Legal & Policy Issues Surrounding Space Debris Remediation

1. Legal & Policy Issues Surrounding Space Debris Remediation Michael J. Listner, Founder & Principal of Space Law & Policy Solutions Views and opinions presented here are those of the briefer and do not reflect those of the International Space Safety Foundation (ISSF) or the International Institute for Space Law (IISL).

2. Legal & Policy Issues Surrounding Space Debris Remediation • Space debris removal presents significant space situational awareness challenges. • More so, space debris removal will require advances in technology and operational experience to perform en masse. • However, a more onerous challenge is the legal and policy challenges that space debris removal poses to the legal and political environment.

3. Legal Issues • Legal definition • What is “space debris”? • Ownership Issues • Article III of the Outer Space Treaty vests ownership in the launching State. • No right of salvage • Liability • Who is legally and financially liable for space debris clean-up? • Liability for remediation activities • Is there a precedent in international law for debris removal?

4. Policy Issues • The prominent policy issue surrounding space debris removal is the “space weapons” debate. • Methodologies and instrumentalities for debris removal could have dual use. • Soft power maneuvering by the Russian Federation and China could lead to a labeling of space debris removal efforts as employing “space weapons” as defined by the PPWT.

5. Legal Solutions • Current proposals focus on legally-binding treaties or international organizations to address the problem. • The geopolitical reality is that standard approaches to the problem will not be successful. • Solving the legal and policy solutions surrounding space debris removal will take innovative solutions.

6. Legal Solutions (con’t) • Defining “Space Debris” • Instead of a legal definition a more prudent approach is to apply a quasi-legal test for “space debris” • This test would allow a launching State to determine whether one of its space object is indeed “space debris” and can be disposed of. • Instead of applying a technical definition, the focus of the test would be on the current nature of the space object.

7. Legal Solutions (con’t) • “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.

8. Legal Solutions (con’t) • Solutions to liability issues are two-pronged. • First, grant a blanket amnesty from liability to existing space debris. In exchange, a state would agree to certain conditions such as: • The state will have continuing liability for any damage caused by a space object to aircraft or on the surface of the earth under Article III of the Liability Convention and will still be considered bound by the treaty; • The state would agree that the waiver would only apply to space debris created within a certain timeframe, therefore creating a cutoff date to which the waiver would apply; • The state would agree to implement and abide by space debris mitigation standards that meet or exceed the UN Debris Mitigation Guidelines for all future launches.

9. Legal Solutions (con’t) • The second prong involves limiting liability for state actors performing remediation activities. • The crux of limiting liability is the understanding that space debris remediation activities are inherently risky. • grant of limitation of liability would not preclude the necessity of protocols and agreed-upon practices for space debris removal • It might be a bitter political pill to swallow for some, and geopolitics will likely figure heavily into such a decision.

10. Policy Solutions • Solving the policy challenges of space debris remediation will be more difficult. However, existing space law and future custom may help pave the way. • Switzerland’s Clean Space One may mark a trail whereby a customary norm for space debris removal can be created; however, • It will require the action of prominent space faring nation to solidify a customary norm. • Invoking Article IX of the Outer Space Treaty may assist in quieting soft power posturing regarding “space weapons”.

11. Further Reading • Legal issues surrounding space debris remediation • Addressing the challenges of space debris, part 1: defining space debris • Addressing the challenges of space debris, part 2: liability • Addressing the challenges of space debris, part 3: policy

12. Questions Further questions or comments may be directed to Michael J. Listner, Founder & Principal of Space Law & Policy Solutions. Michael@spacelawsolutions.com