Does international law allow polluting outer space? Space debris, or space junk, includes nonfunctional spacecraft, abandoned launch vehicle stages, and fragmentation debris. Space debris traveling at high speeds can damage spacecrafts or satellites. The U.S. Department of Defense tracks more than 27,000 pieces of space debris, and many more that are too small to be tracked may still be large enough to pose a danger. Space law expert Professor Frans von der Dunk explains what obligations there are, if any, requiring countries to track and dispose of space junk and current guidelines in some countries that may lead to the development of customary international law.
Frans von der Dunk is a professor of space law at the University of Nebraska College of Law and the Director of Black Holes, a consultancy company for space law and policy.
An Interview with Space Law Expert — Prof. Frans von der Dunk
Professor Frans von der Dunk: One of the most important areas of space, the largest concerns of space, and therefore also of space law, which is space debris or space junk, right? So there is no legal obligation in the Outer Space Treaty because back then it wasn't an issue. Nobody thought about the environment, and you know this one or two third stage rockets that were floating around, who cares, you know? That was the thinking in 1967. Now, of course, we are in a totally different situation, but the Articles of the Outer Space Treaty do not even provide for an obligation not to wantonly spoil outer space. The Indians may have raised a big stink when early 2019, they destroyed their own satellite creating a huge chunk of space debris, but legally speaking, there was no rule prohibiting them from doing that. And there is also no rule to clean up your own mess after yourself. If you have a satellite out there which is at the end of its lifetime, there's no international obligation requiring you to make sure that it is boosted into deep space never to be seen again.
Joel Cohen: It's not like hiking in a national park where you're expected to pack in everything that you want to use and pack it all out. Bring out every little sandwich wrapper that you brought with you.
Development of Customary International Law
Prof. von der Dunk: On the other hand, coming back to the customary law issue, what you do see happening is that states have already agreed on guidelines that that's not the proper way of behavior. Guidelines are not legally binding, so it's still a recommendation for states which could be seen as sort of as a starting point for customary law. What we also see happening is that the guidelines, which in themselves are not legally binding, are now used by various states. The United States, United Kingdom, France has binding obligations in terms of the licensing regime for their private operators. So one of the guidelines is you shall make plans for an afterlife disposal of your space object, which is again not a legal obligation internationally speaking but a recommendation. But you see now that if in the U.S., you want to have a license for a launch or for space operation, the regulatory agency is going to require you, well what is your plan for afterlife disposal. And if the plan that you show to them doesn't satisfy their concerns, you don't get a license. So at the private national level, it starts to become already a binding legal obligation, which going back to customary international law, at some point in time may lead to the conclusion that apparently the United States considers it now a matter of law that you can't just leave your satellite up there. You have to do something about it at the end of lifetime. And if you have more countries along the same lines, then you get customary international law. So that's a process I think, I hope which we're in the middle of right now.