Space Debris: The Rising Risks, Mitigation Strategies and the Use of Arbitration

This piece has been written by Muskaan Aggarwal, 4th year law student at Jindal Global Law School, O.P. Jindal Global University.

Credit: Spencer Walts

KEYWORDS: Space Debris, Arbitration, Collisions, Investor-State, Risk Mitigation

INTRODUCTIONS

The extraordinary progress of space law can be traced back decades, to the dawn of the space revolution triggered by the first earth satellite, Sputnik 1 in 1957. Today, satellite data dictates a major portion of our lives, as evident with the growing reliance on the data obtained through satellites for a multitude of reasons like national security concerns, predicting natural disasters, introducing and promoting network connectivity, etc. According to a Morgan Stanley Report, the space exploration industry is expected to become a trillion-dollar industry by 2040. While this proves to be an exciting endeavor for space agencies and enthusiasts, this innovation has now been combined with some growing concerns in outer space.

This article aims to analyse the growing concerns posed by a rise in space debris, posing risks for some possible threatening collisions in the future, with no learnings from the past. Further, this article analyses whether the current international legal system is capable enough to handle such a crisis and how arbitration is capable of acting as the preferable dispute resolution mechanism to handle such concerns.

IDENTIFICATION OF SPACE DEBRIS

With an increase in competition, both private and government entities have exponentially increased the use of objects and instruments for space-related activities. This rise in usage eventually leads to the over-crowdedness of space objects, resulting in an increase in space debris. ‘Space debris’, in 2002, was identified as non-functional man-made objects under the Space Debris Mitigation Guideline 3.1, issued by the Inter-Agency Space Debris Coordination Committee (IADC). Increasing anti-satellite (ASAT) tests was noted as a factor furthering the amount of existing space debris.

Broadly, space debris may be classified into two categories – first is the debris that falls back onto the surface of the Earth, and the other is what remains in the orbit and poses the risk of collision with other space matter. This further poses the risk of ‘Kessler Syndrome’, which, in the worst-case scenario, could make certain space orbits unfeasible. Kessler Syndrome is the phenomenon where the junk in the orbit reaches a stage where more space debris is created, leading to a situation where problems are caused for astronauts, satellites, and mission planners. Even though technological advancements have been made to try and mitigate the increasing concerns related to space debris collection, the financial and regulatory concerns remain unanswered in a majority of the cases. Lack of international cooperation, lack of accountability, and widespread space activities further the increase of these problems.

COLLISIONS AND DEBRIS ON THE RISE

The awaited collisions are capable of increasing the already existing space debris, as evident from the past. Recently, the Chinese military satellite called Yunhai 1-02 was reportedly disintegrated into orbit due to a collision with a junk piece left in space by the 1996 Russian rocket launch. In 2009, a Russian communications orbiter (non-functional at the time) collided with an Iridium-Cosmos active communication satellite. The collision is said to result in the creation of 2000 debris pieces, said to be almost 4 inches in diameter. Currently, according to the Department of Defence’s global Space Surveillance Network (SSN) sensors, the space orbit has about 100 million pieces of such debris, within which almost 26,000 pieces are capable of destroying a satellite.

Furthermore, there have been instances wherein space debris has re-entered the surface of the Earth, often with the possibility of falling onto a populated area since it becomes difficult to track each junk’s trajectory. One such possibility arose in May 2021, when debris from a Chinese rocket crashed into the Indian Ocean, very near the territory of Maldives. Taking into account such situations, the respective governments are deemed to be liable in case of such contingency, as highlighted under the Liability Convention of 1972 and the Outer Space Treaty of 1967. This is the case even if the launch was conducted by a private company. However, States often manage to escape liability through the presence of indemnity clauses in their agreements, purposely made in their favour from the start itself. Therefore, even if the Liability Convention was invoked in a situation where space debris falls back on Earth due to an exploration conducted by a private party, it is quite rare for government liability to arise for such a private project. The Liability Convention was undertaken only once till now in 1978 when Canada’s Northwest Territories witnessed the crash of Soviet Satellite Kosmos 954. The clean-up process cost a whopping CAD$14 million, considering that the radioactive debris had spread into Baker Lake from the Great Slave Lake.

THE DIFFICULTIES AND THE CURRENT LEGAL FRAMEWORK

Staunch efforts have been made by various entities for tackling this problem, especially considering that the possible collisions of space debris surrounding the Earth currently, are capable of producing catastrophic damages. This includes the creation of special spacecraft which are capable of deorbiting the superfluous satellites present in space, along with special missions which shall be capable of recovering space debris back to Earth. Astroscale’s ELSA-d spacecraft is one such example, wherein the spacecraft aims to track and retrieve space debris. Other efforts include the changing of satellite courses, to avoid any imminent collisions between them.

