An argument to make space law more akin to the UNCLOS regime in order to avoid preventing Kessler Syndrome problems.

1. The Laws Of High Space: Adapting UNCLOS to the International Space Law
Regime in an Effort to Mitigate the Dangers of Orbital Debris
Trevor Zaple
250103277
POLS 3201

2. 1
On April 2, 2018, the private American corporation Tesla launched into space a package
that contained mainly supplies for the International Space Station but also an experimental
orbital device called RemoveDEBRIS. The device was designed to try to remove pieces of
orbital debris from Lower Earth Orbit, where the buildup of debris has approached a critical
tipping point. Aside from the technological issues, many of which are still in the planning or
experimental phases, the bigger issue lies in the realm of international law. The question from a
legal perspective is: who is ultimately responsible for orbital debris, and as a corollary, who is
allowed to remove or otherwise interfere with it? Furthermore, what are the consequences when
an actor deliberately causes more debris? It is this paper’s position that answering these
questions, and thereby solving the problem of orbital debris, rests on adapting the existing space
law regime to become a regime more like that encompassed by the United Nations Convention
on the Law of the Sea (UNCLOS). This paper will begin by defining what is meant by orbital
debris, why its mitigation is important, and examining recent events that have exacerbated the
problem. It will then outline the existing space law regime as it currently stands. It will then
examine problems with this regime and outline solutions to this problem using UNCLOS as a
guiding force to craft an updated space law convention.
ORBITAL DEBRIS: BACKGROUND AND IMPORTANCE
There are two areas of space we can define as “orbit” are those that are host to constant
human habitation in the form of satellites: Lower Earth Orbit (LEO) and geostationary orbit
(GEO). LEO comprises everything from the end of state claims on airspace (100 kilometers
above sea level) to a peak of 1,000 kilometers above sea level1
. GEO is a much higher orbit,
1
Natalie Pusey, “The Case For Preserving Nothing: The Need for a Global Response to the Space Debris Problem,”
Colorado Journal of Environmental Law and Policy, vol. 21, no.2 (2010): 426

3. 2
positioned exactly at 35,787 kilometers above sea level. LEO satellites can complete an orbit of
the Earth in approximately 90 minutes and are home to the vast majority of the satellite
population2
. GEO satellites travel at the speed of the Earth and hence stay in the same position
over the planet and complete an orbit with it3
. There are 9,000 objects currently in orbit, of which
only approximately 540 are still functioning4
. Beyond that, there are “over 100,000 objects in
space that are at least a centimeter in diameter, and millions more that are less than a
centimeter5
.” These form the vast majority of what we can define as “space debris.”
Space debris is comprised of four major categories: “inactive payloads” (including non-
functional satellites as well as the upper stages of rockets from the initial launch), “operational
debris” (including items that have come loose during normal operations), “fragmentation debris”
(which has resulted from collisions and in one instance the deliberate destruction of a satellite),
and “microparticulate matter”, which forms the majority of debris in orbit and can be comprised
of items as small as paint chips and fuel droplets6
. The problem with this debris arises from the
speed at which orbits; like functioning satellites, debris moves between 11,000 and 35,000
kilometers per hour. At these speeds, “a piece of debris weighing only two grams and travelling
35,000 kilometers per hour could hit a spacecraft with the force of one thousand tons of TNT7
.”
Collisions at these speeds can damage or destroy spacecraft; even collisions with
2
Joseph S. Imburgia, “Space Debris and its Threat to National Security: A Proposal for a Binding International
Agreement to Clean Up the Junk,” Vanderbilt Journal of Transnational Law vol. 44, no. 3 (2011): 601-2
3
Ibid, 603
4
Elsie Epperson Crow, “Waste Management In Space: Addressing The Challenge Of Orbital Debris,” Southwestern
Journal of International Law, vol. 18 (2012): 709
5
Ibid
6
Gabrielle Hollingsworth, “Space Junk: Why The United Nations Must Step In To Save Access To Space,” Santa
Clara Law Review 53 (2013): 241
7
Justin Moor, “”You’re Not Actually Going Into An Asteroid Field?” – The Threat of Man-Made Space Debris, and a
Proposal to Extend Existing Law to Prevent it,” Minnesota Journal of International Law 23, no. 2 (2014): 252

