory) does not apply in international space law. Instead, it states that a state’s jurisdiction for determining responsibility is based on the principle of registration, meaning that a state’s authority is linked to its registration of space objects rather than geographic territory.

The Treaty, through its Article VIII, assumes that all space objects are registered at the national level. Although the registration obligation is not provided for in the OST, the Registration Convention concluded in 1975 complements the Article, thus the responsibility regime.

When these Articles are read in the context of space debris mitigation, it can be said (and was said by Laura Yvonne Zielinski, here) that in theory, launching states have interest in limiting the creation of debris from any object launched from their territories as the potential harm to be caused by the debris may in fact, trigger their international responsibility. From a practical standpoint, however, there are three setbacks to the application of this rule.

Firstly, Article VII assumes that all space objects are registered at the national level, and this registration is the condition to invoke state responsibility. Otherwise, the space object is not considered within the state’s jurisdiction and control. According to UNOOSA, 12% of space objects are not registered. It should be signaled that the actual number of unregistered space objects might be higher than the official numbers because of the confidential nature of certain space missions. According to Nelson in his 2018 submission, the Online Index of Objects Launched into Outer Space, maintained by UNOOSA, currently lists over 700 unregistered space objects. More than half of these unregistered space objects remain in orbit. Most cases of non-registration are likely a mixture of deliberate and inadvertent non-compliance. Unregistered space objects, apart from potential threats to international peace and security, are also likely to mitigate liability for damages that may arise. Further, the Registration Convention is said to bring a “faulty” registration system, given that its legal phrasing in Article IV of furnishing the necessary information “as soon as practicable”, and given that around 140 satellites were registered after a 10-year delay.

Secondly, at the core and legal level, the responsibility belongs to states. Even though States are responsible for debris caused by space activities from their territory, international law cannot enforce a mechanism to enforce liability on private companies. On a political level, private companies have lobbying power that also interests the states. Therefore, states are strongly inclined not to introduce new regulations for commercial space operators that would increase their expenses and prompt them to move their operations to another country.

Lastly, although private companies and states may have their own technological means to track space debris caused by national operations, such technology seems to be available only to the adopting state. In other words, even if the tracking of space debris and the identification of the responsible space object were feasible, only the state or entity that conducted the launch would be able to undertake such tracking. Moreover, there is currently no centralized international regulatory body to oversee this process. Consequently, states can only address their own space debris issues at their discretion. Without those centralized tracking mechanisms, if space debris causes damage to another state’s space object or results in harm to that state, the affected state would initially face significant challenges in demonstrating the origin of the debris. This underscores that, despite the theoretical framework for a liability mechanism, practical difficulties related to tracking and evidence collection render the enforcement of state responsibility highly problematic.

As indicated by the issues outlined, several steps must be taken to address this problem. Firstly, stricter enforcement mechanisms should be implemented regarding registration. Although registration enforcement is theoretically favored, it seems rather unlikely, according to industry professionals. Furthermore, there is a need for an international regulatory body to oversee the tracking of the registration and launch processes, as well as the monitoring of space debris. This oversight would enable affected states to assert liability on a legitimate basis. Indeed, space debris must be mitigated not only to prevent damage to other space objects but also to address the over-crowdedness of Earth’s orbits and facilitate safer launches. An international regulatory body could play a crucial role in achieving these objectives.

Here's the link to the original article: Reviewing the Legal Framework for Space Debris Mitigation and the Pact for the Future – GSJIL

All credit belongs to Sude Kınık and Bruce Yu Lepeng, co-authors of the article published on September 25th, 2024, under the categories of Arbitration, General Public International Law, and International Space Law.