2.3 Scope of the BBNJ's EIA Framework: Are Splashdowns "Planned Activities"?
The application of Part IV is restricted to "planned activities under their jurisdiction or control that take place in areas beyond national jurisdiction."(1) BBNJ, art. 28(1). The threshold question is therefore whether a splashdown operation satisfies two definitional requirements: it must be a planned activity, and it must take place in ABNJ.
Splashdowns are, by design, targeted at the high seas, with a critical mass of planned reentries aimed at the South Pacific Oceanic Uninhabited Area, which lies in ABNJ. The legal characterisation of the reentry's terminal phase as "taking place in ABNJ" is confirmed by the physical reality that the space object impacts and deposits material in the high seas. The overall test under Article 28(1) is whether the activity would take place in ABNJ, not whether the effects are confined to ABNJ(2) Ibid. and on this point, splashdowns unambiguously qualify.
The first question requires additional considerations, as the BBNJ does not define "planned activity" in Part IV, though Article 1 provides definitions for other terms. The ordinary meaning of "planned" under VCLT Article 31 connotes a deliberate, prospective action, one that is anticipated and authorised in advance.(3) VCLT, art. 31(1); Tanaka, “Reflections on the EIA,” 95–96. Controlled splashdowns meet this definition unambiguously: they are planned months or years before execution, require authorisation from national space agencies and launch licensing bodies, and are recorded in advance in debris mitigation plans submitted to UNCOPUOS.(4) UNCOPUOS, Space Debris Mitigation Guidelines, UN Doc. A/62/20, They are therefore not accidents, they are scheduled disposals. This distinguishes them clearly from uncontrolled reentries, a distinction the chapter addresses separately, and firmly places them within the natural meaning of "planned activities."
The question of whether an uncontrolled reentry, where the final landing point is determined by atmospheric drag rather than operator intent, constitutes a "planned activity" is more difficult. This chapter argues that even uncontrolled reentries initiated by a deliberate deorbit manoeuvre retain the character of a planned activity for the purposes of Article 28, since the relevant planning decision, to initiate deorbit, is made by the operator and authorised by the State.(5) Outer Space Treaty, art. VI; The uncertainty as to the precise splashdown coordinates does not negate the character of the activity as planned; it bears instead on the scope and methodology of the EIA, which must address a landing probability distribution rather than a fixed location.(6) BBNJ, arts. 30(1), 33(2).