4. 3
microparticulate matter can “cause damage or corrosion, which can wear down important
observational equipment, or even render spacecraft inoperable8
.”
Current levels of space debris in orbit can cause problems and has necessitated moving
spacecraft in order to avoid collisions. The problem is only expected to get worse. Without a
change in the status of both debris mitigation and debris removal, the amount of debris will rise
until it hits a tipping point called the Kessler Syndrome. At this point, “collisions between
objects will create so much new debris that it will increase independently of further space
operations…without intervention or mitigation, an impassable debris shield around the Earth
could prevent future outer space activities9
.” Without intervention through a strengthened
international law regime, LEO and GEO may be rendered unusable by a “belt of debris” that
circles the Earth and prevents satellite use and further space exploration10
. At best, it will become
much more difficult and expensive to launch objects into space. At worst, the human dream of
exploring the stars may become impossible.
Three events have caused a marked increase in the amount of space debris currently in
orbit. In January of 2007, China tested an anti-satellite missile system on their weather satellite
Fengyun-IC, creating a debris cloud that spread out to clutter every orbital path; the event caused
the amount of debris in orbit to increase by a minimum of 10%11
. In February of 2007, “a failed
Russian Breeze-M upper stage rocket exploded in LEO,” creating 1,200 new pieces of debris12
.
Finally, in February of 2009 a non-working Russian satellite collided with a satellite owned by
8
Moor, 253
9
Ibid, 248
10
Meghan R. Plantz, “Orbital Debris: Out Of Space,” Georgia Journal of International and Comparative Law 40
(2012): 597
11
Imbruglia, 600
12
Ibid, 604

5. 4
the American corporation Iridium, creating an additional 2,000 pieces of debris13
. These three
incidents are exemplary of the problems of the current space law regime in dealing with the
problem of space debris; the following section will describe the current regime and then describe
the international legal problems that underlie each incident.
THE CURRENT INTERNATIONAL SPACE LAW REGIME
There are three pieces of international law that comprise the current space law regime:
the Outer Space Treaty, the Liability Convention, and the Registration Convention.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies (the “Outer Space Treaty”) is
generally thought of as the constitutional framework governing state activities in outer space14
.
First put forth in 1967, it recognized that outer space was an area to be held in common by
humanity, regardless of economic or scientific development15
. In terms of the debris problem,
Article VII of the Outer Space Treaty holds a launching state liable for damage that their “space
objects” cause another state’s “space objects,” although the exact definition of what is a “space
object” under the treaty is vague and contested; similarly, Article IX states that “harmful
contamination” should be avoided, although again the exact definition of “harmful
contamination” is left vague16
.
The 1972 Convention on International Liability for Damage Caused by Space Objects
(the “Liability Convention”) was designed to expand on the original wording of Article VII, the
13
Emily M Nevala, “Waste In Space: Remediating Space Debris Through The Doctrine Of Abandonment And The
Law Of Capture,” American University Law Review 66 (2017): 1498
14
Imbruglia, 614
15
Ibid
16
Ibid, 614-15

