A brief look at the legal and political implications of Japan’s space debris removal plansby Michael Listner
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| The potential for adversely affecting the outer space environment to the detriment of other states implies that Japan would be obligated to consult with the international community under Article IX of the Outer Space Treaty. |
It is difficult to identify the ownership of fragments that cannot be tracked by current space situational awareness assets, and the potential for gathering fragments belonging to other states is significant, especially if the fragment is the result of an ASAT test or the component of a sensitive national security asset belonging to a geopolitical adversary or even an ally. JAXA would be legally be obligated to return any fragments recovered to their state of origin, which beforehand that nation would provide identifying information. However, the fragments would likely be destroyed upon reentry making a return impossible and therefore leaving Japan in potential non-compliance with Article VIII.
Another legal issue surrounds the uncertainty of the impact of space debris removal activities on the outer space environment.3 The potential exists that JAXA’s proposed debris removal activities could aggravate space debris contamination and therefore disrupt the outer space environment for other states. One scenario that could play out involves the failure of the electromagnetic tether while gathering fragments from their previous orbits. A failure of the electromagnetic tether would release gathered fragments into new orbits and alter the orbits of fragments that have been pulled out of their previous orbits. The end result is that fragments that may have been in orbits that did not interfere with other space objects may have their orbits altered such that they collide with other fragments or pose a greater risk for other states in the outer space environment.4
The potential for adversely affecting the outer space environment to the detriment of other states implies that Japan would be obligated to consult with the international community under Article IX of the Outer Space Treaty.5 Specifically, Japan would be obligated to consult with COPUOS to inform the international community of its planned activity to test space debris removal technology and methodologies, including the potential for aggravating the space debris environment. Preemptively invoking Article IX and subjecting its plans to international analysis would be a logical step considering that Japan exercised its reciprocal rights under Article IX after China’s 2007 ASAT test involving the FY-1C satellite. To do otherwise could subject Japan to the same condemnation and suspicion that beleaguered China after its disastrous 2007 ASAT test, whether their experiment succeeds or not.
A final significant legal issue is whether JAXA’s planned space debris removal test would create a norm under customary international law. Customary international law is defined as international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties and consists of two components. First, there must be a general and consistent practice of states involved in the relevant activity. Second, there must be a sense of legal obligation on behalf of the state, or opinio juris sive necessitatis, where a state has a sense of legal obligation to the international community they believe it is required by international law, not merely because that they think it is a good idea, or politically useful, or otherwise desirable.6 The definition of customary international law is nuanced because not all states are equal when considering whether a state’s practice and opinio juris sive necessitatis reaches the level of customary international law. In the case of outer space activities, more weight will be given to a state that has a robust space program than a state that has a less developed space program.
| Methodologies and instrumentation used to remove space debris from orbit could also be used to interfere with a functioning satellite belonging to another state, or provide a test bed for a future anti-satellite weapon. |
Three distinct customary international norms potentially are in play: Whether removal of space debris is a recognized practice under international law, whether Article VIII of the Outer Space Treaty extends ownership to a state over fragments and space debris in general and permits the removal of fragments originating from other states without the prior permission of the state that owns them, and whether space debris removal activities trigger Article IX of the Outer Space Treaty and requires a state to consult with the international community prior to performing these activities.
The answer to all three questions is no. First, space debris removal activities are not a widespread international practice at this juncture. JAXA’s planned mission would arguably be the first removal activity of its type that may or may not be employed as a practice among other states and, in particular, spacefaring nations. Second, there is no indication that Japan’s performance of this activity would be done out of a sense of international legal obligation and unless it took steps, such as invoking Article IX and addressing Article VIII issues prior to the activity, it would not suggest an international legal obligation.
Moreover, even though Japan is accomplished in outer space activities and a rising space power, it may not have the prominence activities equivalent to states like the United States, Russia, and China, and therefore the capacity to create customary international law with regards to outer space. However, like the proposed Swiss space debris removal demonstration, CleanSpace One, Japan’s effort does have the potential of laying the foundation for customary international law for space debris removal that could be built upon by other players, including the Big Three.
Political issues
Parallel to the legal issues surrounding this proposed debris removal mission are the political issues. Most significant to space debris removal is the space weapons debate, which is led primarily by Russia and China. The crux of this issue is that methodologies and instrumentation used to remove space debris from orbit could also be used to interfere with a functioning satellite belonging to another state, or provide a test bed for a future “break-out” anti-satellite weapon that would be deployed in the event of pending hostilities.
| Japan may not have fully thought through both the legal and political issues involved with the proposed demonstration and the potential fallout, whether the demonstration succeeds or not. |
Unlike the Swiss debris removal proposal, which would enjoy a degree of political neutrality, political issues surrounding space debris are exacerbated by the current state of affairs between China and Japan, in particular territorial and airspace disputes over the East China Sea. A demonstration of space debris removal technology and methodologies could be charged by China as a deliberate test of a disguised anti-satellite weapon in the same vein that the intercept of USA 193 by the US in 2008 was tagged by Russia, China, and others as a disguised test of an anti-satellite weapon. This could increase tensions between to the two countries at a time when hostility between the two nations is growing. On a larger scale, Japan’s demonstration could raise concern among other nations in the Asia-Pacific region, including North and South Korea, both of which have animosity towards Japan stemming from World War II.
Conclusion
Japan’s plan to test space debris removal technology and methodologies is, on its face, a welcome development. However, a closer look reveals that Japan may not have fully thought through both the legal and political issues involved with the proposed demonstration and the potential fallout, whether the demonstration succeeds or not. Prudence would dictate that Japan take a step back and reconsider its plans in light of these concerns. Whether it chooses to do so remains to be seen.
Footnotes
1 See Aviva Hope Rutkin, “Japan’s huge magnetic net will trawl for space junk”, New Scientist, January 22, 2014.
2 Article VIII of the OST states that [a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.
3 Liability for debris removal is clearly a legal issue under the second scenario of the Liability Convention but because of the complexity and uncertainty of the application this article’s discussion of legal issues will be narrowed to the Outer Space Treaty.
4 The author is not an expert in orbital dynamics, so this potential scenario is greatly simplified for use as an illustration.
5 Article IX of the OST states that “[i]n the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.”
6 This definition of customary international law was articulated by the 11th Circuit Court of Appeals in United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012). The definition of customary international law pronounced by the 11th Circuit in this case is unanimous throughout the Federal Circuit Court of Appeals.