Space Debris Mitigation through Arbitration: 'Comet-h' the hour

Prajakta Pradhan is a 3rd year Law Student at Dr. Ram Manohar Lohia National Law University in India. Prajakta has a keen interest in Technology and Space Law.

Photo by Tori Rector available here.

Introduction

Over the past five years, governments and private agencies have dramatically increased space activity, leading to myriad instruments and objects being launched into space. Unfortunately, this has resulted in the overcrowding of outer space and accelerated the accumulation of space debris. The Inter-Agency Space Debris Coordination Committee (IADC) issued its Space Debris Mitigation Guidelines in 2002 and defined "space debris" as non-functional artificial objects in space.

There are two kinds of space debris: first, debris that ultimately falls back to the Earth, generated either during a launch or while re-entering the Earth's atmosphere; and second, debris which stays in orbit. Both types of space debris are catastrophic, and even though there are several technological advancements aimed at mitigating the problem of space debris, they face several financial and regulatory issues.

Space Debris: Formation, Hazardous effects, Liability Conundrum and Mitigation Measures

Space is used for exploration, commercial activities, and military and surveillance purposes. In addition, novel technological advancements have made the launch of satellites and other similar space objects more accessible and economical. Furthermore, the launch of private satellites to improve communication and Internet services has further exacerbated the problem. For instance, SpaceX has launched 1000 small satellites as a part of its Starlink mega constellation, and OneWeb has deployed 146 satellites to provide better communication services. Chinese space enterprises recently announced plans to launch 13000 satellites known as the Guowang constellation, to generate satellite-based internet services. A recent study conducted by the University of British Columbia warned that activities of any mega-constellation could result in the occurrence of a tragedy of the commons. Space debris affects both earth’s atmosphere, and space orbit.

1. Hazardous Space Debris re-entering Earth's atmosphere

Space debris can be tremendously dangerous for Earth. Debris from space can re-enter Earth's atmosphere without burning up, endangering persons and the environment, and even resulting in nuclear contamination of Earth's surface. In May 2021, a piece of space junk from a Chinese rocket re-entered into Earth's atmosphere and landed in the Indian Ocean. But the possibility that the rocket could land in a populated area gave rise to global concern and led to constant tracking of the junk’s trajectory for days.

According to the 1967 Outer Space Treaty and the 1972 Liability Convention, damage caused by the re-entry of a space object is a government-to-government issue. These treaties assert that the launching states are internationally liable for any damage caused by a spacecraft, even if a private company undertook and is responsible for the launch. However, these launching states favour contractual indemnities to be included in private companies' contracts to evade liability for damage caused by debris instead of taking steps to reduce its creation in the first place. The first and only time a state used the Liability Convention was in 1978 when a Soviet satellite crashed into a region of Canada's Northwest Territories. The satellite crash spread radioactive debris over 15,000 square miles across Canada’s Northwest Territories from Great Slave Lake to Baker Lake —the cleanup process cost over CAD$14 million.

This is far from the only incident where space debris re-entered Earth. In 1979, Skylab, a U.S. space station, crashed and spread over the Indian Ocean and uninhabited Western Australia. Despite such instances, Canada remains the only country to put the Liability Convention to use. To encourage states to take steps to prevent space debris-re-entry, the Liability Convention should be used more stringently. A rule should also be introduced to prohibit the launching states from evading their liability by favouring the inclusion of contractual indemnities in private companies' contracts.

2. Hazardous Space Debris in Orbit

Orbital space debris consists of space launcher remnants, detached components, fragments from explosions or collisions, and fuel and chemical remnants. The risk of collision between these objects is extremely high, and collision can lead to Kessler Syndrome, a chain reaction of space debris fragmentation. If damage occurs in outer space, the Liability Convention merely imposes liability upon the launching state if the damage caused is due to its fault or the fault of persons or companies in its territory. Since no norm forbids leaving space debris in orbit, it is difficult to attach liability to the launching state of an object which later transforms into space debris and creates damage in space.

