By Charles Bjork
For Pt. 1 of the post recapping this session, see ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3).
Pritchard-Kelly noted two other important differences between the physical environment of space and the physical environment of the oceans. First, the oceans are more accessible, making it far less costly and more technologically feasible remove debris from the oceans than it currently is to remove debris from space. Second, unless plastic debris is removed from the oceans, it will remain there forever. Space debris orbiting the Earth has a more limited lifespan. Over time, its velocity will diminish until it eventually falls out of orbit. When it does, all but the very largest pieces debris will burn up and disintegrate upon contact with the Earth’s atmosphere. The primary danger posed by most space debris is its potential for colliding with functioning satellites and space vehicles while it remains in orbit.
Dadwal noted that the European Space Agency recently unveiled its “Zero Debris” initiative, which aims to eliminate the generation of new space debris in low-Earth orbits by 2030. She then asked the panel members what steps must be taken to meet this ambitious goal. The good news, as Pritchard-Kelly observed, is that the dangers posed by space debris are now universally recognized and acknowledged. State actors and private sector actors, regardless of their nationality, want to protect their expensive space assets from damage and loss. The European Space Agency, NASA, and other national space agencies have responded by adopting soft-law instruments to encourage the adoption of more sustainable practices in the design of new satellites and space vehicles. Contractors who wish to do business with these space agencies must adhere to their sustainable design principles. National regulatory bodies that license satellites are increasingly open to enacting sustainable design regulations. As a result of these soft law and regulatory initiatives, the next generation of satellites are being “designed for demise,” meaning that their component materials and the methods used to construct them are being altered to ensure that they will rapidly burn up when they de-orbit and reenter the Earth’s atmosphere, thereby minimizing the chances that any debris will be left behind. Nelson stressed that these soft-law instruments have significant limitations and are no substitute for updating the now woefully out-of-date Space Liability Convention of 1972. Nevertheless, they are a step in the right direction.
Pritchard-Kelly cautioned that even if the European Space Agency’s Zero Debris goal is met, we still have to find ways to remediate the enormous amount of space junk currently in orbit, as well as the new space junk that will be generated when older satellites, that were not built using sustainable design principles, reach the end of their working lives. Encouragingly, a handful of entrepreneurs have founded start-up companies to determine if there is sufficient demand from the private sector to pay for the removal of space junk on a commercial basis. It remains to be seen if any of these start-ups will prove to be commercially viable in the long-run.
An even thornier issue for the international community to resolve is the potential use of anti-satellite (ASAT) weapons to incapacitate or destroy satellites for strategic purposes. To date, only handful of jurisdictions (the U.S., Russia, China, and, most recently, India) have shot down some of their own satellites to demonstrate their ASAT capabilities. While no one questions the inherent right of states to defend themselves, the ASAT testing that has been done to date appears to have generated significant amounts of space debris. The volume of debris, and the potential for it to cause collateral damage, has ended speculation that ASAT weapons could be routinely used to dispose of older, decommissioned satellites.
Dadwal asked Villegas to comment on recent developments in international law governing marine resources and their implications for the future development of space law. Villegas began with a brief overview of the new multilateral Convention on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdictions (popularly known as the BBNJ Treaty). He explained that the new treaty was drafted by the Intergovernmental Conference on Marine Biodiversity convened by the United Nations in 2017. After nearly six years of negotiations, the Intergovernmental Conference reached an agreement on the text of new treaty on March 4, 2023. It establishes a framework for the creation of marine-protected areas and the enactment other conservation measures in the high seas, beyond the jurisdictions of individual nation states. Villegas expects the Intergovernmental Conference to formally adopt the draft text of the proposed BBNJ Treaty at its next meeting in June and to move expeditiously to open the treaty for signature and ratification.
Last year, at a meeting in Nairobi, the 175 member states of the U.N. Environmental Assembly, the governing body for the U.N. Environmental Program, passed a resolution to draft another new multilateral treaty to reduce plastic pollution. A key component of the proposed treaty will be to effectively manage the “total life cycle of plastics,” from their initial production, to their reuse, recycling, and disposal in a responsible manner that minimizes the risk of pollution. This holistic approach to the management of plastics could serve as model for a future convention governing the lifecycle of objects that are launched into space. Villegas cautioned that significant fault lines have emerged between states that favor binding commitments to reduce the use of plastics and to practice responsible disposal methods and states the favor a more aspirational, soft-law approach.
Turning next to the ever-expanding role private actors in space, Dadwal asked the panel if this phenomenon helps or hinders efforts to reduce the volume of space junk and promote greater sustainability. Pritchard-Kelly said there is no question that the commercialization of space will increase the volume of space junk in the short term. She noted that when the multilateral treaties that govern the use of space were negotiated in the late 1960s and early 1970s, only state actors (and, in practice, only the U.S. and the Soviet Union) had the capacity to launch objects into space. Shortly thereafter, in the late 1970s, the telecommunications satellite industry began to emerge. Today, as the number of commercially operated satellites continues to grow, private actors are on the cusp of developing whole new industries, such as space mining, space manufacturing, and even space tourism. Yet, the existing legal framework for space operations has very little to say about the regulation of private sector actors.
In the absence of a more robust regulatory framework, Pritchard-Kelly anticipates that economic incentives will drive the private sector to embrace greater sustainability. Villegas concurred with this assessment, noting that companies like Elon Musk’s SpaceX, Jeff Bezos’s Blue Origin, and Richard Branson’s Virgin Galactic are pioneering the development of reusable launch systems and reusable space vehicles. These new businesses will not be scalable or profitable in the long-term unless recyclable components become the norm, not the exception, in space. The private sector’s willingness to embrace reuse and recycling – even if motivated more by economic necessity than principle – will significantly reduce the volume of new space junk generated in the future.
While government regulatory agencies will continue to play an important role in promoting sustainability, Nelson observed that they are subject to significant limitations. .He cited the turf wars that occasionally erupt between NASA, the Federal Aviation Administration, the Federal Communications Commission, and other federal agencies responsible for overseeing various aspects of the emerging space industries. He also cited a lack of consistency in regulatory regimes and licensing standards among jurisdictions. Nelson noted that insurance companies, which act as informal regulators in space, often operate more rationally and predictably than their governmental counterparts, which may be constrained by industry lobbying and political meddling. Pritchard-Kelly wholeheartedly agreed with Nelson on the critical role played by the insurance industry in promoting safety. She expects insurers to lead the way in establishing minimum standards of conduct for emerging space industries by penalizing companies whose operations cause accidents resulting in losses and by refusing to insure companies that fail to adopt best practices.