The Concept of Outer Space

Outer space may be define as the world that exist beyond the earth and surrounded by the celestial bodies. At present there’s no universally precise legal, political or technical definition which is able to justify precisely what is outer space. One of the important factor preventing agreement on the definition and delamination of outer space is that the lack of consensus on the criteria for setting such delimitation or the borderlines[1]. Although the word delimitation has been occurred in the Committee on the Peaceful Uses of Outer Space, a body of United Nations since 1966[2] no agreement has yet been reached. The main problem is that the Air law has never come across the term airspace as being the oldest body of law dealing with the space. Hence the idea of the outer space has not been discussed in any legislation. There are some proposed definitions of Outer Space, like:[3]

Any region of space beyond limits determined with regards to the boundaries of a celestial body or system, especially[4]

1. The region of space straightaway beyond Earth’s atmosphere.
2. Celestial bodies or interstellar space.

So at present there is a high need of universal definition of the outer space which will able to explain what exactly the term outer space means.

Legal status of outer space

Treaties and conventions are considered to be the important source of Space Law. Due to lack of many case laws and customs, treaties are majorly regarded as the sources. These maintain an Office of Outer Space (OOSA) in Vienna, Austria.

Treaties on Outer Space

The summary of 5 basic Treaties of outer space law which puts certain terms and conditions over the parties to the treaty:

Treaty on Principles Governing The Activities of States in The Exploration and Use of Outer Space, Including The Moon and Other Celestial Bodies 1967

This treaty is considered as the basic treaty that governs the outer space law. The fundamental or preliminary principle of this treaty is that the space is subject of all humankind and all the nations have equal access to space and sources contain within the outer space.

Agreement on the Rescue of Astronaut the Return of Astronauts and the Return of Objects Launched into Outer Space 1968

The agreement expands on the duties introduced within the outer space treaty to render help to astronauts in destress.

Convention on International Liability for Damage Caused by Space Object,1972

This convention has two fold purpose:

1. 1. To prescribe rules of international liability or damage caused by space object
   2. To provide a procedure for the promote payment of a full and equitable measure of compensation of victim of such damage.

Convention on Registration of Objects Launched into Outer Space,1976

According to this treaty launching state have to register the space object.

Agreement Governing the Activities of State on the Moon and Other Celestial Bodies,1984

This agreement become necessary due to the article 4 of this agreement, which provides that the state party can’t place any object carrying nuclear weapon of mass destruction or any other kinds of weapon of mass destruction[5].

With the assistance of this five international treaty the whole international space law is being govern. However now the countries are also promoting their own national legislation due to the reason of, entry of private companies in space exploration.

Issue of space debris

The word “space debris” is totally absent from international space law – i.e. the five treaties commonly known as ‘space treaties’ plus United Nations General assembly resolutions providing for authoritative, albeit as such non-binding principles. But the article IX of the outer space treaty coming closely handling this issue. The state have the obligation to “avoid harmful contamination of outer space (forward contamination), as well as adverse changes within the Earth resulting from the introduction of extra-terrestrial matter” (backward contamination)[6]. This Article is the basis on which states have the obligation to “adopt appropriate measures” and therefore act to prevent changes in the space environment.

The increase number of space activities has created a vehicular junk in outer space which can also called as the orbital space debris which consist of many things such as the non-functional space crafts also the small parts of it which had been lost during the extravehicular activities[7]. The space debris especially the non-functioning space craft become a navigational hazard to the space craft satellite which are functional in there Geostationary Satellite Orbit, and thus it creates the high possibility of collision of the space crafts. The increased number of objects that are in orbit has made the case of space debris a real problem. The issue of space debris is an imminent one as it was evidenced by the collision of two satellites in orbit for the first time in 2009[8]. As Kleiman points out: “If enough debris accumulates, it will become virtually impossible to operate spacecraft in Earth orbit”[9].

Neither the United Nations space treaties mentioned above nor the recent amended and newly enacted legislation, are able to address this issue of space debris at it level best. Under the Liability convention of 1972 it is said that the “launching state is liable for damage caused to a space object or to persons or property on board of another state”. With this there are two argument advanced arises that: on one hand the difficulty in proving the negligence has caused as space trafficking rules are not systematically exist[10]. Whereas on the other hand the question arises that who is going to take the responsibility of space debris as the Outer Space treaty says that the space is free for exploration to all the nations equally and there is no sovereignty exist in space.

Also the issues of the definition of the word “space debris” arises as there is no binding definition provided in any of the treaty which are considered as the source of the Space Law. Even though it is accepted that the term space debris means the everything from small parts to the dead satellite[11]. The Registration Convention also has relevance, since the availability of information can be essential in the case of a collision between space objects providing identification. Some important steps have been taken for addressing the degradation of the outer space environment at national[12] and international[13] level.

