A recent essay in The Space Review discusses a plan to effectuate space debris remediation. While their space debris remediation scheme raises a lot of questions, the authors make a puzzling comment towards the end of their essay with reference to Article IX.
Article IX of the OST, among other things, calls on nations to avoid “harmful interference with the activities of other State Parties in the…use of outer space” and to “undertake appropriate international consultations before proceeding with any such activity or experiment.” Clearly, orbital debris is interfering now with the space activities of State Parties to the OST.
The manner the authors apply Article IX in their essay is hap-hazard and is designed to support their essay as a rallying cry for space debris remediation and consequently ignores Article IX’s nature as an amalgamation of legal obligations and legal rights. Despite this, the authors may have tripped over a real issue with regards to Article IX and space debris remediation.
Article IX is the least understood provision of the Outer Space Treaty. Article IX is contained within one paragraph, but that one paragraph contains two legal distinct legal obligations and one legal right. It is uncertain why the final draft of the OST did not break out these three specific parts of Article IX, but it is rational to presume ambiguity was preferable considering both the United States and the Soviet Union were exploring the potential uses of outer space for national security activities that might otherwise have been precluded by a concise Article IX. A breakdown of the three distinct parts of Article IX follows.
The Legal Duty to Prevent Harmful Contamination
The first legal obligation of Article IX states:
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.
The duty to prevent harmful contamination dovetails with the legal right of exploration in Article I whereby:
There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.
The first legal duty requires the States, including their respective agencies and private citizens, to perform their Article I investigations in a manner that prevents harmful contamination of extraterrestrial environments, and also to perform their activities so as to prevent the contamination of Earth from extraterrestrial matter introduced into the Earth’s biosphere. Notably, there is no definition of what constitutes “harmful contamination”, but customary practice spells out to an extent what is and what is not “harmful contamination”.
For example, the Apollo lunar landings left behind refuse, including packaged human waste. That the United States felt leaving behind this particular waste did not create “harmful contamination” and the international community did not object, which implies a a customary usage such disposal does not constitute “harmful contamination” per Article IX. This suggests Article IX does not prohibit “contamination” so long as it is not harmful to an extraterrestrial environment. On the flip-side, NASA’s Office of Planetary Protection has in place protocols to prevent contamination of extraterrestrial environments, including potential water sources on Mars, as well as to protect Earth’s biosphere. This requires among other stringent preparation of spacecraft traveling to extraterrestrial environments so as to prevent contamination from living organisms and other potential contaminants, which implies a customary usage that the introduction of terrestrial organisms to an extraterrestrial environment like Mars could cause “harmful contamination”.
The Legal Duty to Consult
The second legal obligation and the legal right in Article IX are co-joined and have little or no customary precedent in the international arena. The second legal obligation in Article IX states:
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.
This segment of Article IX creates a legal duty upon a State to consult with the international community, presumably through the United Nations and specifically the Committee on the Peaceful Uses of Outer Space (COPUOS), in the event a State believes its planned space activities, including those by non-government actors, could potentially cause harmful interference with the peaceful exploration or use of outer space by other State actors or their nationals.
Unlike the first legal obligation of Article IX, this legal obligation has never been invoked by any State outer space actor. There have been substantial activities by both the United States, the Soviet Union/Russia and the People’s Republic of China that could have warranted its application, but by not obligating themselves to the Article IX duty to consult for these activities, a customary international norm has arguably been created for national security activities whereby the legal obligation to consult in Article IX is not triggered. Notwithstanding the observance of the first legal duty by State space actors, the fact the second legal obligation has not been invoked gives Article IX the false reputation as a dead provision of the OST.
The Legal Right to Request a Consultation
The legal right to request a consultation in Article IX dove-tails the legal obligation to consult. The right is created in Article IX whereby:
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.
The legal right to request a consultation must be made before a State performs a space activity. Japan’s attempt to invoke the right to request a consultation after the infamous 2007 ASAT test by the PRC is illustrative of how the right is not applied. The right to request a consultation in Article IX is for an activity being planned by another State Party in outer space, not subsequent to the activity, which means Japan’s use of the Article IX right of consultation did not form a customary usage.
Conversely, Western intelligence organs purportedly had foreknowledge the PRC was planning an ASAT test. Although it is unclear how much detail they knew and whether that detail would have been enough to trigger the right to request a consultation, there is an argument the failure of the United States or other Western states to request the right of consultation creates a conundrum similar to the legal obligation of consultation in that the failure to use the right creates a customary norm of when the right to request a consultation is not applicable.
