Addressing the challenges of space debris, part 1: defining space debrisby Michael Listner
|
| A definition of space debris designed to evaluate whether an object is indeed debris and whether a launching state could expressly abandon it is a prudent method of approaching the problem. |
As discussed in the previous essay, there is yet to be an acceptable legal definition of space debris. There have been proposals for defining space debris, but these definitions are couched mostly in the context of legally binding treaties and liability for space debris. Given the current geopolitical realities, the prospect of a legally binding space law treaty addressing space debris is slim and, therefore, such definitions will not likely gain acceptance.
A more realistic approach to remediation of space debris is to apply a quasi-legal definition that directly addresses the problem of ownership under Article VIII, which is one the primary issues associated with removing space debris. Specifically, the current body of space law does not contemplate salvage rights to space debris because of the ownership issues related to Article VIII of the Outer Space Treaty. Therefore, before space debris remediation can begin in earnest, the question of ownership and whether a particular space object can be removed must be addressed.
To that end, a definition of space debris designed to evaluate whether an object is indeed debris and whether a launching state could expressly abandon it is a prudent method of approaching the problem. The following may be an appropriate definition to address those concerns:
“Space debris” is:
- a space object as defined by Article I(d) of the Liability Convention and Article I(b) of the Registration Convention;
- that no longer performs its original function or has no tangible function or whose function is no longer required;
- that either re-enters the atmosphere, remains in Earth orbit, in outer space, or on the Moon or another celestial body,
- is either created intentionally or through the actions or inactions of a launching state;
- may have economic value to a launching state;
- may have historical value to a launching state;
- and/or may have continued national security value to a launching state.
An brief discussion of each of these bulleted conditions follows.
Condition 1: “Space debris” is a “space object”.
The most critical and indispensable component of this definition is also the most contentious. “Space object” is a legal term defined in international space law by Article I(b) of the Registration Convention and Article 1(d) and the Liability Convention. The definition of space object between these two treaties is consistent in that both treaties state that “[t]he term ‘space object’ includes component parts of a space object as well as its launch vehicle and parts thereof.” However, despite this simple and concise definition, considerable debate exists about the true meaning of the term and has provided ample fodder for legal scholars to debate in the academic world.
However, the debate is just that: a debate. Taking into the context of how the term “space object” is in the Rescue Agreement prior to its definition in both the Liability Convention and the Registration Convention, the term is clearly equally applicable to intact spacecraft, whether functional or not, or components or fragments of that space object. Furthermore, the Cosmos 954 incident provides precedent for the usage of this term to space debris.
When the components from Cosmos 954 were discovered in the Canadian Northwest Territories and identified after its fall from orbit, the Department of External Affairs referred to Article 5 of the Rescue Agreement in its February 8, 1978, communiqué to the Embassy of the USSR. The purpose of Canada referencing the Rescue Agreement in this initial communiqué was not only to fulfill its obligations under that accord, but it also likely used to reinforce that Canada identified the debris as coming from Cosmos 954 and as such belonged to the USSR in advance of its claim under the Liability Convention.
| The term “space object” is clearly equally applicable to intact spacecraft, whether functional or not, or components or fragments of that space object. |
Whether Canada knowingly provided a precedent of applying the term “space object” to components of a space object—i.e., Cosmos 954—is unclear, but the fact remains that doing so established a standard for that term. While the term precedes the actual definition of the term in the Liability Convention and the Registration Convention, it seems clear application during the Cosmos 954 incident provides ample support for the concise definition found in the Rescue Agreement’s sibling treaties.
Additionally, the use of the term and definition in the domestic space laws of some nations makes the case that the term “space object” as defined has legal precedent. For example, Austria’s recently adopted domestic space law defines “space object” as an “object launched or intended to be launched into outer space, including its components.” This definition falls in line with the definition found in both the Liability Convention and the Registration Convention and provided support for the definition of the term in those two accords.
