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Space Security and Legal Aspects of Active Debris Removal pp 49–70Cite as

Between Active Debris Removal and Space-Based Weapons: A Comprehensive Legal Approach

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Part of the book series: Studies in Space Policy ((STUDSPACE,volume 16))

Abstract

The growing population of space debris has the potential to seriously compromise the exploration of and access to outer space. It is now generally agreed that large portions of Earth’s orbits are on the threshold of an irreversible situation making the removal of non-functional space objects a necessity. While the technologies to carry out removal operations are being developed, the outer space legal regime has not kept the pace with these challenges. Active debris removal technologies present both opportunities and risks. The dual use nature of these technologies is one of the most challenging questions, as the same technology could be used to deorbit debris or damage functional satellites. In the light of these considerations, this analysis discusses how the space law regime applies to these issues with the purpose of setting out possible legal solutions based on the interrelations between active debris removal technologies and space weaponization.

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Notes

  1. 1.

    Joseph N. Pelton, New Solutions for the Space Debris Problem (Springer, 2015) at 1.

  2. 2.

    NATO Parliamentary Assembly ‘The space domain and allied defense’ (Defense and Security Committee, Draft Report - 068 DSCFC 17 E, (20 March 2017) at 1.

  3. 3.

    SpaceSecurity.org, Space Security 2013, at 23; Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (Martinus Nijhoff, 2008) at 32.

  4. 4.

    Firooz Allahdadi, Isabelle Rongier, Paul D. Wilde, Safety Design for Space Operations (Elsevier, 2013) at 17.

  5. 5.

    ESA, ‘Space debris by the numbers’ available at http://www.esa.int/Our_Activities/Operations/Space_Debris/Space_debris_by_the_numbers accessed 3/11/2017.

  6. 6.

    IADC Space Debris Mitigation Guidelines (2002) available at http://www.iadc-online.org/Documents/IADC-2002-01,%20IADC%20Space%20Debris%20Guidelines,%20Revision%201.pdf.

  7. 7.

    Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, as annexed to UN doc. A/62/20 (2007).

  8. 8.

    Towards Long-term Sustainability of Space Activities: Overcoming the Challenges of Space Debris, A Report of the International Interdisciplinary Congress on Space Debris, January 2011, UN doc. A/AC.105/C.1/2011/CRP.14, at 5.

  9. 9.

    According to Guideline 4 “intentional break-ups” could be “necessary”, in this case “they should be conducted at sufficiently low altitudes to limit the orbital lifetime of resulting fragments”. Space Debris Mitigation Guidelines (n.7).

  10. 10.

    Joseph N. Pelton, Space Debris and Other Threats from Outer Space (Springer, 2013) p. 2; Firooz Allahdadi, Isabelle Rongier, Paul D. Wilde (n.4) at 18,576; “The term “Kessler Syndrome” is an orbital debris term (…) that grew out of a 1978 JGR paper predicting that fragments from random collisions between catalogued objects in low Earth orbit would become an important source of small debris beginning in about the year 2000 (…) While popular use of the term may have exaggerated and distorted the conclusions of the 1978 paper, the results of all research to date confirms that we are now entering a time when the orbital debris environment will increasingly be controlled by random collisions.” Donald J. Kessler, Nicholas L. Johnson, J.-C. Liou, Mark Matney ‘The Kessler Syndrome: Implications to Future Space operations’ (33rd annual AAS guidance and control conference, Breckenridge, Colorado, February 6–February 10 2010) at 1, available at http://webpages.charter.net/dkessler/files/Kessler%20Syndrome-AAS%20Paper.pdf accessed 21/10/2017.

  11. 11.

    Lotta Viikari, ‘Environmental aspects of space activities’ in Frans vor den Dunk, Fabio Tronchetti (eds.), Handbook of Space Law (Edward Elgar, 2015) p. 757; 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, 27 January 2012, U.N. Doc. A/AC.105/C.1/2012/CRP.16, pp. 8–15; Firooz Allahdadi, Isabelle Rongier, Paul D. Wilde (n.4) p. 18: Pelton (n.1) at 7.

  12. 12.

    Pelton (n.1) at 8.

  13. 13.

    Ibid.

  14. 14.

    C. G. Henshaw, ‘The DARPA Phoenix Spacecraft Servicing Program: Overview and Plans for Risk Reduction’, Proceedings of 12th International Symposium on Artificial Intelligence, Robotics and Automation in Space (Montreal, Canada, 2014); Active Debris Removal (n.11) at 27.

  15. 15.

