One of the major issues with space is not only its exploration, but also its conservation. Populated by debris of all kinds, space is akin to a kind of legal Wild West. No law, no authority, can preserve its nature or constrain its polluters. Only the goodwill of states and their various initiatives can help keep space clean.
"Space is a Wild West where there is no real sheriff," explains Yann-Mael Larher, a lawyer and founder of the Legal Brain law firm. On Monday, November 15, 2021, space was in the spotlight when the anti-satellite missile tests carried out by Russia inevitably spurred reaction from the international community.
But these tests also highlighted the staggering amount of space debris that's out there. So how do you go about cleaning up space? How polluted actually is space? And can space really be cleaned up? All these questions lead some people to wonder whether there could be, as there is for Earth, a legal framework governing space pollution. So far, it seems that this framework is not clearly defined.
A legal 'no man's land'
In space, legislation is a difficult thing to enforce. For starters, international space law covers only basic principles, as set out in the Outer Space Treaty (or Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies), a multilateral treaty ratified in 1967. This international treaty establishes that space shall be "free for exploration" and its use must be peaceful. In other words: it belongs to everyone.
"Everyone is supposed to establish rules and respect them, but no one will come to check if they are really respected," explains Yann-Mael Larher. No "arbitrator" exists today to sanction negative behavior. The Secretary General of the United Nations himself has no power, except to call for order.
In 2015, Joshua Tallis, a researcher and scientist at the Center for Naval Analyses (CNA), published an article on remediating space debris: "In popular perception, technology is seen as an exponentially expanding industry that ... continuously pushes its own boundaries. Such rapid growth is infrequently, if ever, matched by an equal evolution in the legal framework that governs it." It turns out, there is a legislative black hole when it comes to regulating the pollution of space.
The polluter-pays principle
Some countries have included space debris in national legislation. At the global level, it is Resolution 68/74, voted by the United Nations General Assembly in 2013, which notes "the need to maintain the sustainable use of outer space, in particular by mitigating space debris, and to ensure the safety of space activities and minimize the potential harm to the environment."
For their part, the world's major space powers follow rules of good conduct and recommendations for the manufacture of objects to limit the amount of debris in space.
So how can we go further? "We could imagine a treaty based on the same principle as the carbon tax," explains Yann-Mael Larher -- or a polluter-pays principle. Russia, the US and China are the main polluters in this case. According to data from the SpaceTrack service, Russia is responsible for 36% of the waste that orbits the planet, while the United States follows with 33%, before China with 24%.
And other levers could be put in place, such as a gradual clean-up of space or rethinking the manufacture of objects so that "the next satellites can self-destruct or move away" over time.
"Today, we can see the need to think about this," says the Legal Brain lawyer. Especially in a context where space tourism looks likely to become a real possibility for the very rich of this world. "We need to anticipate these issues and help create legislation."