SPACE ISSUES

RELATING TO
DEBRIS,
RESOURCES &
TOURISM
BY JOYANTO CHAKRABORTY, ASSISTANT PROFESSOR OF LAW
 SPACE RESOURCES
 Sustainable development is a key goal of the 21st century. Today, many believe that space resources
development will support commercial applications, produce economic return on investments, stimulate
technological innovations, and contribute to economic growth.

 Moreover, space resources may offer alternative sources of materials or may change current production
and use practices.

 There is a possibility to reduce environmental pollution on Earth by mining and manufacturing in

space. But the redistribution of economic returns and investments could reduce inequality or contribute
to it.
 Space exploitation requires opening new markets. In fact, new activities are developing on asteroids and
on the Moon.
 At present, international space legislation does not provide detailed provisions regarding the exploitation
of natural space resources.
 A specific legal regime for the exploitation of resources should be elaborated, perhaps through the
United Nations, on the basis of present international space law.
 For purposes of clarity, this would include defining terms like exploration, exploitation, utilization, and
celestial bodies, as well as monitoring space activities. In that sense, multilateral agreements and
cooperation with various actors seem to be essential.
 Today, space exploration seeks to generate revenue to increase investments and reduce costs. This is
favorable to open new markets for private actors and partnerships between governments and industries.
Several companies are pursuing efforts to access resources on the Moon and asteroids for commercial gain.
 There are real possibilities to use mineral resources in space for commercial reasons. Such resources could
be extracted for return to Earth or used in situ. Within this framework, it would be important to find a
possible market structure taking into account development of technologies and human resources.
 These new challenges are not just the game of spacefaring nations but also developing countries, because
space resources can aid for development and redistribute wealth in the world. But the gap is growing.
 Currently, international space law does not provide any rules concerning the use of natural space resources.
The Outer Space Treaty (OST) of 1967 has 104 parties, while the Moon Agreement of 1979 only has 16.
 Articles I and II of the OST make clear that Moon and celestial bodies are not subject to national
appropriation, and they are free for exploration and use by all States in accordance with international law.
Thus, activities concerning space resources are controlled by those international principles and by national
laws that support industry and ensure compliance with the OST. Commercial activities are authorized and
supervised by nations.
 The Moon Agreement offers more details:
 Article 6 specifies the right to collect and remove samples and their use for support missions in appropriate
quantities.
 Article 9 provides the right to establish stations.
 Article 10 establishes the obligation to safeguard and protect life and health of persons on Moon.
 Article 11.1, 2, 3, 7 provide the rational management and equitable sharing of benefits derived from
resources, with special consideration for interests and needs of developing countries and efforts of States
that contributed (in)directly.
 The Moon Agreement does not exclude exploitation by public/private entities, as long as they are
compatible with “common heritage of mankind” requirements.2 But an international regime and
procedure have to be set up as exploitation is about to become feasible.

 From a legal point of view, another issue concerns the term “ownership”, and if there is ownership by
extracting resources. Ownership of celestial bodies is appropriation and is not allowed by OST and Moon
Agreement, but could an asteroid be an object of appropriation? Ownership of resources in situ is
prohibited under the Moon Agreement, but is it possible to have ownership of extracted resources? That
is not explicitly prohibited by the OST and by the principle of freedom of use.3