    Jason L. Forshaw, Guglielmo S. Aglietti, Thierry Salmon, et al, ‘Final payload test results for the Remove Debris active debris removal mission’ (2017) 138 Acta Astronautica 326; See also Hrishik Mishra and Phillip Schmid, ‘Motion And Parameter Estimation For The Robotic Capture Of A Non-Cooperative Space Target Considering Egomotion Uncertainty’ (Symposium on Advanced Space Technologies in Robotics and Automation ASTRA, 20–22 June 2017, Leiden) asserting “The Deutsche Orbitale Servicing Mission (DEOS) from German Aerospace Center (DLR) was considered pivotal in steering the narrative in On-Orbit Servicing (OO-Servicing) towards capture of a non-cooperative spacecraft as a mission objective to secure and de-orbit uncontrollable satellites”.

  16. 16.

    Adopted on 19 December 1966, opened for signature on 27 January 1967, in Washington, Moscow and London, entered into force on 10 October 1967, 610 UNTS 205.

  17. 17.

    Status of International Agreements Relating to Activities in Outer Space as at 1 January 2017, U.N. doc. A/AC.105/C.2/2017/CRP.7, available at http://www.unoosa.org/documents/pdf/spacelaw/treatystatus/AC105_C2_2017_CRP07E.pdf. Accessed 03/11/2017.

  18. 18.

    Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res. 1962(XVIII) [hereinafter Declaration].

  19. 19.

    “(…) the provisions of the Principles Declaration are virtually identical to their equivalents in the Outer Space Treaty, it is probable they can all be considered to have crystallised into customary law.” Ricky J. Lee, Steven R. Freeland, ‘The Crystallisation of General Assembly Space Declarations into Customary International Law’ (54th International Astronautical Congress of the International Astronautical Federation, the International Academy of Astronautics, and the International Institute of Space Law 29 September–3 October 2003, Bremen, Germany); J. I. Gabrynowicz, ‘The Outer Space Treaty and enhancing space security’, UNIDIR, Building the Architecture for Sustainable Space Security: Conference Report 30–31 March 2006, at 113.

  20. 20.

    Convention on International Liability for Damage Caused by Space objects, 29 March 1972, 961 UNTS 187 (hereinafter Liability Convention); Convention on Registration of Objects Launched into Outer Space, 29 November 1971, UNGA Res. 3235 (XXIX) (hereinafter the Registration Convention); Agreement on the Rescue of Astronauts and the Return of Objects Launched in Outer Space, 22 April 1968, 672 UNTS 119; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 December 1979, 1363 UNTS 3.

  21. 21.

    Active Debris Removal (n.11) at 33.

  22. 22.

    Boleslaw Adam Boczek, International Law: A Dictionary (The Scarecrow Press, 2005) at 328.

  23. 23.

    Joshua Tallis, ‘Remediating Space Debris, Legal and Technical Barriers’ (2015) 9(1) Strategic Studies Quarterly 86.

  24. 24.

    Lotta Viikari, ‘Environmental aspects of space activities’ (n.11) at 757.

  25. 25.

    Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 70–71; Marietta Benko, et al., Space Law: Current Problems and Perspectives for Future Regulation (Eleven International Publishing, 2005) at 41–42.

  26. 26.

    Stephan Hobe, et al., Cologne Commentary on Space Law, vol.1 (Carl Heymanns Verlag, 2009) at 495.

  27. 27.

    Micheal N. Shaw, International Law (8th edn, Cambridge University Press, 2017) at 483.

  28. 28.

    Gbenga Oduntan, Sovereignty and Jurisdiction in Airspace and Outer Space: Legal Criteria for Spatial Delimitation (Routledge, 2012) at 180; Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies: a proposal for a legal regime (Martinus Nijhoff, 2009) at 202.

  29. 29.

    Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 33.

  30. 30.

    Ogunsola O. Ogunbanwo, International law and outer space activities (Martinus Nijhoff, 1975) at 82.

  31. 31.

    Joyeeta Chatterjee, Legal Issues Relating To Unauthorised Space Debris Remediation (65th International Astronautical Congress, Toronto, Canada, 2014) at 7.

  32. 32.

    Active Debris Removal (n.11) at 31; Joshua Tallis (n.23) at 91; Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 82.

  33. 33.

    Lyall and Larsen, Space Law: A Treatise (Routledge, 2016) at 84; Ram S. Jakhu, Joseph N. Pelton, Global Space Governance: An International Study (Springer, 2017) at 123.

  34. 34.

    Article VII of the Outer Space Treaty provides: “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.”

  35. 35.

    Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 65.

  36. 36.

    Benko (n.25) at 43.

  37. 37.

