The Right to (Anticipatory) Self-Defence in Outer Space to Reduce Space Debris

Froehlich, Annette

doi:10.1007/978-3-319-90338-5_5

Annette Froehlich^12,13

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

902 Accesses
1 Citations

Abstract

Active debris removal is currently being widely discussed, because the simple mitigation of the creation of new space debris is no longer sufficient to guarantee the sustainable use of outer space. However, these discussions have encountered various difficulties due to the fact that the authors of the specialized UN space treaties, at the time of their drafting, did not take into consideration the many potential consequences of increased space activities, such as the problem of space debris, among others. The lack of clarity on how to handle this problem concerns not only the definition of space debris, but also the ways and means to address it, including the rights and obligations of involved operators.

In this setting, the EU initiative for an International Code of Conduct for Outer Space Activities is to be highlighted as an attempt at clarity in this domain, especially as it envisages the possibility of using the right of self-defence to avoid the creation of space debris. This right must be assessed in the context of existing international norms, such as the provisions of the UN Charter on the notion of self-defence. Its application in the frame of active space debris removal is being questioned by some Member States, and Russia is currently advocating holding a debate on self-defence in UNCOPUOS. Discussions and initiatives in the UN First Committee must also be taken into account as these are also seeking security and safety in outer space by examining the aspect of self-defence.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 89.00; Price excludes VAT (USA)

