space legal issues

The perception seems to be that the Liability Convention is so lacking in specificity that it cannot be used to address space debris. Technical solutions to the orbital debris problem, like the Swiss CleanSpace One, also require changes to the legal regime. Compounding the ITAR issue is that of intellectual property rights. The definition of customary international law pronounced by the 11th Circuit in this case is unanimous throughout the Federal Circuit Court of Appeals.

However, like the proposed Swiss space debris removal demonstration, CleanSpace One, Japan’s effort does have the potential of laying the foundation for customary international law for space debris removal that could be built upon by other players, including the Big Three. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. The most prominent issue surrounding cleanup of orbital space debris rests with Article VIII of the Outer Space Treaty, in which space objects, including nonfunctioning satellites and other space debris, continue to belong to the country or countries that launched them.2 There is no right of salvage analogous to the right found in maritime law, which means that even though a satellite or some other space object may not be functioning, it does not imply that it has been abandoned by the nation that launched it. The issue of space debris removal is an unconventional one the likes of which the legal and policy environment has yet to encounter. Moreover, even though Japan is accomplished in outer space activities and a rising space power, it may not have the prominence activities equivalent to states like the United States, Russia, and China, and therefore the capacity to create customary international law with regards to outer space. However, before discussing this issue in earnest, it is recognized that the retrieval of space object belonging to another nation is not entirely without precedent.
Foremost among the legal issues is the ownership of the fragments that the JAXA mission will theoretically gather. One scenario that could play out involves the failure of the electromagnetic tether while gathering fragments from their previous orbits. Therefore, before space debris can be removed from orbit, the ownership issue must be addressed. 6 This definition of customary international law was articulated by the 11th Circuit Court of Appeals in United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. Another legal issue surrounds the uncertainty of the impact of space debris removal activities on the outer space environment.3 The potential exists that JAXA’s proposed debris removal activities could aggravate space debris contamination and therefore disrupt the outer space environment for other states. Any discussion of legal issues would not be complete without noting the issue of liability. Articles Three distinct customary international norms potentially are in play: Whether removal of space debris is a recognized practice under international law, whether Article VIII of the Outer Space Treaty extends ownership to a state over fragments and space debris in general and permits the removal of fragments originating from other states without the prior permission of the state that owns them, and whether space debris removal activities trigger Article IX of the Outer Space Treaty and requires a state to consult with the international community prior to performing these activities. While there is yet to be an acceptable legal definition of what space debris is there have been proposals for defining space debris but mostly in the context of legally binding treaties and liability for space debris. Colonel Imburgia proposes the following definition of space debris to include: …all man-made objects, including fragments and elements thereof, in Earth orbit or reentering the atmosphere, that are non-functional, regardless of whether the debris is created accidently or intentionally; the term includes but is not limited to, fragments of older satellites and rocket boosters resulting from explosions or collisions, as well as any non-functional space object, such as dead satellites, spent rocket stages or other launch vehicles, or components thereof; This technical description of space debris is part of a draft of a proposed international treaty to deal with space debris in the context of liability and responsibility for the present and future crop of space debris in orbit. He is a member of the New Hampshire Bar, a member of the International Institute of Space Law (IISL), and a peer-reviewer for Space Policy Journal.

What is certain is that the question of space debris removal is an unconventional one and as such will require unconventional means to address the question. On a larger scale, Japan’s demonstration could raise concern among other nations in the Asia-Pacific region, including North and South Korea, both of which have animosity towards Japan stemming from World War II.

Political issues. It is the Swiss and their proposed mission with CleanSpace One who may provide the precedent that is necessary to cement a customary rule allowing a nation to perform active removal of space debris both of its own space objects and those belonging to other nations.

This methodology of space debris removal requires an intimate knowledge of the spacecraft so that an effort to remove it would not result in fragmentation and the creation of additional space debris, which in the case of space objects belonging to the United States could trigger ITAR. Defining space debris in this manner not only will take into account the current body of international space law, but will also provide the basis of decision making for a nation to determine whether a particular object has value, and whether it can be expressly abandoned and subsequently disposed of.8 More so, a definition incorporating these elements is not an end-all for solving the legal issues surrounding space debris remediation, but rather it would need find itself as part of a quasi-legal protocol or as part of an annex to one or more of the existing space law treaties to set out the rules and protocols for space debris removal. First, there is mitigation, which through practices by space-faring nations such the space debris mitigation guidelines promulgated by the UN.1 These guidelines are not binding upon member states of the UN and only a few of the spacefaring nations have implemented them as mandatory requirements into their space programs. As mentioned above, one the primary issue with removing space debris is that there are no salvage rights to space debris because of the ownership issues related to Article VIII of the Outer Space Treaty. The inherent risk to the nation sponsoring space debris remediation would present governmental organizations and particularly NGOs with significant liability and may require substantial third-party liability insurance to cover potential incidents. 5 Article IX of the OST states that “[i]n the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. Parallel to the legal issues surrounding this proposed debris removal mission are the political issues. 3 Liability for debris removal is clearly a legal issue under the second scenario of the Liability Convention but because of the complexity and uncertainty of the application this article’s discussion of legal issues will be narrowed to the Outer Space Treaty. Preemptively invoking Article IX and subjecting its plans to international analysis would be a logical step considering that Japan exercised its reciprocal rights under Article IX after China’s 2007 ASAT test involving the FY-1C satellite. Christian A. Packard – Falling Back to Earth: The Return of State Predominance in Russian National Space Legislation in the Roscosmos Era The potential for adversely affecting the outer space environment to the detriment of other states implies that Japan would be obligated to consult with the international community under Article IX of the Outer Space Treaty.

This act in the context of space debris as defined for remediation does not have sufficient legal precedent to be performed en masse. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. 2012). A “space object” is similarly defined by both of these treaties, and it includes not only objects launched into space by a launching state but also components from the object.

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