Extraterritorial Jurisdiction
Fall 2016
SUGGESTIONS ON ORBITAL DEBRIS’ PEACEFUL CLEANUP THROUGH AN INTERNATIONAL
ORBITAL DEBRIS CONVENTION OR UNILATERAL ACTIONS
Joshua T. Smith
I.
INTRODUCTION
Ever since our species has gained consciousness, outer space has been an important
resource. The position of the stars helped farmers anticipate the changing of the seasons and
ocean travelers utilized it as a navigation point.1 Then with technological advancements
beginning during the Cold War, space travel became possible.2 Nationalistic competition
between the Soviet Union and the United States ultimately fueled the industry.3 In 1957, the
Soviets launched Sputnik-1, the first man-made object to reach orbit.4 This suggested that
perhaps communism, not democracy, was the dominant economic theory and led to the creation
of NASA in July of 1958.5 The eventual result, of course, was the famous U.S. Apollo 11
1. Amazing Space Science Background: Constellation Q&As, NASA,
http://amazingspace.org/resources/print/classroom_activities/scibkgd_cnstlatn_qa.pdf (last
visited Mar. 8, 2016).
2. See MATTHEW J. KLEIMAN, THE LITTLE BOOK OF SPACE LAW, vii-viii (American Bar
Association, 2013).
3. See KLEIMAN, supra note 2, at viii-ix.
4. KLEIMAN, supra note 2, at vii-viii.
5. See National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, 72 Stat. 426.
1
mission to the moon in 1969, and concluding with the Apollo 17 mission in 1972.6 Since these
missions, deep space exploration has dwindled, and the domination of the Earth’s orbit has been
the focal point.7 The general population often ignores the effects of the Earth’s orbit in their
everyday life. Without these functioning satellites in orbit, communication as we know it would
cease to exist.8 With the orbit full of both functioning and nonfunctioning satellites, and with the
guarantee that it will only become more crowded, we must begin correcting the issue of orbital
debris now.
Current literature has proposed several methods for the cleanup of orbital debris, such as
the creation of an International Orbital Debris Convention9 (“IODC”),10 authorized by Article IX
6. See Sarah Loff, Apollo 11 Mission Overview, NASA.GOV,
https://www.nasa.gov/mission_pages/apollo/missions/apollo11.html (last updated Sept. 17,
2015); see also Brian Dunbar, Apollo 17, NASA.GOV,
https://www.nasa.gov/mission_pages/apollo/missions/apollo17.html (last updated July 30, 2015).
7. NASA Space Science Data Coordinated Archive, Spacecraft Query Results, NASA.GOV,
http://nssdc.gsfc.nasa.gov/nmc/spacecraftSearch.do (last visited Dec. 13, 2016) (Since the
launching of Sputnik-I, a search on the National Space Science Data Coordinated Archive (the
“NSSDC”) Master Catalogue listed 7,526 satellites launched into orbit, with about 3,600 of these
objects (both functioning and nonfunctioning) still in orbit).
8. KLEIMAN, supra note 2, at 59-60 (In 2012, 38 percent of all operational satellites in Earth’s
orbit were commercial telecommunications satellites).
9. See, Thierry Sénéchal, Orbital Debris: Drafting, Negotiating, Implementing a Convention
(June 2007) (unpublished Masters dissertation, MIT),
http://web.mit.edu/stgs/pdfs/Orbital%20Debris%20Convention%20Thierry%20Senechal%2011
%20May%202007.pdf; see also Position Paper, Orbital Debris: Overcoming Challenges,
NATIONAL SPACE SOCIETY (May 2016),
http://www.nss.org/legislative/positions/NSS_Position_Paper_Orbital_Debris_2016.pdf.
10. One may already be created, but is infantile, see INTER-AGENCY SPACE DEBRIS
COORDINATION COMMITTEE, http://www.iadc-online.org/ (last visited Dec. 13, 2016).
2
of the Outer Space Treaty,11 that could regulate orbital regulations and strengthen the current
Liability Convention.12 Without an IODC, another state’s attempt at removal of debris without a
launching-state’s consent will lead to legal ramifications, as a launching state perpetually owns
the items they launch into space.13 Another author suggests that no international agreement needs
to be created, as one does not appear to be created any time soon, but that a tragedy of the
commons will inevitably be avoided amongst space-faring nations.14 For many reasons, a
launching-state may not want their debris removed from orbit, and will fight to prevent its
removal.15 One reason is to protect the information and technology on a satellite from being
access by foreign countries technology on many of these foreign satellites.16 Many countries may
not want another country cleaning their debris to find secret technology, or to find working
11. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies art. IX, adopted Jan. 27, 1967, 18 U.S.T.
2410, 610 U.N.T.S. 8843 [hereinafter Outer Space Treaty] (States must “undertake appropriate
international consultations before proceeding with any such activity or experiment.” In this
sense, the IODC would provide the means for the “appropriate international consultation”).
12. Elise Epperson Crow, Waste Management in Space: Addressing the Challenge of Orbital
Debris, 18 SW. J. INT’L L. 707, 716 (2012); see Convention on International Liability for Damage
Caused by Space Objects, adopted Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 13810
[hereinafter Liability Convention].
13. See Outer Space Treaty, supra note 11, at art. VIII.
14. Joseph Kurt, Triumph of the Space Commons: Addressing the Impending Space Debris Crisis
Without an International Treaty, 40 WM. & MARY ENVTL. L. & POL’Y REV. 305, 306 (2015).
