NAME: be persistently grow and pose a superlative amount

 

 

 

 

NAME: MR.
INDRANIL BANERJEE & ABHISHEK KAR.

DESIGNATION:
ASSISTANT PROFESSOR

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INSTITUTION: AMITY
LAW SCHOOL, NOIDA

TOPIC: SPACE
DEBRIS AND THEIR PROPER MANAGEMENT: A CHALLENGE TO BE ADDRESSED BY INTERNATIONAL
SPACE LAW COMMUNITIES WITH IMMEDIATE EFFECT

MAIL: [email protected]/ [email protected]

MOBILE:
+91 9971046258/9690439286/8826313992

 

 

1.    
Prologue:

Space debris is a matter of contemplation by
myriad jurists to be the most bulging yet neglected an issue in the arena of
outer space security and safety. Quinquagenarian space activities by the
various space faring nations have left nothing but humongous debris which
currently is becoming self-perpetuating and threatening to render the outer
space environment futile, particularly explicitly in lower orbital areas of
Earth. Yet, the current form of law and policy in the matter of governing
regular bustle in space regrettably are not adequately coping up with the botheration
of orbital dilapidation. The said law has paucity in providing proper incentives
for operators to clean up the same as well and when collisions do occur, the
situation becomes too insurmountable to collect damages from the party at
fault. Tracing and finding objects in space depends on such sophisticated machinery
and technology that few countries in the world can only afford to keep the track
of objects on their own, yet states are under no proper legal accountibity to
spread information with others to avoid such a situation in future. Unless the
present space law and policy becomes more accurate and adequate in responding
to such a threat of orbital debris and disasters caused by them, the magnitude
of junk in space will be persistently grow and pose a superlative amount of
risk to mankind’s peaceful endeavor tospace. The instant paper focuses on the
existing laws relating to space wastes, finding out the lacunae in them and the
challenges faced by those who are into cleaning it up and make some feasible
suggestions which could bind the parties using the space to firstly, constrain
themselves from releasing unwanted debris in the space and secondly, in case of
such a release, manage them with proper care and caution so as to keep the
safety issues warranted.

2.     Technical Facets Involving “Space Debris”:

The phraseology “space debris” is normally used
to define “a blanket term for any man-made artifact discarded, or accidentally
produced, in space, either in orbit around a planetary body (when it is also
known as orbital debris) or on a trajectory between planetary bodies”1.  Space debris also customarily consists of
fragmented parts of outdated and destructed satellites and rocket boosters/rooters
resulting from huge explosions or collisions. However, space debris can also be
found being “dead satellites, spent rocket stages, a camera, a hand tool and
junkyards of whirling debris leftover from chance explosions and destructive
tests.”2

Recent
annexation to the space debris population late in 2009 has intensified a
problem which had an inauguration on October 4, 1957, when the Soviet Union for
the first time had launched the first human-made satellite, Sputnik 1, into
space. In October 2010, Air Force Space Command’s (AFSPC) Space Surveillance
Network had been able to track over 21,000 man-made substances in the orbit of
the Earth with most of them having diameter of ten centimeters or more.
Regrettably, less than 5 percent of those man-made substances are operational
technically viable satellites with the rest being utter wastes. Making things worse,
space- scientists recently have estimated that there exists over 300,000
objects having diameter larger than a centimeter, and almost a million that are
smaller revolving in the space and majority of them are nothing but man-made
space debris.

In
its instant term orbital/space debris pose momentous hazard to fully operational
existing satellites which are then become prone to be damaged, incapacitated or
completely destroyed. In the long term however, such debris threaten the continuity
of outer space endeavors and the exploration of the space climate. In the year 1978,
some of the space-scientists have described a fugitive and uncontrollable cascade
effect, named as Kessler Syndrome, whereby collisions among the ever-growing
number of orbital objects, debris or spacecraft, shall create debris and, thus,
even more collisions. Eventually, through this self-reinforcing feedback loop,
Earth orbits will be reduced to debris belts, causing them useless for outer
space activities in future. More contemporary research on the matter has
revealed that such a cascade effect might already be under way, even with an
instant speculative moratorium on space launches, but could be swept off by
annually ripping out only five large chunks of debris that carry a somewhat
greater risk of collision.

Finally,
the Big Sky Theory, which holds the view that space is so vast that it’s
virtually invulnerable to clogging and continually available for risk-free
exploration, must at least now be checked with questions as space has actually
become congested even more than earlier periods  and the probability of space-accidents are on
rise. Urgent technological and legal regulatory measures need to be arranged
and implemented to slow and, conclusively, overturn the present orientation to
avoid further propagation.

