From Outer Space to Ocean Depths: The Spacecraft Cemeteryy and the Protection of the Marine Environment in Areas Beyond National Jurisdiction

Abstract

This article aims at offering a preliminary exploration, from the perspective of the law of the sea and of the protection and preservation of the marine environment of a specific use of a particular ocean area beyond national jurisdiction known as the “space cemetery”. In this area, characterized as devoid of life and of human activity, space faring nations have since the early 1970s de-orbited a diverse array of spent, derelict or otherwise no longer functional space objects, such as satellites or even entire space stations, with the double aim of ensuring the sustainability of space activities by reducing the “space junk” that orbits around Earth, and of addressing the risks that space debris may pose to people or property when falling down back to Earth, and avoiding the corresponding liability. However, these practices may pose a number of questions related to the marine environment. This article then aims at exploring in a preliminary manner the actual or potential environmental consequences of these oceanic re-entries, known as splashdowns, and at assessing, this practice in light of the general principles and specific rules – both substantive and procedural – relevant for the protection and preservation of the marine environment in areas beyond national jurisdiction, as set out in the LOSC Convention, in other relevant Treaties, as well as in customary international law. Relatedly, since the practices in questions may be simultaneously lawful and unlawful, according to which branch of international law the analyst uses as interpretive lens, this article also aims at exploring the terrain of intersection between space law and law of the sea. The aims of this article are however exploratory and as such the article will offer only a preliminary discussion of some of the relevant issues and will raise some questions, rather than assessing comprehensively the applicable law. The article will first discuss the question of the sustainability of space activities, thus presenting the problem as well as the legal framework. The it will discuss in some details one of the available options to address the problems threatening the sustainability of space activities, namely oceanic splashdowns in the so-called “spacecraft cemetery”, as well as the potential negative implications for the marine environment. Finally, it will revisit the practice of splashdowns from the perspective of the law of the sea, in order to explore some of the legal questions that may be raised in connection with the practice of splashdowns, asking specifically whether splashdowns: can be considered a form of pollution under UNCLOS; can be considered a form of dumping under UNCLOS; entail a form of cross-media pollution ex art. 195; trigger obligations of environmental impact assessment, and whether these obligations are met.