15. Int’l Astronautical Fed’n, Brian C. Weeden, Overview of the Legal and Policy Challenges of
Orbital Debris Removal, IAC-10.A6.4.4 at 23, https://swfound.org/media/205393/legal-policyorbital-debris-iac-bw-2010.pdf (arguing that the technology that may still be aboard could reveal
patents, or trade secret information of another country, who could then recycle it for profit, or
inform the government of a potential enemy).
16. See id.; see also Position Paper, supra note 9, at 10.
3
technology that may be accessed to find secret information.17
This ownership barrier, however, would not prevent the installation of IODC efforts in
the mitigation of future orbital debris if those launching-states are signatories. Lastly, there have
been many scientifically proposed solutions, such as the creation of a graveyard orbit,18 or
having new satellites commit suicide through orbital decay once they’re decommissioned.19
However, these cleanup suggestions do not account for the millions of broken pieces already in
orbit. Before any cleanup technology can be implemented however, legal solutions to justify or
circumvent the Outer Space Treaty must be created.20
17. See Weeden, supra note 15.
18. Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Rep. on its 50th Sess., Jun. 615, 2007, U.N. Doc. A/AC.105/C890 (Mar. 6, 2007) (adopting Comm. on the Peaceful Uses of
Outer Space, Legal Subcomm., Rep. on its 43rd Sess., Feb. 3 – Mar. 3, 2006, U.N. Doc.
A/AC.105/C890 at Guideline 6 (Mar. 6, 2007), (aiming to limit the production of more space
debris and limiting the potential for break-ups by having satellites at the end of their life be
“removed from orbit in a controlled fashion,” or “disposed of in orbits to avoid their long-term
presence in the LEO region.”)).
19. See, Karl Tate, Space Junk Explained: How Orbital Debris Threatens Future of Spaceflight
(Infographic), SPACE.COM (Oct. 1, 2013 5:49 PM), http://www.space.com/23039-space-junkexplained-orbital-debris-infographic.html (Phoenix, a robotic servicer spacecraft project of the
U.S. Defense Advanced Research Projects Agency, would chase down nonfunctioning satellites
and harvest the still-usable hardware for later use. Cleanspace One, a robotic janitor spacecraft
project of the Swiss École Polytechnique Fédérale de Lausanne, would chase down and grab
target satellites, and plunge them directly into Earth’s atmosphere destroying itself and the
debris); see also, Daniel Bates, Nasa to shoot laser at space junk around Earth to prevent
collisions with satellites (Mar. 16, 2011, 11:47AM),
http://www.dailymail.co.uk/sciencetech/article-1366838/Nasa-use-lasers-shoot-space-junkEarth.html (A ground-based “laser broom” could help de-orbit space debris by exerting pressure
on the debris with photons to “push” the debris out of the way of functioning satellites. “By
firing a laser at a piece of junk for a few hours it should be possible to alter its [sic] course by
650ft per day.”).
20. See Peter de Selding, FCC Enters Orbital Debris Debate, SPACE NEWS (Jun. 28, 2004),
https://web.archive.org/web/20080506022635/http://www.space.com/spacenews/businessmonda
y_040628.html
4
A sustainable solution to litter in space requires three things: political will, a legal
framework, and technology. This paper seeks to answer the legal framework question by
applying current international law through the framework of an IODC, as well as provide
justifications for unilateral action should such a Convention never form. Both analyses will focus
on allowing for the cleanup, and for the prevention of future orbital debris through mitigation
efforts. Space debris mitigation measures can be divided into two broad categories: those that
curtail the generation of potentially harmful space debris in the near term, and those that limit
their generation over the longer term.21
Specifically, the key legal paradigms that the paper will apply to the IODC include
Maritime law, and international treaties and conventions. In analyzing unilateral actions, U.S.
domestic law, as well as Article 51 from the U.N. Charter may provide justification for action
regardless of the creation of an IODC. In providing proposals, past suggestions will be
incorporated to determine the best path forward so that we as a species may continue to utilize
this valuable resource. While cleanup efforts may seem like the quick solution, the difficult
nature of classifying ownership of the millions of particulates—and thus posing a blockade to
several previous solutions—suggests that future preventative measures may be the most effective
way to ensure our orbit remains useful. Thus, until the creation of an IODC with regulatory
power, unilateral action must be justified. Even upon the creation of an IODC, the best method
will be a balance between unilateral actions and the regulations imposed by such a convention.
21. See Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Rep on its 57th Sess.,
Jun. 11-20, 2014, U.N. Doc. A/69/20 (2014) (The former involves the curtailment of the
production of mission-related space debris and the avoidance of break-ups. The latter concerns
end-of-life procedures that remove decommissioned spacecraft and launch vehicle orbital stages
from regions populated by operational spacecraft).
5
Before analyzing these legal paradigms, however, it is important to understand what orbital
debris is, as well as the most important treaty regarding the use of outer space: The Outer Space
Treaty.
II.
BACKGROUND
Orbital debris must either be cleaned, or its causes must be prevented to use valuable
orbital space effectively in the future. This section provides a background to the issue, describing
the different Earth orbits, defining orbital debris, and explaining the largest hurdle for these
cleanup efforts: The Outer Space Treaty.
A.
