by Steven Freeland
This piece describes the challenges posed by the increasing proliferation of orbital space debris, as well as debris falling back to Earth. It describes how a ‘business as usual’ case going forward threatens to result in outer space becoming less accessible and navigable, thus compromising future space activities. It describes the existing legal and governance frameworks that has been developed at the international level to address issues around space debris, concluding that more needs to be done if we are to maintain space as a sustainable area for the benefit not only of current, but also future generations.
Space is Ubiquitous and Critical
Over the past six decades, space-related technology has revolutionised the world we live in. Beginning in the 1950s/1960s with an initial focus on Government-led military and scientific activities, space has also become a very significant commercial sector, estimated in 2020 to be valued at $US385 billion, and growing at a significant rate (even during the COVID-19 period), far exceeding the growth of the broader global economy. In Australia, the Australian Space Agency is working towards a goal of facilitating the growth of the Australian space economy to reach $A12 billion by 2030.
Our use of outer space has developed to the point where it now plays an essential role in everyday human activities across the globe. You and I ‘use’ space many times a day in many different ways without even thinking about it. Space is ubiquitous and virtually every country on the planet requires access to some form of space technology, and the data it produces, as essential elements of its critical infrastructure. Seen in this light, a (theoretical) ‘Day Without Space’ would have significant negative consequences for every country, every community, every human on Earth. Indeed, the functioning of society as we know it would, in many respects, cease.
Law ‘Making’ Through Global Consensus
Developments in outer space have also contributed to shaping – and in turn have been shaped by – geopolitical relations on Earth. Particularly striking is the context in which significant developments in space technology first emerged: a climate of Cold-War confrontation between the United States and the Soviet Union. This perception of outer space as a State-dominated competitive arena, balanced with the need to emphasise the peaceful nature of the exploration and use of space, was at the heart of the 1967 Outer Space Treaty (OST), agreed through a United Nations consensus process and considered by many as the ‘Constitution’ of international space law.
Through the ongoing work of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), with its 100+ Member States and Permanent Institutional Observers – four additional space treaties followed, together with a broad range of other instruments, all of which complement the key OST principles that guide responsible behaviour in space.
These principles, imposing as they do both rights and obligations on countries (Australia is a party to all five UN space treaties) have in turn informed and shaped the development of national space law in, thus far, approximately 30 countries. Australia has had national space law since 1998 (it was at the time the 7th country in the world to do so), and this legislation has recently been reformed (and renamed) as the Space (Launches and Returns) Act 2018(Cth).
Increasing Space Debris
The ‘spacescape’ is evolving rapidly, presenting a much broader range of space ‘actors’ with opportunities, but also significant challenges. Most notably, space debris has emerged as a pressing global threat, warranting an urgent coordinated multilateral response. The European Space Agency has estimated that there are, in the Earth’s orbit, more than 128 million pieces of debris smaller than 1 cm, about 900,000 pieces of debris 1–10 cm in length, and around 34,000 of pieces larger than 10 cm. Yet, with current technology, we are only capable of ‘tracking’ the latter category.
Given the high orbital velocity of objects in space, any collision – either with debris or a ‘live’ satellite – could create thousands more pieces of debris. These could in turn result in more collisions and yet more debris, potentially triggering an exponential increase in debris known as the ‘Kessler Effect’, which suggests that we could eventually see a ‘debris belt’ around the Earth, making space less accessible, navigable and sustainable.
What Constitutes Space Debris?
Space debris principally comprises those space objects (satellites) that have reached their end of life, various launch stages (for example, rocket bodies, upper stages of launch vehicles) and the remnants of space objects from explosions, collisions or deliberate destruction, but also includes other items that are deliberately or accidentally released during a space mission.
Although the volume of space debris orbiting the Earth has given rise to significant concern and debate at the international level, there is no globally agreed and legally binding definition of orbital space debris. However, UNCOPUOS considers space debris, incorporating debris both in Earth orbit but also in the process of ‘de-orbiting’, as: ‘all man-made objects including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional’.
Risks in Outer Space …
In recent times, we have seen collisions and ‘near collisions’ in space. In 2009, for example, an operational American commercial satellite (Iridium 33) and an inactive Russian communications satellite (Kosmos 2251) collided approximately 790 km above the Earth, resulting in the total destruction of both. In late January 2020, we all watched helplessly as two large ‘dead’ satellites – IRAS and GGSE-4 – passed within metres of each other. NASA has at various times been forced to move the International Space Station (ISS) when it calculates a higher-than-normal risk of collision with debris.
… as well as in Airspace and on Earth
Space debris can also plummet back to Earth. In 2007, pieces of debris from a Russian satellite narrowly missed a Chilean passenger plane flying between Santiago and Auckland. In 1979, the 77-tonne US space station Skylab disintegrated over Western Australia, peppering the area around the southern coastal town of Esperance with fragments. Only a few months ago, we witnessed the uncontrolled re-entry of large pieces of debris from a Chinese Long March 5B rocket that landed in the ocean off the coast of the Maldives.
