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Reducing the Proliferation of Orbital Debris: Alternatives to a Legally Binding Instrument

Published online by Cambridge University Press:  27 February 2017

Steven A. Mirmina
Steven A. Mirmina*
Affiliation:
Office of the General Counsel, National Aeronautics and Space Administration
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American Journal of International Law , Volume 99 , Issue 3 , July 2005 , pp. 649 - 662
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Copyright © American Society of International Law 2005

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References

1 For a discussion of the effectiveness of nonbinding agreements, see generally in this issue Raustiala, Kal, Form and Substance in International Agreements, 99 AJIL 581 (2005)CrossRefGoogle Scholar.

2 National Science and Technology Council, Committee on Transportation Research and Development, Interagency Report on Orbital Debris 3 (1995) [hereinafter Interagency Report].

3 Id. Technically, meteoroids are not in the Earth’s orbit. The only known natural object in the Earth’s orbit is the Moon.

4 Some authors and international sources generally subsume the two types of debris under the rubric “space debris.” “Orbital debris” is the more precise term for man-made debris and will be used in this Note, unless references to international sources require use of the term “space debris.”

5 “Atmospheric density decreases exponentially with altitude, so that above 1000 km, objects remain in orbit] for hundreds or thousands of years, a legacy for future generations to deal with.” Crowther, Richard, Space Junk—Protecting Space for Future Generations, 296 Science 1241 (2002)CrossRefGoogle ScholarPubMed.

6 Interagency Report, supra note 2, at 3 (citing McKnight, Darren S. & Johnson, Nicholas L., An Evaluation of the Mass and Number of Satellites in Low Earth Orbit, paper presented at International Symposium on Space Dynamics, Centre National d’Etudes Spatiales, Toulouse, France (Nov. 6-10, 1989)Google Scholar).

7 Id.

8 Crowther, supra note 5, at 1241.

9 The Interagency Report, supra note 2, contains an appendix that lists the history of on-orbit fragmentations and their probable causes. The latter are diverse and include propulsion or electrical causes, general unknown causes, and deliberate explosions.

10 See Johnson, Nicholas L., National Research on Space Debris and Impact Hazards, presentation to the 39th Session of the Scientific and Technical Subcommittee (STSC), United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) (Feb. 2003)Google Scholar.

11 On the Web page of the NASA White Sands Test Facility, one can see a photo of a shuttle cockpit window damaged by a fleck of paint. See Orbital Debris and Micrometeoroids, at <http://www.wstf.nasa.gov/Hazard/Hyper/debris.htm> (last modified Sept. 23, 2002).

12 Johnson, Nicholas L., NASA Orbital Debris Program Office, Orbital Debris, Population and Policies (Mar. 1, 2000)Google Scholar (on file with author); see also Kelly, John, Debris Is Shuttle’s Biggest Threat, Fla. Today, Mar. 5, 2005, available at <http://www.floridatoday.comm>Google Scholar. He reports:

Until now, few put space debris on the same level as the dangers seen during the shuttle’s treacherous launch or its fiery plunge back through the atmosphere to land.

… [S]pace debris hitting different parts of the orbiter accounts for 11 of the 20 problems most likely to cause the loss of another shuttle and crew. Overall, space debris accounts for half of the catastrophic risk on any flight.

13 Scientific and Technical Subcommittee, Committee on the Peaceful Uses of Outer Space, Technical Report on Space Debris. UN Doc. A/AC. 105/720, at 15 (1999) [hereinafter UN Technical Report].

14 NASA, Orbital Debris Program Office, Orbital Debris: Frequently Asked Questions, at <http://www.orbitaldebris.jsc.nasa.gov/faqs.html> (last modified Apr. 29, 2005).

15 In 2001 the casing of a STAR–48 solid rocket motor from a Delta II rocket third stage landed in Saudi Arabia. The purpose of that mission was to launch a Global Positioning System satellite. Photo available online at NASA, Orbital Debris Program Office, Picture Gallery, <http://www.orbitaldebris.jsc.nasa.gov>.

16 In late January 2004, almost the exact same scenario arose as occurred in Saudi Arabia, but this time the rocket motor fell in Argentina. The Global Positioning System mission for which this motor was used had been launched in 1993.