6. 5
liability clause in the Outer Space Treaty. The first article defines a “space object” as
“component parts…as well as its launch vehicle and parts thereof17
.” Article III states that
liability in the case of damage in orbit is fault based, that is the state is only liable if there is
evidence that a responsible party lapsed in their responsibility18
.
The 1975 Convention on Registration of Objects Launched into Outer Space (the
“Registration Convention”) requires that states launching objects into orbit must register that
launch and its payload on a registry assigned to the Secretary-General of the United Nations. The
registry must follow the launch “as soon as practicable”, which in at least 225 cases has meant
never19
; interestingly, there has never been an entry on the registry declaring a military function
for a satellite20
. There is also no mechanism to register debris from fragmentation events, and in
fact the vague definition of “space object” in the Registration Convention has led to considerable
debate over whether the registry needs to be updated to include fragmentation and non-
functioning satellites21
.
KEY PROBLEMS WITH THE CURRENT SPACE LAW REGIME
The most pressing problem in the orbital environment involves the deliberate creation of
space debris, most notably through tests of anti-satellite missile systems such as that undertaken
by China in 2007. The problem with these intentional creations of debris is that, while anti-
satellite tests create debris as an indirect consequence of the act, the potential for deliberately
creating debris as a weapon by one state against another is a potential avenue. Natalie Pusey
17
Imbruglia, 616
18
Ibid, 617
19
Ibid, 618
20
Ibid, 619
21
Ibid, 619

7. 6
(2010) states that “nations could deliberately create debris and use it to harm or destroy enemy
reconnaissance satellites, communications devices, and even astronauts,” and that such debris
could also be used as a form of “denial-of-access” attack that renders an orbit unusable22
. While
Article IX of the Outer Space Treaty requires signatory nations to avoid creating harmful
contamination, there are two counter-arguments that are made to this: first, that the wording of
the article is too vague and “does not impose an absolute injunction against such actions23
;”
second, that what is being harmfully contaminated is not specifically defined. Is it orbit where
contamination must be avoided, or does the article require states not to harmfully contaminate
sovereign territory on Earth through space objects? The latter is the only actual use of the article
thus far, in a 1978 case where the Soviet Union settled a case of radioactive contamination of the
Canadian Arctic for $5 million USD24
.
The second problem involves the largely nonbinding nature of the space law regime,
especially regarding guidelines for mitigating the unintentional growth of space debris. These
guidelines exist, both at the international level and at the national level for the major spacefaring
powers. The international guidelines are comprised of two separate items: the Inter-Agency
Space Debris Coordination Committee (“IADC”) and the guidelines established by the
Committee on the Peaceful Uses of Outer Space (“COPUOS”)25
. These two sets of guidelines
establish best practices to set limits on the amount of debris allowed during missions, to mitigate
the possibility of fragmentation during operation, to admonish against intentional destruction of
objects in orbit, and to avoid collisions26
. The United States has similar policies set up to guide
22
Pusey, 431
23
Ibid, 437
24
Lawrence Li, “Space Debris Mitigation as an International Law Obligation,” International Community Law Review
17 (2015): 301
25
Pusey, 442-43
26
Ibid, 443

8. 7
both NASA missions and commercial space launches that both overlap with international
guidelines and expand upon them in certain technical areas. None of these guidelines, however,
are binding; even the national guidelines in place in the United States are not followed when
costs become an issue27
. There is nothing in place, then, that binds spacefaring nations to
practices that would prevent a reoccurrence of the Russian rocket explosion in 2007, or indeed to
prevent the non-accidental creation of debris during operations.
Finally, even if binding international guidelines were to be put into place, there is a lack
of a mechanism in international space law to guide problems regarding both jurisdiction and
liability. Both are mentioned in law – jurisdiction in the Registration Convention and liability in
the Liability Convention – but neither are outlined in specific, workable terms. Jurisdiction is
concurrent and thus can be confusing: if a private company launches a satellite into space, it is
the duty of the state where the private company resides to register it as per the Registration
Convention, and it is the state that faces liability under the Liability Convention, but the private
company retains actual ownership over the satellite and its operations28
. Liability, as mentioned
previously, is a fault-based system, where fault can only be assumed if the damage occurs
outside of the normal parameters of a space object’s operation. As such, if a private company’s
satellite – functioning or non-functioning – were to damage another object, the state that hosts
the private company would be liable if and only if the private company in question were to have
caused the damage through improper operation. Since much of debris in orbit is fragmentation
debris largely of unknown origin, establishing both jurisdiction and liability over any damage
that it causes would be nearly impossible.
27
Pusey, 444
28
Nevala, 1512