Guidelines

In the year 2009 at international level, “Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space”[14] has been adopted which was originally drafted in year 2002. The text distinguishes two main sources of space debris: (a) the accidental and intentional break-ups and (b) the debris released during the operation launch of the vehicle. The guidelines encompass seven provisions and are based on the distinction between near- and long-term measures. They are as follow[15]

• Limit debris release during nominal operations
• Minimize break-up potential during operations
• Limit accidental in-orbit collision probability
• Avoid intentional destruction & harmful activities
• Limit the probability of post-mission break-up
• Limit the long-term presence of spacecraft and launcher orbital stages in the LEO protected region re-entry objects resulting from this recommendation must not pose an undue risk to the ground population
• Limit the long-term interference of spacecraft and launcher orbital stages with the GEO protected region.

The implementation of this guidelines and the strict rules regarding space vehicular traffic management will help to reduce the problem of space debris. The UNCOPUOS Space Debris Mitigation Guidelines do not provide the complete solution to the problem but it is to be known as a remarkable. The process to establish binding rules for this issue is a slow one, due to two major factors according to Schrogl: first, “space powers did not want to develop rules jointly with states not involved in space activities” and secondly “they are reluctant to bind themselves to technical modifications that are necessary in order to harmonize with the guidelines”[16] [17]. The most important reason behind the increase in space debris is the commercialisation of the space law which allows the private space crafts to explore the outer space. One of the possible solutions to the space debris issue is the establishment of a piece of legislation similar to the law of salvage under maritime law, which will eliminate any possibility of removing another country’s debris without permission to be considered illegal, since the UN space treaties recognize no termination of the jurisdiction and control over a space object[18]. To overcome with this issues now there is a high need of universal definition which defines exactly defines what exactly comes under the meaning of space debris.

With this view we can conclude that there is only one provision which partially deal with the issue of space debris is article IX of Outer Space Treaty. With the commercialisation of the space exploration this issue is going to a future challenge in space exploration. With the changes in liability convention which makes liable to the launching state for space debris caused by it. Also there is high need to enact and compulsory implementation of space legislation to overcome this issues.

 

 

[1] https://www.elgaronline.com/view/9781785369612/06_chapter1.xhtml.  (lastly accessed on 20/05/2020).

[2] https://www.unoosa.org/pdf/gadocs/A_58_20E.pdf  page number 35, point number 3, (lastly accessed on 20/05/2020).

[3] https://www.lawctopus.com/academike/outer-space-law-problem-space-debris/ (lastly accessed on 20/05/2020).

[4] http://www.thefreedictionary.com/outer+space  ( lastly accessed on 20/05/2020).

[5] https://media.nti.org/documents/moon_agreement.pdf (lastly accessed on 21/05/2020).

[6] https://www.unoosa.org/pdf/publications/STSPACE11E.pdf article IX of Outer Space Treaty,1967. (lastly accessed on 21/05/2020).

[7] Listner, M., 2011. International Space Law: An Overview of Law and Issues. New Hampshire Bar Journal, 52(1), pp. 62-71.

[8] Williams, M., 2011. Space Debris as a ‘Single Item for Discussion’. Proceedings of the International Institute of Space Law, 4(1), p. 333.

[9] Kleiman, M. J., 2010. Space Law 101: An Introduction to Space Law, Washington, DC: American Bar Association: Young Lawyers Division 101 Practice Series

[10] Viikari, L., 2015. Environmental aspects of space activities. In: F. von der Dunk & F. Tronchetti , eds. Handbook of space law. Cheltenham and Northampton: Edward Elgar Publishing: Research Handbooks in International Law, pp. 717-769.

[11] The term in use at deliberations in UNCOPUOS refers to all man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional. For more information, see Tortora, J.J (2011)

[12] Johnson, N., 18-20 April 2005. Orbital debris research in the US. Darmstadt, Germany, Proceedings of the Fourth European Conference on Space Debris,

[13] UN, 2012. Active Debris Removal — An Essential Mechanism for Ensuring the Safety and Sustainability of Outer Space. A Report of the International Interdisciplinary Congress on Space Debris Remediation and On-Orbit Satellite Servicing , Vienna, https://www.unoosa.org/pdf/limited/c1/AC105_C1_2012_CRP16E.pdf (lastly accessed on 21/05/2020).

[14] https://www.unoosa.org/documents/pdf/spacelaw/sd/COPUOS-GuidelinesE.pdf(lastly accessed on 21/05/2020).

[15] https://www.lawctopus.com/academike/outer-space-law-problem-space-debris/(lastly accessed on 22/05/2020).

[16] Schrogl, K.-U., 2011. Space and its sustainable uses. In: C. Brunner & A. Soucek, eds. Outer Space in Society, Politics and Law. Wien and New York: Springer in Space Policy Volume 8, pp. 604-618.

[17]https://www.essc.esf.org/fileadmin/user_upload/essc/Article_Current_Trends_and_Challenges_in_Space_Law.pdf  page number 21, (lastly accessed on 22/05/2020).

[18]  Schwetje, K., 1990. Liability and Space Debris. In: K. Böckstiegel, ed. Environmental Aspects of Activities in Outer Space: State of the Law and Measures of Protection. Cologne: C. Heymanns Velag, pp. 36-40.

Author: Amey Jadhav,
Maharashtra National Law University, Aurangabad