17 Anecdotally, one noteworthy instance of property damage on the Earth’s surface caused by orbital debris involved a Cuban cow that was allegedly killed by a piece of debris in 1962. Among space lawyers this loss has become known as “the herd shot round the world.”

18 According to an experienced negotiator:

I know that there have been occasions … when, as the lesser of two evils, words were used in recording the results of negotiations or discussion whose value lay precisely in the fact that they were imprecise, that they could be interpreted somewhat freely and therefore could be used not so much to record agreement as to conceal a disagreement which it was desired to play down and which, it was hoped, would disappear in time.

Fred, Iklé, How Nations Negotiate 15 (1976)Google Scholar (quoting Pearson, Lester B., Diplomacy in the Nuclear Age 47–48 (1949)Google Scholar).

19 The U.S. delegation expressed the view in 2004 that it was “premature” for the subcommittee to consider the legal aspects of space debris. Report of the Legal Subcommittee on the Work of its Forty-third Session, Held in Vienna from 29 March to 8 April 2004, UN Doc. A/AC. 105/826, at 21, para. 125 (2004); see also Unedited Transcript of the Legal Subcommittee’s 708th Meeting, UN Doc. COPUOS/LEGAL/T.708, v.04.54381e, at 7 (Apr. 7, 2004) (French delegation’s withdrawal of its proposal for a draft work plan to reduce space debris from consideration by the Legal Subcommittee).

20 “[I]t is imperative that techniques be employed... as soon and as widely as possible. The urgency of this problem merits immediate action, which is not possible at the United Nations level.” Seymour, Jennifer M., Note, Containing the Cosmic Crisis: A Proposal for Curbing the Perils of Space Debris, 10 Geo. Int’l Envtl. L. Rev. 891, 914 (1998)Google Scholar.

21 UN Doc. A/AC.105/C.2/2002/CRP.5, at 3–8.

22 Members of the IADC are the Italian Space Agency, the British National Space Centre, the Centre National d’Etudes Spatiales, the China National Space Administration, the Deutsches Zentrum fur Luft-und Raumfahrt e.V., the European Space Agency, the Indian Space Research Organisation, the Japanese Aerospace Exploration Agency, NASA, the National Space Agency of Ukraine, and the Russian Federal Space Agency.

23 Inter-Agency Space Debris Coordination Committee Space Debris Mitigation Guidelines.UN Doc. A/AC.105/C.1/L.260, annex (2002) [hereinafter IADC Guidelines],

24 Space systems should be designed not to release debris during normal operations. Id., Guideline 5.1.

25 Space systems should be designed to prevent accidental explosions, and intentional destructions should not be conducted. Id., Guideline 5.2.

26 Spacecraft that have completed their mission should be moved far enough away from the geostationary earth orbit as not to cause interference with space systems still in geostationary orbit, and space systems in low earth orbit should be de-orbited or retrieved. Id., Guideline 5.3.

27 In designing a spacecraft, programs should limit the probability of accidental collisions with known objects during the system’s orbital lifetime by providing for avoidance maneuvers and coordination of launches if there is a substantial risk of collision. Spacecraft design should limit the probability of collisions with small debris that could cause a loss of control, thus preventing the appropriate disposal of the craft when the mission has been completed. Id., Guideline 5.4.

28 “These guidelines may be updated as new information becomes available regarding space activities and their influence on the space environment.” Id., Guideline 6.

29 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res. 47/68 (Dec. 14, 1992).

30 Code of Conduct for the International Space Station Crew, 14 C.F.R. §1214.403 (2005).

31 The MTCR Guidelines, current as of July 12, 2005, are available online at <http://www.mtcr.info/english/guidelines.html>.

32 The MTCR has been responsible for stopping some missile programs in their entirety, slowing others, and making it much harder for prospective purchasers to gain possession of certain essential elements necessary to manufacture a missile or space launch vehicle. See Arms Control Association, Fact Sheet: The Missile Technology Control Regime at a Glance (Sept. 2004), at <http://armscontrol.org/factsheets/mtcr.asp>, which states:

Argentina, Egypt, and Iraq abandoned their joint Condor II ballistic missile program. Brazil, South Africa, South Korea, and Taiwan also shelved or eliminated missile or space launch vehicle programs. Some Eastern European countries, such as Poland and the Czech Republic, destroyed their ballistic missiles, in part, to better their chances of joining MTCR. The regime has further hampered Libyan and Syrian missile efforts, (footnote omitted)

33 Some of those technologies include ballistic missiles, cruise missiles, space launch vehicles, drones, remotely piloted vehicles, and underlying components and technologies that appear on the MTCR Equipment, Software and Technology Annex, Doc. MTCR/TEM/2004/Chair/003 (Oct. 7, 2004), available at <http://www.mtcr.info/english/guidelines.html>. Members add and remove items from the annex through consensus decisions.