 Current international space law establishes a general legal framework for space activities, including those
of private entities, but there are no detailed provisions about exploration, exploitation, and use of natural
space resources.4 We need a more specific legal regime, and one group, The Hague Space Resources
Governance Working Group, is studying this topic.5 Moreover, national laws are created to provide legal
certainty to industry, and states should develop their space policy. too.
 SPACE DEBRIS
 In the recent science fiction film Gravity, the detonation of an old spy satellite by Russia causes a cloud of
shrapnel to hurtle towards Sandra Bullock and George Clooney. The 'Kessler Effect'which leads to the
collisional cascading of space debris however is not derived from Hollywood fiction. This chain reaction
causing increasing amounts of space debris, and in particular untrackable particulate debris, is a risk faced
by all satellite operators, the owners of other space objects and astronauts.
 The issue of space debris was highlighted again in 2013 ago with the collision of Ecuador’s first and only
satellite in orbit, Pegasus, and particles from the fuel tank of a Soviet rocket over the Indian Ocean.
KESSLER SYNDROME
 What is The Kessler Syndrome?
 The Kessler Syndrome is a theory proposed by NASA scientist Donald J. Kessler in
1978, used to describe a self-sustaining cascading collision of space debris in LEO. It’s
the idea that two colliding objects in space generate more debris that then collides with
other objects, creating even more shrapnel and litter until the entirety of LEO is an
impassable array of super swift stuff. At that point, any entering satellite would face
unprecedented risks of headfirst bombardment.
 On 10 February 2009 the first collision of two intact spacecraft occurred in outer space. Iridium 33, a
US communications satellite, and Cosmos 2251, a decommissioned Russian satellite collided as the
two objects passed over northern Siberia. This intersection caused two distinct clouds of debris to
extend through a substantial part of low Earth orbit.
 The European Space Agency (ESA) currently has two old, but uncontrolled, satellites in orbit, that
are the subject of discussions as to active debris removal. The satellites, ERS and Envisat, both
suffered major failures which have led to them drifting uncontrolled in low Earth orbit.
 Each of these examples raises slightly different legal issues in the context of the current
international, European and UK legal framework.
 Space debris has been the focus of scientific and technical analysis for many years but has not perhaps
achieved the legal recognition it deserves to lead to the drafting of an adequate international framework to
deal with the complex legal issues it raises. There are also difficulties inherent in the negotiation and
drafting of any future legal regulation; an international level playing field is required, for example, to
avoid the creation of uncompetitive disadvantages and unbalanced costs to industry in only certain
countries.
 The 'Magna Carta' of space law is the Outer Space Treaty of 1967. However, its provisions are too generic
to deal with the complex problems of space debris with any certainty. Despite efforts over decades to
define the concept of 'space debris', no internationally agreed definition exists. Perhaps the closest we get
is that space debris constitutes any man-made object that is either:
 (a) Earth-orbiting and is non-functional with no reasonable expectation of assuming or resuming its
intended function; or
 (b) re-entering the Earth atmosphere.
 The Outer Space Treaty offers minimal guidance as to the mitigation of space debris at State level, with
much interpretation left to lawyers. For example, Article IX provides that State Parties to the Outer Space
Treaty:
 “shall conduct all their activities in outer space… with due regard to the corresponding interests of all
other State Parties to the Treaty.”
 With some stretching and interpretation, this can be used to oblige State Parties to avoid the creation of,
reduce, and even remove, space debris to allow all States to participate in the exploration and use of outer
space with minimal risk from debris.
 Interpretative difficulties are also illustrated in the next sentence of Article IX which explains that the
study and exploration of outer space shall be conducted, “so as to avoid their harmful contamination,” and
that States Parties, “shall adopt appropriate measures for this purpose.” The Article does not enlighten us
as to what constitutes “harmful contamination'” or what such “appropriate measures” consist of. Space
debris is not normally classed as “harmful contamination;” the phrase being usually construed as
biological or radioactive contamination.
 As a State Party to the Outer Space Treaty, under Article VI the UK bears “international responsibility”
for the activities conducted by its nationals in outer space, whether the nationals are governmental
agencies or private entities, and for ensuring that such activities are compliant with the Outer Space
Treaty. The UK is, therefore, responsible for the actions of its private operators and for the consequences
and resulting damage, if such operators create space debris.
 Under the Registration Convention of 1976, each “Launching State” must hold a register of the objects it
launches into space. A Launching State is defined as: “A State which launches or procures the launching
of a space object”; or “A State from whose territory or facility a space object is launched.” The UK
deals with this obligation through the Outer Space Act 1986, under which the Secretary of State
maintains a register of space objects which have been licensed by the UK.
 SPACE TOURISM
 The successful launch of the first satellite Sputnik I in 1957,4 and Gagarin's first manned space flight in
1961, 5 marked breakthroughs in space history. The rapid development of space technology brings the
dream of conquering outer space to reality.
 In view of the large amount of investment and the long period of time needed to harvest the benefits,
state monopoly has been the typical characteristic of space activities since the launch of Sputnik I, as
