Regulating the Space Commons: Treating Space Debris as Abandoned Property in Violation of the Outer Space Treaty

By Muñoz-Patchen, Chelsea | Chicago Journal of International Law, Summer 2018 | Go to article overview

Regulating the Space Commons: Treating Space Debris as Abandoned Property in Violation of the Outer Space Treaty


Muñoz-Patchen, Chelsea, Chicago Journal of International Law


Table of Contents

I. Introduction.................... 235

II. Background.................... 236

A. What is Space Debris?.................... 237

B. Definitions of Space Debris.................... 238

C. The Problem with Space Debris.................... 239

D. Proposed Solutions to Clean Up Space Debris.................... 241

III. Legal Obstacles.................... 243

A. Ownership.................... 244

B. Space Debris Should Not Be Considered a Space Object.................... 245

IV. Space Debris is Non-Functional and has been Abandoned.................... 246

A. Space Debris Is Abandoned Property.................... 247

B. The Tragedy of the Space Commons.................... 250

V. The Obligation to Clean Up Space Debris.................... 252

A. Legal Principles Governing Activity in Space.................... 252

B. Failing to Clean Up Space Debris Violates These Legal Principles.................... 254

C. Using Market-Share Liability to Implement the Obligation to Clean Up Space Debris.................... 255

VI. Conclusion.................... 259

I. Introduction

The U.S. and the Soviet Union are responsible for the initiation of the current treaty governing outer space activities, which entered into force in 1967.' The landscape of outer space activity has changed dramatically since then, both in the number of players in space and in the amount of activity.2 One of the greatest threats to the ongoing use of outer space is space debris, a problem that many scholars believe has no solution under the current treaty regime.3 The most frequently cited issues are the absence of a binding definition of space debris,4 the impediment to clean up created by the current property and liability regime,5 and the nonbinding nature of the current debris mitigation guidelines.6

Consequently, many academics have called for a new treaty sensitive to the current state of space activity and the debris problem, or for serious modifications to the current regime.7 A new treaty would be useful, but this Comment suggests that space law as currently embodied in treaties, resolutions, and guidelines can be mobilized to address the problem of space debris cleanup.

This Comment argues that space debris is abandoned property that creates a negative externality in the common-pool resource of space. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty),8 establishes that ah nations must be able to freely access space. This language creates a commons in space, leading to a tragedy of the commons, while also making it possible to regulate spacefaring nations whose actions have restricted access to space and violated the Outer Space Treaty. This Comment argues that under the Outer Space Treaty, the U.N. can administer a marketshare liability regime in which spacefaring nations must pay for space debris cleanup based on the percentage of debris for which they are responsible.

This Comment first discusses the current state of the space debris problem in Section II. It then examines the legal obstacles to the creation of an obligation to clean up space debris in Section III. In Section IV, this Comment clarifies the definition of space debris and determines that space debris is abandoned property. Section V examines the obligation of countries to clean up debris based on existing law, and suggests that existing law allows for the creation of a market-share liability regime to fund the cleanup of space debris.

II. BACKGROUND

As of January 2017, the U.S. Space Surveillance Network has been tracking about 23,000 pieces of space debris that measure over ten centimeters wide.9 The European Space Agency's statistical models estimate there may actually be 29,000 pieces over ten centimeters, 750,000 from one to ten centimeters, and 166 million from one millimeter to one centimeter in orbit. …

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