Earth’s Orbit
Sir Isaac Newton discovered the concept of “orbiting” while studying the firing of a
cannon in a horizontal position, considering no atmospheric effects.22 Simply dropping the
cannonball while standing still will result in the cannonball falling to the ground due to gravity,
but firing it from a cannon causes it to travel in a straight line until some other force (gravity)
acts upon it.23 The inertia moving the cannonball forward and gravity simultaneously dragging it
to Earth will create an arc shape; increasing the speed at which the cannonball travels will
increase the distance of this arc.24 The cannonball achieves circular orbit when it travels fast
enough that the curve of the Earth falls away at the same rate gravity pulls it down, as if the
22. Dr. S. Sanz Fernández de Códaba, 100km Altitude Boundary for Astronautics, FÉDÉRATION
AÉRONAUTIQUE INTERNATIONALE, http://www.fai.org/icare-records/100km-altitude-boundaryfor-astronautics (last visited Dec. 13, 2016).
23. KLEIMAN, supra note 2, at 54.
24. Id.
6
cannonball were in a perpetual freefall.25 In low Earth orbit, this balance between gravity and
inertia is achieved when an object is traveling at approximately 17,500 mph.26
The jurisdictional bounds of where airspace ends and outer space begins have not been
defined legally.27 While there is no physical line differentiating airspace and outer space, the
most commonly accepted boundary amongst the space community is the Kármán Line.28 The
“100-Km altitude” proposed by Dr. Theodore von Kármán is the altitude where atmosphere’s
density is so minute that one would need to reach roughly 17,500 mph, the speed necessary to
maintain orbit around the Earth, to sustain enough lift to remain airborne.29 Thus, it is typically
accepted that once this line has been passed, jurisdictional bounds of the Outer Space Treaty
govern.30
Currently, outer space is most utilized through Earth’s orbit.31 The altitude at which a
satellite orbits depends on the use of that satellite.32 Common orbits for satellite use include low
Earth orbit (“LEO”), medium Earth orbits (“MEO”), geosynchronous Earth orbit (“GEO”), and
25. Id. at 55.
26. Id.
27. See KLEIMAN, supra note 2, at XII (“There are trace amounts of atmospheric gases as high as
6,200 miles above sea level”).
28. Id.; see Códaba, supra note 22.
29. See KLEIMAN, supra note 2, at XII; see also Códaba, supra note 20.
30. See Códaba, supra note 22.
31. KLEIMAN, supra note 2, at 51.
32. See id.
7
highly elliptical orbits (“HEO”).33 GEO’s orbit is extremely useful for telecommunication and
television broadcast satellites.34 At an “altitude of exactly 22,236 miles . . . [a] satellite in GEO
takes 24 hours to complete its orbit, so it remains continuously above the same longitude on
Earth.”35 Further, a “satellite in GEO directly above the equator is considered to be in
geostationary orbit (“GSO”) and will appear to remain stationary over one point on Earth.”36
LEO, the most commonly used orbit and the main focus of this paper, contains Earth observation
satellites, spy satellites, a plethora of communication satellites, remote sensing satellites, and the
International Space Station.37 With a basic understanding of orbit, the definition and explanation
of orbital debris becomes clearer.
B.
Orbital Debris
More than one-third of all orbital debris is in LEO, where almost half of all existing
satellites live.38 “Orbital debris” connotes “any man-made object in orbit about Earth [that] no
longer serves a useful purpose.”39 This includes debris created from explosions or collisions, tiny
33. Id.
34. See id. at 53.
35. Id.
36. Id.
37. See Holli Riebeek, Catalog of Earth Satellite Orbits, NASA.GOV (Sept. 4, 2009),
http://earthobservatory.nasa.gov/Features/OrbitsCatalog/.
38. Alexander William Salter, Space Debris: A Law and Economics Analysis of the Orbital
Commons 7 (Sept. 23, 2015) (unpublished Working Paper),
http://mercatus.org/sites/default/files/Salter-Space-Debris.pdf.
39. Holly Zeil, NASA – Frequently Asked Questions: Orbital Debris, NASA.GOV (last updated
Sept. 2, 2011), http://www.nasa.gov/news/debris_faq.html [hereinafter NASA FAQ].
8
flecks of paint released from thermal stress or small impact particles, and debris intentionally left
during a launch separation.40 As of 2011, NASA estimates that the total particulate count exceeds
the tens of millions, with more than 500,000 particles being between 1 and 10 centimeters, and
22,000 objects larger than 10 centimeters currently in Earth orbit.41 Of these objects, only about
1,000 are operational spacecraft.42 While the size of the debris does not seem daunting, their
speed—between 4 and 5 miles-per-second in LEO—makes collisions with these operational
spacecrafts a concern.43
The only debris monitoring system is the Space Surveillance Network (“SSN”), which
can “collect data about objects’ altitude, orbit, size, and composition.”44 As of 2003, the SSN’s
40. See id.
41. See id.; see also Megan Ansdell, Active Space Debris Removal: Needs, Implications, and
Recommendations for Today’s Geopolitical Environment, 21 J. PUB. & INT’L AFF. 7, 10
(2014) (stating that China is responsible for 42%, the United States for 27.5%, and Russia for
25.5% of the current orbital debris); see also See Salter, supra note 36, at 6, 9 (In 2007, China
deliberately destroyed its Fengyun 1-C satellite in conducting an anti-satellite test; this event
marked the largest new creation of debris in history up to that point. In 2009, an old Russian
military satellite unintentionally collided with a then-operating Iridium Communication, Inc.
satellite); see also Joe Pappalardo, Navy Missile Succesful as Spy Satellite Is Shot Down,
POPULAR MECHANICS (Oct. 30, 2009),
http://www.popularmechanics.com/military/a2625/4251430/ (The U.S. responded to China’s
anti-satellite missiles by testing their own anti-satellite missile in 2008, shooting down one of
their own defunct spy satellites); see also Michael W. Taylor, Orbital Debris: Technical and
Legal Issues and Solutions 26-27 (Aug. 2006) (unpublished L.L.M. thesis, McGill University),
available at https://fas.org/spp/eprint/taylor.pdf. (In 1991, a non-functioning Russian satellite in
LEO collided with another piece of detached debris from another Russian satellite “creat[ing]
many new particulates, only two of which were trackable by the SSN.” In 1996, debris from a
French rocket stage collided with a functional French satellite. Lastly, in 2005, a U.S. rocket and
debris from a previously exploded Chinese rocket collided.).
