THE PHANTOM MENACE: PROPOSING A COMPREHENSIVE FRAMEWORK FOR SPACE DEBRIS LIABILITY.

• Author: Fields, Clifford E.

Table of Contents I. INTRODUCTION 87 A. PHYSICS AND POTENTIAL IMPACT 88 II. CURRENT LEGAL FRAMEWORK 90 B. CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS 90 C. CONVENTION ON REGISTRATION OF OBJECTS LAUNCHED INTO OUTER SPACE 91 E. ESTABLISHED MARITIME LAW PRINCIPLES 92 i. PROPRIETARY INTEREST RULE 92 ii. THE RULE OF THE OREGON 93 III. PROPOSAL 94 F. A POINT OF CAUTION 94 G. METHODOLOGY 94 i. UNCLOS MODEL 94 ii. OSLTF MODEL 96 H. PROCEDURE 98 I. CAUSATION 99 J. REGULATIONS 99 i. COLREGS MODEL 100 ii. ICAO MODEL 103 IV. CONCLUSION 105 I. INTRODUCTION

On November 15, 2021, a little before 2 a.m., the seven crew members on board the International Space Station (ISS) were abruptly awakened. (1) A Russian Antisatellite Test (ASAT) successfully destroyed Cosmos 1408, a defunct Russian satellite. (2) The test created a debris cloud, filled with thousands of trackable pieces of debris and potentially hundreds of thousands of pieces of debris too small to track. (3) This cloud orbited the earth at nearly 17,500 miles per hour, and the ISS was in the way of the multiple passes the cloud created. (4) The crew sheltered in a spacecraft located onboard the ISS and remained there for two hours, ready to eject from the ISS at a moment's notice. (5)

The debris cloud caused by the November 15 test is still in orbit, along with 22,000 other pieces of large debris (larger than 10cm/ 4inches, roughly the size of a grapefruit), half a million pieces of medium-sized debris (between half an inch and 4 in.), and over 100 million particles smaller than 1mm (the width of pencil lead). (6) As of September 1, 2021, there were 4,550 satellites in space, and the debris in orbit endangers not only those satellites but all future space exploration. (7)

In 1991, while working at NASA, Donald Kessler released a paper entitled "Collisional Cascading: The Limits of Population Growth in Low Earth Orbit." (8) The paper describes collisional cascading where debris from various sources collides with satellites or other debris creating more debris resulting in "critical population density." (9) When the creation of new debris is greater than what can be removed by orbital decay humanity will have an issue not only protecting our current satellites but also entering space will become more dangerous. This event is called "Kessler Syndrome," and should it occur, it would be an issue for generations. (10) With space becoming heavily corporatized, (11) companies are only adding to the looming threat.

1. PHYSICS AND POTENTIAL IMPACT

   Kinetic energy is the amount of energy an object carries when it is in motion. (12) The formula to calculate kinetic energy is 1/2 mv (2) where "m" stands for mass and "v" stands for velocity. (13) In physics, students are often told to ignore air resistance when doing calculations. In space there is no air resistance, and therefore nothing to slow debris down other than the slowing effect of microgravity. (14) This is a major factor, such that the impact of debris as small as paint chips can significantly damage satellites and other infrastructure in space. If paint chips can cause damage, imagine what a screw could do to a GPS satellite when they collide at 17,500 mph. The velocity of the debris makes it possible for tiny objects to destroy much larger satellites.

   People on the ground utilize satellites every day without thinking of it. From checking the weather is before they leave the house, using high-speed internet or radio, watching television, or using bank services such as debit and credit cards. Damage to a satellite hundreds of miles away from earth could have very disruptive consequences on the ground. The Global Positioning System (GPS) that millions of people use to navigate is run using 31 satellites. (16) Damage to even one of these satellites may prove to be catastrophic. For states or private actors launching these satellites, the costs involved are high. The estimated price for the National Oceanic and Atmospheric Administration (NOAA) to launch and operate two satellites for 22 years is 6.838 billion dollars. (17) This figure represents a cost reduction, (18) and only illustrates the cost for two satellites compared to the thousands of satellites currently in orbit. (19) This figure also does not account for lost profits when a satellite is damaged. Keeping our Low Earth Orbit (LEO), (20) clear of unwanted debris makes the operation of satellites and spaceflight to other celestial bodies safer. (21)

