Due Regard and Responsibility for Space Debris Mitigation: Hard Law Provision for Protecting the Space Environment?

The Northumbria University Law School is home to an expert Space Law Team researching on current legal issues and challenges in Earth’s orbits, on celestial bodies, and across tech such as governance challenges regarding cybersecurity or the use of AI with satellite systems. The Law School also hosts various space law and regulating tech modules at the undergraduate and master’s levels. The Law School includes two Space Law LLM Programmes: Space Law LLM (full-time) and Space Law LLM (part-time, distance learning). To learn more about space law at the Northumbria University Law School please visit: https://www.northumbria.ac.uk/business-services/research-and-consultancy/space/space-law-and-policy/

Joseph Holden, Space Law LLM student, Northumbria Law School, Northumbria University 

Keywords: Due Regard; Outer Space Treaty; Space Debris; Debris Mitigation, LTS Guidelines, Space Debris Mitigation Guidelines, Space Safety Coalition; UNCOPUOS; Artemis Accords 

Photo by NASA on Unsplash

Introduction: Defining the Space Debris Problem  

According to the European Space Agency’s Annual Space Environment Report, there are 54,000 pieces of orbital debris greater than 10cm, and 130 million objects between 1 mm and 1 cm in Earth’s orbits.  The causes of debris stem from a legacy of discarded space vehicles left in orbit since the dawn of the space age, exemplified recently by the uncontrolled reentry to Earth of failed Russian Venusian exploration probe, Kosmos 482, on 10 May this year, after spending five decades in orbit.  Human-generated debris ranges from spent rocket stages and unused satellites to vehicle parts and flecks of paint.  In Low Earth Orbit (LEO) debris can move at speeds of up to 8 km per second (28,800 km/h), meaning even the smallest piece could pose a significant risk to space systems or human life.  

The crisis has also been accelerated by kinetic anti-satellite (ASAT) demonstrations, such as that carried out by Russia on 15 November 2021 on one of their own satellites in LEO, which subsequently created 1500 pieces of debris.  Similar tests have also been conducted by India, the US and China, demonstrating a disturbing normative behaviour, resulting in a 2022 UN resolution calling on States to halt carrying out such tests.  It has also been predicted that the increasing number of debris could render Earth orbit unusable, in a scenario consisting of spiralling collisions, defined as the ‘Kessler Syndrome’.  The problem is further compounded by rapidly increasing satellite numbers and the birth of satellite mega constellations, leading to an orbital environment described as congested, contaminated and contested by Peter Martinez (Secure World Foundation).  

Applying the Principle of ‘Due Regard’ for Debris Mitigation  

The issue also raises questions about the responsibility for managing the creation of debris.  Remediation of existing ‘legacy’ debris, that which has largely been created by the leading space powers of the US, China and Russia (and the Soviet Union), presents a significant political challenge, exacerbated by geopolitical conflicts.  This article will however explore the binding principle of ‘due regard’, sat within Article 9 of the cornerstone of international space law, the Outer Space Treaty 1967 (OST), and how that could be applied in order to bind States to the currently more feasible approach of debris mitigation, supplemented by existing non-binding frameworks. 

The OST makes no mention of debris, and according to Lyall and Larsen ‘it remains fact that…the mitigation of space debris is a matter of voluntary action, not of clear legal duty…’  Furthermore, it appears that a hard law treaty to tackle debris may not be a likely outcome in the near future.  However, the OST does carry considerable weight, not least because it currently has 116 State Parties, including all leading space nations, but also carries with it the provision for States to administer responsibility for increasingly active non-state and private actors, under Article 6.  In addition, the ‘due regard’ principle within the OST has been applied elsewhere, such as in the US-led, non-binding framework for space exploration, the Artemis Accords, as well as the Moon Agreement 1979, and was the topic of discussion at a symposium help by the IISL at last month’s Legal Subcommittee meeting of the United Nations Committee on Peaceful Uses of Outer Space (UN COPUOS). 

However, taking a closer look at due regard in relation to the principles of the OST itself can provide insight into its applications for debris mitigation.  Firstly, consider Article 9 itself, which requires States to conduct their activities ‘…with due regard to the corresponding interests of all other States Parties to the Treaty…’ and outlines that they shall conduct exploration of space and other celestial bodies ‘…so as to avoid their harmful contamination…’  It also gives provision for States to request consultation with other States, should they believe their activities ‘…would cause potentially harmful interference with activities in the peaceful exploration and use of outer space.’  Due regard is then complemented by, as Goehring describes, ‘…three additional obligations…’, to avoid harmful contamination in space, adverse changes to Earth, and to have capacity for consultations.  We can also interpret the principle as being due regard for others and the environment.   

