The Status of the Operational Debris Mitigation Systems Regulatory Policy: Current Issues and Future Perspectives
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A strong and dynamic technological progress in the space sector is shaping a new set of rules, apting primarily to the preservation of the space environment and the savage exploitation of its resources. When focusing on what can be considered the greatest challenge of this still young century, the space debris issue, one cannot refrain from questioning whether such fast-moving technical and technological progress has a solid match in the current legal, policy and political framework: do they go hand in hand, or is the second structurally incapable of keeping up with the rapidly evolving nature of the first? The paper will involve a deep analysis and legal and policy issues for future operational debris mitigation systems, essential step to draft a set of specific rules, agreed at national and international level, for a governance and regulation framework. What is lacked is a soft law instrument, internationally agreed, that can enforce such decisions on States’ behalf, for the sake of the sustainability and ongoing security of the space environment. These aspects are very sensitive and they involve constraints in relation to the national sovereignty and to the identification of “commercial” actors that could invest and operate in these domains. The maritime law can offer some frame of reference to solve this issue. Specifically, the international law of salvage in high seas, as outlined in the International Convention on Salvage, IMO 1989, may establish a similar regime, in space, for abandoned spacecraft with. In this regard, the pivotal role of the International Telecommunication Union (ITU) in setting a regulation for the Active Debris Removal missions (ADR), in the years to come, should not be underplayed. Since this agency is in charge of promoting and coordinating the definition of technical standards, as well as of assigning satellite orbits, it might be able to establish itself as the referral organization for the issuing of finally binding space debris mitigation rules. It is crucial to have an institution capable of maintaining the balance (both technical and political) between multiple stakeholders, and security and environmental constraints. So much of the future of space activities will depend on how those rules will succeed in limiting the growing amount of floating debris in space.
KeywordsDebris Exploration Legal framework Space sustainability Mitigation
Are the “Space debris” a threat for Space Exploration? Some effects of legal uncertainty.
The tendency to overcome limits confirms an unavoidable desire of knowledge inherent in all human being (That lies in space which I in time come to, ineluctably—Ulysses).
Despite the new technology innovations, the ambitious plan relating to exploration and commercial exploitation of extraterritorial resources implies the need of a legal certainty at national and international levels.
Protecting outer space from damages caused by negligence or breach of duty should foster new legislative efforts and finally a new instrument of hard law.
But a shifty logic of sovereignty continues to guide the International Community toward choosing benefits of soft law, namely flexibility and escape clauses.
If we contextualize Durkheim’s thought, the French sociologist who lived in the mid-nineteenth and twentieth centuries, we would say that managing debris as a social phenomenon is involving measurement of its detrimental effects, subjugating individual interests to collective’s one.
In accordance with the principles contained in the Outer Space Treaty, the space institutions aim to pursue “the benefit and the interests of all countries, irrespective of their degree of economic or scientific development”.
This provision is essential for a comparative analysis between the Space Law and principles governing law of the sea, especially about sustainability and protection of natural resources.
The international community, however, is guided by unspoken rules of sovereignty to ensure greater flexibility of action at the expenses of the progressive development of the law and its codification.
Following the new geopolitical order of 1970s, the negotiation of two new international treaties (Moon Agreement, 1979 and Law of the Sea, 1982)  occurred at the same time with the intention of redefining States responsibility in a newly international cooperation framework.
Despite common provisions, their codification process led to a different end-effect, giving rise to conclusion that outer space was still a privilege of a few.
As time went on, the lack of ratification of The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies was a clear sign of a weak legal framework into the worldwide order, as it has been until now.
2 Law of the Sea and Legal Status of Outer Space: Performance of Environmental Prevention and Salvage Operations
The adoption of the International Convention on Salvage in 1989 and the overcome of “no cure no pay” rule marked a step forward in the management of maritime environment.
to carry out the salvage operation with due care (art. 8);
to take measure to protect coastline or related interest from pollution or threat of pollution following upon a maritime casualty (art. 9);
to give a reward to encouraging salvage operation (art. 12).
Any claim to seek to guarantee such protection in outer space led to non-legally binding results.
That is why Space Debris Mitigation Guidelines—2007 of the Peaceful Uses of Outer Space is the weak example of another one of the many voluntary political engagements, that had become a well-established practice.
