Splashing down the International Space Station in the Pacific Ocean: Safe Disposal or Trashing the Ocean Commons?

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The International Space Station (ISS) is reaching its end of life and will need to be disposed of. NASA plans to do so by de-orbiting the ISS and sinking it into a particular area of the Pacific Ocean known as Point Nemo (named after Captain Nemo, the famous character in the novel Twenty Thousand Leagues under the Sea). This area is the most remote place on the planet, at least in terms of its being “furthest away from any land”. However, Point Nemo and the surrounding oceanic space is also known as the “spacecraft cemetery”. Space agencies have in fact sunk “space junk” in this area since the 1970’s, through what is also known as spashdowns. Indeed, well over 260 space objects have been sunk in the area, including, notably, the Russian space station MIR. Ahead of the sinking of the MIR station, a debate ensued within the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS), as I discuss in some detail in a recent book chapter. At that time, Latin American Countries comprising the Rio Group raised concerns over the potential environmental implications of splashing down the MIR in the Pacific. The Rio Group expressed particular concern that the re-entry would turn the South Pacific Ocean from a “common province into a dumping site for dangerous materials”, and argued for the development of an appropriate legal regime to address such issues. The practice however did not change and splashdowns are in fact still considered the best option for addressing at least two central concerns for space activities: sustainability and liability. The sustainability of space activities is currently at risk due to the enormous amount of space debris floating in the Lower Earth Orbit (LEO). And in fact, the LEO has been described as “an orbital space junk yard”. This is the result of an increasing number of spent, inactive or broken space objects that remain in orbit, and which create increasing numbers of fragments through collisions. Each collision in turn increases the amount of space debris thereby also increasing the likelihood of further collisions and so on potentially ad infinitum – something known as the Kessler syndrome. With regards to liability and damages, regulated by the 1971 Liability Convention, the goal is to avoid injuries to persons or damages to property caused by space objects. For that purpose controlled re-entries in a location that is as remote as possible will be, whenever possible (though it is often not, and most re-entries are uncontrolled),  is the safest choice. Point Nemo represents in this respect a very convenient solution, which also fulfils current space debris mitigation guidelines.

To date, however, and contrary to the calls of the Rio Group, no appropriate legal framework was developed reflecting the marine environmental concerns raised at the time of the MIR spalshdown. Indeed, within the framework of space law there is currently no “hard” obligation (to conduct an environmental impact assessment, for example) but only voluntary guidelines that aim at ensuring that the Earth’s environment (which however is not the key concern of these guidelines) is not harmed by space activities (see e.g. the UNCOPUOS Guidelines and esp. Guideline 6).

However, there are good reasons to look at this practice from a law of the sea perspective. The crucial consideration is that it may be very important, given the knowledge gaps with regards to the ecosystems and ecological dynamics of the deep sea, to follow existing procedures to assess risks and prevent harm to the marine environment of what are potentially rare and fragile ecosystems of which little is known. Indeed, ignorance is a clear threat to marine biodiversity. And while most of the material that is submerged at Point Nemo may be comprised of non-toxic metals, it cannot be excluded that residues of toxic propellant such as hydrazine may survive re-entry and thus enter the marine environment. The type of material that re-enters the atmosphere and sinks in the space cemetery varies. In the case of the re-entry of the Apollo 13 mission for example, an entire radioisotope thermal generator (RTG), a nuclear battery used to power space objects, survived the re-entry and still remains at the bottom of South Pacific Ocean.

From a law of the sea perspective, the reference legal framework is the UN Convention on the Law of the Sea (LOSC). In its Part XII, the LOSC sets the framework for the protection and preservation of the marine environment, which constitutes a general duty for all State parties (art. 192) and includes in its geographic scope the marine environment of areas beyond national jurisdiction. Part XII seeks to regulate all forms of pollution “from any sources” (art. 194), but also specifically regulates pollution by dumping (art. 210), whose definition, is contained in LOSC art. 1(5), seems to encompass easily the practice of sinking space objects in the oceans (the question being rather whether or not that constitutes pollution for the purposes of LOSC art. 1(4)).

