Application of Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts

In' Yuikhai Doctor of Law Professor, Russian-Chinese Center for Comparative Law, Shenzhen MSU-BIT University 518172, China, Shenzhen, Guojidaxueyuanlu str., 1, office 1003 yinyh@szu.edu.cn Other publications by this author

Chzhan Chzhan' ORCID: 0000-0001-8366-9807 PhD in Politics Researcher of Russian-Chinese Center for Comparative Law, Shenzhen MSU-BIT University 518172, China, Shenzhen, Guojidaxueyuanlu str., 1, office 657 zhan.zhang@yandex.ru Other publications by this author

1. Statement of the question

Space debris has been considered a serious problem since the beginning of the space age. Efforts to clean up space debris have been underway for decades. In the 80s, NASA and other space agencies began to study this problem and develop methods for removing debris from orbit. One early approach involved using nets to capture and remove debris, while other proposals included using a laser or ion beam to remove debris from orbit. In recent years, high rates of development of low-orbit giant constellations have been observed, which can lead to a sharp increase in the amount of space debris ^[16]. On September 12, 2023, the European Space Agency published a report that to date the total weight of space objects in orbit has reached 11,000 tons ^[5]. On the same day, the European Space Agency published data that, according to the estimates of the statistical model (MASTER-8), there are currently 36,500 fragments of space debris with a diameter of more than 10 cm, 1 million fragments of space debris with a diameter of 1 cm to 10 cm and 130 million fragments of space debris with a size of 1 mm up to 1 cm ^[13]. At the same time, since space debris orbits the Earth at an average speed of 36,000 kilometers per hour ^[2], it can cause significant damage to satellites or spacecraft. Thus, the problem of space debris cannot be underestimated.

Currently, efforts to address the problem of space debris can be divided into three main categories: space debris prevention, active debris removal and space traffic management. Back in 2007, Norman Lloyd Johnson, head of NASA's space debris program, noted that from 2020, the removal of 5 to 20 large objects of space debris per year could curb the growth of the total amount of space debris, thereby ensuring that the space environment will not continue to deteriorate in the future ^[17]. However, in current international space law, there are no exhaustive rules governing the active removal of space debris from other States, and this document will focus on analyzing the composition of internationally wrongful acts of States and non-governmental entities for the active removal of space debris in the context of the Draft articles on the responsibility of States for internationally wrongful acts in cases where the State which owns the space debris, explicitly declares its disagreement with the removal, and the possibility of exemption from liability for illegal acts.

2. Exclusion of the illegality of the active removal of space debris from other States

If a State explicitly declares that it does not allow another State to remove its own space debris, then the further removal of space debris by another State would constitute a violation of an international obligation, in which case one can only invoke a "state of necessity" to exclude wrongfulness. Article 25 of the ARS states that a State may temporarily fail to comply with certain other less important or less urgent international obligations when it protects an essential interest that is in great and imminent danger in the only way for the State that does not seriously harm the essential interest of the State or States. According to Article 25 of the ARS, there are four basic requirements for referring to a "state of necessity". Later in this article, we will show how these four requirements should be fulfilled in the context of outer space.

(1) Protection of the "essential interest"

Article 25 of the ARS states that a State may invoke a "state of necessity" as a justification to exclude the wrongfulness of non-compliance with an international obligation of that State in the context of protecting an "essential interest". From the comments of ARS, it can be concluded that this "significant interest" includes both the significant interest of the country and its citizens, as well as the significant interest of the international community ^[14]. In addition, a reference to a "state of necessity" does not necessarily endanger the very existence of the state, and it is for this reason that business is also included in the list of "essential interests" ^[11]. For example, the International Court of Justice in the Case Concerning the Gabčíkovo-Nagymaros Project ruled that environmental interests can also be classified as a "significant interest" of the State ^[7]. Judge of the International Court of Justice James Crawford explained that the etymology of the word "essential" indicates a connection with the "life" of the state ^[3]. Many arbitration courts also adhered to this point of view, considering that in this case the following national interests are crucial: the existence and independence of the state, the maintenance of public order ^[4], the well-being of the country's population, access to public services and the functioning of state institutions ^[12].

