Exploring New Approaches and Solutions to the Orbital Space Debris Problem

The legal definition and status of orbital space debris is problematic in a variety of ways. As already noted, all human crafted items launched into space are known as “space objects” as specifically defined in the Liability Convention and generally conceived in the Outer Space Treaty. [Treaty on Principles] But orbital space debris, in contrast, has no agreed international definition. Nevertheless “defunct space objects no longer in use” is a practical definition that is often used. Such a legally agreed definition becomes quite important in such circumstances as when the provisions of the “Liability Convention” come into play. [Convention on International Liability]

The collision of the Iridium 33 and the Kosmos 2251 spacecraft is a specific case in point. If the Kosmos 2251 satellite had been clearly and unambiguously defined as orbital space debris that was officially designated as defunct and uncontrolled while the Iridium 33 had been designated an active and operational space object, then the collection of liability damages from this collision would have been much easier to resolve if formal claims had been made.

There is a further definitional problem under the “Outer Space Treaty” and the “Liability Convention” that places the responsibility for any accident that occurs as a result of a space collision not with the offending “space object” nor even the “operator or owner of the spacecraft”. The responsibility for paying liability claims, under these ratified UN agreements only go to the “Launching State”—and exclusively so. Yet, there is ambiguity here in that there can be more than one “Launching State”. The language that defines the Launching State sets forth a threefold definition in Article VII of the Outer Space Treaty and Article I (c) of the Liability Convention. The Launching State is defined as a State that launches or procures the launching of an object into outer space, or from whose territory or facility an object is launched. In some cases the “Launching State” can be a single nation, but it is possible for four or more countries to be somehow involved. France for instance operates a launch facility in Guyana and launches Russian launch vehicles from this facility for many different customers from different countries that procure services to place their spacecraft into orbit. Sea Launch that operates out of the United States Long Beach California launches from the High Seas in the Pacific Ocean near Kiribati. The Sea Launch consortium is owned by four companies from Norway, Russia, Ukraine, and the United States but is incorporated in the Cayman Islands. [Sea Launch]

There is now a Registration Convention that sets forth the requirement for registration of all launches into outer space and identifies what the process is when more than one Launching State is involved. This is specified in Article II of the “Convention on the Registration of Objects Launched into Outer Space” as follows:

“2. Where there are two or more Launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the Launching States on jurisdiction and control over the space object and over any personnel thereof.

3. The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned.” [Registration of Objects]

With this background in mind, it should be clear that the active removal of space debris has a number of challenges. The legal issues that are involved are addressed in detail in Chap. 6.

This chapter is more specifically concerned about what incentives can be given to nation states, satellite owners and operators, and those who launch spacecraft to minimize orbital space debris at the time of launch and to remove debris from orbit at the end of life or when a spacecraft or upper stage launch vehicle becomes defunct.

Launching States currently take a risk of incurring a large liability when undertaking active removal of a spacecraft or deorbiting an upper stage launcher. According to Article III of the Liability Convention, in the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable if the damage is due to its fault or the fault of persons for whom it is responsible. If there is a collision while these removal processes are under way the “Launching State” may be held liable for the crash. If on the other hand, they simply leave their satellites in orbit, once it is successfully launched, it is difficult to prove that any collision that may occur is due to their fault, hence holding them liable. The current Guidelines for the Mitigation of Space Debris under Guideline 6 urges all concerned that they: “Limit the long-term presence of spacecraft and launch vehicle orbital stages in the Low-Earth orbit (LEO) region after the end of their mission”. But these guidelines are non-binding and the incentives “to do the right thing” either on the part of private satellite operators or even the Launching State are currently simply not present. Since it does not seem likely that the current provisions of the Outer Space Treaty or the Liability Convention will soon be amended, the question becomes what can be done instead to encourage active orbital debris removal. [Space Debris Mitigation]