Student Editor - Nikita Bakhare | Junior Editor - Nikhil Dubey | Senior Editor - Advait Shukla
Far away from civilization, where the depths of water paint blue over blue, lies Point Nemo (Nemo in Latin means No One). This point, which is about 1450 nautical miles away from any piece of land, serves as a graveyard for dead spacecraft. This Oceanic Pole of Inaccessibility lies in the South Pacific Ocean and is considered to be a great place to dump things without majorly affecting the ‘environmental status quo’. The location is such, that it does not fall within any state’s jurisdiction. Countries like Russia, United States, Japan and others have contributed to over 263 pieces of space debris since 1971. It has been reported that the place now faces severe threat of over accumulation of space junk. With massive development in the aerospace sector, the area will soon face a massive space crunch apart from other environmental issues. Ambitious business leaders like Elon Musk, who wish to launch a humongous number of spacecrafts, could aggravate the situation. In order to assess the issue at hand, this article has been divided into 4 sections. Starting with the present section that introduces the topic, it moves on to further analyse the problem in the next section. The third section deals with the legal remedies available to combat the situation which is lastly followed by the conclusion.
Oceans are the regions where de - orbiting of space debris is practised. It serves two purposes - by ensuring that the space debris falls into the ocean, space activities are made sustainable by regulating spacecraft waste. This also guarantees that the space debris plummet does not damage human (territorial) life and property. However, the questions regarding the risks posed by the so - called space cemetery have been systematically ignored or discouraged. This process of de - orbiting protects human life at the cost of marine life and environment. The marooned region is inhabited by sponges, sea stars, squids, octopi, whales, viperfish, fishes, crustaceans, and other marine life. It is also vital to take into consideration the degeneration of the ocean floor ecosystems caused by the dumping of space debris. This is a classic issue of conflict of interests. While splashdowns of space debris are legitimate, lawful, and necessary under space law, they create potentially harmful consequences for the marine environment. Such occurrences also tend to produce toxic chemical materials such as hydrazine that can prove to be extremely toxic to aquatic organisms/life.
PROVISIONS UNDER THE LAW OF SEA CONVENTION
The most important piece of legislation that governs the law of Sea is the Law of the Sea Convention (LOSC), ratified by the United Nations. In other words, this legislation is the ‘Constitution of the Oceans’. Part XII of the LOSC sets out a framework to combat the damage of the marine environment caused by any State. Article 192 imposes duty on states to protect and preserve the marine environment, not only in areas within their national jurisdiction, but also beyond that. In addition to this, Article 237 of the LOSC acknowledges the “complementary relationship between the LOSC and other conventions on protection and preservation of the marine environment”. Article 194(3)(a) obligates the states to enact measures that minimize the release of toxic and harmful substances, especially those which are persistent from or through the atmosphere. Article 194(3)(a) coupled with Article 194(5), highlights the duty on States to protect the ‘fragile and rare’ ecosystems. Article 195 of the LOSC directs the non - transfer and non - transformation of pollution - non transfer of environmental damages from one location to another and non transformation of pollution from one type to another. A particularly interesting provision under the LOSC is Article 212, which is applicable in the present case. The said Article establishes a duty on the State to prevent pollution “from or through the atmosphere”. At the time of adoption of this Article, marine pollution caused by dumping space debris was not heard of, however, it may be interpreted to address marine pollution caused by space debris.
PROVISIONS UNDER OUTER SPACE TREATY
Marine pollution caused by space debris is an issue governed by two international laws - the LOSC and the Outer Space Treaty. Analysing the LOSC in isolation will fail to serve any purpose because there is no express mention of pollution caused by space junk (though Article 212 of the LOSC can be interpreted in such a way). Space activities are regulated by many space law treaties, one of them being the Outer Space Treaty. Article III of the OST provides that space activities must be carried out “in accordance with international law, including the Charter of the United Nations. Moreover, Article I of the Convention on International Liability for damage caused by Space Objects, defines ‘damage’ as the ‘loss of life, personal injury or other impairment of health; or loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations.’ Article II of the Liability Convention obligates the launching State to pay compensation for damage caused by its space objects on the surface of the Earth. A broader interpretation of this article would include the marine environment within its ambit.