There are a large number of artificial satellites in outer space, and a satellite collision is also the most likely situation that will lead to the loss of a country's "significant interest". Artificial satellites currently mainly perform the functions of communication, navigation, Earth observation, scientific research, remote sensing and space exploration. In particular, the functions of satellite communications, navigation and Earth observation are closely related to the "life" of the country. First, communications satellites are commonly used for long-distance communications. Imagine a hospital where in the middle of the night they suddenly cannot contact a surgeon, or a plane taking off cannot receive a signal from a tower, which threatens the well-being of the country's citizens. Secondly, navigation satellites are generally widely used in aviation, marine and road applications. If the crew going out to sea loses GPS navigation, they will also get lost in the vast ocean. There are also Earth observation satellites, whose role is usually to monitor and observe the Earth's surface, atmosphere and oceans, as well as to collect data on weather conditions, climate change, natural disasters, environmental changes and other Earth-related phenomena, which, if tsunamis and earthquakes in a country cannot be predicted, they also lead to the loss of the "substantial interest" of the country. Thus, a State can cite a "state of necessity" as positive proof that its own communications satellites, navigation satellites and Earth observation satellites will be exposed to space debris, that its country's existence will be jeopardized, public order will be difficult to maintain, the well-being of its population will be undermined, or that government institutions they will not function. Thus, the first element of the "state of necessity" has been proved.

(2) "Great and imminent danger"

The concept of "danger" can be divided into two components: risk and harm. Risk means the occurrence of a "trigger event" that can cause "great" and "imminent" damage to core interests. The danger must be "great" in a quantitative or qualitative sense ^[1]. In addition, it must be "imminent", but this does not necessarily require that the risk be unavoidable: in practice, since it is impossible to determine whether an event or danger will necessarily occur, the criterion for determining that an event is "imminent" should be the probability that this trigger event or danger will occur ^[8].

First, with regard to the element of "great danger", we believe that the term "quantitative or qualitative value" refers to two different ways of measuring or assessing the severity of the danger in question. When a hazard is quantified, it means that the severity or degree of the hazard is measured or estimated based on a number or measurable factors. This may include an assessment of the degree, scale, or magnitude of the hazard involved. For example, if damage is measured based on economic losses, quantification may include determining the specific amount of money that will be lost. When a hazard is assessed in a qualitative sense, it means that the severity or importance of the hazard is assessed based on non-digital or subjective factors. This may include consideration of the nature, characteristics or qualitative aspects of the hazard. A qualitative assessment may include an assessment of factors such as the impact on human well-being, the degree of emotional distress caused, or a violation of fundamental rights or values. The mention of both quantitative and qualitative assessments indicates that the danger in the case of a reference to a "state of necessity" must be significant from both numerical and non-numerical points of view.

In the context of outer space, when it comes to situations that can be considered "big" in both quantitative and qualitative terms, there are approximately the following two types of situations. Firstly, space debris generated as a result of collisions with artificial satellites poses a danger to other active satellites and spacecraft, which leads to failures in communication, navigation and Earth observation systems. This can lead to huge economic losses for the country, interfere with scientific research and affect all aspects of human life that depend on satellite technologies, this is from the point of view of national interests. Secondly, the cascading effect of space debris. The accumulation of space debris in low-Earth orbit poses a serious threat. If a collision between two objects creates more debris, it can cause a cascading effect, also known as the Kessler effect. This may lead to some orbits becoming unusable due to excessive debris density, which will make space exploration and satellite operation difficult or even impossible, from the point of view of the international community as a whole.

The specific requirements for the probability of an "imminent" danger or trigger event should depend on the specific situation. The appropriate level of probability may vary depending on a number of factors, including potential consequences, the nature of the event or danger, and the specific area. In some cases, we need to set a lower probability threshold to ensure that a potential risk does not occur. For example, in key security sectors such as aviation or nuclear energy. In other cases, a higher probability threshold may be required, especially if the consequences of an event or injury are minor. For example, in everyday decision-making or policy development. Ultimately, determining the appropriate probability threshold, which includes a balance of various factors, including potential impacts, available evidence, social values, and the requirements of a particular situation, which usually requires case-by-case analysis, taking into account expert opinions, scientific evidence, and risk management principles.

In the space context, space accidents, which can lead to serious loss of life, significant environmental damage or huge economic losses, are usually associated with the paralysis of communications, navigation, Earth observation and scientific research satellites. Thus, the degree of "inevitability" of satellite collisions with space debris, which was mentioned above, may be due to a lower probability threshold, allowing the State to refer to a "state of necessity" when the probability reaches 50% or less. Collisions of other remote sensing and space exploration satellites with space debris relatively do not entail serious human casualties, environmental damage and economic losses, and therefore States are allowed to refer to a "state of necessity" only if they can be assigned a higher probability threshold.

Thus, in order to measure the "great and imminent danger", we must first analyze the severity of the danger qualitatively and quantitatively, and then give it an appropriate probability threshold in accordance with the reality of the danger in order to determine when a country can refer to a "state of necessity".

(3) Implementation of the "only way"

The ILC commentary explains that the reference to the "state of necessity" should be excluded if there are other available ways ^[15]. In order to meet the "accessibility" criterion, alternative paths must meet the following three conditions: legality, feasibility and effectiveness. Legality and feasibility will not be discussed in detail. It is important that the alternative path be effective, because only then can it protect the essential interest that is under threat ^[6]. To characterize "effectiveness", Dr. Ryan Manton believes that this threshold should be as follows: can this path protect the relevant interests ^[10]. In addition, alternative paths that make a minimal contribution to the protection of relevant interests cannot replace a path that may be more successful in the future.