42. KLEIMAN, supra note 2, at 71.
43. See NASA FAQ, supra note 39.
44. Taylor, supra note 41, at 18-19.
9
sensitivity allowed for monitoring of particulates as small as five centimeters in LEO; as altitude
increases, however, the SSN’s sensors’ ability to detect particulates decreases.45 Even still, some
particulates remain so small the SSN cannot monitor their locations, requiring the use of
“computer models designed to estimate the quantity, type, and location of small orbital debris.”46
Even with the trillions of unmonitored particulates flying around in orbit, the chances of a
satellite colliding with an object greater than one centimeter are “between one in 100 to one in
1,000 over the lifetime of the satellite.”47 At least one piece of debris between .01 centimeter and
1 centimeter will likely impact a satellite within ten years of the satellite’s life.48 Even further,
between 100 to 1,000 particulates smaller than .01 centimeters will likely impact a typical
satellite in the same life-span.49 Thus, with the likelihood of impact with any sized particulate at
any given moment, and the extremely slow rate at which debris naturally destroys itself (known
as “orbital decay”), the possibility of a future “snowballing” effect increases every year. 50 This
“snowballing” effect, better known as the Kessler Syndrome, describes a situation whereby
debris collides with other objects, further congesting the orbital space until it becomes
45. Id. at 19.
46. Id. at 24 (citing United States, Office of Science and Technology Policy, INTERAGENCY
REPORT ON ORBITAL DEBRIS 16 (Washington, 1995)).
47. See id. at 25 (citing National Research Council Committee on Space Debris, ORBITAL
DEBRIS: A TECHNICAL ASSESSMENT 81 (Washington: National Academy Press, 1995)
(comparing this percentage with that of a 25-year-old living in the U.S. having about a one in
10,000 chance of dying before the age of 35).
48. Id.
49. Id.
50. See Salter, supra note 38, at 4.
10
unusable.51 Scientists predict the amount of debris will triple in the next 200 years, causing a
tenfold increase in the probability of collisions.52
Currently, the only way to remove the debris is through the natural process of
atmospheric drag along with Earth’s gravitational pull to eventually disintegrate the debris as it
re-enters the atmosphere.53 Atmospheric drag is the collision of the atmospheric gas particulates
with the orbiting satellite.54 The friction from this collision leads to the destruction of the satellite
as its orbit lessens through orbital decay and it plummets to Earth. This process only works for
those particulates closest to Earth; for those particulates approaching GEO, where 41% of current
satellites exist, the debris may last “essentially forever.”55 Even still, nonfunctioning objects in
LEO can continue their orbit for decades before atmospheric drag destroys the satellite.56
All current technological solutions involve the physical removal of another nation’s
property in violation of the Outer Space Treaty; and, in the case of the laser broom, may pose the
additional issue of using banned “laser weapons.”57 Since a launching state retains ownership,
51. See id. at 8-9.
52. Id. at 9.
53. See Salter, supra note 38, at 7-8.
54. Christopher B. Thrash, Orbital Debris and Constraints on Space Warfare (Aug. 23, 2009)
(unpublished paper, American Military University), https://www.apus.edu/content/dam/onlinelibrary/student-papers/Thrash-2009.pdf.
55. See Salter, supra note 38, at 8.
56. See Dr. J. P. Hagen, Vanguard 1, NASA.GOV,
http://nssdc.gsfc.nasa.gov/nmc/spacecraftDisplay.do?id=1958-002B (last visited Dec. 13, 2016).
57. See NASA Hopes Laser Broom Will Clean Up Space Debris, SPACE DAILY (Aug. 16, 2000),
http://www.spacedaily.com/news/debris-00a.html; see also Outer Space Treaty, supra note 11, at
art. IV.
11
jurisdiction and control of their space objects, a foreign state cannot remove another state’s
nonfunctioning spacecraft without permission.58 While unlikely, a nation could treat the passive,
innocent removal of their orbiting spacecraft as an act of war. Thus, the need for a legally
justifiable cleanup effort that will not spark tensions is necessary to lessen the effects from the
Kessler Syndrome.
C.
The 1967 Outer Space Treaty and Acts of War
The Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies (the “Outer Space Treaty”)59 treats
outer space as a res communis by not allowing ownership of both Earth’s orbit, or the physical
celestial bodies, such as the Moon.60 While nation states may not have the ability to appropriate
celestial bodies, they do retain perpetual ownership of, and jurisdiction over the items they
launch into space (and orbit).61 This includes both working and defunct satellites launched by
that state. However, determining the launching-state can be a daunting task for small fragments
in popular orbits. Complicating this picture is the fact that Article VI and VIII of the Outer Space
Treaty pertains to “launching states,” who are not necessarily the owners of launched
58. KLEIMAN, supra note 2, at 83; Outer Space Treaty, supra note 11, at art. VIII.
59. See Outer Space Treaty, supra note 11.
60. See id.; see also, P.P.C. HAANAPPEL, THE LAW AND POLICY OF AIR SPACE AND OUTER
SPACE: A COMPARATIVE APPROACH 11, fn 60 (2003) (defining res communis as “a thing
belonging to all that cannot be appropriated, such as the air itself”).