IV. APPLICATION OF LEGISLATIVE INSTRUMENTS
None of the legislations discussed in the preceding sections expressly lend a mode to combat the issue of space dumping in marine bodies, in general and Point Nemo, in particular. This activity rests in the gap between two legislations. However, the LOSC and the OST can be interpreted in a way to solve the problem. This interpretation has three elements to it, namely - whether a sunken space object be equated to a form of pollution; whether the splashdowns of space debris be constituted as ‘dumping’; and whether this form of pollution be regarded as cross media pollution.
CAN A SUNKEN SPACE OBJECT BE REGARDED AS A FORM OF POLLUTION?
The meaning of pollution under LOSC (Article 1(4)), includes direct or indirect man - made introduction of substances or energy into the marine environment that results in the deterioration of the marine ecosystem (living resources and marine life).
In order to qualify as a form of pollution, a sunken space object needs to meet the following criteria:
i) should be directly or indirectly introduced by a man;
ii) should be composed of substances and energy;
iii) its introduction in the marine ecosystem must result in ‘deleterious effects’ to marine life and other resources.
The first two criteria are met by the sunken space object, but the degree of deterioration of the marine ecosystem caused by its introduction needs a more technical investigation. However, preliminary reports have established that poorly built spacecrafts do generate waste that has degrading radiological, biological and chemical reactions. Therefore, it can be concluded that space debris falls within the ambit of this Article and can be treated as a form of pollution. Article 194 of the LOSC has laid down a general provision that obligates the State to ‘prevent, reduce, and control pollution of the marine environment from any source.’ The inclusiveness of this provision allows for a dynamic interpretation.
CAN SPLASHDOWN OF SPACE DEBRIS BE REGARDED AS DUMPING?
Articles 194(3)(a), 210, 216 of the LOSC classifies dumping as a mode of pollution. Article 1 (Section 5) of the LOSC defines dumping as “any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea.” In the present case, splashdowns are deliberate disposals by the launching state. However, the issue of whether splashdowns of space debris fall within the ambit of Article 1 (Section 5) of the LOSC arises due to lack of express mention of ‘spacecrafts’. Again, due to lack of knowledge about space activities being potential polluters, it can be arguably stated that it was not intended to include dumping of space debris in the said provision. A more liberal approach to interpreting the legislation will show that the greater intent of the LOSC is to regulate any source of pollution (Article 194 of the LOSC).
DOES THIS FORM OF POLLUTION QUALIFY AS CROSS MEDIA POLLUTION?
The transformation of one form of pollution to another or transfer of pollution from one medium to another is governed by Article 195 of the LOSC. In the present issue, both the provisions are relevant. Space debris dumping qualifies as a ‘Cross Media Pollution’ since it deals with the relocation of debris from the space (Source Medium) to the oceans (Recipient Medium). However, many argue that discarding spacecraft rejects into the oceans is the most effective mode of waste disposal. This argument is seriously flawed when the damage caused to marine life and ecosystem is assessed.
V. SUGGESTIONS AND CONCLUSION
The duty to protect and preserve the environment, in general, is not linked with the welfare of humans. It exceeds that and includes the obligation to preserve the environment to protect ecosystems and other forms of life. To work towards an effective solution, participation of States is crucial. While the LOSC under Article 204 has imposed duty on States to ‘evaluate and analyse’ effective scientific methods to curb marine pollution, little has been done to achieve it. The States need to look beyond national interests and engage with others to reach a resolution. Apart from state obligations, there lies a crucial responsibility upon the lawmakers to identify the loopholes in the text and work towards cementing them. There is an urgent requirement of express conditions and provisions that regulate marine pollution caused by the aerospace department. Liberalising the conventions is imperative and vital to combat pollutants caused by sources that are not mentioned in the texts.
 Vito de Lucia & Viviana Iavicoli, “From Outer Space to Oceanic Depths: The ‘Spacecraft Cemetery’ and the Protection of the Marine Environment in Areas Beyond National Jurisdiction” CWSL Scholarly Commons (2019).  Kiona Smith-Strickland, “This Watery Graveyard Is the Resting Place for 161 Sunken Spaceships”, Gizmodo, available at: https://gizmodo.com/this-watery-graveyard-holds-161-sunken-spaceships1703212211 (last visited on October 17, 2020).  Maria C. Baker et al., “An Environmental Perspective”, in The Status of Natural Resources on the High Seas 10 (2001).  Supra note 1.  Ibid.  Louis de Gouyon Matignon, “Marine Pollution caused by Space Debris”, Space Legal Issues, available at: https://www.spacelegalissues.com/marine-pollution-caused-by-space-debris/ (last visited on October 17, 2020). Supra note 1.