Therefore, referring to the "state of necessity", we must prove that other ways are not legitimate, unrealizable, ineffective, or at least less effective than the accepted way. In the context of outer space, the use of a "state of necessity" for the removal of space debris in order to protect relevant interests can demonstrate the effectiveness of this path in several aspects. Firstly, at the technical level, it is possible to consider the maturity of domestic cleaning technology, specifically analyze domestic research, development and practice in the field of space debris cleaning technology, for example, analyze whether the country has a basic cleaning technology for active removal from orbit, capture and deceleration, or even laser, electromagnetic, magnetic and others cleaning technologies in the field of new technologies. The feasibility and sustainability of national space debris removal missions could also be analyzed. This includes consideration of the economic feasibility, technical feasibility, time frame, and resource requirements for cleaning tasks. At the same time, it is necessary to assess the long-term effectiveness and sustainability of cleanup missions in order to ensure a stable and stable space environment after cleanup. Secondly, an analysis in terms of geographical location and orbital resources. For example, the relatively vast geographical area and airspace of Russia and China, as well as the advantages of their own satellites and spacecraft in orbital resources, indicate that Russia and China have certain advantages and capabilities in the field of space debris removal. Thirdly, with regard to international cooperation and initiatives, the active promotion of cooperation in the field of international outer space and a number of initiatives and cooperation programs in the field of space debris removal may indicate the leading role and active participation of a country in resolving the space debris crisis, and the reputation and authority of the country in resolving the crisis related to with space debris. These three aspects are the three most convincing arguments confirming the effectiveness, and, of course, supported by the domestic laws, regulations and policies of some countries, which can demonstrate the country's compliance and responsibility in solving the problem of space debris, which is also one of the aspects proving the effectiveness of the state in using the "state of necessity" for active space cleanup garbage from other countries.

(4) Less important or less urgent obligations — the implementation of a comparison of benefits

Article 25 of the ARS reflects the fact that the "state of necessity" exempts the State from responsibility for protecting the highest interests in the event of a conflict of two interests ^[9]. An objection to a state of emergency allows the State to not fulfill "certain other less important or less urgent obligations." By preserving the dominant interests in the situation, the state minimizes the overall harm, and this consequentialist premise considers the request as a "protection of the paradigm." However, how can the advantages between the two interests be compared? By what criteria can we determine that protecting one interest at the expense of another will reduce harm? As a precondition, the judicial authority must make a fair decision from the point of view of the referring State and taking into account the circumstances under which the measure was taken. As a rule, domestic legislation defines interests that can be invoked (for example, life or the body), and interests that cannot be invoked (as a rule, vital activity). In addition, there is no absolute scale of interests or values in international law, except for those that are protected by mandatory norms.

In fact, the commentary on draft article 33 (the predecessor of article 25) may provide a definite answer. It states that "any conduct that goes beyond what is absolutely necessary for this purpose inevitably constitutes an internationally wrongful act in itself, even if it is acceptable with respect to the rest of that act" ^[15]. This principle of proportionality indicates that in order to weigh higher and lower interests, it is possible to assess whether the measures taken in response to a situation are proportionate and whether the relevant interests provide a fair balance. In addition, we believe that the importance and significance of the interests being protected can be assessed taking into account whether they correspond to fundamental rights, public safety, national security or other important social interests. A higher interest is an interest that has a significant impact and has a significant positive impact on a person or society as a whole. The special nature of the state of emergency means that cases where a "state of necessity" can be used as a basis for non-fulfillment of obligations are rare and should be strictly limited, however, the existence of a state of emergency as a circumstance precluding wrongfulness has received favorable authoritative support and has been considered by a number of international tribunals in which the "state of necessity" was accepted in principle.

3. Conclusion

In conclusion, it should be noted that the legal boundaries of the active disposal of space debris from other States should be considered on a case-by-case basis. Classification is required for "identifiable" space debris. If a State does not explicitly agree with the removal of space debris by another State, then the continuation of the removal should be defined as an internationally wrongful act, and at this time the State carrying out the removal of space debris should consult in advance with the State to which this debris belongs. At the same time, a State may also invoke a "state of necessity" to exclude wrongfulness in specific circumstances after it has cleared the space debris of other States on its own initiative, provided that specific requirements are met: substantial interest, great and imminent danger, the only way and comparison of interests. Space is the common heritage of mankind, and we must protect it from pollution and often actively "clean up" space hygiene. In order to promote national space debris removal initiatives, the international community needs to strengthen cooperation and coordination and improve the legal system for space debris removal as soon as possible.