An excerpt from the preface of Space Debris Mitigation Guidelines—2007 “all man-made objects, including fragments and element thereof, in Earth orbit or re-entering the atmosphere, that are non-functional”, which the rapidly growth increases the probability of collision and justifying “the prompt implementation of appropriate debris mitigation measures towards preserving the space environment for future generations.”
Using descriptors such as “minimize”, “avoid” and “limit” points up a series of structural weaknesses and underlines the idea that the guarantor of their application is the recipient itself “sed quis custodiet ipsos custodes?”—VI Satira, Giovenale.
Even up to today, the only binding policy provisions related to the return of objects launched into outer space are contained in the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of objects launched into outer space of 1968 but with the sole aim of recognizing duties of each contracting party and launching authority.
Nonetheless article 5, paragraph 4 could represent a shy hint of the issues of environmental protection in outer space. It is based on the provision that it is extremely important reacting and eliminating any space object or its component which may be considered as potentially harmful.
This interpretation could be a bit of a stretch: the agreement is mainly guided to promote international cooperation and providing all possible assistance to astronauts.
Lastly, in accordance with article 6, the launching authority should pay the costs incurred to recover and return space object but, unlike IMO Convention, there is no reference to a possible reward. Thus, there is a shy hint to act, but it is not clear to what extent though.
3 The Long-Term Sustainability as Advantage Over Potential Competitors
The space race also manifests itself in terms of competition for the implementation of “ambivalent” strategies.
It has been reported that China has developed a strategy that rests on non-destructive and no debris-generating system, from just few weeks ago, overcoming an incident event in ASAT testing 2007. This have also brought with it implementation of a satellite with robotic arm hooking up also non-cooperating objects.
Fears have also been expressed that the robotic arm may be used in military operations. Clearly, it stressed the importance of ensuring that sustainability of outer space can be realized through the promotion of progressive development of international space law.
Promoting awareness of this issue should be sought through a plurality of legal and scientific efforts with a motivated incentive to open data.
Therefore there is the need to ensure sustainability of outer space and increase actions aimed to space data monitoring and extraterrestrial mining of resource contained in celestial bodies.
4 The Virtuous Circle of a Lacking Discipline and Authority
When dealing with the space debris issue, and specifically with the policy, politic and normative aspects of it, it might be legitimate to wonder whether it is the lack of an agreement over them, between the major stakeholders in the space sector (i.e., States, public and private companies, international organizations, etc.), that actually makes it quite hard to identify an established authority, capable of being unanimously accepted as an official overseer on the space activities, or it is rather the absence of a postulated akin authority, that produces the failure to reach an internationally shared settlement to face such a crucial issue.
The matter needs to be carefully unraveled step by step, starting from further fundamental questions that are to be posed: should the above said authority be a new one, explicitly created for this purpose, or should it be appointed an already existing institution? And, if this the case, which one? Would it be suitable to promote, drive and guarantee the legal certainty and standardization, if necessary coercing States into it, to safeguard the long-term sustainability of outer space activities, and the balanced exploitation of its resources?
During preparatory process period head of UNISPACE +50, Committee on the Peaceful Uses of Outer Space identified seven thematic priorities: the idea was intended to foster implementation of the legal regime of outer space and global space governance. Based on the above, the Committee intended to conduct an evaluation by potential initiatives introducing legal mechanisms necessary to achieve the safety and sustainability of space operations.
The Chair of the Working group on the Status and Application of the Five United Nations Treaties on Outer Space noted the lack of exhaustiveness relating to semantic richness of some notions.
Reference is made specifically to notions of “fault”—as reported in articles III and IV of the Convention on International Liability for Damage caused by space object—and of “damage”—as reported in article I of the Liability Convention.
Furthermore, as indicated by the Chair, what would happen if there was a need for traffic rules in outer space as a prerequisite of a fault-based liability regime ?
Also the “Space2030”  agenda, hoping a collaboration between the Office for Outer Space Affairs and industry entities, encouraged efforts aimed to promote transparency and sustainability of space activities through the pillars of space economy, space diplomacy, space accessibility. In line with a view to straighten a space global governance, General Assembly looked at “Space 2030” as a strategic overview leading-up UNISPACE +50 conference engaging all key stakeholders in the space arena.