34 MTCR Guidelines, supra note 31, para. 1.

35 Control of arms exports and imports, 22 U.S.C. §2778 (Supp. 12002). This law criminalizes knowingly exporting, transferring, or engaging in the trade of MTCR annex items (or conspiring or attempting to do so) that contributes to the acquisition, design, development, or production of MTCR Category I missiles in a non-MTCR country.

36 Id. Sanctions for transfers of MTCR Category I items, e.g., the complete system or subsystem of an annex item, involve denial of all new individual export licenses and all new U.S. government contracts to/with sanctioned entity for at least two years. Sanctions for transfer of Category II items, e.g., gyroscopes, risk denial of new individual export licenses/U.S. government contracts for MTCR annex items to the sanctioned entity for at least two years. Additionally, an import ban on all products produced by a sanctioned entity can also be imposed if sanctionable activity is determined to have made a “substantial contribution” to MTCR-class missile programs in a non-MTCR country.

37 See Argentine Ministry of Foreign Affairs, Press Statement: Plenary Meeting of the Missile Technology Control Regime (Sept. 26, 2003), at <http://www.mtcr.info/english/press/buenosaires.html>. This report stated:

In view of growing concern over the continuing proliferation of weapons of mass destruction and their delivery systems, and of the fact that not only states but also terrorist groups and individuals may acquire such weapons, the Partner countries of the MTCR stressed the need to give the necessary impetus to actions to combat terrorism. The MTCR will continue to contribute to the fight against terrorism by limiting the risk of controlled items and their technology falling into the hands of terrorist groups and individuals and calls upon all states to take similar action.

In order to give continued high priority attention to export control issues, Partners decided to include national “catch-all” requirements in the Guidelines of the Regime. Such controls would provide a legal basis to control the export of items that are not on a control list, when such items are destined for missile programs.

38 International Code of Conduct Against Ballistic Missile Proliferation [ICOC], Nov. 2002, available at <http://www.armscontrol.org/documents/icoc.asp>>Google Scholar (entered into force Nov. 25, 2002). The United States is one of the original 93 subscribing states. As of July 2005, more than 110 countries had subscribed to the code. Its goal is to improve efforts to reduce the spread of ballistic missiles. It is sometimes referred to as the “Hague Code of Conduct (HCOC).”

39 The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (July 12, 1996), as amended, available at <http://www.wassenaar.org/docs/IE96.html>. The Wassenaar Arrangement is actually an institution, and it addresses both conventional weapons and sensitive dual-use technologies. It was established in July 1996 by thirty-three countries. Its purpose is to encourage transparency, consultation, and, when appropriate, a common practice of restraint in national export policies with regard to items found on specific munitions and dual-use lists, which are regularly reviewed by experts of the participating states.

40 U.S. Dep’t of State, Bureau of Nonproliferation, Fact Sheet: Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Mar. 22, 2004), available at <http://www.state.gov/t/np/rls/fs/30957.htm>.

41 The flexibility of the Wassenaar Arrangement is seen in its ability to alter its focus depending on current demands. Although it was created in 1996, the plenary meetings of 1997, 2000, and 2001 were all utilized to respond to global events. The 1997 plenary focused on exercising maximum restraint on arms transfers to Central Africa; the 2000 plenary focused on control of man-portable air defense systems; and the 2001 plenary focused on prevention of the acquisition of arms by terrorist groups and organizations. Subsequent plenary meetings also expanded and refocused the scope of the arrangement.

42 Widespread agreement to observe common guidelines promotes harmonization of national regulatory requirements and standardized practices.

43 Such a commitment would ensure enforceability of the international declaration through national means. It would help ensure that states will indeed take steps (through regulation, licensing, or otherwise) to enforce their international commitments. The commitment to implement the guidelines domestically, therefore, brings with it an obligation greater than mere hortatory support for guidelines.