Although there have been no recorded deaths or serious injuries from people being hit by space debris, there are clear risks. Just one year before Skylab’s demise, a Soviet remote sensing satellite, Cosmos 954, plummeted into a barren region of Canada’s Northwest Territories, spreading radioactive debris over several hundred square kilometres. It was just a quirk of fate that Cosmos 954 did not land on Toronto or Quebec City, where the radioactive fallout would have necessitated a large-scale evacuation.
It gets even more complicated
Adding to the complexities, in 2007 and 2008 respectively, both China and the United States demonstrated their ability to deliberately destroy their own satellites in space. More recently, in March 2019, India kinetically destroyed one of its own satellites, which gave rise to significant political debate within the Legal Subcommittee of UNCOPUOS, which met only four days later.
Moreover, the problem of space debris has taken on an even greater urgency as more large commercial constellations of small satellites are launched. Indeed, if the well-publicised plans of just a few large corporations come to fruition, the number of objects launched into space over the coming 5-10 years will dwarf by a factor of up to ten times the total number launched over the more than six decades since the first human-made object (Sputnik 1) was sent into orbit in 1957. Clearly, the more ‘crowded’ space becomes, particularly in ‘popular’ orbits, the greater the possibility/probability of collision.
How Does Space Law Apply?
Space is an area beyond national jurisdiction. Like the high seas, it is governed through international law. Two of the UN space treaties, the OST and the 1972 Liability Convention, establish a compensation regime that would apply in many circumstances of damage caused by space debris falling to Earth, as well as when satellites collide in space.
This legal regime imposes liability on ‘launching States’ for damage caused by their space objects, which includes an absolute liability regime when they crash to Earth as debris, or on a fault basis when two space objects collide. This liability under international space law is therefore imposed on countries, even where the space object/debris that causes the damage is privately owned and/or operated.
The Liability Convention has only been previously invoked once (for the Cosmos 954 incident) and therefore may not be regarded as a powerful disincentive. However, it is likely to increasingly come into play in the future in a more crowded space environment, and with more uncontrolled re-entries. Of course, this legal framework applies only after the damage occurs.
In addition, there are other relevant non-binding ‘rules of the road’ dealing with space governance that have been agreed through UNCOPUOS, including practical guidelines for debris mitigation and the long-term sustainability of space activities.
Beyond the legal requirements, the challenges posed by space debris raise complex questions of a policy, geopolitical, economic, and societal nature, some of which bear similarities to the discussions regarding the causes and effects of climate change. For example, who bears responsibility for the increasing proliferation of space debris, both past, present and future? Is there an obligation to remove debris, recognising how technically challenging (and hazardous) this might be? Who should pay for past, present and future pollution? What rights do non-spacefaring nations have in discussions, given that they are also dependent on access to space technology (through their relationships with other countries/organisations)?
And if a State or private enterprise develops the capability to, for example, remove or deflect space debris – and many companies are currently developing and testing such technologies – some countries worry that this technology could also be used as a means to remove or deflect ‘live’ satellites upon which they are dependent.
A Path Forward?
The future of humanity is inextricably tied to our ability to ensure a viable long-term future for space activities. Space debris represents one of the greatest challenges for the ongoing sustainability of space activities. A ‘business-as-usual’ approach will not be feasible going forward. Significant issues must be addressed, which will require a change of mindset (how to determine what will be an ‘appropriate’ space activity?), multilateral cooperation (notwithstanding existing terrestrial geopolitical tensions and differences), the development of a globally coordinated space traffic management system, and a recognition that, in the end, all countries have a common interest in not crossing certain red lines that would irreversibly compromise the stability, safety and sustainability of space for current and future generations.
Steven Freeland is Emeritus Professor, Western Sydney University; Professorial Fellow, Bond University; Co-Principal, specialised space law firm Azimuth Advisory; Director, International Institute of Space Law; Member, Space Law Committee of the International Law Association; Member, Space Law and War Crimes Committees of the International Bar Association; and Member, Australian Space Agency Advisory Board. He was recently appointed by the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) as Vice-Chair of a 5-year Working Group addressing issues related to space resources.
Steven Freeland is also the host of the Space Café “Law breakfast with Steven Freeland”. The next live event will be on 22nd July 2021 at 9:30 am CEST / 5:30 pm AEDT. Registration for free via Eventbrite here.
SpaceWatch.Global has been granted permission by the author to re-publish this text. It first appeared: “Steven Freeland, ‘Space Debris: A Major Challenge for the Future of Humanity’ on ILA Reporter (12 July 2021)“