LAW AS AN INSTRUMENT TO SOLVE THE ORBITAL DEBRIS PROBLEM.

• Author: Kisiel, Edwin

1. INTRODUCTION 224 II. Background 225 III. Discussion. 227 A. Current Laws and Treaties 228 1. Outer Space Treaty 228 2. Liability Convention 229 3. Customary International Law 232 4. International Court of Justice. 232 B. Proposed Legal Solutions 233 1. Using CERCLA as a Model for Cleanup Liability. 233 2. International Arbitration 236 3. Implementation of the Proposal 237 4. Limitations of This Approach 238 IV. Conclusion 239 I. INTRODUCTION

   Over the last fifty years, the exploration and use of outer space has presented unprecedented opportunity for international cooperation and connectivity. (1) In addition to its civilian uses, governments rely on space systems to provide global secured communications, positioning, navigation, timing, intelligence, surveillance, and other functions. (2) However, global reliance on continued, uninterrupted access to space comes at a cost. Due to the growing amount of space debris, we are increasingly at risk of space becoming unusable. This is the premise of the Kessler Syndrome, where space debris collides with satellites, creating a cascade of further debris. (3) The cascade results in whole regions of space being littered with too much debris to safely operate a satellite. (4) From an economic perspective, it may become financially impracticable to operate satellites in various regions of space before it actually becomes physically impossible. (5) Entire regions of Earth's orbit could be inaccessible for millennia. (6) This presents a dangerous, disruptive scenario that could severely impair global communication, navigation, financial transactions, government activity, and national security.

   While the number of space users has been increasing exponentially, the laws governing the use of space have largely remained static. A new era of environmentally responsible use of space is necessary to ensure the continued availability of space resources. An ideal arrangement would be multilateral treaties to mandate binding international arbitration to assess liability for parties creating orbital debris. Liability for orbital debris damages and cleanup should be assessed in a similar manner to the United States' Comprehensive Environmental Response, Compensation, and Liability Act (7) (CERCLA) statute. As a starting point, a major spacefaring nation could enact this as a national law. For example, since the United States is such a large commercial player in space, enacting responsible domestic law would have far-reaching effects on the space industry and would provide momentum and world leadership toward developing an international law solution.

2. BACKGROUND

   Space has become exponentially more crowded over the last few years. (8) Currently, there are over 2,000 operational satellites and over 5,000 total space objects in orbit. (9) New technologies such as reusable launch vehicles and miniaturization of satellites allow for more users to launch more satellites into orbit, especially at the low-Earth orbit (LEO) level. (10) The U.S. Space Force operates a program known as the Space Fence radar, which seeks to track over 200,000 objects and debris in orbit. (11) The Space Fence operates as part of an overall Space Surveillance Network of other satellites and telescopes to provide a comprehensive catalogue of space objects so that satellite operators can avoid other space objects. (12) Despite these efforts, several collisions have happened, (13) and the risk from space debris is only growing larger. (14)

   Space debris is non-functional "artificial objects including fragments and elements thereof, in Earth orbit or re-entering the atmosphere." (15) Space debris can be parts of satellites or launch vehicles, (16) or items left behind or lost by astronauts, such as tools or personal items. (17) There are an estimated 1 million pieces of debris larger than 1 centimeter in diameter and approximately 130 million total pieces of debris. (18) These objects can travel at speeds around 18,000 miles per hour. (19) The vast majority of space debris is in LEO, defined as between 500 to 2,000 kilometers from the Earth's surface. (20)

   Debris fields are created by orbital collisions or disintegration of space objects. (21) In 1996, a rocket stage exploded, creating 700 pieces of debris. (22) In 2007, China destroyed one of its satellites with an anti-satellite missile, creating thousands of pieces of debris in a busy area of LEO. (23) In 2009, an Iridium constellation satellite accidentally collided with a defunct Russian satellite, creating over 2,000 pieces of debris. (24) This debris can remain in orbit for longer than a century. (26) Between 2015 and 2016, four satellites disintegrated, creating over 100 pieces of debris. (26) Debris fields can make parts of space unusable. Collisions in space create debris that exponentially causes further collisions and resulting debris. (27) At a certain point, it is no longer viable to operate satellites in these regions of space because of the density of orbital debris and risk of collision. (28)

