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The debate over space debris, its legal status, remedies, and their astropolitical consequences has been going on for a long time. Recently, the United States of America has introduced the concept of treating some wrecks, such as Apollo lander remains or certain robotic landers and rovers as heritage sites. This has become part of both US national space law under The One Small Step to Protect Human Heritage in Space Act and the Artemis Accords. However, space wreckage will create much more conundrum in the future.
First of all, we need to realize, what we call space debris and wreckage. Normally we refer to technical definitions, such as those found within the UNOOSA guidelines or national space laws. The basis of what constitutes space debris or wreckage is a space object, its launcher, and its respected components. There is no legally binding definition of space debris, thus most entities concerned with the problems adopt the ones that have been established by International organizations concerned and specialized in matters of space exploration, safety, and law. International space law lacks both clarity and strict definitions of many legal concepts, which can even be broadened by national regulations. This is true for space objects, which are at the core of the space debris issue. One such aspect might be treating space-manufactured objects, especially those made of processed extraterrestrial material, as space objects of equal standing as objects manufactured on the surface of the Earth and launched or assembled from launched components in outer space or on the surface of a celestial body. Thus, with industrialized space resource extraction, and its further processing into articles of manufacture and production of space objects and their components, there might be an issue with different categories of space debris – those, which are former space objects and their parts, and debris created from extraterrestrial matter which is being created by a space object during its activity (like spewing lunar regolith). Yet what doesn’t allow us to treat overburden from mining activity or dust being blasted by propulsive landing as space debris is their registration. Or a lack of thereof. Thus, a piece of processed matter from a celestial body obtained during a space resource activity can be regarded as space debris, only if it had previously been registered as a space object, or a component of such.
In a sense, space objects are forever, meaning there is no legal mechanism for abandonment or scuttling space objects. They may change hands, be moved to a graveyard orbit, burned upon reentry, or sunk at Point Nemo – The Spacecraft Cemetery. Some defunct space objects collide with other objects or their components, breaking up into space debris. Space debris also occurs due to the effects of the space environment deteriorating elements, flaking paints, or eroding materials. Space objects come into being after they have been properly registered. We need to distinguish between two types of states – the state of registry and the launching state. While in some jurisdictions, the title of launching state and the state of registry sits in the hand of a single state, there are many situations, when different states ascribe to themselves the roles of launcher and owner/operator. This however is not to say that all space objects are state-owned or operated, for we observe a major increase in private space objects in orbit, as well as private space objects going to the Moon and beyond.
The distinction between the launching state and the state of registry is most common when discussing space wreckage. Wreckage, which for the sake of this article is not in any way codified, would consist of complete or mostly complete, even if partly damaged, space objects that have ceased operations and have been abandoned without any purpose in orbits or on surfaces of planets and moons. This would mostly be the case for surface-based space objects such as landers and other equipment which have been left by the state or private operator. When no collisions are to arise from fast-moving debris, the main focus is the activity or lack of it of the state of registry. Currently, on the Moon, there is not much inactive equipment to raise alarm, though the majority of anthropogenic technological artifacts scattered on the Lunar surface are unoperational. The cause for concern comes as soon, as „space object disposal” becomes aligned with lunar operations’ sustainability. Having too many objects spread on the surface with no way to „burn them upon reentry” (as it is still the unfortunate practice for the majority of Earth-orbiting space objects) poses the question of their disposability.
Right now there is no binding rule of ISL for disposing of space objects. It is customary to assume, that state parties will take certain measures to limit the contamination of outer space with debris or leftover wreckage. This also assumes that there will be no cross–state-party recovery attempts – State parties are to arrange their own service or disposal missions. And on the other hand, there are approaches to marking some national space wrecks as heritage sites. One might even regard securing the rights to such a wreck-turned-memorial monument to be something never before seen in the course of discussing access to space. On the one hand, any means of politically protecting (establishing a safety zone) or covering the remnants with a protective dome, shielding it from further lunar environmental effects, might be viewed as a form of appropriation under Article II. While establishing protection around Apollo-era landing gear, LRVs in a sort of a global lunar museum project might be viewed as a political projection of national accomplishments, the protection of other nations’ pre-Artemis Landing space objects, which might include Soviet, Chinese, Indian and Israeli landers and rovers will require clear rules for heritage sites establishment and possible operation. One cannot exclude the possibility of future heritage protection abuse, if the rules are too bleak, or major political pushback if the rules are too restrictive and future space actors based on minority communities would also want their heritage to be included.