Condition 2: “Space debris” is a “space object” that no longer performs its original function or has no tangible function or whose function is no longer required.
After establishing a baseline that any space debris is at the very least a space object, the next element to consider is whether the space object continues to have a function that would provide continuing value in the eyes of its launching state. There are three potential conditions to be evaluated: the space object continues to perform its original function; the space object no longer performs its original function; the space object has no purpose or function or the space object’s function is no longer required.
For example, a screw, bolt, or fragment decidedly has no function since it is no longer part of the original space object that it originated from. Therefore, the launching state could easily decide that the space object is indeed space debris and may be expressly abandoned. A different scenario plays out with an intact satellite that, except for the fact that its operation is no longer required, remains a functional space object. In that case, evaluating its value to the launching state becomes more difficult. However, a space object that no longer performs its function even though it may be considered space debris may still have value to the launching state to the extent that it will not expressly abandon it.
Condition 3: Space debris is a space object that either re-enters the atmosphere, remains in Earth orbit, in outer space, or on the Moon or another celestial body.
The physical location of the space object is also important. When discussing space debris, most commentary is made with respect to space debris in earth orbit. However, this ignores that there are substantial space objects in solar orbit, on the Moon, other planets, and in the far reaches of the solar system. Furthermore, just because a satellite reenters the atmosphere does not mean that it ceases to be space object. This is borne out not only in the space law treaties, but has also been shown with the incident of Cosmos 954.
Moreover, numerous space objects have been left on the Moon, including those that arrived by robotic spacecraft and those left by behind by the Apollo missions. The value of these space objects can be evaluated on the basis of functionality as articulated above. For example, there are still experiments left behind by the Apollo missions that still perform their function to this day, such as the laser reflector, while other space objects, such as the decent modules, do not. The question for the launching state is whether space objects such as the decent modules have continuing value or should they be expressly abandoned.
Condition 4: “Space debris” is a “space object” that is either created intentionally or through the actions or inactions of a launching state.
Another test is whether the space object was created intentionally or through the actions or inaction of a launching state. For example, a satellite has ceased functioning or whose function no longer is required would be considered intentionally created in that it was launched for a specific purpose. On the other hand, a space object that is created by a collision between two space objects could be said to have been created intentionally or unintentionally, depending on the circumstance.
For instance the recent explosion of a failed Breeze-M upper stage created hundreds of new space objects, which could be classified as space debris. The failure of the stage and its subsequent explosion were unintentional and not the result of the direct actions of the launching state, but the fact remains that new space objects were created as result that have no tangible function. The question is whether the launching state could determine whether the space objects created have value such that they could be expressly abandoned.
| The emerging field of space archeology looks upon space objects that would otherwise be classified as space debris as historical artifacts. Such a viewpoint might preclude express abandonment. |
Conversely, the testing of the Istrebitel (Killer) satellite system through the 1970s and early 1980s is an example of space objects that were created through the intentional actions of a launching state, in this case the Soviet Union. The Istrebitel satellites were co-orbital ASATs designed to rendezvous with its intended target and detonate producing fragments (space objects) that would disable or destroy the target satellite. After the testing of the rendezvous capability, the satellites were intentionally detonated, producing additional space objects that are catalogued and continue to be a problem in LEO. Analyzing these space objects in the context of the conditions above, the space objects created were intentionally created and have no tangible function. Therefore, the launching state could conclude that these space objects could be expressly abandoned.
Condition 5: A space object may have economic value to a launching state.
This condition requires the launching state to consider whether the space object in question has a continuing economic value. Despite the fact that the space object in question meets the conditions of space debris, does the space object have a present or future economic value that would preclude its express abandonment?
For example, a defunct intelligence gathering satellite running low on propellant is retired even though its systems continue to function. Should this space object be expressly abandoned as space debris because it can longer perform its function? Intelligence gathering satellites have significant price tags attached to their construction and represent significant economic investment. It could be argued that, even though such a space object would qualify as space debris, it shouldn’t be expressly abandoned given that future refueling technologies may allow the space object to be replenished allowing it to reenter service.
