By Leana Brown, NSS Legal Fellow
In 1957 the USSR launched the first artificial satellite to orbit Earth, Sputnik. Since then, increased space activity and the resulting debris have led to a potential tragedy of the commons, creating liability concerns for all States wishing to partake in space development. Finding a remedy for this is challenging for several reasons but primarily because of the combination of (1) unclaimed debris and (2) the fact that the current international framework disincentives action to salvage or remove debris. In the National Space Society (NSS) position paper Space Debris Removal, Salvage, and Use: Maritime Lessons, NSS suggests that mechanisms used in maritime law, as well as a credit system, could rectify this issue.
As current international law stands, States are not incentivized to act on the ever-increasing space debris issue. Article VII of the Outer Space Treaty (OST) provides that the State where an object is registered has jurisdiction and control over the launched object. However, unclaimed space debris lacking an identifiable State association constitutes a challenge. Further, Articles VI and VIII of the OST and Article IV of the Liability Convention assign joint and several liability for any harm or damage caused to another party to the launching state involved in space debris intervention. This disincentives State parties to help remove or salvage space debris due to liability exposure. Article VI of the OST specifically mandates that State Parties bear international responsibility for national activities in outer space. Therefore parties logically are unwilling to take on extra liability for unclaimed space debris.
NSS suggests that we emulate mechanisms used to combat maritime wreckage and pollution issues to create a system that reduces space debris. In maritime law, human-produced debris is handled by commercial salvors who are financially compensated for recovering ships, clearing shipwrecks, and eliminating environmental hazards. In 1989, the International Convention on Salvage solidified that protection of the environment is part of salvage and should be compensated with rewards if contamination is prevented. Further protection and indemnity (P&I) insurance was created as a form of mutual maritime coverage, provided by a P&I Club. A P&I Club is a mutual insurance association, a non-profit cooperative, that provides risk pooling and representation for its members. Each member pays a premium to the P&I pool, and any excess funds reduce member payments for the following year.
NSS proposes forming P&I Space Clubs to issue standard agreements that would detail liability compensation based on tariff rates per liability apportionment among all the parties involved in an orbital debris reduction. Other useful maritime conventions mentioned in the paper are (1) London Convention, consisting of a set of rules against dumping, and (2) MARPOL 1973/1978, a framework for prevention of pollution by requiring ships to receive certification concerning safety and pollution compliance.
NSS also recommends the establishment of an intergovernmental Space Salvage Entity (SSE) by multilateral agreement. The SSE would (1) assume jurisdiction and control, ownership, and some degree of liability for unclaimed derelict space objects; (2) license and contract entities to deorbit or salvage space debris, and (3) sell the space objects at auctions. Through the SSE they propose creating an Actuarial Index which calculates risk for every trackable piece of orbital debris. This would provide insurance companies a way to allot risk to state parties while also providing incentives to remove high-risk debris or sell debris. Further, NSS believes this system would allow states to transfer the registration of the object to SSE and be relieved of the associated risk. That object can then be sold as an asset by SSE.
Another idea mentioned in the paper is the creation of a credit system similar to global carbon trading credits that could be created based on the actuarial risks. With this in place, global goals could be set and the State Party could make pledges to remove a certain amount of debris. Countries could also sell their credits to others, creating a collective market-based response to remove debris in an economically efficient competitive market way. SSE is meant to be a cost-effective platform for states to collaborate in a market that reduces the amount of space debris. A credit system modeled on the pollution removal systems should incentivize rapid consolidation or removal of space debris. Thus, NSS believes with the implementation of the SSE and a credit system, space debris will be reduced without making state parties increase their liability.
NSS has suggested a number of creative ideas to reduce space debris in an economical and revenue-producing way. To learn more, read the NSS Position Paper Space Debris Removal, Salvage, and Use: Maritime Lessons.
About NSS Legal Fellow Leana Brown
Leana Brown is a second year law student at the University of Nebraska College of Law. The first time Leana ever heard of Space Law she was an undergrad at the University of Colorado in Boulder. The subject immediately intrigued her and she began researching it substantially. Leana finished her undergraduate degree in Economics with a minor in Classics at the University of Colorado in Boulder. She then continued her education at the University of Colorado in Boulder and received a Masters in Corporate Finance. Since learning of space law Leana knew it was going to be a substantial part of her future. In fact, Leana chose to attend the University of Nebraska College of Law specifically for their Space, Cyber, and Telecommunications program. Leana is currently the treasurer and event planner for the Space, Cyber and Telecommunications club. With Leana’s background in economics, corporate finance and her ever increasing knowledge of space law her perspective is unique. During Leana’s time in law school she aspires to publish her thoughts and perception on the rising subject of space law particularly concerning the private sector. Leana’s interest in space law grows every day and after graduation she hopes to get a job in the field.