Yet what happens with a space wreck that has been declared a heritage site? Does it change its state of registry to a global NGO, such as UNESCO, with the state of registry having little to no saying in the matters of its protection? Does the heritage object fall out of the catalog of space objects, in effect voiding any provisions standing from articles VIII and XII of OST towards this object? In other words, will it still be regarded as a Space object erga omnes, with it remaining under the jurisdiction and control of its state of registry? Will the original state of registry lose the right to exercise control over the object, regarding its visitations by foreign state parties? Can the State of registry allow salvaging or cannibalizing of parts from the heritage object, with or without the consent of the „heritage preservation” entity, or will it be the other way around? That remains to be seen in the future, though some provisions of the UNESCO Convention on the protection of the Underwater Heritage might provide some inspiration for future provisions of space law. Alternative concepts might be found in the Artemis Accords, and the Building Blocks for the development of an international legal framework on space resource activities.
Another issue of space wreck disposal is breaking up and hulking. Shipbreaking is a well-known practice in the maritime industry where a ship is dismantled, and its parts are cannibalized and resold, raw materials and scrap being extracted for other purposes. Hulking is, on the other hand, the act of repurposing the hull of a decommissioned seafaring vessel to serve as either a floating storage facility, housing,
In the context of space objects, hulking may include repurposing a space object, such as a spaceship to function as a crew habitat upon landing, as portrayed in Mars Direct, Space X’s Starship concepts, and others which include the creation of a permanent station with the use of ship components. Similar projects have been proposed back in the shuttle era with the use of fuel tanks in orbit. Repurposing hulls, buses and components of a space object might also take shape in de-hulking or „reshipping” a space object, by reusing a former „space hulk” as a brand new object or part of thereof. This process might be more frequent and broad as we might think, especially with the advent of the Artemis Program and with new nations signing the Artemis Accords. Reusing parts and components of old space objects is an alternative to letting them waste and erode, with some of them becoming a hazard to other space objects. This however will bring about the need to rethink the space object registry.
While in-space manufacturing (ISM) in association with space mining or ISRU can bring about a space object out of the proverbial vacuum, ship breaking, cannibalization, and hulking will bring about space objects which in some sense would resemble the Ship of Theseus. In other words, while space object A may carry on its operations under its initial registration, objects B and C, based on former elements of space object A, might bear different registrations and serve different purposes. This in effect would be of concern to any rights holders, if the state of registry is party to the Space Protocol of the CTC, or in the case, where a party has sold a component or a new object utilizing cannibalized or remanufactured elements and systems from the original object, that has been recognized as a wreck, or parts of it have been replaced during its operation. This will also have bearing on IP, trade, and arms control laws, yet what concerns us is Space law.
The reliance of contemporary space law on Cold-War Era treaties becomes more problematic as technology progresses and more parties become active within the cislunar region of outer space. While it allows academic concepts to flourish exponentially, it also holds down any reasonable solutions to the conundrums presented by miniaturization, increased space traffic, or even the introduction of living organisms as components to space objects serving industrial or commercial purposes. The same is true with both space debris and wrecks. Neither one of the 4 canonical UN treaties answers the issue of objects changing hands during operations or after one’s original purpose has been fulfilled and the new owner refurbishes it to serve another one. International space law is not concerned with entities who are nationals of a state party to the treaty salvaging debris, picking up „flotsam” or reusing parts of dead robots and landed remains of a spacecraft. But neither does it directly answer the issue of foreign parties utilizing wrecks and components which are registered with another state party.