acknowledged by the space treaties enacted by the United Nations (UN). However, private parties have
increasingly shown interests in space activities, posing great challenges to the former legal regime.
 Space tourism, once not considered an area of priority for commercialization, had never been so heatedly
discussed until the historic arrival of the two "unexpected" tourists-American Dennis Tito and the twenty-
eight year-old South African multimillionaire Mark Shuttleworth-at the International Space Station (ISS)
in April 20016 and April 2002,1 respectively. The ISS partners officially cleared the way for space
tourism with the approval of the two visits.'
 The development of space tourism no doubt calls for a legal regime to better regulate the market as
well as to offer clear guidance and expected outcomes. It has been widely argued that the existing
international space treaties are inadequate for space commercialization. 12
 Among these inadequacies are the current liability regime, which does not provide reasonable
recourse and accountability measures for private parties in outer space, and the registration regime
with its cumbersome registration requirements.
 Air transportation and space travel share a number of similarities, leading to the discussion of
extending the air transportation regime to space travel. The discussion again goes back to the classic
question on the boundary of outer space and air space and, thus, the application of air law and space
law
 The air transportation regime, characterized by state sovereignty over air space, substantially differs
from the space travel regime where no state can claim sovereignty over outer space.
 By referring to the liability issue in outer space, one may immediately think of the 1967 Outer Space
Treaty27 and the 1972 Liability Convention.
 Article VII of the Outer Space Treaty provides that states are internationally liable for any damage
caused by their objects or personnel while in space.
 The Liability Convention, expanding on Article VII of the Outer Space Treaty, "provide [s] a legal
framework for the full compensation of damage caused on Earth by the spacefarers as a result of their
activities in outer space.
 In view of its international nature, the Liability Convention does not address the needs of two types of
people, one being the nationals of the launching state.34 Furthermore, only a state may present a claim
for compensation.
 In international air transportation, the Warsaw Convention can be a good example for a uniform
multilateral system for space tourism. The Warsaw regime has successfully enabled insurance
companies to provide services in the field of international air transportation with confidence.
 The Warsaw Convention proved to provide the protection and freedom necessary for the air
transportation industry to develop in the early stages of civil aviation. With this Convention, the
industry was able to flourish and has now become the safest means of transportation.
 Space insurance has been available for a couple of years, especially in the field of satellite launching
activities.5' Further development of space activities has called for more active involvement of private
parties.
 However, a complete set of rules are still to be formulated to realize private financing for space
programs. Reasonable space investors clearly know that they are dealing with a cutting-edge
technology where there are inherent dangers. In view of the high risks in space activities, the
availability of insurance has been a critical element for private parties.
 In this regard, space insurance could provide effective relief for a whole range of liability risks
currently associated with space activities, including space tourism.
 Two main types of space insurance exist for space activities: insurance of space objects and liability
insurance (including third-party liability and product liability).52 Insurance of space objects can be
further differentiated into: "(1) pre-launching insurance; (2) launch failure and initial operation
insurance; and (3) insurance of the satellite itself.
 In theory, for space tourism, the space liability insurance should work along the lines of the
commercial liability regime. However, insurance companies need to make a profit, otherwise they
will not enter the industry. Since space tourism is new, insurance companies will need to assess
their own risks. Knowing how much they can potentially be liable for will be an excellent starting
point. Again, the current aviation liability principles are excellent starting points for the insurance
companies.
 THE STATUS OF SPACE TOURISTS
 The emergence of space tourists who go to outer space for leisure poses challenges to the existing
space legal regime. The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts, and
the Return of Objects Launched into Outer Space (Rescue Agreement) 14 outlines rules on rescuing
astronauts when they have suffered an accident, experienced conditions of distress, or have made an
emergency or unintended landing.'
 1"7 Obviously, the term "astronauts" is not necessarily equivalent to the term "the personnel of a
spacecraft." The term "personnel of a spacecraft" is a broader concept, including astronauts, space
engineers, and scientists.'08 By using a broader concept in the text, the Rescue Agreement applies to
broader categories of people on board spacecraft
 Nevertheless, just as identified in the preface, the Rescue Agreement is prompted by "sentiments of
humanity." ' ' " Such consideration similarly applies to the rescue of space tourists. Thus, two ways
can be sorted out to deal with the issue of rescuing tourists in the event of an accident, of distress, or
an emergency landing-either formulating a new agreement with similar provisions of the Rescue
Agreement or extending the existing agreement to the application of space tourists.
 In view of similar measures underlying the rescue of astronauts and tourists, extending the application
of the Rescue Agreement appears to be a sensible choice.
 By 2030, as many as 10 million people could travel to space with 80,000 guests staying at space hotels
and other facilities du*ring the course of a year