3.    
Sources
of Space Debris

As
already discussed the term Space Debris is a direct result of the consequences
of man-made endeavors in space either in the regular course of a state’s space
programme or any such extra terrestrial effort gone sour. Furthermore, if we
consider a natural form of Space Debris then meteoroid collisions are the most
factor in this regard but and debris left out of a meteorite collision is not
considered a serious hazard.

Then
again, we already have a lot suspended debris in Space which is created out of
a direct result of more natural processes such as meteorite collisions.
Moreover, to add to this scientific phenomenon any form Space Debris created by
unnatural activities is just shrinking the scope of any form of outer space
activities in the times ahead. Also, we see that there is no trace of any laws
governing the nature and scope Space Debris which has in turn helped almost
every country conducting Space Research to get away with absolute zero
responsibility of either taking precautions or cleaning up their acts of
exploitation.

Moreover,
if we seemingly concentrate on activities which have given a passage to
artificial Space Debris then we can easily identify the countries which bear
the majority of the responsibility for creating this ruckus of debris in Space.
We see, in terms of sharing responsibility, 57 per cent of this process of
unwanted debris is shouldered by The United States of America, the second major
contributor being 40 per cent which is created by Russia and the remainder of 3
per cent has been shared by the joint endeavors of The United Kingdom, India,
China, The European Space Agency, Japan and Germany3.
Thus, a very notable conclusion can be drawn in this section that most of the
major countries that are significant in terms of carrying out any form of Space
research or innovations are equally responsible bearing exceptions to The
United States of America and Russia in creating this mess outside of the Earth.

 

 

4.    
Responsibility
for Remediation of Space Debris:

Due
to the absence of a legal status granted to space debris, orbital remedial
activities give rise to a plethora of regulatory complexities and unanswered
legal questions. State responsibility has been viewed as “a legal construct
that allocates risk for the consequences of acts deemed wrongful by
international law to the artificial entity of the State.”4
The distinction between State responsibility and liability lies in the fact
that the prerequisite to the former is an act breaching international law and
to the latter, the harmful effects of an activity, which is not per se a violation
of international law. In international space law, while responsibility applies
to a “State’s obligation to regulate and control space activity both in the
present, and in the future, to assure compliance with not only the letter but
the spirit of the Outer Space Treaty principles”, liability on the other hand
refers to an “obligation of a State to compensate for damages”.  As has been observed by Cheng, international
state responsibility in the outer space field arises the moment a breach of an
international obligation is produced and not when the State is seen to have
failed in its duty to prevent or repress such breach, for the State is
immediately accountable for the breach on the international plane as if it
itself had breached the international obligation.

5.    
Risks
presented by Space Debris

In
the current state of affairs we still do not realize the severity that Space
Debris pose and the consequences our world would have to face if there are no
laws or governing agencies that are created at the earliest in order to counter
this serious occurrence. There again, if we look at the two major ripples that
Space Debris may cause if not dealt are Interference and Collision.

At
first if we pay close attention to the theory of Interference then we could
clearly draw out that our future is at risk in case this predicament seems any
light. In today’s world where from the onset of something as meager as using
navigation to plot a course to one’s destination to using the internet for
looking up every single event in the world around you, we see there is
indispensible dependence on wireless networking to solve every task at hand.
Moreover, in such a situation where we see that there in case of any form of
intervention by these existing Space Debris can absolutely choke the day to day
life of the individuals and in turn of the whole global community. Furthermore,
the whole world could end up in an obsolete situation whereby any form of
communication or activity would cease to exist if this phenomenon of
Interference was to see the light of day in the times to come. Then again, if
we consider this occurrence and its impact on academicians or scientific
researchers then we can try understanding on how such interference would be a
complete rip off to observers using a telescope and this would greatly hamper
any such observations that are made from the Earth. Also if we consider the
implications of interference in space then could play a crucial role in
scrambling the frequencies and band width of space ships. Thus there are a few
of the dire consequences that would be faced in different spheres in relation
to interference by Space Debris.