Hardcover Book: USD 119.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
ESA, Space debris, http://www.esa.int/Our_Activities/Operations/Space_Debris/FAQ_Frequently_asked_questions.
2.
Their catalogue registers objects larger than 5–10 cm in low-Earth orbit (LEO) and 30 cm to 1 m at geostationary (GEO) altitude.
3.
ESA, About space debris, https://www.esa.int/Our_Activities/Operations/Space_Debris/About_space_debri; See also: Orbital Debris Quarterly News, https://www.orbitaldebris.jsc.nasa.gov/quarterly-news/newsletter.html.
4.
Total mass of all space objects in Earth orbit: About 7500 tonnes, figures provided by ESA’s Space Debris Office at ESOC, http://www.esa.int/Our_Activities/Operations/Space_Debris/Space_debris_by_the_numbers.
5.
ESA, Earth Online, https://earth.esa.int/web/guest/missions/esa-operational-eo-missions/envisat.
6.
ESA, About space debris, https://www.esa.int/Our_Activities/Operations/Space_Debris/About_space_debris.
7.
ESA, About space debris, https://www.esa.int/Our_Activities/Operations/Space_Debris/About_space_debris.
8.
NASA, Space Debris and Human Spacecraft, https://www.nasa.gov/mission_pages/station/news/orbital_debris.html.
9.
Reconsidering Space Debris: Can Space Junk Be Useful? In: Futurism, https://futurism.com/reconsidering-space-debris-space-junk-useful/.
10.
The launching state is defined in this Art. VII OST as the state “that launches or procures the launching of an object into outer space, (…), and each State Party from whose territory or facility an object is launched”.
11.
Art. 1b REG.
12.
IADC is an international governmental forum for the worldwide coordination of activities related to the issues of man-made and natural debris in space, https://www.iadc-online.org/.
13.
UNGA Res. 62/217, 21 December 2007, International cooperation in the peaceful uses of outer space, para. 26.
14.
Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, p. 1, pt. 1, http://www.unoosa.org/pdf/publications/st_space_49E.pdf.
15.
ESA, Space debris, http://www.esa.int/Our_Activities/Operations/Space_Debris/FAQ_Frequently_asked_questions.
16.
NASA, Space Debris and Human Spacecraft, https://www.nasa.gov/mission_pages/station/news/orbital_debris.html.
17.
Corinne Contant-Jorgenson, Petr Lála, Kai-Uwe Schrogl (eds.), IAA Cosmic Study on Space Traffic Management, 2006, p. 40, https://iaaweb.org/iaa/Studies/spacetraffic.pdf.
18.
Art. IX OST.
19.
Art. IX OST.
20.
The United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, http://www.un-documents.net/unchedec.htm.
21.
The United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.
22.
ICJ, Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) judgment of 25 September 1997, para. 140, http://www.icj-cij.org/files/case-related/92/092-19970925-JUD-01-00-EN.pdf.
23.
ICJ, Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) judgment of 25 September 1997, para. 140.
24.
In the domain of soft law, Guideline 6 of the UNCOPUOS Space Debris Mitigation Guidelines, which enjoins parties to “Limit the long-term presence of spacecraft and launch vehicle orbital stages in the low-Earth orbit (LEO) region after the end of their mission” recommends that “Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the LEO region should be removed from orbit in a controlled fashion”, http://www.unoosa.org/documents/pdf/spacelaw/sd/COPUOS-GuidelinesE.pdf. This UNCOPUOS guideline is non-legally binding and it is questionable if all space debris are covered by Guideline 6 as spacecrafts and launch vehicle orbital stages are only expressis verbis mentioned. Nevertheless it can be concluding that this embrace also its components.
25.
Art. VIII OST.
26.
Art. VIII OST.
27.
Art. II para. 1 REG.
28.
Art. II para. 2 REG.
29.
See above.
30.
European External Action Service (EEAS) (2014): Draft International Code of Conduct for Outer Space Activities, Version 31 March 2014, https://eeas.europa.eu/sites/eeas/files/space_code_conduct_draft_vers_31-march-2014_en.pdf.
31.
EU External Action, Security and Sustainability in Outer Space, 14.01.2015, https://eeas.europa.eu/headquarters/headquarters-homepage/8466/security-and-sustainability-outer-space_en.
32.
EU External Action, Security and Sustainability in Outer Space, 14.01.2015, https://eeas.europa.eu/headquarters/headquarters-homepage/8466/security-and-sustainability-outer-space_en.
33.
Resolution 61/75 on Transparency and confidence-building measures in outer space activities, 2006, A/RES/61/75.
34.
Resolution 62/43 on Transparency and confidence-building measures in outer space activities, 2007, A/RES/62/43.
35.
“Refrain from any action which brings about, directly or indirectly, damage, or destruction, of space objects unless such action is justified”, European External Action Service (EEAS) (2014): Draft International Code of Conduct for Outer Space Activities, p. 6, https://eeas.europa.eu/sites/eeas/files/space_code_conduct_draft_vers_31-march-2014_en.pdf.
36.
See: IV.1. Russian approach for a uniform interpretation of the right of self-defence in outer space in conformity with the UN Charter. p. XX.
37.
Art. III OST.
38.
Art. IV OST.
39.
ESA, Clean space, http://www.esa.int/Our_Activities/Space_Engineering_Technology/Clean_Space/e.Deorbit.
40.
A ballistic flight would therefore not be a violation of the treaty, but it is controversial whether weapons systems, which cover only part of their flight path in space, are really allowed. Therefore, in 1972, the United States and the Soviet Union signed the ABM (Anti-Ballistic Missiles) treaties to limit missile defence systems, as it was unclear whether these space-based systems were covered by the prohibition of Art. IV OST.
41.
Jeff Foust, U.S. Dismisses Space Weapons Treaty Proposal As “Fundamentally Flawed”, in: Spacenews.com, 11.09.2014, http://spacenews.com/41842us-dismisses-space-weapons-treaty-proposal-as-fundamentally-flawed/.
42.
Art. III OST.
43.
Art. 2 (4) UN Charter.
44.
Nicaragua Case, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), I.C.J. Report 1986, para. 190.
45.
Art. 51 UN Charter.
46.
It is therefore an advantage to register space objects as this is the sole way to exercise suzerainty rights over them and to defend them in case of peril.