5 International Telecommunication Union and Space Debris Regulation
In the current global panorama, one institution could seem more suitable than others to foster an understanding on security challenges in space, and that would be the International Telecommunication Union (ITU).
Founded in 1865, the ITU is the United Nations agency tasked with allocating “global radio spectrum and satellite orbits [developing], the technical standards that ensure networks and technologies seamlessly interconnect, and [striving] to improve access to ICTs to underserved communities worldwide” .
When addressing the matter of space debris and of de-orbiting, in the recent past and hitherto, the ITU has mostly issued recommendations. One of the most notable has been, for instance, the December 2010 Recommendation ITU-R S.1003-2, concerning the “Environmental protection of the geostationary-satellite orbit”. In here, the role of the agency comes into play because of the increasing threat posed by spacecrafts fragments, resulting in multiplying debris crowding the orbit at stake.
The document, only one of a series in this decade, aims to ensure “the rational, equitable, efficient and economical use of the radio-frequency spectrum by all radiocommunication services, including satellite services, and carry out studies without limit of frequency range on the basis of which Recommendations are adopted” , providing then direction and guidelines to national and international space operators.
By definition though, an act of recommendation is not binding, and this explains the dampened effects of provisions such as the one, expressed therein, that cites: “before complete exhaustion of its propellant, a geostationary satellite at the end of its life should be removed from the GSO region such that under the influence of perturbing forces on its trajectory, it would subsequently remain in an orbit with a perigee no less than 200 km above the geostationary altitude”, or even “the transfer to the graveyard orbit removal should be carried out with particular caution in order to avoid RF interference with active satellites”.
Nevertheless, for the ITU to ultimately assume the leadership no other international organization could yet, that of the process of lawmaking regarding outer space activities, at least where fragmentation debris objects are involved, is still something missing: the legal basis on which the ITU should (and could) take on that responsibility and, subsequently, the extent of such responsibility itself.
6 The ITU Role in Guaranteeing Space Security Against the Debris Threat
As mentioned before, one of the duties of the ITU is to oversee the definition of technical standards for the use of radio waves, and so, directly and indirectly, the functioning of, and the proper access to, the interconnection between the ICT infrastructures all around the world. This means that, through one of its three internal sectors, the ITU-R, the assignation of satellite orbits is already part of its statutory activities. Furthermore, since the 1973 ITU Convention, article 33, defined the Geo-stationary orbit (GEO) as a “limited natural resource” , many decades passed, and ITU continued its rationalization attempts of the orbit use for telecommunication purposes, thus shaping, in the form of resolutions and recommendations, an incomparable technical and political legacy that, as extremely valuable is today, even more will be in the future, with additional private operators joining orbits exploitation.
As things stand, it would be a natural consequence to just broaden ITU mandatory sphere of action to the debris issue, rather than deferring it in the expectation that, eventually, an agreement over the institution of a new ad hoc regulatory body will be reached soon.
The second reason for believing that ITU would be the most logical option for a leadership role lies in its very structure: in fact, it has the peculiar characteristic of being the sole and only U.N. agency to have both public and private sector enrollment. With its 193 Member States, about 700 tech companies, ICT regulators and leading academic institutions, ITU is perfectly capable of establishing itself as the global funnel for the different stakeholders, and for all space players’ interests. The efficiency and immediacy of the dialog between governments and private entities, in particular, would benefit from this choice, and also from the technical asset that the ITU is the bringer and guarantor of.
7 Discussion: Fairway Charges in Space, a Starting Point for Space Debris Mandatory Regulation?
A last question still remains, and consists in determining how the international law could support the investiture of ITU as the organization of reference for space debris mitigation norms, providing it the legal basis on which to eventually act.
Since the dawn of the space era, the maritime law has always been the essential yardstick for the monitoring and regulation of outer space activities. A number of provisions are even similar, both in phrasing and in content (adapted, of course, to the different contexts), with the first one serving as a model and inspiration for the latter.
Especially in relation to the high seas discipline, this becomes more evident. And this is why a study on the applicability of the fairway charges rulebook in space, albeit with some variations, could be the starting point for consistently assuring the efficient use of the spectrum/orbit resource .