9. 8
ADAPTING INTERNATIONAL SPACE LAW TO A WORKING REGIME BASED ON THE
FRAMEWORK OF UNCLOS
Gabrielle Hollingsworth (2013) examines the use of the international legal treatment of
the high seas as a useful analogy for a similar treatment of space. She notes that “before the Law
of the Sea (LOS) Convention in 1982, the law of the high seas was dictated by the dominant
powers, such as Great Britain,” and that the space law “resembles the law of the high seas before
the LOS Convention, when principles were vague and broadly interpreted and nations picked the
laws and practices they abided by29
.” An update to the existing legal regime, then, is necessary to
deal with the problem presented by the growing amount of orbital debris. The analogy is
admittedly not exact. Much of UNCLOS deals with territoriality and its division among states;
space law was established specifically to abrogate the ability of states to claim portions of space
as part of their sovereign territory. The principle of creating strict, binding guidelines on the
usage of the sea, including the high seas as a common heritage of humanity, is the analogy that
needs to be made with regard to space law.
The problem of the intentional creation of debris will likely prove the easiest to solve
from a legal perspective. The International Court of Justice in Corfu Channel found that, with
regard to Albania’s responsibilities toward innocent passage through a minefield in Albania’s
territorial waters, that obligations toward identifying and mitigating the danger to shipping were
based on “certain general and well-recognized principles, namely: elementary considerations of
humanity, even more exacting in peace than in war; the principle of the freedom of maritime
communication; and every State’s obligation not to allow knowingly its territory to be used for
29
Hollingsworth, 250

10. 9
acts contrary to the rights of other States30
.” This would then be doubly true for territory that is
not delineated to a specific state but is held in common. Corfu Channel, in conjunction with the
“hazardous contamination” clause of the Outer Space Treaty, should be enough, given a strict
UNCLOS-type convention on updating space law, to prevent a state like China from
intentionally creating debris, directly or indirectly.
The problem of non-binding guidelines is the key point of adopting a UNCLOS-type
regime. Specifying and making binding guidelines for debris mitigation using specific
obligations and duties from states that utilize orbit for commercial and scientific purposes will go
a long way toward helping stem the growth of debris. One idea that has been floated is to treat
international guidelines as customary law and thus enforceable from an international standpoint,
but Meghan Plantz (2012) points out that this fails two tests: first, that “in order for a norm to
become customary law nations must actually feel obliged to practice the custom,” and second
that voluntary guidelines are not satisfactory of opinio juris, that is that states do not already
view it as a legal obligation31
. Joseph Kurt (2015) outlines his belief that the urgency of the
situation and the close-knit necessity of working together for a solution will lead to a solution
without the need for an international treaty32
. This seems dangerously close to doing nothing at
all, however. An international Convention, modeled on the negotiations that led to the UNCLOS,
would be the best path forward to turn existing guidelines from both the international and
national level into enforceable international law. Jennifer Seymour remarked on this in 1998,
well before the advanced problems with orbital debris, noting that “the regulatory structure
30
CORFU CHANNEL (UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND V. PEOPLE’S REPUBLIC OF
ALBANIA) (1949): 22
31
Plantz, 609
32
Joseph Kurt, “Triumph Of The Space Commons: Addressing The Impending Space Debris Crisis Without An
International Treaty,” William And Mary Environmental Law And Policy Review 40 (2015): 330

