The problem of space debris has now a higher profile thanks to a Hollywood blockbuster — but what are the legal implications of your satellite being destroyed or damaged by someone else's space junk? Space law expert JOANNE WHEELER* gives an overview.


In the recent science fiction film Gravity, the detonation of an old spy satellite by Russia causes a cloud of shrapnel to hurtle towards Sandra Bullock and George Clooney. The 'Kessler Effect' which leads to the collisional cascading of space debris however is not derived from Hollywood fiction. This chain reaction causing increasing amounts of space debris, and in particular untrackable particulate debris, is a risk faced by all satellite operators, the owners of other space objects and astronauts.

The legacy of over 50 years of space flight has brought us impressive technical and scientific developments and achievements — but it has also led to the growing population of space junk, (See 'Space Debris' Aerospace International, May 2012.)

The issue of space debris was highlighted again in 2013 ago with the collision of Ecuador’s first and only satellite in orbit, Pegasus, and particles from the fuel tank of a Soviet rocket over the Indian Ocean.

The uncontrolled re-entries into the Earth’s atmosphere of NASA’s US Upper Atmosphere Research Satellite (UARS) and Germany’s Rontgensatellit x-ray telescope satellite (ROSAT) in 2011 illustrated that space debris is a growing issue for us on Earth, just as much as it is for vulnerable and valuable space assets. On 10 February 2009 the first collision of two intact spacecraft occurred in outer space. Iridium 33, a US communications satellite, and Cosmos 2251, a decommissioned Russian satellite collided as the two objects passed over northern Siberia. This intersection caused two distinct clouds of debris to extend through a substantial part of low Earth orbit.

Several accidental collisions, or conjunctions, in outer space have been identified but the Iridium/Cosmos collision was the first to involve two intact satellites; one an operational satellite. It also probably contributed to the public awareness of the issue of space debris more than any other collision and stimulated more media attention.

Another recent incident that dramatically increased the amount of catalogued fragmentation debris in outer space, and public interest, was the intentional destruction by China of its own orbiting Fengyun-IC weather satellite by an anti-satellite (ASAT) device in 2007.

The European Space Agency (ESA) currently has two old, but uncontrolled, satellites in orbit, that are the subject of discussions as to active debris removal. The satellites, ERS and Envisat, both suffered major failures which have led to them drifting uncontrolled in low Earth orbit.

Each of these examples raises slightly different legal issues in the context of the current international, European and UK legal framework.

The legal framework


Space debris has been the focus of scientific and technical analysis for many years but has not perhaps achieved the legal recognition it deserves to lead to the drafting of an adequate international framework to deal with the complex legal issues it raises. There are also difficulties inherent in the negotiation and drafting of any future legal regulation; an international level playing field is required, for example, to avoid the creation of uncompetitive disadvantages and unbalanced costs to industry in only certain countries.

There is an internationally recognised need to deal with the issue; a need which strengthens after each incident. As Donald Kessler, retired head of NASA’s orbital debris programme, recently stated:

“The longer you wait to do this the more expensive it’s going to be. Given the economy, we’ll probably end up putting it off, but that’s really not very wise. This scenario of increasing space debris will play out even if we don’t put anything else in orbit.”

Even if we do not launch anything else into orbit, the 'Kessler Effect' remains a risk that may render space activities unfeasible for several decades.

Legal issues of space debris


The 'Magna Carta' of space law is the Outer Space Treaty of 1967. However, its provisions are too generic to deal with the complex problems of space debris with any certainty. Despite efforts over decades to define the concept of 'space debris', no internationally agreed definition exists. Perhaps the closest we get is that space debris constitutes any man-made object that is either:

(a) Earth-orbiting and is non-functional with no reasonable expectation of assuming or resuming its intended function; or

(b) re-entering the Earth atmosphere.

This concept covers fragments and component parts of space objects, as well as decommissioned or failed spacecraft and spent upper stages of launchers. The decommissioned Russian satellite, Cosmos 2251, would therefore be space debris.

The Outer Space Treaty offers minimal guidance as to the mitigation of space debris at State level, with much interpretation left to lawyers. For example, Article IX provides that State Parties to the Outer Space Treaty:

“shall conduct all their activities in outer space… with due regard to the corresponding interests of all other State Parties to the Treaty.”

With some stretching and interpretation, this can be used to oblige State Parties to avoid the creation of, reduce, and even remove, space debris to allow all States to participate in the exploration and use of outer space with minimal risk from debris.

Interpretative difficulties are also illustrated in the next sentence of Article IX which explains that the study and exploration of outer space shall be conducted, “so as to avoid their harmful contamination,” and that States Parties, “shall adopt appropriate measures for this purpose.” The Article does not enlighten us as to what constitutes “harmful contamination'” or what such “appropriate measures” consist of. Space debris is not normally classed as “harmful contamination;” the phrase being usually construed as biological or radioactive contamination.

An international consultation process is also provided for by Article IX. If a State believes that an activity planned by it or its nationals would “cause potentially harmful interference” to the activities of another State, it shall undertake consultations before proceeding. A State Party may also request consultations if it believes that an activity planned by another State would cause it potentially harmful interference. But it is difficult to describe the existence or creation of space debris as a future “planned” activity. The provisions also do not address the issue of current or completed activities or the problem of current space debris.

Liability regime for damage caused by space debris

 



Other relevant provisions of the UN treaties can best be discussed through the use of an example.

Suppose a UK-based private communications operator launches a communications satellite. Part of the shielding from the satellite becomes loose, but can be identified, and collides with the antenna of a French satellite causing damage to it.