61. See Outer Space Treaty, supra note 11, at art. (Article VIII establishes the principle that the
State “on whose registry an object launched into outer space is carried shall retain jurisdiction
and control” of the objects and personnel while both in outer space and on a celestial body).
12
spacecraft.62 After all, the “launching state(s)” for a rocket and its payload include the country
owning the satellite at the time of launch, the country owning the rocket at that time, or the
country from where the rocket was launched.63 Moreover, selling and re-registering an object
does not transfer launching state liabilities to the new owner or registrant.64 No matter the owner,
Articles VI and VIII places full responsibility for supervision, jurisdiction, and control of space
objects (including fragments) on the launching state(s) with which the object is registered.65
Thus, a cleanup effort will require informing the appropriate governing authorities,66 as well as
obtaining permission from the launching-state to act upon their sovereign property in orbit.
Without such consent, the launching-state may consider the removal efforts as an “act of war.”
The term “act of war” is more of a political term than a legal one.67 “Historically, ‘act of
62. See Al Analdua & Dave Dunlop, Overcoming non-technical challenges to cleaning up
orbital debris, THE SPACE REVIEW (Nov. 9, 2015),
http://www.thespacereview.com/article/2863/2 (For example, SpaceX owns its rockets, but
because it registers its launches with the U.S., the U.S. will have jurisdiction).
63. See id.
64. See id.
65. See id.
66. Outer Space Treaty, supra note 11, at art. IX (Article IX, among other things, calls on
nations to avoid “harmful interference with the activities of other State Parties in the…use of
outer space” and to “undertake appropriate international consultations before proceeding with
any such activity or experiment.”); see also art. XI (Article XI requires a State, “to the greatest
extent feasible and practicable,” to inform the Secretary-General of the United Nations, the
public, and the international scientific community of the “nature, conduct, locations and results”
of their outer space activities).
67. Charles J. Dunlap, International Law and Terrorism: Some Qs and As for Operators, 2002
Army Law. 23, 24 (2002).
13
war’ usually references the rationale for nations to engage in international armed conflict.”68
Today, the concept is described in the U.N. Charter.69 In rejecting the notion of war, Article 2(4)
requires members to “refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state.”70 It can be argued that the removal
of another country’s orbital debris is a use of “force against the territorial integrity” of that
debris-owning state. Further, the U.N. Security Council considers “act[s] of aggression” as a
threat to the peace.71 Interpreting the removal of orbital debris as an “act of aggression,”
therefore, justifies a country claiming peace has been breached. While a war would unlikely
break out, these types of conflicts are unwanted, and the U.N. Security Council would likely
make recommendations that removal efforts cease.72
The Outer Space Treaty also forbids the use of orbit and all celestial bodies, including the
moon, for the purpose of militarization.73 However, the treaty does not prohibit the use of
military personnel, or the establishment of equipment or facilities for peaceful exploration.74
Because removal efforts may be considered breaches of the peace, however, future cleanup
efforts using functioning satellites in orbit may not fit within the exception, and be considered for
68. Id.
69. U.N. Charter art. 2, para. 4.
70. Id.
71. Id. at art. 39.
72. Id. at art. 39, 41.
73. Outer Space Treaty, supra note 11, at art. IV.
74. Id.
14
“the purpose of militarization.”75 As discussed below, an IODC recognizing future satellites as
“warships” may not work under this prevention. However, this would allow for the military
designation of current satellites to justify certain unilateral actions in self-defense.76
The Liability Convention77 declared the principle of “international responsibility for
national activities in outer space” of both government agencies and non-governmental entities,
“assuring that national activities are carried out in conformity” with the Treaty’s provisions.78
Further, both international organizations, as well as the individual States participating are
responsible for activities of international space organizations.79 This demonstrates why a
convention like an IODC may not be created, as all signatories would be responsible for its
failure. An IODC allowing for the creation of new cleanup regulations for those spacefaringsignatory-countries negatively affected by space debris, however, may not fail when it serves
everyone’s best interests. Therefore, planning how an IODC would regulate now would best
ensures its success.
III.
INTERNATIONAL LAW AND THE USE OF AN INTERNATIONAL ORBITAL DEBRIS
CONVENTION.
When searching for potential solutions, it is important to keep in mind the issue of the
lack of scientific accuracy in determining whose space debris is whose. Some of the larger pieces
we can determine, but the smaller flecks are so mixed up now that it is almost impossible to
75. See Id.
76. See U.N. Charter, supra note 69.
77. Outer Space Treaty, supra note 11; at art. VI, VII; see Liability Convention, supra note 12.
78. See Outer Space Treaty, supra note 11, at art. VI-VII.
79. Id. at art. VII.
15
place ownership to determine liability. If the case is that we can’t even determine ownership, no
state will have a claim to their rights under the Outer Space Treaty in several of these
suggestions, such as with the law of salvage. On this note, however, a lot of space debris is fully
built, unscathed, dead satellites, whose ownership can easily be determined. Further, in any of
these suggestions, there will be no way to know the political will of these countries and how they
would react to the removal of their debris, regardless of whether there is a justified, legal reason
for doing so.
