Harmful contamination, harmful interference and space debris

Is there a link between harmful contamination, harmful interference and space debris? There is a consensus that the use of space is essential to preserving the economic, commercial, and military interests of advanced industrial nations, and that any harmful interference with satellites poses a threat to these interests.

For this new Space Law article on Space Legal Issues, let us study the concept of harmful contamination, harmful interference and that of space debris, as it is presented in Article IX of the 1967 Outer Space Treaty, Magna Carta of space law.

Introduction on harmful contamination, harmful interference and space debris

States shall avoid harmful contamination of space and celestial bodies. This is mentioned in Article IX of the 1967 Outer Space Treaty, which states the following: “In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. 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. 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. 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 principle of cooperation and mutual assistance

Article IX of the OST starts with the following: “In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty”.

This is an important sentence, reaffirming the spirit of the 1967 Outer Space Treaty, its Preamble and the general consensus governing the exploration and use of outer space. The activities in outer space shall be guided by the principle of cooperation and mutual assistance. Also, States Parties to the Treaty have to bear in mind when conducting activities in outer space the corresponding interests of all other States (and not simply anymore States Parties to the Treaty).

Harmful contamination when pursuing studies of outer space

Article IX of the OST continues with the following: “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”.

This is called “planetary protection”. Planetary protection is a field concerned with keeping actual or possible zones of life pure and unspoiled. A planet’s biosphere is its complete zone of life, its global ecological system, and includes all its living organisms as well as all organic matter that has not yet decomposed. Planetary protection, which mainly focuses on microbial life and on potentially invasive species, is essential for several reasons: to preserve our ability to study other worlds as they exist in their natural states; to avoid contamination that would obscure our ability to find life elsewhere – if it exists; and to ensure that we take prudent precautions to protect Earth’s biosphere in case it does.

Typically, planetary protection is divided into two major components, two types of interplanetary contamination (biological contamination of a planetary body by a space probe or spacecraft, either deliberate or unintentional). Forward contamination is the transfer of viable organisms from Earth to another celestial body; it is prevented primarily by sterilising the spacecraft. Back contamination is the transfer of extraterrestrial organisms, if such exist, back to the Earth’s biosphere. Non-biological forms of contamination have also been considered (objects left on the Moon or Moon Junk). Current space missions are governed by the Outer Space Treaty and the COSPAR guidelines for planetary protection.

Harmful interference with activities of other States

Article IX of the OST continues with the following: “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”.

First of all, harmful interference concern activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies. This means that the principle may not apply to commercial or military activities; what is not the peaceful exploration and use of outer space is, according to an a contrario analysis, excluded from the scope of this principle.

The “no harmful interference” proposal takes into account the interests of a wide range of space-faring nations, including those who maintain hedging strategies against potential noncompliance. A code of conduct for responsible space-faring nations that includes a no harmful interference provision can help promote the peaceful uses of outer space while addressing the security concerns of major powers.

Article IX of the 1967 Outer Space Treaty finishes with the following: “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”.

To the extent general international law provides for obligations resting upon states to avoid or address harmful interference with the lawful telecommunication activities of other states, such obligations would also extend to outer space. What about space debris? Orbital debris is not addressed explicitly in current international law. Three articles in the Outer Space Treaty contain language pertinent to orbital debris issues. Article VI, VII and IX, which allows states that have reason to believe that a planned activity or experiment would cause potentially harmful interference with other space activities to “request consultation” concerning the activity or experiment.

Although the U.N. treaties deal with some of the issues raised by the presence of orbital debris, many other debris-related issues are not addressed. For example, the treaties do not address the potential need for measures to reduce the creation of new debris.

Concluding remarks on harmful contamination, harmful interference and space debris

The advancement of an international norm against harmful interference with space objects, supported by a hedging strategy in the event of noncompliance by other nations, offers the best likelihood that satellites can continue to support the needs of citizens and their governments.

Furthermore, a provision banning harmful interference with satellites might best be embedded in a code of conduct for responsible space-faring nations. Indeed, a code of conduct that includes other essential provisions, such as those establishing debris mitigation and space traffic management protocols, could be vitiated if nations test and use mechanisms that result in harmful interference with space objects.