11. 10
already in place in the United States provides the foundation for such a system.” Adapting those
guidelines – which have already been adapted by states (or supra-state organizations, such as the
European Union33
) in the years since – would be the best chance at crafting a working UNCLOS
type convention34
.
Questions of jurisdiction and thereof are the thorniest issues to tackle at an international
level, as can be seen from the non-action in the wake of the 2009 collision between a dead
Russian satellite and the commercial American communications satellite. The Registration
Convention holds that jurisdiction over a space object is held by the launching state, regardless
of the status of the object; concurrently, jurisdiction over operational matters is held by the
private company owning the object. This makes it difficult to decide who has actual jurisdiction
over an object, for the purposes of assigning liability for damage and for the purposes of
deciding who can remove that object from orbit. A solution to this would encompass three parts.
First, the adaptation of the “exclusive jurisdiction” model in UNCLOS Article 94(1) would solve
many of the problems of jurisdiction at the base level. Sarah Goodman (2017) notes that
“imposing exclusive jurisdiction to prescribe would lay a strong foundation for the
administrability of the space system35
.” Like UNCLOS, this would require “all space objects to
be registered and bear the “flag” of one country…[this] would predicate a system of traceable
transfers of ownership in space such that unused assets could be sold and repurposed while in
orbit.36
” While complete jurisdiction by private companies for liability purposes is likely
impossible under international law (due to the ruling in Barcelona Traction that requires states to
33
Li, 314
34
Jennifer M Seymour, “Containing The Cosmic Crisis: A Proposal For Curbing The Perils Of Space Debris,” The
Georgetown International Environmental Law Review 10 (1998): 912
35
Sarah Goodman, “Welcome To The Space Jam!: The Imperative To Fill The In-Orbit Transfer Lacuna In A
Commercial Space Age,” The Georgetown Journal of Law and Public Policy 15 (2017): 704
36
Ibid

12. 11
bring cases before international courts and ties private persons to the states wherein they
reside37
), establishing exclusive jurisdiction would be a step in the right direction.
Second, the transfer mechanism in this system of exclusive jurisdiction must incorporate
a method to decide on if a particular space object has been “abandoned.” Currently there is no
method to determine if a satellite or other object is abandoned. Emily Nevala (2017) suggests
adapting the New York Court of Appeal’s Foulke v. New York Consolidated Railroad as a means
for determining abandonment in space. This would require an abandoned object to fulfill the
following requirements: there must be a clear action that shows intent to abandon, and the action
and the intent must be concurrent38
. While this is workable especially in terms of fragmentation
debris and microparticulate matter, the problem of whole but non-functional objects (such as
satellites that have passed beyond their mission parameters) is still difficult. Melissa Force
(2016) outlines the problem with perpetual ownership of objects even after loss of control and
functionality and suggests adapting standards used by the U.S. Federal Highway Administration,
wherein car wrecks and other non-functional vehicles can be removed from the highway39
. In
this sense, as Force points out, “if the car is not being ‘used’ on the highway, it will be removed
– with or without the owner’s consent – for the greater safety of the traveling public and
regardless of any ownership rights40
.” Adapting this to an updated space convention would allow
for the removal of potentially dangerous non-functional objects without the need to spend
unnecessary amounts of time wrangling over the actual details of ownership.
37
CASE CONCERNING THE BARCELONA TRACTION, LIGHT, AND POWER COMPANY, LIMITED (SECOND PHASE)
(1970): 77
38
Nevala, 1516
39
Melissa Kemper Force, “Active Space Debris Removal : When Consent Is Not An Option,” Air And Space Lawyer
29, no.3 (2016): 11
40
Ibid