One suggested legal justification proposes the creation of an International Orbital Debris
Convention (“IODC”), similar to the 1989 Convention on Salvage.80 This Orbital Debris
Convention could enlist space-appropriate provisions from these maritime legal systems into an
international legal codification to deal with orbital debris, while resolving the legal uncertainties
surrounding Articles VI and VIII of the Outer Space Treaty. This Convention would set up the
medium for the “appropriate international consultation” prior to acting in this area of space under
Article IX of the Outer Space Treaty.81
The following discussion will comment on some of the more popular legal solutions
under Maritime law, and international agreements, as well as suggest new ideas under these
paradigms. In order to implement these ideas, an IODC should be created. This section seeks to
find areas of international law that could be adopted in creating an orbital debris cleanup and
mitigation programs headed by the IODC.
A.
Maritime Law and its Influence on an International Orbital Debris Convention.
80. See Sénéchal, supra note 9; see also Position Paper, supra note 9; see also Analdua &
Dunlop, supra note 59; see also International Convention on Salvage, Apr. 28, 1989, S. Treaty
Doc. No. 102–12, 1953 U.N.T.S. 193, art. 1 [hereinafter 1989 Salvage Convention].
81. Outer Space Treaty, supra, note 11, at art. IX.
16
To begin this analysis, Maritime law suggests a solution evidenced by its functional
similarity to the law of outer space. For instance, the “floating island” principle of Maritime law
allows countries to extend their laws, including intellectual property laws, to their ships in
international waters; in the space context, this would be a country’s registered space object.82
This legal principal is specifically described in the outer space treaty, demonstrating that the law
of outer space functions similarly to the laws of the sea, making it a natural point of reference.83
Further, both outer space and the ocean are considered res communis.84 To be clear, none of the
maritime suggestions currently apply to outer space, but these suggestions can help set up the
legal framework for both cleanup and mitigation efforts under an IODC.
The Maritime law of salvage has been proposed as a solution for the cleanup of the rogue
debris.85 Under this law, when property, such as a vessel and its cargo, is lost at sea, salvage law
generally applies. Here, salvors take possession of, but not title to, the distressed vessel and/or its
cargo.86 A salvor is entitled to an award for their efforts if: (i) there is a marine peril placing the
property at risk of loss or destruction; (ii) the rescue service is voluntarily rendered, that is, it is
82. See KLEIMAN, supra note 2, at 97 (citing Francis Lyall & Paul B. Larsen, Space Law: A
Treatise 124-127 (Ashgate 2009) (proposing that the jurisdictional control that states exert over
their own space objects enables them to issue patent rights to inventors whose inventions are
created within those space objects)).
83. See Outer Space Treaty, supra note 11, at art. VIII.
84. See HAANAPPEL, supra note 60.
85. See KLEIMAN, supra note 2, at 150.
86. See Michael C. Barnette, A treatise on the management and ownership of shipwrecks and
shipwreck artifacts, NEW JERSEY SCUBA CLUB,
http://njscuba.net/artifacts/misc_salvage_law.php (last visited Dec. 13, 2016).
17
not required by some existing duty under law or contract; and (iii) the rescue efforts are
successful.87 A successful return can be in total or in part.88 The property owner who had benefit
of the salvor's efforts must make remuneration, regardless of whether he had formed a contract or
not.89 However, a sovereign government is never deemed to have abandoned a sunken
government vessel unless it does so by an express act.90 The 1989 International Convention on
Salvage emphasizes the elimination of navigational hazards and reduction of potential
environmental impacts, such as pollution and habitat degradation, by offering a special
compensation, even if they failed to earn a reward under Article 13.91
Unlike civilian ships, military vessels remain under the jurisdiction in perpetuity of the
87. Salvage, ENCYCLOPEDIA BRITANNICA ONLINE,
http://www.britannica.com/print/article/519995 (last visited Dec. 13, 2016); see 1989 Salvage
Convention, supra note 78; see also The Law of Long-Lost Shipwrecks, Zones of Shipwreck
Law, NWRAIN.COM, http://www.nwrain.com/~newtsuit/legal/lllsr/llls03.htm (last visited Dec. 13,
2016).
88. See RICHARD WILLIAMS, GARD GUIDANCE ON MARITIME CLAIMS AND INSURANCE 317-323
(2013),
http://www.gard.no/Content/20823111/Gard%20Guidance%20on%20Maritime%20Claims_final
.pdf; see also Tojo Maru v. N.V. Bureau Wijsmuller (The Tojo Maru) (1972) A.C. 242 HL, 1
Lloyd's Rep 341 (examined certain characteristics of salvage contracts and concluded that the
primary consideration is that the person rendering the salvage service is not entitled to any
remuneration unless he saves the property in whole or in part).
89. See WILLIAMS, supra note 86, at 317; see also RUTSEL SILVESTRE J. MARTHA, THE
FINANCIAL OBLIGATION IN INTERNATIONAL LAW 74 (1st ed. 2015) (“The assumption here is that
when faced with the loss of his vessel and cargo, a reasonable prudent ship-owner would have
accepted salvage terms offered, even if time did not permit such negotiations.”).
90 KLEIMAN, supra note 2, at 150.
91. See 1989 Salvage Convention, supra note 80, at art. 13, 14.
18
country whose flag was flown.92 Several salvage operations have been returned under orders
from U.S. courts because of this.93 However, Maritime Prize Law entitles the capturer of an
enemy warship to the right of a prize once it has been secured on friendly territory.94 While not
wished, should the U.S. ever go to war with one of the countries responsible for the majority of
the space debris, this may open the door for prize law in orbit for private companies to collect
with a marque from the U.S. government.95
A simple solution to using the law of salvage would be for a state to simply announce
that the law of salvage applies to its own debris, allowing private parties and other States to
92. See, e.g., Sunken Military Craft Act, 10 U.S.C. §§113 et. seq. (2004); see also Christopher
Mirasola, Swimming Against the Tide: Colombia’s claim to a Shipwreck and Sunken Treasure,
HARVARD INT’L L. J. (Jan. 26, 2016), http://www.harvardilj.org/2016/01/swimming-against-thetide-colombias-claim-to-a-shipwreck-and-sunken-treasure/.