Moving
onto to the second and more predictable form of repercussion from Space Debris
is that of Collisions. We see, that with every single day, be that outdated or
broken satellites to spaceship boosters or other leftovers are constantly
adding to the already existing population of Space Debris. The common outcome
in the regard is that of Collisions. The debris in question would be easily
prone to collision as they are nothing but suspended objects hanging in Space.
Such a catastrophic event of collisions would result in the loss of both life
and property on the Earth. This event regardless of its duration would be
hundred times more powerful that a astronomical meteor shower and its outcome
would be fatal. Even if we consider the result of collisions in outer space
itself, then we can observe that its implications of space ships and its crew
members facing the leftovers of Space Debris collision would put the lives of
any space crew under serious life threatening prospective. The first suggestion·
that Debris was colliding with active payloads or with fellow Debris was
identified from Explorer 46. Launched on 13 August 1972, this satellite incorporated
a meteoroid bumper research which was receptive to impacts by particles bigger
than an about 0.1 mm. Analytical outcome of the 43 impacts with Explorer 46 can
only be conveyed by a population of Earth-orbiting objects and the orbital flux
was 1.9, about a factor of 3 below that for meteoroid flux5.
This kick started the trend of trying to study about the occurrence of
collisions in space which was a direct result of coming together of Space
Debris.

Thus,
we see that if Space Debris continues to pile up at this rate without any
international law or any organization to restrict the creation of such debris
and also increase the liability of the states causing this phenomenon then the
result of such ignorance would be cataclysmic.

6.    
Laws
of Outer Space and Space Debris

Over
the years each and every kind of International Law Treaty based on Space has
completely ignored Space Debris; therefore neither any definition nor
description of Space Debris has ever been established in such treaties.

At
present we have to understand what the world considers Space Debris to be.
There is one school of thought who pertain to the issue that existing inactive
satellites is the sole reason for the existence of Space Debris and such a view
is widely accepted by many International Organizations. Whilst there another
school of thinkers which bring about the concept of inclusion every other
aspect of Space Debris to explain it but just seem to fail the inclusion of
inactive satellites in this ambit. But if we are to look at the nature and scope
of Space Debris then we can easily understand that the both the schools of
thought do hold weight but the former slightly edges out the latter. Thus, if
we were to look at the ambit of Space Debris and which factors constitute it
then clearly both inactive satellites and other waste bodies all together form
this mess in space.

The
Debris problem in order to be identified and dealt with, at first, its process
needs to be defined and a suitable legal term must be brought in to increase
the reliability to the definition. This would definitely be a opening point for
the world to understand and hence tackle this problem of Space Debris.
Furthermore, following this the true meaning should be established and thus put
into the ambit of International Law. This is one suitable of how to bring about
the relevance of Space Debris under International Law.

Now
if we look for attempts at defining Space Objects through various International
Conventions then the following conventions stand out. Preceding the Liability
Convention6,
space objects were previously termed “artificial earth satellites and
space rockets”, when placing reference to their launching7.
When the issue arose concerning the registration of objects launched into
space, states were asked to furnish information when “launching objects into
orbit or beyond”8.
After the initial attempt to establish the domain of Space Objects, the next
viable attempt was made through a Legal Declaration9
where an attempt in defining Space Objects were made as “an object launched
into outer space” and furthermore, the jurisdiction and ownership of these
Space Objects was also discussed through this declaration. Following to the
Legal Declaration, The Outer Space Treaty10
managed to adopt the definition coined in the earlier declaration on Space
objects and also created to increase the scope of matters in relation to
jurisdiction, ownership and responsibility of such issues. This treaty was
signed by 23 states involved in Space Research Projects but then again
ratification of this treaty was not a great success story. Finally in The
Return and Rescue Agreement11
the main subject of debate was to discuss the return of objects launched into
Space and its proper management. We can observe that this one of the first
convention of its kind that touched upon the subject of Space Debris in a way
but then again to concrete attempt was made to deal with the Space Debris
management in a particular way.

Thus,
we see there have been many attempts to underline Space Objects send into the
orbit of the Earth and beyond but yet there has been no concrete attempt in
dealing with Space Neglects and how to deal with them.

7.    
International
Responsibility in dealing with Space Debris

Till
date there have been no such international initiatives undertaken to deal with
this problem of Space Debris as such. It still remains an untouched subject as
far as the international community or laws are concerned. This can be majorly
be attributed to the lack of exposure and understanding of this phenomenon and
the consequences it poses to our world as we know it. But nevertheless it
remains to be one of the major concerns that needs immediate attention and
anything less than this concern taken seriously, it would result in creating
catastrophe.

This
now brings us to the ambit the Public and Private International Law in relation
to potentially bearing responsibility and dealing the problem of Space Debris.
If we take a closer look into this we can see the major responsibility in
dealing with the Space Debris and its management has to be borne by area of
Public International Law. The agencies dealing in Space Research Programs on
behalf of their respect states must identify and draw out a plan to deal with
this prevalent problem of debris and once done have to bring up this issue in
the global forum in order to deal with this through global cooperation and
understanding. It still is a huge task at hand to convince most states about
the implications of the possible impact Space Debris might have in relation to
the future of our world but that needs to be put into perspective and dealt
with at the earliest. Furthermore, in terms of the area of Public International
Law, it plays an equally important role as the global society and each and
every member needs to step up their awareness and rectify this situation as
they are ones who would be affected the most by this world ending event.