Take for example article XII, which allows space objects to be open to all parties, and following that with Article V’s obligatory assistance to astronauts and state parties in need. While the provisions of these articles were written decades ago and were written with the moon and outer space as another Antarctica in mind – these are the paragraphs a state party might follow to access the elements of a defunct space object. The best scenario involves the owning state party transferring crucial data and aiding the foreign party, while the worst case involves the former squatting on the defunct object with no regard to its registry state’s calls for leaving the object and refraining from using it immediately.
Furthermore, such a precedent might spark military action to purge the wreck of unauthorized alien invaders and regain control over the object in question. This is where the issue of space objects being so to say „forever” comes into question, while a space object certainly is a physical artifact placed or manufactured in outer space, which can be repaired, reconstructed, cannibalized, burned upon reentry, laid to waste at a graveyard orbit. A space object may also be a piece of indisposed, broken machinery, which the state of the registry is unwilling or unable to remove by its own volition or means. While it may be reasonable, giving the context of the OST, for a state party to arrange the transfer of ownership or prior retrieval of some essential elements of such object. Yet in the context of astropolitics, an object on the surface of the Moon, even a defunct processing station, the ghost town that used to be a boom town so to say, is still a foothold in outer space. As far as the presence of a space object, regardless of its operational status, does allow a State Party to the OST to claim sovereignty, and grant exclusive real property rights, the occupation of physical spaces and orbits remains as true as Newton’s laws of motion. Therefore allowing a component of a spacecraft to fall into disrepair and erode under cosmic radiation and other space weathering effects can be a result of either lack of means to dispose of or cannibalize that space object, or the purpose of its remaining there (especially if it’s not prone to orbital decay, as in the case of orbital space objects) might be to serve as a foothold or a monument. the former is true not only for the remnants of American crewed landers but also for similar remnants of other nations’ endeavors.
To reiterate the difference between Wrecks and Debris originating from anthropogenic space objects: Debris do not possess any recoverable or useful parts that could be reused or cannibalized. Debris can be collected, broken down, purified and use for further manufacturing as recycled material. Wrecks on the other hand do possess elements, systems which can be reused without being broken down, by simple removal procedures, or are suitable to be repaired and brought back online. This also takes into account rockets and external propulsion units which can be refueled or otherwise repurposed. This does not exclude ship/bus breaking activities in relation to space wrecks, hulking or other disposal activities. However, debris cannot be viewed as a memorial or heritage site, while a wreck can. This distinction is made on the base of complexity and size of an object and its fragments, as well as the state they are in. One can argue that defunct Starshot probes would be closer to debris, than a radiator segment broken of a crewed space station, yet the distinction remains for the purpose of the argument and article.
Going back to our hulks and re-purposing space objects, there needs to be a major discussion on rethinking the registry system, as well as what constitutes a space object. The main issue with hulking might be the status of a space object and its components no longer serving their original purpose, thus remaining improperly registered, after their purpose has changed and the object remains operational, though under the different designation or technical conditions. It is necessary that states and intergovernmental organizations have a clean and tidy registry and jurisdiction and control issues have to be settled. Furthermore, the issue needs to be addressed in further developments of international, national, and contractual space law, if it would aim to regulate any issues arising from manufacturing, hulking, or disposing of space objects as such. We might look at Apollo landing gear as components of a space object which have been „hulked” into monuments for the commemoration of the first human landings on the Moon, yet the issue becomes more serious, the more traffic there is on the Moon. The ability to reuse defunct or decommissioned space objects and their parts will prove crucial to any activity beyond Earth, as similar methods will be employed by entities specializing in space resource activities. Thus reusing discarded rocket bodies as shelters, using old gear in new equipment, or recycling/upcycling elements of space objects, for repair or construction, are the means to achieve space sustainability of industrial or human-centered systems beyond Earth. Still, those can be very much hindered by red tape or legal obstacles, especially those inherited from original space law treaties.