44 These unilateral declarations need not be radically different from previous unilateral declarations the United States has made at COPUOS. See, for example, the following statement by the U.S. representative to the STSC:

The U.S. Government endorses the IADC orbital debris mitigation guidelines and our domestic agencies are well along in implementing debris mitigation practices that are consistent with the IADC guidelines. The U.S. Government invites other space-faring nations to join it by implementing the IADC orbital debris mitigation guidelines in their space operations consistent with mission objectives and cost effectiveness.

Statement by Higgins, James, United States representative, on Agenda Item 8, “Space Debris” (Feb. 2004)Google Scholar (on file with author).

45 States are required to authorize and supervise the activities of their nationals in outer space. “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, Art. VI, 18 UST 2410, 610 UNTS 205.

46 Two FAA regulations require a license applicant to mitigate debris risks that would interfere with the safety of other launch and reentry missions and satellite operations. The rules require launch vehicle operators to ensure (1) that no unplanned physical contact occurs between the vehicle or its components that reach orbit and the payload; and (2) that explosive risks are minimized. 14 C.F.R. §415.39 (2005). The reusable launch vehicle/reentry rule requires that an applicant perform a collision avoidance analysis to minimize the possibility that a reusable launch vehicle and its payload will pass closer than two hundred kilometers to an inhabitable orbiting object during launch and reentry. 14 C.F.R. §431.43(c).

47 On June 21, 2004, the FCC released its Second Report and Order on orbital debris. In the Matter of Mitigation of Orbital Devris, Second Report and Order, Doc. FCC 04-130 (June 9, 2004), available at <http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-130Al.doc>. This report and order provides guidance to licensees for preparation of satellite disposal plans and adopts requirements concerning postmission disposal of FCC-licensed stations operating in or near low earth orbit and geostationary orbit. The commission’s goal is to ensure that, prior to approval of any license, basic information concerning debris mitigation measures is attained. The 2004 report and order follows up on one issued in 2003, in which the commission drafted regulations for satellite systems requiring that certain applicants, as part of their application, submit a narrative description of the design and operational strategies they will use to mitigate orbital debris, as well as a casualty risk assessment if their postmission disposal plan will involve atmospheric reentry.

48 In 1999 NOAA issued revised regulations for licensing the operations of commercial remote-sensing satellite systems. Through the 1992 Land Remote Sensing Policy Act, 15 U.S.C. ch. 82 (Supp. I 2002), commercial remotesensing licensees are required to dispose of their satellites “in a manner satisfactory to the President.” 15 U.S.C. §5622(b)(4). NOAA interprets this requirement to mean that licensees must minimize the amount of orbital debris during postmission disposal of their satellites and it lays out certain criteria for this disposal. If an applicant proposes that its space object reenter and burn up in the atmosphere, NOAA requires that the applicant submit a casualty risk assessment.

49 In this instance, the COPUOS Scientific and Technical Subcommittee can play a vital role. Its current agenda item requires states to report annually on their activities in space that cause debris. At times, the United States and other space-faring nations have found themselves in a position where they have had to report publicly on their failures to comply with certain expectations. This public reporting requirement, which has been referred to by some authors as’ name and shame,” puts pressure on states and private industry to comply with minimum standards of acceptable behavior. See generally Edith, Brown Weiss, Strengthening National Compliance with International Environmental Agreements, 27 Envtl. Pol’y & L. 297 (1997)Google Scholar.

50 See, e.g., White House, National Science and Technology Council, Fact Sheet: National Space Policy—Intersector Guidelines, Pres. Directive NSTC–8, para. 7(a), (b) (Sept. 19, 1996), available at <http://www.fas.org/spp/military/docops/national/nstc-8.htm> (addressing reduction of orbital debris).

51 In the past, the General Assembly itself promulgated voluntary principles. See, e.g., GA Res. 47/68, supra note 29.

52 The U.S. Government Orbital Debris Mitigation Standard Practices (n.d.) are available online at <http://www.orbitaldebris.jsc.nasa.gov/library/USG_OD_Standard_Practices.pdf>.

53 See notes 46, 47, 48 supra.

54 Proceedings of the Workshop on Space Law in the Twenty-First Century, UN Doc. A/CONF. 184/7, at 2 (UNISPACE III Technical Forum, 1999).

