ASIL 2023 Annual Meeting Recap:  Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 3 of 3)

This is Part 3 out of 3 of a post recapping this session; if you wish to consult the earlier posts, see Pt. 1 and Pt. 2 of the series.

By Charles Bjork

To conclude the discussion, Dadwal asked the panel members to speculate about future of international law in space and in the oceans.  In Pritchard-Kelly’s view, the most effective tools for promoting safety and sustainability in space in the near future will be the national licensing of objects launched into space and the registration of all such objects with the United Nations, as required by the Registration Convention of 1975.  States are responsible for authorizing activities in space undertaken by private actors that are subject their respective jurisdictions, pursuant to Article VI of the 1967 Outer Space Treaty.  States with active space industries accomplish this task through licensing.  A state that has ratified the 1972 Liability Convention assumes absolute liability for damages caused when an object launched into space from its jurisdiction crash lands on Earth and fault-based liability for damages caused when an object launched into space from its jurisdiction collides with another object.  These liability provisions provide strong incentives for states to create robust licensing regimes for private actors that launch satellites into orbit and vehicles into space. 

As concerns about the accumulation of debris orbiting the Earth continue to mount, Pritchard-Kelly anticipates that national licensing authorities will come under increasing pressure to adopt further measures to reduce the volume of debris.  An early example is the rule adopted by the Federal Communications Commission in 2022 that will require the operators of low-orbit telecommunications satellites launched from the United States to de-orbit their defunct satellites as soon as practicable, but no later than five years after a satellite has reached the end of its working life.  Pritchard-Kelly expects licensing authorities in other jurisdictions to follow the FCC’s lead. 

NASA employee, Public domain, via Wikimedia Commons

Villegas contrasted the state of international law governing the oceans with the state of international law governing space.  The successful conclusion of the negotiations to draft a new multilateral treaty to protect marine biodiversity in areas beyond national jurisdictions is an important milestone.  However, assuming that the new BBNJ treaty achieves the requisite number of ratifications to enter into force, its provisions will need to operate in tandem with the provisions of the 1982 Convention on the Law of the Sea, as well as the provisions of treaties that protect marine ecosystems at the regional level.   These in include the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region and the Barcelona Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean, among others.  There is a real danger that having so many overlapping and competing legal regimes in place will hinder, rather than advance, the sustainability of marine ecosystems.  States must coordinate their implementation of these treaties in order to ensure that their provisions are applied in a consistent and complimentary manner.

The international legal regime governing the use of space suffers from the opposite problem.  Since the Moon Treaty entered into force in 1982, no new multilateral treaties governing operations in space have been negotiated, nor have any of the prior treaties been amended via protocol.  In the interim, the relentless growth of the satellite telecommunications industry and the emergence of new private sector actors eager to pursue the commercial exploitation of space have exposed significant gaps in the legal framework.  Despite the widely shared consensus that the existing space treaties need to be updated to reflect advances in technology and the growing role of private sector actors, few observers expect that to happen anytime soon, particularly given the rising tensions between the U.S. and the E.U. on the one hand, and China and Russia on the other.

Nelson expressed a more optimistic view on the prospects for change, insisting that the international community of nations is capable of acting in its collective best interest when the need arises.  In fact, it was the intense rivalry between the U.S. and Soviet Union during the space race of the late 1950s and early 1960s that provided the impetus for drafting of the 1967 Outer Space Treaty, which established the core principles that space should be used for the benefit of all people, should not be subject to sovereign claims, and should be kept free of weapons of mass destruction.  Pritchard-Kelly agreed with Nelson’s assessment, noting that the development and advancement of international law is often crisis-driven.  She then described a plausible scenario in which a satellite manufactured in the U.S. for a Latin American customer fails to enter the Earth’s orbit after being launched from the spaceport located in French Guyana operated by Arianespace Group, a consortium of European space companies.  Debris from the satellite is scattered over three countries in East Africa, causing both property damage and loss of life.  An accident like this, involving multiple private actors in multiple jurisdictions, could provide the impetus for updating the Liability Convention to better reflect the growing role of private actors in space.

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