Article IX, Space Debris and Custom
Whether Article IX applies to space debris is a two-fold question. Presupposing there is a legal definition of what constitutes “space debris”, the first question is whether “space debris” meets the ambiguous standard of “harmful contamination” in the first legal obligation of Article IX. In other words, does space debris as a whole constitute “harmful contamination” and thus trigger Article IX’s first legal duty, which means it must be prevented, or do only certain instances of space debris reach the level of “harmful contamination”.
The answer to that question may be found in non-binding norms, and specifically, the United States mandatory mitigation guidelines, among which there is a 25-year limit for space debris to remain in low-earth orbit (LEO). These mitigation guidelines were adopted by the United Nations as non-binding guidelines, but other states have incorporated them in one form or another. Therefore, if a space object lingers longer than 25-years in LEO, is that a customary baseline standard for what constitutes “harmful contamination”?
Arguably, that the United States has made the space debris mitigation guidelines mandatory for NASA and the Department of Defense (with exceptions) shows an intent the United States recognizes space debris can result in “harmful contamination” and therefore enacted the mandatory guidelines to comply with the first legal obligation under Article IX. The problem is the mandatory adherence to the guidelines is by executive order, which does have exceptions, and not by legislative action. Therefore, the guidelines are not legally-binding beyond the authority of the executive branch nor do they create an intent to be legally-bound at the international level. This directly affects the customary effect the mandatory guidelines have on the first legal obligation of Article IX as it relates to space debris and specifically its effect on the definition of “harmful contamination”. Moreover, the guidelines promulgated by the United Nations are voluntary, which also strikes against a customary application to Article IX’s first legal duty.
While the presence of space debris does not appear affect the customary usage of the first legal duty of Article IX, the proposed act of space debris remediation may provide a foundation for the customary usage of Article IX’s second legal duty. Without question, the technical means of removing orbital space debris present substantial unknowns in terms of how the activity might adversely affect the object and the present debris environment. That is to say, the potential exists space debris remediation activities could aggravate the present condition of the object in question and cause an otherwise benign object to become a space debris hazard, which could potentially interfere with other objects in orbit whether they be active or not.
This begs the question of whether a proposed space remediation activity could potentially cause harmful interference and whether that potential triggers the second legal duty in Article IX? The decision of whether or not a proposed remediation activity triggers the second legal duty of Article IX rests in a policy decision because whether or not a consultation is made, that decision could create a customary usage of Article IX that will bind further space debris remediation activities.
However, in the case of space debris remediation, it would behoove the United States to take the risk and make the policy decision to invoke the legal duty to consult under Article IX specifically to create a customary usage. There are several reasons for this. First, because space debris remediation proposals will attract soft-power rhetoric to the effect that the proposed activity is the test of an anti-satellite (ASAT) or another “space weapon”, preemptively accepting the legal obligation to formally consult about the proposed remediation activity would take some of the sting out of geopolitical speechifying. Second, by tailoring the consultation so it is limited only to the proposed space debris remediation activity, including its methodologies, the United States could form a narrow customary usage of Article IX’s second legal obligation without encumbering ancillary customary usage of the same legal obligation as it relates to national security activities that make them exempt from Article IX. Third, by creating a narrowly-tailored customary usage of Article IX’s second legal obligation, the United States could create a customary platform to invoke the legal right to consultation to inquire other states who may be planning space debris remediation activities of their own and expose adverse space activities disguised as remediation activities.
The drawback is geopolitical adversaries would see such a customary usage of the second legal obligation as a means of using Article IX’s legal right to consult as a tool to go on fishing expeditions to gather intelligence on national security activities unrelated to space remediation activities. However, if the customary usage of Article IX’s second legal obligation is tailored narrowly enough, the United States could easily dismiss such requests as outside the scope of the activities that are customary to Article IX. Eventually, COPUOS would (or at least it should) become wise to what constitutes a legitimate Article IX request for proposed space remediation activities and what is a disguised fishing expedition and disallow the latter accordingly.
The crux of this approach is legitimate space debris remediation activities can form the basis of a positive application of when the legal duty to consult is triggered while maintaining the customary umbrella enjoyed by national security activities. Moreover, the accompanying right of consultation will have a foothold to create its own customary usage and give Article IX further legitimacy. That being said, creating and legitimizing a narrowly-tailored customary usage for space debris remediation will not be easy, and it surely will be challenged by other geopolitical players. However, the resultant transparency of space debris mitigation activities will diminish the political impediment of space debris mitigation; strengthen the core of Article IX and weaken the perceived necessity for formal codes of conduct or other disguised and blatant arms control measures. What is more, such a customary usage will provide a political foundation for addressing the remediation of space debris, and start in earnest the path towards cleaning up critical space debris threats.