To mitigate debris, States would then be obliged to take measures to avoid the debris contamination of space, and the potential of uncontrolled debris reentry, which can be achieved by the implementation of existing non-binding principles, such as the Space Debris Mitigation Guidelines (SDMGs).  These guidelines advise actors to implement dedicated design efforts for launch and spacecraft designers to reduce the probability of debris creation, to avoid intentional destruction of vehicles, and to remove vehicles from LEO after the end of their missions within 25 years, among other recommendations.  The US went further to implement a much shorter, 5-year satellite deorbiting rule in 2022.  Furthermore, the Space Safety Coalition provide a best-practice guide on space operations, including measures such as vehicle design to enable on-orbit servicing (OOS) and refuelling through incorporating dockable interfaces on space objects.   

The UN Long-Term Sustainability (LTS) Guidelines also provide guidance, which could assist in supporting the principle of consultations and data-sharing, among others, through guideline B1, requiring States to ‘provide contact information and share information on space objects and orbital events, and guideline B3 to ‘promote collection, sharing and dissemination of space debris monitoring information.’  

Due regard can also be applied to additional principles within the OST.  Article 1 designates outer space as a province of humankind, and that it ‘…shall be free for exploration and use by all States without discrimination of any kind.’  This principle therefore can be interpreted, as written by Goehring, as not encroaching ‘…on the freedoms of others, just as others may not encroach upon your freedoms.’  Therefore, States can be obliged to give due regard in not limiting the freedom of access through the creation of debris.  This could also be applied, arguably, to Article 2, which states that space is ‘… not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.’  Due regard may also then be paid in preventing the occupation of orbital slots with inactive and defunct vehicles, and therefore be guided by the non-binding principles on end-of-life removal.  The international regulator for distributing spectrum and orbital slots, the International Telecommunications Union (ITU), provides similar provision within their Constitution.  Article 44(2) requires that States shall bear in mind that frequencies and orbits are ‘…limited natural resources and that they must be used rationally, efficiently and economically…so that countries or groups of countries may have equitable access…’   

Special attention should also be paid to the due regard principle within the Artemis Accords.  Though non-binding, the Accords now have 55 members, which include leading European nations, the UK, India and Japan.  Firstly, the Accords base themselves on the principles of the OST, ’…including those provisions relating to due regard and harmful interference.’  Section 5 also encourages States to adopt transparency and interoperability standards, which could align with debris mitigation practices for OOS for more sustainable vehicle design.  Furthermore, the Accords apply the use of Article 11 of the OST, which requires States to submit information to the UN on ‘…the nature, conduct, locations and results…’ of space activities.  Although this has been a largely underused Article, with only 74 registrations since 1967, its further implementation was discussed at the Working Group on the Status and Application of the United Nations Treaties on Outer Space at the UN COPUOS legal subcommittee this year.  These yielded an initial draft of registration requirements, which includes providing information on mission management, such as on ‘space debris mitigation & collision avoidance’ and ‘mission disposal plans’, which would satisfy the provision to provide due regard to others and the environment through transparency and information-sharing.   

It must also be mentioned that the Accords make direct provision for the mitigation of debris through Section 12, requiring the ‘…the safe, timely, and efficient passivation and disposal of spacecraft at the end of their missions, when appropriate, as part of their mission planning process.’  They can therefore also be utilised as an additional non-binding mechanism to support the due regard principle for the mitigation of debris.  

Conclusion 

It can therefore be interpreted that due regard, in the context of debris mitigation, should be extended to others and the environment by preventing harmful interference and contamination, and maintaining free access. This can be achieved through consultation and information sharing, as well as through mission-planning and vehicle design processes, guided by soft law frameworks.  Further research though could explore due regard within other frameworks, such as the law of the sea, as well as considerations of how it could be applied as customary international law.   

Space actors are facing increasing challenges, within a fragmented geopolitical environment.  Discussions must be ongoing, using both hard and soft law to face these threats, but also be complemented by mitigation norm-setting and support of nascent industries that are developing mitigation technologies.  The outcomes will not only affect space actors, but an increasing set of stakeholders, as space provides a growing list of benefits for humankind and the planet.