Section V. Regulation & Legislation
Addressing the Inevitable: Legal and Policy Issues Related to Space Debris Mitigation and Remediation
THE increasing proliferation of space debris represents a major and pressing challenge, given the threats it poses to space activities as well as to the environment both in space and on Earth. However, as seems to be increasingly the case for activities characterised by rapid technological development, there is no binding legal framework currently in place to comprehensively address the issue. Article IX of the 1967 Outer Space Treaty only briefly touches upon environmental aspects of space, focusing on harmful contamination and the prevention of harmful interference with the space activities of States. More specific and technical standards for the mitigation of space debris have been established in non-binding and voluntary guidelines adopted by the Inter-Agency Space Debris Coordination Committee (IADC) and the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), complemented by the text of guidelines recently agreed upon by COPUOS aimed at promoting the long-term sustainability of outer space activities. In addition to mitigation standards, COPUOS is also addressing the issue of other legal mechanisms relating to ‘space debris and remediation measures’, but thus far has not reached a conclusion as to what is possible and practicable. Debris mitigation and, in particular, remediation measures raise many technical, economic and political questions. The legal aspects of remediation also appear challenging: essential matters such as control and jurisdiction over space objects, liability in case of damage during remediation operations, and intellectual property regarding sensitive data and technology, each raise complex questions that require careful consideration as to the most appropriate mechanisms for regulation. This chapter proposes to examine some of the primary legal and policy challenges - and opportunities - related to the regulation of space debris, in terms of both mitigation and remediation.
Outer space is a critical area upon which the world has grown increasingly dependent. Already during the Cold War, its highly strategic character was acknowledged, with both the United States and the Soviet Union striving to demonstrate their superiority by gaining access to outer space in a fierce competition that came to be known as the ‘space race’ [1,2]. The rapid evolution of technology since that period has led outer space to play a key part in most human activities.
Along with the increase in use of, and reliance upon, outer space, the multiplication of space objects has resulted in heavy pollution of the space environment, threatening the future use of space. Space debris has become a major concern within the international community, requiring an urgent and coordinated response, in terms both of mitigation and of remediation of space debris.
This chapter will first emphasise the main elements of the issue of space debris through an overview of the current factual situation and the threats it entails (Section 6.2). Existing treaty law will then be examined in order to understand the current legal framework relating to - and its inadequacy to regulate - the question of space debris (Section 6.3). Non-binding, technical standards have emerged regarding debris mitigation and must continue to develop (Section 6.4). On the other hand, remediation efforts, although indispensable, still give rise to unresolved and complex legal issues. These questions - and possible approaches for solving them - will be examined in the final section (Section 6.5).
SPACE DEBRIS: A PRESSING ISSUE_
Before delving into the intricacies of the current legal framework, as well as its lacunae and opportunities, it is necessary to provide some factual background and context regarding space debris.
In spite of the existence of several instruments aiming to regulate space debris at national, regional and international levels, there exists no universally accepted nor legally binding definition of space debris in international instruments . The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) is considered as the main forum for issues relating to activities in outer space. In 2007, COPUOS adopted the Space Debris Mitigation Guidelines. These define space debris as:
All man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional .
This definition was drawn from a set of guidelines adopted by the Inter-Agency Space Debris Coordination Committee (IADC) in 2002  and was accepted by the UN General Assembly as part of the endorsement of the COPUOS Space Debris Mitigation Guidelines as a whole [6, Para. 26].
Traditionally, space debris has been broken down into four categories: inactive payloads, operational debris, fragmentation debris, and micro-particulate matter. The first category, inactive payloads, comprises satellites and spacecraft which have become inoperative after a mission and are no longer controlled by operating entities on Earth. Operational debris, on the other hand, refers to mission-related objects and parts of spacecraft which are released during the launching phase and discarded when they are no longer in use. In-orbit break-ups caused by explosions, collisions and accidents in space, lead to the creation of fragmentation debris. Finally, micro-particulate matter arises from shedding from the surface of in-orbit objects confronted with the extremely hostile environment of outer space [7, pp. 3-8].
Major debris-generating events, such as collisions and intentional destructions of satellites, have further contributed to creating a significant increase in the number of space debris.
In January 2019, the European Space Agency estimated that 34,000 space debris objects larger than ten centimetres were currently gravitating in orbit. The number swells to 900,000 for objects between one and ten centimetres, reaching 128 million regarding objects from one millimetre to one centimetre .
The threats posed by space debris are widely acknowledged and this chapter will not delve into the details of the hazards created by the current situation. However, it is worth noting that these threats have been recognised in the 2007 Space Debris Mitigation Guidelines, in which COPUOS stressed that:
[as] the population of debris continues to grow, the probability of collisions that could lead to potential damage will consequently increase.
This refers to the concern, shared by many States and experts, of a vicious circle in which increasingly frequent incidents would in turn generate more space debris, which would further increase the risk of damage to spacecraft [12, p. 802]. The exponential proliferation of space debris had already been predicted in 1978 by NASA scientists D. J. Kessler and B. G. Cour-Palais. They pointed out the risk of creating a ‘debris belt’ around Earth as the frequency of collisions increased, eventually rendering outer space nearly un-navigable [15, pp. 2637-2646].
The COPUOS Space Debris Mitigation Guidelines also highlight a second significant threat resulting from the growing population of space debris, namely the ‘risk of damage on the ground, if debris survives Earth’s atmospheric re-entry’. Although most debris returning to Earth burn up due to the extremely high temperatures, there have already been several accounts of pieces of space debris surviving their journey through Earth's atmosphere and crashing on the ground or in the oceans [9, pp. 40- 41]. Such impacts can cause significant damage to property and life on the Earth's surface. The probability of returning debris resulting in personal injury has been estimated to be of the order of one in ten thousand .
-  ‘It must be noted that different categories of space debris potentially give rise to differentlegal issues, in terms of definition or liability for instance.
-  See also Gupta. V. “Critique of the International Law on Protection of the Outer SpaceEnvironment.” [8, p. 21],Viikari. L. "The Environmental Element in Space Law: Assessing thePresent and Charting the Future.” [9. pp. 35-36]
-  ■’These events include the destruction by China of its own satellite (Fengyun-lC) in 2007,followed by a similar operation by the United States of America on one of its own satellitesand, in March 2019, the intentional destruction by India of its own spacecraft. The Iridium33-Kosmos 2251 collision in 2009 also resulted in the creation of thousands of debris. SeeNational Aeronautics and Space Administration (2014, January), “Fengyun-lC Debris CloudRemains Hazardous.” [10, pp. 2-3], National Aeronautics and Space Administration (2019,August). “Two Breakup Events Reported.” [11, pp. 1-2]. See also McCormick. P. K. “Spacedebris: Conjunction opportunities and opportunities for international cooperation”. Science andPublic Policy, 40(6). [12, pp. 801-802], Freeland, S. “The 2008 Russia/China Proposal for aTreaty to Ban Weapons in Space: A Missed Opportunity or an Opening Gambit?” [13. pp. 261 —271].
-  “Chapter 1 of the Space Debris Mitigation Guidelines of the Committee on the PeacefulUses of Outer Space .
-  ’Chapter 1 of the Space Debris Mitigation Guidelines of the Committee on the PeacefulUses of Outer Space .