Article IX of the Outer Space Treaty states that the States Parties to the treaty shall conduct exploration in such a way as to avoid their harmful contamination. However, this treaty does not impose a legally binding obligation for the launching states to avoid creating space debris or to actively remove them if they do. Recently, OneWeb and SpaceX satellites evaded an in-orbit collision after coming just 190 feet close to each other.

Arbitration to the Rescue

Arbitration is a viable option for dispute resolution in many areas of law akin to space. The ITU Convention, the European Space Agency (ESA) Convention, and the U.N. Convention on the Law of the Seas all have provisions for binding arbitration to settle disputes. Furthermore, dispute resolution of outer space issues is not a new idea. The Liability Convention mentions an alternative dispute resolution mechanism for disputes that cannot be resolved diplomatically. A study on the Arbitration of Space-Related Disputes confirms that both state and non-state actors use international arbitration to resolve space-related disputes.

One possible method for the resolution of space-related disputes that nations could adopt is inter-state arbitration. In this area, a tailor-made solution is already present for deliberation. The Permanent Court of Arbitration released its special rules for governing space disputes in 2011. These rules include model language for use in arbitration agreements and establish a panel of arbitrators proficient in this area. These special rules also provide for establishing a panel of scientific and technical experts who may be appointed as expert witnesses. Another available method is the tried and tested option of Investor-State Dispute Resolution. The three landmark Investor-State Dispute Settlement (ISDS) cases in the space sector,Devas v. India, Deutsche Telecom v. India, and Eutelsat v. Mexico have proven ISDS to be an efficient mechanism for dispute resolution.

For instance, in the case of Devas v. India, the dispute was between three Mauritius-based shareholding companies of Devas Multimedia Private Limited and Antrix, the commercial arm of the Indian space agency. The claims arose from the Indian Government's cancellation of a contract for the claimants' subsidiary to launch two satellites. The Permanent Court of International Arbitration decided in favour of the investor and awarded it a compensation worth $111.30 million.

In Avanti Communications v. Ministry of Defence of the Government of Indonesia, the dispute was between Avanti Communications owned satellite and the Indonesian Government, which led to the initiation of arbitration proceedings in 2017. The proceedings resulted in the government paying $20.075 million to the company, and the case was quickly disposed of within ten months.

Suggestions for establishing an International Convention on the Settlement of Outer State Disputes (ICSOD Convention) are also being made. In February 2021, the UAE announced the establishment of a “Court of Space,” a tribunal dedicated to outer space dispute resolution. In April 2021, The Dubai International Financial Centre (DIFC) Courts and the Dubai Future Foundation (DFF) announced the formation of an international working group. This group will explore space-related legal nuances and deliver a view on the potential outcomes of space-related disputes. This is a welcome development in light of the fact that the International Court of Air and Space Arbitration (ICASA), created by the Société Française de Droit Aérien et Spatial (Paris) in 1994, is currently the only arbitration institution in the world that deals with arbitrations relating to space-related disputes. However, its existence has remained secretive. This institution has no website, and its arbitration rules are not at all available. Thus, the organization’s secretive nature and the opacity of the arbitration rules hints at the fact that this institution has most probably not been utilised since its establishment.

Lastly, the Liability Convention includes an ADR mechanism for disputes that cannot be resolved diplomatically. However, this mechanism needs revision because, according to the current Liability Convention, decisions have binding value only if the parties agree upon it. To overcome this drawback, the ILA Draft Convention on the Settlement of Disputes in Space recommended non-binding as well as binding procedures. In conclusion, the arbitral awards relating to space matters must be considered binding, and ADR mechanisms should apply to private companies due to their growing presence in the space industry.

Conclusion

Technological advancements have made outer space much more accessible for state and private operators, but international law frameworks have not kept pace, with private companies being left out entirely. Space law and outer space disputes are still in the infancy stages. With time, other issues, such as property rights of space resources, will become important as space technology advances and its applications multiply. These facts highlight the need for a robust arbitration base since most experts, industry respondents, and commercial parties primarily support arbitration for resolving space-related disputes as it is confidential, timely, and it allows for the presence of technical experts. Above all else, the core of peaceful space use and exploration is international cooperation. Hence, now is the right time to rethink the existing dispute resolution framework and plan its development accordingly through a worldwide initiative.