47.
Nicaragua Case, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), I.C.J. Report 1986, para. 194. http://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf.
48.
International Law Commission (ILC), Draft articles on ‘Responsibility of States for Internationally Wrongful Acts’, text adopted by the Commission at its fifty-third session in 2001 and submitted to the UN General Assembly, http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.
49.
ILC, Draft articles on ‘Responsibility of States for Internationally Wrongful Acts’, Art. 20.
50.
ILC, Draft articles on ‘Responsibility of States for Internationally Wrongful Acts’, Art. 21.
51.
ILC, Draft on ‘Responsibility of States for Internationally Wrongful Acts’, 2001, http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.
52.
Art. 25, para. 1.
53.
Art. 25, para. 1a.
54.
Art. 25, para. 1b.
55.
ICJ, Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) judgment of 25 September 1997, para. 54.
56.
The destruction of the small vessel Caroline occurred on 20 December 1837.
57.
The Caroline Case, British-American Diplomacy, http://avalon.law.yale.edu/19th_century/br-1842d.asp.
58.
Daniel Webster, Letter from Daniel Webster, US Secretary of State to Henry Fox, British Minister in Washington, 24 April 1841, p. 1138.
59.
Kinga Tibori Szabó, Anticipatory Action in Self-Defence, 2011, p. 292.
60.
The National Security Strategy of the United States, September 2002, www.whitehouse.gov/nsc/nss.html.
61.
The National Security Strategy of the United States, September 2002, www.whitehouse.gov/nsc/nss.html.
62.
Edward G. Ferguson/John J. Klein, It’s Time for the U.S. Air Force to Prepare for Preemption in Space -Without a preemption strategy, the United States is vulnerable-, 22 April 2017, https://warisboring.com/its-time-for-the-u-s-air-force-to-prepare-for-preemption-in-space/.
63.
UNCOPUOS, 58th session, Vienna, A/AC.105/L.294, 29 April 2015.
64.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 5: Ways and means of maintaining outer space for peaceful purposes, 12 June 2017, pp. 1–2.
65.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 5: Ways and means of maintaining outer space for peaceful purposes, 12 June 2017, p. 2.
66.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 5: Ways and means of maintaining outer space for peaceful purposes, 12 June 2017, p. 2.
67.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 5: Ways and means of maintaining outer space for peaceful purposes, 12 June 2017, pp. 2–3.
68.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 5: Ways and means of maintaining outer space for peaceful purposes, 12 June 2017, p. 3.
69.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 4: General exchange of views, 7 June 2017.
70.
Statement by the Delegation of the Russian Federation at the 60th session of the Committee on the Peaceful Uses of Outer Space on agenda item 4: General exchange of views, 7 June 2017, pp. 3–4.
71.
UNCOPUOS, 58th session, Vienna, A/AC.105/L.294, 29 April 2015, p. 1, pt. 1.
72.
UNCOPUOS, 58th session, Vienna, A/AC.105/L.294, 29 April 2015, p. 2, pt. 2.
73.
UNCOPUOS, 58th session, Vienna, A/AC.105/L.294, 29 April 2015, pp. 2–3, pt. 3.
74.
European Union/External Action, Statements on behalf of the EU, Geneva, 16 June 2017, https://eeas.europa.eu/headquarters/headquarters-homepage/28329/conference-disarmament-working-group-way-ahead-eu-statement-prevention-arms-race-outer-space_en.
75.
European Union/External Action, Statements on behalf of the EU, Geneva, 16 June 2017, https://eeas.europa.eu/headquarters/headquarters-homepage/28329/conference-disarmament-working-group-way-ahead-eu-statement-prevention-arms-race-outer-space_en.
76.
Draft ‘Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects’ (PPWT), https://www.unog.ch/80256EDD006B8954/(httpAssets)/C4CD83AD4A8B4797C1257CF3003AC425/%24file/1319+Russian+Federation+Draft+Updated+PPWT+.pdf.
77.
United Nations General Assembly Session 61 Verbatim Report 67, A/61/PV.67, p. 6, 6 December 2006.
78.
Art. 1b draft PPWT.
79.
Art. 1c draft PPWT.
80.
Art. IV draft PPWT.
81.
Resolution A/RES/69/32, 12 December 2014, initially co-sponsored by Brazil, China and Russia.
82.
United States Mission to the United Nations, Explanation of Vote in the First Committee on Resolution L.54, Agenda Item 97(b): No First Placement of Weapons in Outer Space, New York, 30 October 2017, https://usun.state.gov/remarks/8084.
83.
Staff Writers, UN passes resolution banning arms race in outer space, SpaceDaily, 05.12.2014, http://www.spacedaily.com/reports/UN_Passes_Russian_Proposed_Resolution_Banning_Arms_Race_in_Outer_Space_999.html.
84.
Explanation of Vote delivered by Estonia on behalf of European Union Member States, pt. 8.
85.
Explanation of Vote delivered by Estonia on behalf of European Union Member States, pt. 9.
86.
Explanation of Vote delivered by Estonia on behalf of European Union Member States, pt. 10.
87.
Report of the Committee on the Peaceful Uses of Outer Space, Sixtieth session, 7–16 June 2017, A/72/20, pt. 8.
88.
Report of the Committee on the Peaceful Uses of Outer Space, Sixtieth session, 7–16 June 2017, A/72/20, pt. 9.

Author information

Authors and Affiliations

European Space Policy Institute (ESPI) Seconded by DLR (German Aerospace Center), Vienna, Austria
Annette Froehlich
University of Cape Town at SpaceLab, Cape Town, South Africa
Annette Froehlich

Authors

Annette Froehlich
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Annette Froehlich .

Editor information

Editors and Affiliations

European Space Policy Institute, Vienna, Austria
Annette Froehlich

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Froehlich, A. (2019). The Right to (Anticipatory) Self-Defence in Outer Space to Reduce Space Debris. 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_5

Download citation

DOI: https://doi.org/10.1007/978-3-319-90338-5_5
Published: 28 November 2018
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-90337-8
Online ISBN: 978-3-319-90338-5
eBook Packages: Social SciencesSocial Sciences (R0)

Publish with us

Policies and ethics