    The second sentence of Article I of the Outer Space Treaty provides: “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”

  38. 38.

    International Law Commission, “Draft Articles on Responsibility of States for Internationally Wrongful Acts” Official records of the General Assembly, 56th Sess., Supp. no. 10 (A/56/10); International Law Commission, Yearbook Of The International Law Commission, vol. II pt.2 (Report of the Commission to the General Assembly on the work of its fifty-third session, 2001) U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) at 72–74.

  39. 39.

    Firooz Allahdadi, Isabelle Rongier, Paul D. Wilde (n.4) at 583; Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 36.

  40. 40.

    International Law Commission, Yearbook Of The International Law Commission (n.38) at 74.

  41. 41.

    To avoid these issues, some authors even suggest “[that] future regulatory mechanisms for debris removal could even require that space debris be declared to be under no one’s “jurisdiction and control”; otherwise removal mechanisms not capable of distinguishing between different kinds of objects could end up being in violation of the UN space law” Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 83.

  42. 42.

    SpaceSecurity.org, Space Security 2008, at 25 noting that “debris in orbits above 600 kilometers will remain a threat for decades and even centuries.” available at http://spacesecurityindex.org/wp-content/uploads/2014/10/SSI2008.pdf.

  43. 43.

    Active Debris Removal (n.11).

  44. 44.

    Fabio Tronchetti (n.28) at 24–25; See also Ricky J. Lee, Steven R. Freeland (n.19).

  45. 45.

    Ibid.

  46. 46.

    “the current environment [of LEO] is already above a critical density, even 100% compliance with these [Space Debris Mitigation] guidelines would not prevent the debris environment from increasing.” Donald J. Kessler, Nicholas L. Johnson, J.-C. Liou, Mark Matney (n.10) at 12–13.

  47. 47.

    Active Debris Removal (n.11) at 24–28.

  48. 48.

    M. N. Schmitt, ‘International Law and Military Operations in Space’ in A. von Bogdandy, R. Wolfrum (eds.) Max Planck Yearbook of United Nations Law (vol. 10, 2006, Brill Academic Publishers) at 90–94.

  49. 49.

    Air Force Gen. John E. Hyten, commander of the United States Strategic Command, ‘U.S. Strategic Command Perspectives on Deterrence and Assurance’ (Speech at the Stanford University’s Center for International Security and Cooperation, California, 24 January 2017) available at http://cisac.fsi.stanford.edu/sites/default/files/transcript_stratcom_-_hyten_160125_no_qa.pdf; see also Michael Krepon & Christopher Clary, Space Assurance or Space Dominance? The Case Against Weaponizing Space (Henry L. Stimson Center, 2003) at 10–27 (asserting that “Today, space assets play a much larger role in the real-time enhancement of military operations” and describing satellite’s contributions to military navigation, remote sensing, communications, and weaponry).

  50. 50.

    Art.2 (4) of the United Nations Charter provides as follows: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

  51. 51.

    Fabio Tronchetti ‘A Soft Law Approach to Prevent the Weaponisation of Outer Space’ in Irmgard Marboe (ed) Soft Law in Outer Space: The Function of Non-binding Norms in International Space Law (Böhlau Verlag 2012) 361–386.

  52. 52.

    “China, Russia and the United States all possess these capabilities. India’s recent development of a layered missile defence system indicates it is likely to have the capability (at least in the near-term) of direct-ascent ASAT capabilities. Japan, Israel, and France can also be considered turn-key ASAT players in today’s international space defence environment, as they are currently only barred from entry by the political will to do so, rather than by technological capabilities” NATO Parliamentary Assembly (n.2) at 6.

  53. 53.

    Unidir, Outer Space and Global Security (Unidir/2003/26) at 15; John Kierulf, Disarmament under International Law (McGill-Queen’s University Press, 2017) at 154; Adam G. Quinn, ‘The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space’ (2008) 17 Minn. J. Int’l L. 475, 494.

  54. 54.

    Steven Freeland, Jackson Maogoto, ‘Space Weaponization and the United Nations Charter Regime on Force: a Thick Legal Fog or a Receding Mist?’ (2007) 41(4) The International Lawyer 1091.

  55. 55.

    Detlew Wolter, Common Security in Outer Space and International Law (UNIDIR 2005) [emphasis added] at 34–37.

  56. 56.

    Bahman Zohuri, Directed Energy Weapons: Physics of High Energy Lasers (HEL) (Springer, 2016) at 81 [emphasis added].

  57. 57.

    Detlew Wolter (n.55); CARLO KOPP, ‘The E-Bomb: A Weapon Of Electrical Mass Destruction’ Proceedings Of Infowarcon V, Washington, DC, September 1996.