   Satellites and the International Space Station (ISS) use thin-wall designs, which are susceptible to puncture from space debris. (29) The ISS orbits the Earth at 17,150 miles per hour. (30) In 2016, a tiny piece of debris less than a micrometer in size--the size of "a paint flake or small metal fragment"--collided with the ISS and took a chip out of the eighty centimeter-thick reinforced window. (31) While this particular piece was too small to pose danger, "debris up to 1 cm could cause critical damage while anything larger than 10 cm could 'shatter a satellite or spacecraft... . "' (32) Compounding the problem, debris smaller than five centimeters in diameter is impossible to track and avoid. (33)

   Since orbital debris is a developing problem, there are several approaches being taken to clean up space debris and remove navigational hazards from the space environment. Private companies and governmental organizations are developing and testing means of capturing and rendering space debris harmless. The European Space Agency (ESA), in conjunction with private developers, is commissioning a satellite that uses robotic arms to capture orbital debris and bring it down to burn up in the Earth's atmosphere. (34) The mission, known as ClearSpace-1, is set for execution in 2025. (35) Another project, known as Obsolete Spacecraft Capture and Removal (OSCaR) is under development by a team at Rensselaer Polytechnic Institute in New York. The concept is a fleet of small satellites (known as CubeSats) steered by artificial intelligence that would seek out space debris, capture it with nets and tethers, and fly the debris into Earth's atmosphere to burn up. (36) In 2018, the University of Surrey's RemoveDEBRIS satellite was launched from the ISS and successfully demonstrated that space debris could be captured by a net. (37) The technology to remove orbital debris is advancing at a rapid pace, surpassing what was considered feasible several years ago. (38) Now that technology is advancing to develop a solution to orbital debris, the legal framework must catch up.

3. DISCUSSION

   The Outer Space Treaty (39) and Liability Convention (40) are the primary sources of space law with provisions useful in resolving orbital debris issues. (41) However, these treaties do not provide a solution for the current problem because they were developed in a much different context: When the treaties were developed, space was a new domain, and there were only two major governmental players. (42) The last few decades have witnessed the rise of commercial space enterprise, and there are now thousands of satellites in orbit from many nations and private corporations. (43) Space law must adapt to the changed--and changing--circumstances to provide a solution to the threat posed by orbital debris.

   1. Current Laws and Treaties

      The current body of law that touches orbital debris includes the Outer Space Treaty, Liability Convention, and customary international law. However, these legal tools do not provide an adequate solution to solve the debris problem because the current body of law fails to fully address the problem and does not provide enforceable remedies.

      1. Outer Space Treaty

         The Outer Space Treaty forms the bedrock of space law. (44) One of the core principles of the treaty is that parties "shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space... with due regard to the corresponding interests" of the other parties. (45) Additionally, parties "shall pursue studies of outer space ... and conduct exploration of them so as to avoid their harmful contamination ... . " (46) In terms of liability, the Outer Space Treaty provides that,

         Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the moon and other celestial bodies. (47) The Treaty also provides that nations may seek to consult if there is reason to believe that a party's activities in space would "cause potentially harmful interference ... in the peaceful exploration and use of outer space," but the Treaty fails to outline an adjudication mechanism. (48) While the Outer Space Treaty provides aspirational language for parties to avoid creating orbital debris, (49) it does not have an enforcement mechanism.

      2. Liability Convention

         Under the Liability Convention, fault liability goes back to the launching state for a "space object." (50) The Liability Convention provides that,

         [i]n the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State...