   In September 2020, NASA released the program plan for the Artemis Program (Artemis). (22) Artemis will involve multiple launches of spacecrafts to test different technologies in preparation for human landings on the Moon by 2024. (23) Elon Musk, CEO of SpaceX, stated his belief that SpaceX will land a human on Mars by 2026. (24) It would be a major setback for these projections if a piece of debris collided with one of these expected launches, and a tragedy if said debris collided with a manned flight. As previously stated, the nature of Kessler Syndrome means that collisions of debris and satellites and other spacecraft will only become more likely as time goes on without a comprehensive solution. One of the major issues with the current way we "deal" with space pollution is that we do not have a way to prevent or slow the creation of space pollution. Outside of condemnation from multiple government and corporate entities, the Russian ASAT test will likely go unchallenged.

   This comment will provide an overview of the current legal framework relating to space debris. Specifically, it will cover United Nations Conventions that govern activities in space, United States legislation, and established principles of maritime law. This will be followed by a proposal, offering a comprehensive novel legal framework to enforce liability on space debris-creating countries. This proposal will utilize the current U.N. and U.S. law as a framework. General regulations on space navigation will also be proposed utilizing laws of sea and aviation as a foundation. The scope of this comment is only on debris in LEO and ways of dealing with it through the legal system. Topics including debris in cislunar orbit (orbit between Earth and the Moon) (25) and methods for the removal of space debris will not be covered.

   2. CURRENT LEGAL FRAMEWORK

2. CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS

   The 1972 Convention on International Liability for Damage Caused by Space Objects (Liability Convention) is a U.N. convention that holds states liable for objects they put in orbit; the convention has 98 parties and 19 signatories. (26) The Liability Convention's articles can be summarized as follows. Article I defines important words such as damage, launching and launching state, and space object. (27) Article II imposes absolute liability on launching states that cause damage to the Earth, aircraft, or other space objects. (28) Article IV allows third-party states which have suffered damage to space objects to recover from all parties involved, these parties are jointly and severally liable. (29) Article V reserves the right for launching states, who give damaged states compensation, to present a claim for indemnity to other parties involved in the launch. (30) Article X sets the base for a one-year statute of limitations, allowing for revisions to a complaint to be made if the full extent of the damage is unknown or unrealized at the time of filing. (31) Article XV provides guidelines for a claims commission made up of representatives from the claimant state, launching state, and a third party agreed upon by both states. (32) Article XXII allows international intergovernmental organizations to accept the benefits and burdens of the convention. (33) Article XXIV develops the framework for states to accede to the convention after the 1972 entry into force date. (34)

   The Liability Convention creates a solid framework that allows for a fully realized judicial system related to space debris. However, some critiques can still be offered to improve the Liability Convention. The circular definitions present in Article I should be amended to be less vague. As it stands in Article I, "space object" is defined as "component parts of a space object as well as its launch vehicle and parts thereof" and is largely unhelpful as a definition. (35) Additionally, restricting the claims commission to three members even in the occurrence of multiple claimant/ launching states is a compromise of advocacy. (36) If the joined states must collectively appoint a single member to the commission, this could result in a conflict of interest for one of the parties who lack the opportunity to select a direct representative. The issue of having an even number of commission members could also be solved by the appointment of additional third-party members.

3. CONVENTION ON REGISTRATION OF OBJECTS LAUNCHED INTO OUTER SPACE

   The 1976 Convention on Registration of Objects Launched into Outer Space (Registration Convention) is a U.N. convention that requires states to register important information about space objects; it has 68 parties and three signatories. (37) Two intergovernmental organizations have also become parties to the convention. (38) States that launch space objects must give the following information to the Secretary-General of the United Nations: the launching state(s), the registration number or name of the space object, date and location of launch, orbital parameters, and the function of the object. (39) In a situation where a space object has damaged another object, states may consult the registry for assistance in identifying the launching state of the object. (40)

   This U.N.-compiled database will be useful in deciding the element of causation when it comes to potential future lawsuits. In collaboration with other space debris tracking databases and physics models, the element of causation should have...