In maritime law, the en-route rights are governed by the 1972 IMO Convention concerning International regulations for preventing collisions at sea (COLREGs 72) , which was drafted and adopted as an updated version of the 1960 Collision regulations.
The Convention, and its subsequent amendments, lays down rules on a crucial issue in the maritime environment, that of the naval traffic in the sea, aiming at reducing the risk of collision between vessels, through the introduction of traffic separation schemes, and in particular through the establishment of priorities between routes and actions to be taken, for instance in case of overlapping trajectories.
The equation vessels = spacecrafts and routes = orbits would indeed bear some interesting outputs, benefitting the management of spacecraft especially on the most crowded orbits, afflicted by the increasing presence of debris. Provisions such as the one that cites: “a vessel which was required not to impede the passage of another vessel should take early action to allow sufficient sea room for the safe passage of the other vessel. Such vessel was obliged to fulfill this obligation also when taking avoiding action in accordance with the steering and sailing rules when risk of collision exists” (Rule 9), would shape the basis for an obligation, upon the launching States, to take all possible and preventive action not to impede the passage of other spacecraft on the orbit. Extensively, this would result in de-orbiting measures to be mandatory planned in advance, and set in motion before the spacecraft operational life comes to an end, so to clear the path as required by the rule.
Moreover, Rule 17 states that a stand-on vessel may “take action to avoid collision by her maneuver alone as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules”. Transposed for our purposes, that would pose States which command operative spacecraft, risking collision with a “dead” one, on an upper decisional level than the State that owns the latter, broadening the borders of their maneuver power.
The same would go with responsibility issues, where Rule 18 “includes requirements for vessels which shall keep out of the way of others” . Indeed, this would open new scenarios as for the framework of international liability and responsibility for damage between two or more launching States, with the rules currently in force being called into question.
8 Heading to a Space Traffic Management Policy
29,000 objects > 10 cm,
750,000 objects from 1 cm to 10 cm,
166 million objects from 1 mm to 1 cm.
Furthermore, of the 4300 satellites still in space, it has been estimated that only 1200 are still functioning: less than 28% of the total.
The awareness about this problem seems to be increasing, and maybe heading to concrete measures to levee it, as the United States’ National Space Council announced, on 16th April 2018, that it would be submitting new recommendations to the scrutiny of the President.
Making this a priority on the Government’s space agenda, is evidence of the fact that the unstable polluted state of the space environment can no longer be sustained, not even in the short-medium term, when so much of the economy and resilience of national security systems depends on space infrastructures.
For this reason, the development of the first far-reaching Space Traffic Management Policy, this year under imminent approval by the US, can be considered a milestone in the direction of a space debris limiting regulation, although only a national act, for the time being.
What is interesting is also the projected distribution of roles between the Defense and the Commerce Departments: while the first will maintain tracking and monitoring of space objects duties, the latter will have to widen the range of services provided, becoming the first interlocutor of civilian and commercial satellite operators.
Such process is expected to take a few years, during which the Commerce Department will be prepared to take on a whole new set of responsibilities, supervised by NASA. Not only the issue of constantly updated traffic management guidelines, but also, most notably, the maintenance of an information catalogue shared with the Department of Defense. Other administrations will also be joining these efforts: the Ministry of Transportation will be the authority regarding “standards and best practices for pre-launch risk assessments and on-orbit collision assessments” , whilst further guidelines, along with a policy aimed at assuring international openness, will be fostered by the State Department.
A global agreement may not be achievable yet, but acting on a national level first, hoping to spread a traffic management policy regionally and then, ultimately, internationally, seems like the best immediate solution and an effective option to follow.
By way of conclusion, maritime law can really be a platform where space law can grow. It remains to be seen to what degree, and with what means, the international institutions and operators will want, and be able, to replicate the same successful model in space.
The lack of a certain discipline may allow States and private competitors to try to get an advantage from this situation, to achieve self-serving goals.
Therefore, sustainability of outer space will be really guaranteed not only with the development of the law governing celestial bodies, but also with the codification of the legal status of extra-terrestrial natural resources, as is the case for “Area”  and its resources beyond the limits of national jurisdiction.
Undoubtedly, our planet is running out of room and of its resources, so it may be necessary a future plan to regulate extra-terrestrial mining, without ruling out a commercial perspective.
In the text
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