As a State Party to the Outer Space Treaty, under Article VI the UK bears “international responsibility” for the activities conducted by its nationals in outer space, whether the nationals are governmental agencies or private entities, and for ensuring that such activities are compliant with the Outer Space Treaty. The UK is, therefore, responsible for the actions of its private operators and for the consequences and resulting damage, if such operators create space debris.

Under the Registration Convention of 1976, each “Launching State” must hold a register of the objects it launches into space. A Launching State is defined as: “A State which launches or procures the launching of a space object”; or “A State from whose territory or facility a space object is launched.” The UK deals with this obligation through the Outer Space Act 1986, under which the Secretary of State maintains a register of space objects which have been licensed by the UK.

Article VIII of the Outer Space Treaty provides that each State retains ownership and control over objects launched into space that are registered on its registry:

 “Ownership of objects launched into outer space […] and of their component parts, is not affected by their presence in outer space.”

The shielding from the UK satellite could be classed as a “component part” and, therefore, the principle of permanent ownership and responsibility would extend to it.

The UK could be held to be liable for damage caused by the shielding under Article VII of the Outer Space Treaty:

“Each State Party […] that launches or procures the launching of an object into outer space […] and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty […] by such object or its component parts on the Earth, in air space or in outer space.”

Article VII is elaborated in the Liability Convention of 1972. This sets up a liability regime according to which “launching States” are liable for damage caused by debris generated by private entities for which such States are responsible. The liability regime is two-fold depending on where the damage occurred.

(a) If the damage is caused on the surface of the Earth or to aircraft in flight, the simple proof of causality of damage is sufficient, regardless of proving fault.

(b) If the damage is caused to the space object of another State in outer space, the fault of the entity for whom the launching State is responsible must be proven.

Many launching States pass their liability, via licensing and/or contractual obligations, to the launch service provider or the spacecraft owner or operator (as is the case under the Outer Space Act licensing regime). In turn, the launch service provider, the satellite owner or operator insures these liabilities.

Issues regarding filing a claim under the liability convention

Only States which are parties to the Liability Convention can file a claim. For the UK to be liable, France would have to:

(a) prove that damage was caused to French citizens or to space objects registered by France on the registry which it maintains;

(b) identify the space object (the shielding) that caused the damage and establish that the UK is its “launching State” and therefore has ownership and control over it; and

(c) prove that the damage was caused by the fault (as the damage has occurred in outer space) of the UK or the fault of a private entity for whom the UK is responsible.

While the first element may be relatively easy to prove, establishing the causality of damage caused by space debris may be difficult. France is lucky — the shielding part is large enough to be tracked and France can prove that it is from a UK satellite. But it would be difficult to identify particulate debris and trace it back to the owner of the original launched object.

Earth-based tracking stations can currently monitor pieces of space debris that are larger than approximately 10cm. Smaller pieces are not tracked or catalogued and generally cannot be "identified" with any certainty for the purposes of determining the launching State.

Even more challenging is establishing the "fault" of the launching State. In general, fault liability presumes that a standard of care exists against which the reasonableness of the defendant’s actions can be judged.

Proving fault requires the claimant State to establish that the owner of the debris that caused the damage did not comply with national or international standards or guidelines for conducting space activities or for debris mitigation.

Currently only voluntary, non-binding standards and guidelines apply to the operation of space objects and mitigation of debris such as those of the Inter-Agency Space Debris Coordination Committee, the UN, The International Organization for Standardization (ISO) and the International Telecommunication Union (ITU). These guidelines can be used as indicators of the expected standard of care of manufacturers and operators with regard to the generation of space debris. But there are no mandatory international standards of conduct regarding debris mitigation to establish a standard of care against which fault can be assessed.

Active space debris removal

The growing mass of space debris and risk of the Kessler Effect has led to studies on active debris removal to try to reverse the growth of space debris.

Active debris removal would see new spacecraft being launched to remove defunct satellites and other debris from orbit. A few companies are already considering this technology. But, one of the main issues is a legal one — the permanent ownership of objects launched into outer space.

Another State, or the private entity of another State, may not touch, interfere with or remove a space object without the launching State’s consent.

There are other concerns around this technology. Any mechanism to approach, attach to, capture and physically remove an object from orbit, could also be used for surveillance activities, or more aggressive purposes.

Mechanisms to attach to and de-orbit space debris require detailed technical information concerning the object to allow docking and removal. Disclosure of such information would impact intellectual property (IP), confidentiality and may have export control implications, particularly relating to the US International Traffic in Arms Regulations (ITAR). These issues would be made more sensitive in relation to a defunct military satellite.

Space debris, including derelict satellites, which are deorbited and brought back to Earth could even be subject to reverse engineering.

Strict agreements would be needed between the “remover” and the owner/operator of the space object. Export and technical assistance agreements and authorisations would also be needed.

The activity of removing space debris is itself not without risk. The original launching State of the object being removed may be liable for any damage it causes during the deorbit. The State which launched the spacecraft controlling the deorbit manoeuvre will also be liable for damage caused. An agreement between the two States would be necessary to ensure that the State, or international organisation, controlling the deorbiting removal bears the responsibility and liability. Perhaps the insurance market needs to consider these risks.

Conclusion

Any mandatory measures to mitigate space debris are likely to lead to an increase in the cost of space activities. The international nature of space debris therefore necessitates that an international solution must be based on a 'level playing field'.

The sustainable future of human activities in outer space, whether in exploration, communications, observation, broadcasting or navigation, and the growing applications of such activities on Earth, demands it — we all need to avoid the Kessler Effect.

*Partner, CMS, Mitre House, 160 Aldersgate Street, London ECA 4DD, UK, specialising in the regulatory and commercial aspects of space and satellite law. Expert representative for the UK Government at the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space and co-founder and co-chair of the Satellite Finance Network.

Tim Robinson
3 January 2014