The problem of space wrecks, or derelicts, to use the classical sci-fi analogy is that as long as the object remains in a national register, the nation still exists, or its successor still recognizes the wreck as its space object, that object is not without an owner. This will remain a problem, especially with the lack of salvage laws, thus no attempt to retrieve or remove such an object is possible without the proper authorization of the state of registry. One can surely „move” an asteroid with only the proper authorization compliant with Article VI of the OST, yet moving a wreck or parts of thereof requires far more paperwork. We might also see a lot of wannabe squatters (more robotic than human) dwelling inside or around an „unguarded” space object, as well as space tourists similar to contemporary wreck divers or urban explorers.
Furthermore, regarding the issue of Jurisdiction and control, there is the question under who»s jurisdiction does a space object fall, it has been hastily brought apart and divided and its components are „scattered” as elements of other space objects. Or as treasured souvenirs. objects might change hands via a contractual exchange, or via de facto control. The latter one is most suitable for objects lacking any registry, to properly recognize the operator and the state that might be responsible for the activities (or even hazards) carried out by said space objects. There are also other planes or dimensions of jurisdiction to be concerned with when discussing space objects with manufacturing capabilities or objects with the opposite ability – meaning „spaceship breaking”. The problems of extraterritoriality and application of „control” over a dead space object may in effect turn a defunct space object into a legal battlefield, with different state parties claiming to have effective patent jurisdiction over the said object and its components. This is because concepts like the control and effectiveness doctrine, which are present in US patent law may allow extraterritorial infringement cases, which take place or are based on foreign space objects to be decided by US courts. In some cases, methods, and apparatus that are used for „spaceship breaking” might become a problem for foreign parties trying to salvage or break down elements of a space object that remains under US jurisdiction. And on the other side of US patent law, the foreign object that is currently being operated by a US entity might possess some systems, that are being protected by patents in the United States, where the operator lacks any license from the patent holder.
There is also the problem of the legal status of objects which have been abandoned and removed from the registry (or registered as destroyed). Albeit the issue of space debris, there is the problem of treating those objects, wrecks especially, as either province of all mankind, a natural feature of outer space, or something else exactly. Making space objects disappear from the registry is an administrative act, and actions in outer space may be diplomatically challenged under the OST and the UN charter, though one nation cannot breach the non-interference principle and impose its rule on another nation’s domestic law and procedures regarding space object authorization and decommissioning.
This fact does not change the issue at hand, that unregistering a space object will leave its status hanging in the legal void. Derelict space objects littering orbits and surfaces of planets and moons are currently being addressed as both a problem of contamination of outer space and an existential risk posed to a globalized civilization, highly reliant on the use of outer space. Therefore allowing state parties to the treaties of space law to unregister or in other ways remove the object from its registry, without properly disposing of the object and its components would metaphorically leave them off the hook in regards to liability for the contamination of outer space. That said, it is to be noted that while international law does not address the issue, national space regulations tend to follow recommendations from international and intergovernmental organizations regarding space object disposal, mitigating space debris creation, by implementing their own set of regulations and requirements for national operators to comply. This is one of the ways that space law evolves and adopts, through cooperation and harmonization of national space laws of different space operating nations. However, a lack of even a contractual, multilateral act regulating the issue of utilizing space wrecks might lead to confusion or limiting access to parts of a celestial body by (legally) immovable junk. While control can be established over a space object left on the surface of a rocky body or in a graveyard orbit even after it has been decommissioned and laid to waste, there yet has to be a precedent both for such activity and any legal objection on part of the former owning party or any third party demanding a different set of rules being established.
To sum up this article, it is a challenge for international space law, internationally harmonized national space laws, or contractual space law to address the problem of wreckage left behind and the issue of salvage, recycling, or hulking. While the latter is mostly a domestic issue concerning national regulations and objects changing purpose and ownership, the former is of concern to all space-using parties. Especially with the rise of new space actors and technologies, the problem of refueling, refurbishing and reusing a long-dead space object by a different party than that which carried it in its registry. The problem of wreck squatting, ship breaking, and cannibalizing parts while currently unprecedented should not remain an unaddressed issue in the future.
Edited by Mariusz T. Kłoda
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