What you need to know
China needs to seriously consider a possible legal framework for environmental protection in outer space.
The 2007 Chinese ASAT test, which destroyed a defunct weather satellite FY-1C, raised serious concerns from international society over the production of a large amount of space debris and its adverse impact on the space environment. Several days later, the Chinese Foreign Ministry officially confirmed the event and clarified that China had officially notified other countries of the test. The spokesman from the Chinese Foreign Ministry also stressed the principle of peaceful uses of outer space and that the test does not constitute a threat to any country.
As far as the ASAT test is concerned, there is no international agreement or domestic laws banning such a test. The primary purpose of China’s test was to destroy its own defunct satellite; it in no way attacked satellites of other countries. China’s ASAT test could not be considered to be in violation of the principle of peaceful uses of outer space, which the Chinese government has consistently advocated. This position is confirmed by the British government, which expressed its concerns, but at the same time believed that there is no contravention of international law at issue here. Other countries shared a similar view, though not explicitly, and only referred to its inconsistency with the spirit of international cooperation.
Legal problems, however, will arise when one of the pieces of debris hits another satellite. Will China be held liable under the Liability Convention under such a circumstance? There are difficulties in applying the Liability Convention. First of all, the term ‘space debris’ does not exist in any of the five space treaties. Different views exist with regard to whether space debris falls within the definition of ‘space objects’ in the Liability Convention. For example, scholars cast doubts over the inclusion of space debris in the scope of space objects and questioned the practicality of identifying such debris. If space debris falls within the scope of space objects and thus the Liability Convention applies, there are further difficulties in satisfying the element of ‘fault’ in the fault-based liability regime. The Liability Convention does not contain a clear definition of ‘fault’; no international legal documents have required a state to remove space debris created by its space activities or take any preventive measures. Even if the element of ‘fault’ can be satisfied and thus a state should be held liable, there are technical difficulties in ascertaining the status of the specific piece of space debris and proving with high probability that the piece of space debris belongs to China and that it was created by the 2007 ASAT test.
Nevertheless, there are indeed problems regarding harmful contamination, as addressed in the Outer Space Treaty. Millions of pieces of space debris were created from this event; some pieces are located in orbits around Earth “ranging in altitude from 3800 km (2361 miles) on the high end down to about 200 km (124 miles) at the lowest.” Even worse, these space debris spread out in a debris cloud surrounding Earth.
While emphasizing the peaceful uses of outer space, the Chinese government did not deny the large amount of space debris generated by the test. For a long time, international society has been working seriously on the issue of space debris mitigation; however, so far no international legal documents have been adopted. The documents adopted so far, such as the UNCOPUOS Space Debris Mitigation Guidelines, are just guidelines, and not legally binding on states.
Although the test itself did not violate international law, it does not mean that a state is free to undertake any space activities as it wishes. In light of international efforts addressing space debris mitigation, a state needs to be more cautious of possible international legal obligations in that regard.
The International Court of Justice (ICJ) affirmed in the 1996 Nuclear Weapons Advisory Opinion that “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.” In spite of the failure in reaching a binding legal document, international society has already had the consensus that states should try to prevent the creation of space debris in carrying out space activities and take measures to mitigate space debris. Accordingly, all states, in conducting space activities, should bear in mind Article IX of the Outer Space Treaty and the general obligation of environmental protection.
When it comes to China, there are indeed areas for improvement. The Outer Space Treaty requires appropriate international consultations for space activities which may cause potentially harmful contamination. While China claimed to have notified other countries of the test, it would have been better for consultations to be conducted on a wider scale, and for certain preventive measures to be taken before carrying out the activity, in view of its potentially serious consequences.
Although the Chinese government does not publicly declare the total abandonment of ASAT tests, a certain determination and efforts of the Chinese government in the context of space debris mitigation exists, especially in view of the enactment of Space Debris Mitigation Requirements in the same year and the Interim Measures on Space Debris Mitigation and Protective Management in 2009, which are in line with the international documents on space debris mitigation. The enactment of these documents implies that China has developed a legal obligation at the domestic level for any relevant actors in outer space to mitigate space debris. This is a major step forward to regulate the issue of space debris mitigation within the Chinese legal framework.
Nevertheless, China still needs to examine the issue of space debris mitigation from a broader perspective; it will need to seriously consider a possible legal framework for environmental protection in outer space. Moreover, China will join the international community in examining possible means to realize sustainable development in outer space.
This article was originally published in CPI Analysis.
Editor: Edward White