Then
if we consider the Doctrine of International Responsibility which has also been
envisaged under The Stockholm Conference, 1972 (Principle 21) deterrents the
concept that in order to deal with issues of Global importance or Global
catastrophe, in such there must be an effort wherein through Global cooperation
would be possible to deal with the major concern at hand. According to this
Doctrine the results achieved would be far greater in comparison to the effort
a single or a group of states would put in to counter any such phenomenon. Such
is the requirement and can also be considered to be the need of the hour in
order to tackle this rapidly growing problem of Space Debris. Finally, the
Global community has to come together and join hands in order to engage in this
issue and eradicate its effects.

Also,
the factors in question while dealing with Space Debris raise the relevance to the
Doctrine of Abuse of Rights. We see that whole concept of management of Space
Debris has come into the forefront because states have failed to maintain a
balance between their rights and liabilities. Since here we do not have any
laws or organizations dealing with regard to Space Debris we see that there has
been undoubtedly an Abuse of Rights available to all the states involved in
Space Research and Space Exploitation. When the various states in the world
have obtained their rights in relation to their individual Space Programs we
see that a serious lack of responsibility has led to the formation of the Space
Debris. Either is may be the presence of out of order satellites or debris left
behind by spaceships, the states in question mainly The United States of
America, United Kingdom, various European countries, China, India, Russia,
France, etc have all done their share in order to make the world a better place
to live through their space exploits but at the same time have completely
ignored the cons of their activities and the Space Debris in the outside of the
Earth is a direct result of this ignorance. Thus such a lack of responsibility raises
serious question of states fulfilling their liabilities and backs The Doctrine
of Abuse of Rights by all the states of the world in question.

8.    
Conclusion
and Suggestions

Therefore,
we can conclude that in today’s world the formation of Space Debris is a
reality and as we continue to ignore this occurrence, there is a major chance
that due to collisions and interference of the hanging debris, it is not so far
in the future that any form of Space exploits would not be possible.
Furthermore, we see that there is a sense of lack of responsibility in the
amongst the countries of this world as they are fulfilling all rights available
to them but when the question regarding the management of the outcomes of the
programme has to be dealt with, then in that case there is state of ignorance
that is seen amongst all the countries involved in carrying out Space Programs.
Moreover, this present situation is man-made and if anyone has to take
responsibility for this mess, it is our society itself. There cannot be any
other way out rather than to address this issue as soon as possible in order to
protect our common future.

The
only way forward to deal with the administration of Space Debris and prevent
its outrage would be to bring the world under a single umbrella in the form of
a convention and further ratification and signatures of all states of the world
currently invested in Space Research Programs. Also, a creation of a charter
laying down all the articles in relation to the prevention of creation of Space
Debris and an International Organization (funded from the UN budget) with
enforcement powers to force every state under the convention to follow the said
charter and also penalize the defaulting countries if any. Also in case such
debris cannot be prevented, then in such a case there must be a responsibility
of the concerned state for proper treatment or methods for destruction of these
wastes. Finally, this is the way forward to deal with the various problems of
Space Debris and there must be immediate attention paid to it or else our
society would be as dark as the space itself.

 

 

 

 

1Mark Williamson,
Space: the Fragile Frontier 46 (2006)

2Mark Carreau, Astronaut Who Lost Tool Kit Focuses on
Today’s Outing, Will Double-Check Every Little Thing, HOUS. CHRON., Nov.
20, 2008,

3 E. Marshall, “Space ‘Junk Grows w1th Weapons Test”
(1985).

4Rebecca M. M. Wallace,
International Law, (Sweet & Maxwell, 2003) at 203.

5 D.J. – Kessler, “Earth Orbital Pollution” in E.G.
Hargrove (ed.), Beyond Spaceship Earth: Environmental Ethics and the Solar
System (San Francisco: Sierra Club Books, 1986).

6 Convention on International Liability for Damage Caused by Space
Objects, 1973.

7 International Co-operation in the Peaceful Uses of Outer Space,
UNGA Res. 1472 (XIV) 12 December 1959.

8 ibid at 7

9 Declaration
of Legal Principles Governing the Activities of states in the, Exploration and
Use of Outer Space, UNGA, Res. 1962 (XVIII) 13 December 1963.

10 A fresh
view on the Outer Space Treaty, 2017.

11 Agreement on the
Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into outer Space, UNGA Res. 2345 (XXII) 19 December 1967.