  58. 58.

    SpaceSecurity.org, Space Security 2014, at 7. Available at http://spacesecurityindex.org/wp-content/uploads/2014/11/Space-Security-Index-2014.pdf.

  59. 59.

    Ibid.

  60. 60.

    Pavle Kilibarda, ‘The Militarization of Outer Space and Liability Convention’ (2015) 40(3) Air and Space Law 271.

  61. 61.

    Fabio Tronchetti, Fundamentals of Space Law and Policy (Springer, 2013) at 9; Johannes M. Wolff “Peaceful uses’ of outer space has permitted its militarization: does it also mean its weaponization?’ (2003) Disarmament Forum at 7.

  62. 62.

    Paul G. Dembling, Daniel M. Arons ‘The Evolution Of The Outer Space Treaty’ (1967) 33 Journal Of Air Law And Commerce 419,433; Detlew Wolter (n.55) at 17.

  63. 63.

    “The most recent attempt to achieve [a treaty concerning space weaponization] is the Russia/China Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects, submitted to the Conference on Disarmament in 2008 and 2014 […] Although the Draft Treaty may be regarded as a point of departure in the formulation of a treaty prohibiting the weaponisation of outer space, the criticism that has been raised by governments against the draft document makes it unlikely that it would be easily accepted by the majority of states […] In addition, there also seems to be still some concern regarding Russia and China’s motives with the Draft Treaty, which are considered by some observers as an attempt to limit their adversaries’ military capabilities”. Anél Ferreira-Snyman ‘Selected Legal Challenges Relating to the Military Use of Outer Space, with Specific Reference to Article IV of the Outer Space Treaty’ (2015) 18(3) Potchefstroom Elec. L.J. 488.

  64. 64.

    Ram S. Jakhu, Joseph N. Pelton, Global Space Governance: An International Study (n.33) at 274.

  65. 65.

    NATO Parliamentary Assembly (n.2) at 1.

  66. 66.

    Transparency and confidence-building measures in outer space activities, Report of the Secretary-General, 16 February 2017, U.N. Doc. A/72/65.

  67. 67.

    Wolff (n.61) at 8.

  68. 68.

    Space Security 2014 (n.58) at 78; Kevin Pollpeter ‘China’s Space Robotic Arm Programs’ (2013) SITC Bulletin Analysis.

  69. 69.

    NATO Parliamentary Assembly (n.2) at 1.

  70. 70.

    OECD, The Space Economy at a Glance 2014 (2014, OECD publishing) at 64.

  71. 71.

    C. M. Scaparotti, “Joint Publication 3–14, Space Operations,” US Department of Defense, Joint Chiefs of Staff, Washington, D.C., 2013, at 9. Available at http://www.dtic.mil/doctrine/new_pubs/jp3_14.pdf.

  72. 72.

    Firooz Allahdadi, Isabelle Rongier, Paul D. Wilde (n.4) at 583.

  73. 73.

    Donald J. Kessler, Nicholas L. Johnson, J.-C. Liou, Mark Matney (n.10) at 13.

  74. 74.

    Eugene Levin, Jerome Pearson, Joseph Carroll, ‘Wholesale Debris Removal From Leo’ (2012) 73 Acta Astronautica 100.

  75. 75.

    “it has been suggested already several decades ago that the principles concerning jurisdiction and control of Article VIII of the OST balanced with those of Article IX regarding states’ obligation to conduct their activities in outer space with due regard to the corresponding interests of other states would result in a qualified right to de-orbit inactive satellites” Lotta Viikari, The Environmental Element in Space Law, Assessing the Present and Charting the Future (n.3) at 82.

  76. 76.

    George S. Robinson, Harold M. White, Envoys of Mankind: A Declaration of First Principles for the Governance of Space Societies (Smithsonian Institution Press, 1986) at 181.

  77. 77.

    Active Debris Removal (n.11) at 8.

  78. 78.

    Eugene Levin, Jerome Pearson, Joseph Carroll (n.74) at 16.

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  1. Department of Law, Politics and International Studies, University of Parma, Parma, Italy

    Matteo Frigoli

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  1. European Space Policy Institute, Vienna, Austria

    Annette Froehlich

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Frigoli, M. (2019). Between Active Debris Removal and Space-Based Weapons: A Comprehensive Legal Approach. In: Froehlich, A. (eds) Space Security and Legal Aspects of Active Debris Removal. Studies in Space Policy, vol 16. Springer, Cham. https://doi.org/10.1007/978-3-319-90338-5_4

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