93. Sea Hunt, Inc. v. Virginia, 221 F.3d 634 (4th Cir. 2000) (In upholding the Spanish claim, the
court noted that the Spanish government had never expressly abandoned the wrecks from 1750
and 1802,a nd that mere passage of time did not constitute abandonment, particularly when the
technology to recover the vessels only recently became available); see Tribune Wire Reports,
Sunken 1715 Spanish treasure ship yields $4.5 million in gold coins, CHICAGO TRIBUNE (Aug.
20, 2015, 4:13PM), http://www.chicagotribune.com/news/nationworld/ct-spanish-gold-florida20150820-story.html; http://www.cnn.com/2012/02/01/world/europe/spain-u-s--treasuredispute/; see also Al Goodman, U.S. court backs Spain over $500M sea treasure, CNN (Feb. 4,
2012, 7:57AM), http://news.nationalgeographic.com/2015/12/151209-spanish-shipwreck-billiontreasure-archaeology/; see also Mirasola, supra note 90.
94. See Wolff Heintschel von Heinegg, The Current State of International Prize Law, in
INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT 5, 6 (H.H.G. Post ed., 1994) (citing W.
Heintschel v. Heinegg, Visit, Search, Diversion, and Capture in Naval Warfare: Part I, The
Traditional Law, 29 CANADIAN YEARBOOK OF INT’L L. 283-329 (1991)).
95. Cf. id. at 7-8 (“[O]nly two conflicts . . . depende[d] upon the existence of a ‘state of war’ . . . .
[S]ince 1945 neither the exercise of prize measures, nor protests by the flag States affected were
justified on the ground that there existed no ‘state of war.’ Rather, third States acquiesced in the
exercise of the right to visit, search and capture.”).
19
legally remove the orbital debris.96 More realistically, however, an IODC with an astro-salvage
agreement could allow for signatories to consent for such compensation to private individuals,
companies, or governments engaged in orbital salvaging.
Creating an astro-salvage regime under the IODC should begin with a change to the
definition of “orbital debris” to one where a state would lose its jurisdiction to destroyed or
defunct satellites not registered as a “warship,” as described in the 1989 Salvage Convention.97
Under the Outer Space Treaty, launching states are required to register their launches;98 during
this process a “warship” designation could be offered, so that debris from “non-warships” may
be collected. The issue with this suggestion is the broad uses of satellites. A state could claim
96. See Salter, supra note 38, at 22; see 1989 Salvage Convention, supra note 78, at art. 4, 25
(applying the Convention to ships on international water requires notification to the SecretaryGeneral of the Maritime Law Organization).
97. 1989 Salvage Convention, supra note 80, at art. 4. (The 1989 International Convention on
Salvage explicitly states its rules on salvage do not apply to those ships registered as warships);
DEPARTMENT OF THE NAVY & DEPARTMENT OF HOMELAND SECURITY, NWP 1-14M/MCWP 512/COMDTPUB P5800.7A, THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL
OPERATIONS 109 (A.R. Thomas & James C. Duncan eds. Supp. 2007) (“International law defines
a warship as a ship belonging to the armed forces of a nation bearing the external markings
distinguishing the character and nationality of such ships, under the command of an officer duly
commissioned by the government of that nation and whose name appears in the appropriate
service list of officers, and manned by a crew which is under regular armed forces discipline.”).
98. See Outer Space Treaty, supra note 11, at art. VIII; see also Convention on Registration of
Objects Launched into Outer Space, adopted Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15020
at art. II ¶3 [hereinafter Registration Convention].
20
that any one of its satellites can be a “warship.”99 Thus, the IODC must be able to bifurcate
between the uses of certain satellites to military or non-military, and require the designation
chosen for that satellite to remain unchanged throughout that satellite’s life. This will prevent
countries from changing the designation of their satellites to justify unanticipated action. Further,
the Convention should also set up the elements for abandonment of objects put into orbit.100 With
different standards of abandonment amongst the different nations, a uniform understanding of
what constitutes abandonment in orbit will help eliminate salvaging conflicts under the
Convention.
B.
Use of International Environmental Conventions to Guide the International Orbital
Debris Convention.
Looking at orbital debris through the lens of international marine pollution regulation
may also provide a guide for the IODC in preventing future debris. Several countries, including
one space-faring country, have been responsible for millions of metric tons of plastic dumped
99. See Ansdell, supra note 41, at 8 (comparing the use of the Global Positioning System for
every day navigation with its military capabilities for precision-guided munitions); see also
Outer Space Treaty, supra note 11, at art. IV (Again, the Outer Space Treaty does not prohibit
putting military personnel or equipment into these orbits, so long as they are for “peaceful
purposes.” An IODC has to follow the Outer Space Treaty’s provisions under Article VI, so the
question becomes does naming these satellites a “warship” indicate they are not for “peaceful
purposes?”).
100. See, e.g., Lawrence J. Lipka, Abandoned Property at Sea: Who Owns the Salvage
“Finds”?, 12 WM. & MARY L. R. 97 (1970).
21
into the ocean in the last couple decades.101 There have been no reports on countries refusing
cleanup efforts for this material.