55 Code of Conduct for the International Space Station Crew, supra note 30.

56 Agreement on the Civil International Space Station, Jan. 29, 1998, Can.–Japan–Russ.–U.S.–Eur. Space Agency, available at <http://www.hq.nasa.gov/ogc/commercial_intnl/index.html>.

57 Jason Steptoe, E., Orbital Debris Mitigation: A Way Forward, at 9, paper delivered at 52d International Astronautical Congress, International Institute of Space Law (No. IISL-01-IISL.4.03, 2001)Google Scholar. If the ISS partners were willing, they could also agree to amend the Intergovernmental Agreement and incorporate an obligation to abide by the orbital debris guidelines—whether they be STSC Guidelines or the IADC Guidelines is not immediately relevant. This amendment would reflect the partners’ agreement to a legally binding obligation to follow the set of guidelines selected.

58 Model Code of Conduct for the Prevention of Incidents and Dangerous Military Practices in Outer Space (May 2004), available at <http://www.stimson.org/wos/pdf/codeofconduct.pdf>.

59 Stimson, Henry L. Center, Key Element: Supporting a Code of Conduct for Responsible Space-Faring Nations (2004)Google Scholar (on file with author).

60 Besides the lack of political consensus, space-faring entities, it has also been suggested, do not yet have enough technical knowledge to create an appropriate legal regime:

A legal regime for orbital debris which is precise enough to govern conduct could inadvertently impede the adoption of newer, more effective techniques. Simply put, the knowledge and technological stability needed to create international operational or spacecraft design specifications upon which an effective legal regime could be based does not yet exist.

Frankle, Edward A., then NASA general counsel, International Regulation of Orbital Debris at 9–10, paper delivered at 51 st International Astronautical Congress, International Institute of Space Law (No. IISL–00–IISL.4.15, 2000)Google Scholar (emphasis added). Frankle further stated: “I am skeptical that a lengthy international debate over legal standards would significantly advance the goal of encouraging spacefaring countries to implement debris mitigation standards.” Id. at 11. According to E. Jason Steptoe, NASA associate general counsel for commercial and international law: “The reluctance to have COPUOS instruct the Legal Subcommittee to develop legal standards for orbital debris mitigation at this time arises from a concern that promulgation of legal rules is premature and could be counterproductive.” Steptoe, supra note 57, at 6.

61 European Space Agency, Space Debris Mitigation: The Case for a Code of Conduct (Apr. 15, 2005), at <http://www.esa.int/esaCP/SEMZPBW797E_index_0.html>; see also Centre National d’Etudes Spatiales, Press Release PR61-2004, Code of Conduct for Space Debris Mitigation (Dec. 1, 2004), at <http://www.cnes.fr/html/_455_465_3018_.php>.

62 Although a detailed discussion of orbital debris “standards” is beyond the scope of the present analysis, the International Organization of Standards (ISO) is itself beginning to create standards for debris mitigation in coordination with the IADC. Importantly, the ISO is a nongovernmental organization: unlike die United Nations, its members are not delegates from individual states. ISO standards are voluntary and the organization has no legal authority to enforce their implementation. Certain ISO standards, many relating to health and safety, have been adopted by some nations and incorporated into their domestic legislation. Of course, taking this action is a sovereign decision by the nation concerned. The ISO does not create regulations or pass legislation. In at least two instances, however, the market has adopted ISO standards: with regard to bank/ATM cards, and dimensions of shipping/freight containers. Without such standardization, international shipping and banking would be much more difficult, time-consuming, and expensive.

63 A recent prediction stated:

As the number of objects in Earth orbit increases, the likelihood of accidental collisions will also increase. . . . If future spacecraft and rocket bodies are not removed from [low earth orbit] within a moderate amount of time after the end of mission, e.g., within 25 years, the rate of accidental collisions will increase markedly later in this century.

Accidental Collisions of Cataloged Satellites Identified, 9 Orbital Debris Q. News 1, 2 (Apr. 2005), at <http://www.orbitaldebris.jsc.nasa.gov/newsletter/newsletter.html>>Google Scholar, quoted in David, Leonard, U.S.-China Space Debris Collide in Orbit, Space News (Apr. 16, 2005), at <http://www.space.com/news/050416_debris_crash.html>Google Scholar.