Within this general framework, LOSC sets additional obligations of conducting impact assessments (which is importantly also a duty under general international law, as recognized for example by the International Court of Justice in Pulp Mills). These obligations are triggered when there are “reasonable grounds” to think that certain activities may cause “substantial pollution of or significant and harmful changes to the marine environment” (art. 206). Now, whether or not there may be prima facie “reasonable grounds” to think that these fairly high thresholds of harm may be passed, it is important to consider that the environmental provisions contained in Part XII of LOSC need to be interpreted in light of other provisions of Part XII, such as article 194, which makes explicit reference to “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” (art. 194.5) as well as, importantly, in light of the entire corpus of international environmental law, as explained for example by the arbitral panel in the South China Sea case (para 941). This aperture to international environmental law brings with it additional considerations that need to be incorporated in any assessment. Especially relevant are the precautionary principle and the notion of cumulative effects, which require careful consideration of the scientific uncertainties involved and of the entire context within which any activity may or may not be considered to have deleterious effects on the (marine) environment. Additionally, the rules on impact assessment contained in the LOSC are complemented by requirements of monitoring and surveillance that amounts to what has been described as a “continuous” duty (Proelss Commentary to the LOSC, p. 1357 and more generally Pulp Mills, para 205). It would be useful to understand then, whether any such monitoring framework is in place for example with regards to the potential release of radioactive material from the RTG of the Apollo 13 (considering that the plutonium source it contains will remain radioactive for the next 2000 years), or any other similarly hazardous materials that may have been sunk at Point Nemo.

Finally, and looking ahead, a new treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ) is under negotiation. This treaty is likely to be adopted and perhaps even entry into force within the envisioned timeframe for the splashdown of the ISS and is relevant as one of the topics under negotiation is environmental impact assessments. Obviously, it is impossible to say what the final treaty text will be, but there are a number of points that are useful to mention as they indicate a direction and a set of possible scenarios that may have implications for the sinking of space objects at Point Nemo. For example, one of the textual options contained in article 23 (2 Alt. 2) of the revised draft text currently sets out that “State Parties shall cooperate in promoting the use of environmental impact assessments in relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies for planned activities that meet or exceed the threshold contained in this Agreement”.

This provision, if adopted, may be relevant with regards to the conduct of States that will be parties to the future BBNJ treaty and may be further strengthened through the final formulation of article 24, which deals with the thresholds for undertaking an environmental impact assessment. Currently, different thresholds are under consideration and are included in the various options of article 24, ranging from the replication of the LOSC provisions (art. 204(1), substantial pollution or significant and harmful changes) to thresholds inspired by the Madrid Protocol to the Antarctic Treaty, in particular its Annex I dedicated to environmental impact assessment. Therein, the relevant threshold for initial environmental evaluations is “minor or transient” impacts (article 2). Should the latter be the agreed option, it would certainly raise the bar (or lower it, as it were) for the duty to undertake environmental impact assessments also in relation to the sinking of space objects at Point Nemo.

Another important element to take into consideration for the implications it may have for the practice of splashdowns is the notion of cumulative effects, as it is currently addressed in article 25 of the revised draft text. One of the options sets out that “In determining cumulative impacts, the incremental effect of a planned activity under the jurisdiction or control of a State Party, when added to the effects of past, present and reasonably foreseeable future activities, shall be examined regardless of whether the State Party exercises jurisdiction or control over those other activities”.

Coming back to the ISS, the current plan to sink it at Point Nemo seems to be a suitable and convenient option to manage critical concerns from the perspective of outer space activities. However, from the point of view of marine environmental protection, it is important to raise questions, and ask in particular whether splashing down the ISS in the South Pacific represents yet another instance of a practice that may contribute to turning ocean commons into a “trashcan for space debris”, as the ESA representative stated at a UNCOPUOS meeting soon after the sinking of the MIR station. Of course, given all the involved complexities and the interests to balance, it is probably reasonable to consider that sinking space objects at Point Nemo is simultaneously the safest (or least-worst) option and a potentially harmful practice for the marine environment, depending on the point of view. Because of this double perspective, it is however necessary that such practice is carried out in full and explicit adherence to existing procedural and substantive marine environmental principles, rules and standards and that all relevant due diligence obligations be complied with. This is especially important given the existing regulatory gaps in space law with respect to the protection and preservation of the marine environment, which may be filled however by the relevant norms of international environmental law and of the law of the sea. Additionally, considering the enormous increase in space activities expected in the near future, and considering the increasing understanding of the fragility and uniqueness of the deep-sea ecosystems, it would be crucial to study the impact of such practice, both in terms of the individual instances and in a broader context that takes into due consideration the potential cumulative effects that may render less innocent each individual occurrence. Perhaps it is not realistic to imagine alternatives to the sinking of space objects at Point Nemo (albeit one alternative already utilized for many satellites is their re-orbiting to supersynchronous or “graveyard” orbits), but alternatives may need to explore commensurate with the potential risks to the marine environment, and mitigation and monitoring plans may need to be put in place having specifically in mind the protection nan d preservation of the marine environment.

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