13. 12
Finally, the problem of liability as outlined in the Liability Convention must be
addressed. As it stands, liability is fault-based, which prevents the adjudication of damage where
fault has not been or can not be established. Elise Crow (2012) notes that this “does not create an
incentive for states to conform to any given standard of care in space41
.” Reforming this standard
will be an important step toward mitigating the growth of debris. Pusey suggests liberalizing the
standard to make non-functioning objects subject to absolute liability, which would create the
impetus to implement mitigation guidelines in order to properly dispose of objects at their end of
life42
. Crow expands on this suggestion by stating that one modification to the Liability
Convention would be to get rid of the fault requirement altogether43
, removing the need to prove
negligence; this could prove problematic with getting the more active spacefaring states to sign
on to this modified convention, so Crow also suggests establishing a broader definition of
negligence. This could include “delcar[ing] that any action that creates orbital debris is
negligence per se44
,” but could also include declaring that non-adherence to international
guidelines for debris mitigation can constitute negligence as “debris mitigation is required by the
minimum standard for the bona fide performance of the Outer Space Treaty45
.” The latter would
likely be easier to implement into a legal convention and would convince spacefaring nations of
the need to adopt mitigation guidelines, if only to avoid being liable for damages in space.
CONCLUSION
Space debris in both LEO and GEO constitutes a real and growing problem for the future
space activities of states on Earth. Left unchecked, exponential growth in debris will eventually
41
Crow, 716
42
Pusey, 447
43
Crow, 717
44
Ibid
45
Li, 326

14. 13
reach a tipping point and surround the planet in a shroud that will prevent space missions from
occurring in the first place. The current international law regime regarding space, comprised of
the OST as well as the Liability and Registration Conventions, does not do nearly enough to
address this problem. Adapting existing space law into an international convention modeled after
UNCLOS is a path forward from here; careful attention to the details of such a convention would
mitigate problems with both intentional and unintentional creation of debris, as well as issues
with jurisdiction and liability with regard to removal.

15. 14
WORKS CITED
Case Concerning The Barcelona Traction, Light, And Power Company, Limited (Second Phase)
(International Court of Justice, 1970)
Corfu Channel (United Kingdom Of Great Britain And Northern Ireland v. People’s Republic Of
Albania) (International Court of Justice, 1949)
Crow, Elise Epperson. “Waste Management In Space: Addressing The Challenge Of Orbital
Debris.” Southwestern Journal Of International Law 18 (2012): 707-721
Force, Melissa Kemper. “Active Space Debris Removal : When Consent Is Not An Option.” Air
And Space Lawyer 29, no. 3 (2016): 9-12
Goodman, Sara B. “Welcome To The Space Jam!: The Imperative To Fill The In-Orbit Transfer
Lacuna In A Commercial Space Age.” The Georgetown Journal Of Law And Public
Policy 15 (2017): 689-709
Hollingsworth, Gabrielle. “Space Junk: Why The United Nations Must Step In To Save Access
To Space.” Santa Clara Law Review 53 (2013): 239-266
Imbruglia, Joseph S. “Space Debris And Its Threat To National Security: A Proposal For A
Binding International Agreement To Clean Up The Junk.” Vanderbilt Journal Of
Transnational Law 44, no. 3 (2011): 590-636
Kurt, Joseph. “Triumph Of The Space Commons: Addressing The Impending Space Debris
Crisis Without An International Treaty.” William And Mary Environmental Law And
Policy Review 40 (2015): 305-334
Li, Lawrence. “Space Debris Mitigation As An International Law Obligation.” International
Community Law Review 17 (2015): 297-335
Moor, Justin. “”You’re Not Actually Going Into An Asteroid Field?” – The Threat Of Man-
Made Space Debris, And A Proposal To Extend Existing Law To Prevent It.” Minnesota
Journal Of International Law 23, no. 2 (2014): 245-274
Nevala, Emily M. “Waste In Space: Remediating Space Debris Through The Doctrine Of
Abandonment And The Law Of Capture.” American University Law Review 66 (2017):
1495-1531
Plantz, Meghan R. “Orbital Debris: Out Of Space.” Georgia Journal of International and
Comparative Law 40 (2012): 586-618
Pusey, Natalie. “The Case For Preserving Nothing: The Need For A Global Response To The
Space Debris Problem.” Colorado Journal Of International Environmental Law And
Policy 21, no. 2 (2010): 425-450
Seymour, Jennifer M. “Containing The Cosmic Crisis: A Proposal For Curbing The Perils Of
Space Debris.” The Georgetown International Environmental Law Review 10 (1998):
891-914

16. 15