On the other hand, the launching state may determine that economic value of refueling the space object would be greater than simply replacing it with a new satellite. In that case, given that the space object cannot continue its original function the launching state may classify the space object as space debris and expressly abandon the object.
Condition 6: A space object may have historical value to the launching state.
In some cases, a space object that meets one or more of the conditions above might have historical value, prompting the launching state to retain ownership. Examples include the aforementioned lunar decent modules at the Apollo landing sites on the Moon.
Arguably, the decent modules at the Apollo landing sites meet several of the criteria of found in this definition of space debris: they are space objects, whose original function no longer exists, residing on the Moon, and they have little or no economic value to the launching state. While these conditions would argue in favor of classifying the objects as space debris and hence express abandonment, the fact that these space objects represent a significant period within the history of the launching state would be an additional factor that would weigh in favor of the launching state retaining ownership.
The historical significance of a space object is subjective, though, and would depend on whether the launching state believes the object’s historical value abrogates other conditions that would favor express abandonment. For example, Kosmos 359, a Venus lander launched on August 22, 1970, failed to leave orbit and remains in an elliptical Earth orbit. Several of the conditions noted above would weigh in classifying the space object as space debris and argue in favor of express abandonment. However, the launching state could argue that the space object possesses historical value and therefore decide to retain ownership.
More so, the emerging field of space archeology looks upon space objects that would otherwise be classified as space debris as historical artifacts. Such a viewpoint might preclude express abandonment at least until the space objects in question were properly photographed and catalogued.
Condition 7: A space object may have continued national security value to a launching state.
The final and perhaps most contentious condition for the classification of space debris is the national security value that a space object may have to the launching state. Like the condition of historical value, the national security value of a space object could shift an analysis that would otherwise classify a space object as space debris and a candidate for express abandonment.
| The key to understanding this approach to defining space debris is that rather than providing a blanket legal definition, it provides a launching state the ability to look at a space object under its jurisdiction from a value point of view. |
The previously discussed scenario of the intelligence gathering satellite that was determined to be space debris based on numerous conditions articulated here is a prime example. Even though the conditions would argue for its classification as space debris and express abandonment, the fact remains that its previous function of intelligence gathering means that it retains a great value to national security for its launching state. This fact alone would compel the state to retain ownership of the space object.
However, even more so than the condition of the historical value, an assertion of national security can be highly subjective. For example, the intentional destruction of FY-1C in 2007 as part of a Chinese ASAT test produced thousands of space objects. Applying some of the tests articulated here one could argue that the fragments produced from that test are space objects, in Earth orbit, that have no tangible function, were created by the actions of the launching state, and have no economic value or historical value to the launching state. Considering that most if not all of the conditions would argue in favor of classifying the fragments as space debris and therefore express abandonment, the launching state could argue that the space objects have national security value given how they were created and therefore refuse to expressly abandon them. While such a claim may not hold up to an objective analysis, it is the subjective viewpoint of the launching state that would prevail.
The key to understanding this approach to defining space debris is that rather than providing a blanket legal definition, it provides a launching state the ability to look at a space object under its jurisdiction from a value point of view. It does so by allowing the launching state to apply a “totality of the circumstances” test that will help it reach an informed decision.
Unlike a generalized legal definition of space debris, which applies a technical definition with the intention of imposing liability or accountability to a launching state for space debris, the test conveyed in this essay is designed to allow a launching state to thoroughly analyze the value apportioned to a space object on a case-by-case basis. The result of the analysis would allow the launching state to decide for itself whether a space object should be retained or expressly abandoned: the first and most crucial step in space debris remediation. Admittedly, approaching the issue of defining space debris this way is unusual, but the issue of space debris is a new frontier for law and space law in particular, and unconventional methods will be required to meet the challenges presented.