Therefore, technological advancements to mitigate the risk of collisions is not an issue, considering the abovementioned examples. Rather, the issue is that none of the upcoming technologies is focusing on solving the root of the problem, i.e., the prevention of further space debris accumulation altogether.

There have been organisations and committees formed for this purpose – including the Inter-Agency Space Debris Coordination Committee, the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) (including the guidelines from the United Nations office for outer space affairs), etc. However, the current international regime has an insufficient compliance behaviour among the States. The reason for the same might be attributed to further legal issues capable of arising due to compliance, such as debris ownership, liability, and the funding of operations. Hence, the result is that space debris is still not in control. As had been expressed by OECD, “Improving compliance behaviour among satellite operators is an indispensable step to contribute to the long-term sustainability of orbits.” This may be achieved with a proper contractual mechanism including a dispute resolution procedure between parties, considering how contractual indemnities are used to escape liability over the consequences. The existence of the agreed dispute resolution procedures agreed beforehand, would help the parties have the clarity of the expectations and the respective liabilities, helping the parties to stay compliant with the procedures, and ensure that they are not made liable for any contingencies.

WELCOMING ARBITRATION!

Arbitration is a welcomed addition to the world of dispute resolution, especially considering how the settlement is confidential, time-effective, and often customised by the parties themselves through mutual understanding. This is a reason why most of the conventions now include a dispute resolution clause with an arbitration within their regulations. Some examples include – the UN Convention on the Law of the Seas, the International Telecommunication Union (ITU) Convention, and even the European Space Agency (ESA) Convention. Even the Liability Convention involves a mechanism for an alternative settlement for disputes that are not capable of being resolved diplomatically. In fact, today most State and non-State actors resolve space-related disputes through international arbitration.

Herein, the framework of investor-State arbitration seems to be a viable option to settle disputes. This conclusion has been reached by the following 3 ISDS (Investor-Space Dispute Settlement) cases related to the space sector:

1. Devas v India, PCA Case No. 2013-09

2. Deutsche Telecom v India, PCA Case No. 2014-10

3. Eutelsat v Mexico, ICSID Case No. ARB(AF)/17/2

For ISDS Tribunals to have jurisdiction on the matter, they both must be having an investment within their applicable treaties between the foreign investor and host State. As is the case, both multilateral and bilateral treaties, under their definition clauses, define investment as “every kind of asset”, that would ideally be inclusive of satellites as well, since satellites form an asset used in space as well. Space operations would ideally qualify within the restrictive ambit of the ICSID (International Centre for Settlement of Investment Disputes) Convention as well, considering they involve projects of high-value, long-term, and high-risk levels.

Furthermore, when it comes to their application on space debris mitigation, Full Protection and Security Standard (FPSS) becomes important. FPSS creates a special regime of liability for the host States and third parties involved, the acts of whom end of compromising the physical security of the investor assets. Most of the multilateral and bilateral treaties for investment protection, which oblige the host States for FPSS for the protection of foreign investment and investors. Therefore, through FPSS, it becomes the responsibility of the host States to protect investor satellites from any harm. FPSS is capable of promoting cross-border investments and providing protection to investors against the political decisions of the host States that may act to their detriment.

While ISDS works only permit the parties to sue States, parties can refer to private arbitration or a more informal mechanism such as mediation to resolve their disputes speedily and efficiently. This could further avoid litigation charges or a situation where the parties need to undergo simultaneous proceedings in multiple jurisdictions. Recently, mediation has also been supported by the Singapore Convention and can be a good tool in the context of outer space.

The Artemis Accords

Artemis Accords were announced by NASA in May 2020, which includes a set of principles according to which the US shall enter into future exploration and use of outer space, along with contracts related to lunar resources. The principles are mainly named after the Artemis project, under which NASA plans on sending the first man and first woman to the moon by 2024. One of the ten principles laid down includes the principle of ‘Orbital debris and spacecraft disposal’, wherein, the guidelines plan a system wherein spacecraft and satellites shall be disposed of once the mission ends, hence, limiting the accumulation of space debris.

Therefore, the Artemis Accords can be said to go even further than the OST, by involving the concept of exploitation of space resources and giving the parties the freedom to negotiate the practical details of their obligations related to space debris. While it is still unclear as to whether countries can reach a consensus over the regulation of the exploitation of space resources, the potential method for resolving space debris disputes under the Artemis Accord is most probably going to go arbitration only considering the increasing dominance of the dispute settlement mechanism due to the advantages to the parties involved.

CONCLUSION

While space law has experienced exponential growth over the years due to technological advancements and the entry of both State and private operators, the lack of a proper international framework, especially for resolving disputes related to space debris mitigation, is still at an early stage. The space debris issue itself requires a good technological solution, but till then, Investor-State Arbitration may be used as a tool to enforce liability. Additionally, it may also be used as a tool for the States to understand the responsibility and further contribute towards space debris mitigation.