The Convention on the Prevention of Marine Pollution by Dumping of Wasted and Other
Matter 1972 (the “London Convention”) was the first global effort to protect the marine
environment from human activities.102 Under the convention, contracting parties103 are required
to take preventative measures to prevent pollution in the oceans caused by dumping at seas that
is liable to “create hazards to human health, to harm living resources and marine life, to damage
101. See Robert Lee Hotz, Which Countries Create the Most Ocean Trash?, WALL STREET
JOURNAL (Feb. 12, 2015, 2:01PM), http://www.wsj.com/articles/which-countries-create-themost-ocean-trash-1423767676 (“China generated 8.82 million metric tons of mismanaged plastic
waste in 2010, about 27.7% of the world total. Of that, between 1.32 million and 3.53 million
metric tons ended up as marine debris . . . . The U.S. ranked 20th by the researchers’ estimates,
deemed responsible for just under 1% of the mismanaged plastic waste.”); see also Laura Parker,
Eight Million Tons of Plastic Dumped in Ocean Every Year, NATIONAL GEOGRAPHIC (Feb. 13,
2015), http://news.nationalgeographic.com/news/2015/02/150212-ocean-debris-plastic-garbagepatches-science/ (“In 2010, eight million tons of plastic trash ended up in the oceans . . . [and] is
on target to increase tenfold in the next decade”).
102. See Convention on the Prevention of Marine Pollution By Dumping of Wastes and Other
Matter, Dec. 29, 1972 [1975], 26 U.S.T. 2403 [hereinafter London Convention]; see also U.N.
Convention on the Law of the Sea art. 192, 194, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, 21
I.L.M. 1261, 1833 U.N.T.S. 3 (“States have the obligation to protect and preserve the marine
environment . . . [by taking] all measures necessary to ensure that activities under their
jurisdiction or control are so conducted as not to cause damage by pollution to other States and
their environment, and that pollution arising from incidents or activities under their jurisdiction
or control does not spread beyond the areas where they exercise sovereign rights in accordance
with this Convention.”).
103. See Convention on the Prevention of Marine by Dumping of Wastes and Other Matter,
INTERNATIONAL MARITIME ORGANIZATION, .
http://www.imo.org/en/OurWork/Environment/LCLP/Pages/default.aspx (last visited Dec. 13,
2016) (“Currently, 87 States are Parties to this Convention.”).
22
amenities or to interfere with other legitimate uses of the sea.”104 There is no space equivalent of
the London Convention. The London Convention anticipates deliberate dumping into the marine
environment, which does not translate well into an orbital context as countries are not dumping
the same materials into orbit. However, it could be argued that the launching of satellites without
a means for it to destroy itself or remove itself from an orbit after the satellite has expired
constitutes dumping under this definition. Moreover, an IODC may create a similar agreement,
including intentional destruction of satellites that cause orbital debris in the definition of
“dumping,” and thus, requiring these capabilities in the creation of future satellites. Accordingly,
the IODC could promulgate similar rules for the removal, reuse, recycling, or rehabilitation of
orbiting objects by salvors under an environmental justification.105
Similarly, the IODC would develop procedures regarding liability arising from the
debris.106 Along with these penalties for deliberate dumping, the IODC could also include a “tax”
on countries for debris cleanup based on the amount of material left in orbit.107 Under this
regime, a country would pay a tax proportionate to the tonnage of debris left in orbit, with the
money earmarked for cleanup by private companies’ salvage efforts, or for compensation to
104. See London Convention, supra note 102, at art. I-III (“Dumping means (i) any deliberate
disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made
structures at sea; (ii) any deliberate disposal at sea of vessels, aircraft, platforms or other manmade structures at sea.”)
105. See 1989 Salvage Convention, supra note 80, at art. 14.
106. See 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter art. 15, Nov. 7, 1996, 36 INT’L L. MATERIALS 1 (entered into force
2006).
107. Robert P Merges & Glenn H. Reynolds, Rules of the Road for Space?: Satellite Collisions
and the Inadequacy of Current Space Law, 40 ENVTL. L. REP. 10009, 10011 (2010).
23
those harmed.108 Thus, the creation of economic deterrence on future debris could slow down the
Kessler Syndrome, similar to how the London Convention has decreased the pollution of our
oceans.109
Further, the International Convention for the Prevention of Pollution from Ships
(“MARPOL”) is the main international convention covering prevention of pollution by ships
from operational or accidental causes, which could further provide guidance in creating a cleaner
orbit, as many of the collisions in orbit are accidental in nature.110 While MARPOL regulates the
accidental spilling of contaminate (such as oil), such contaminate may be analogized with the
nuclear material used to power satellites, setting up a liability regime and requiring efforts by
launching-states to mitigate these “spills.”111
One author suggests that the UN Convention on the Prohibition of Military or Any Other
Hostile Use of Environment Modification Techniques may provide a solution.112 The issue lies in
108. Id.
109. See, e.g., Alexander William Salter, Space Debris: A law and Economics Analysis of the
Orbital Commons, 19 STAN. TECH. L. REV. 221 (2016).
110. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution
from Ships, 1973, done Feb. 17, 1978, 17 I.L.M. 546 (entered into force Oct. 2, 1983)
[hereinafter MARPOL].
111. See id., at Regulation 13F.
112. See Thrash, supra note 54, at 22 (citing U.N. General Assembly, Convention on the
Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques,
Resolution 31/72 (May 18, 1977) [hereinafter Prohibition of Hostile Use of Environment).
24
the meaning of two words: “deliberate” and “natural process.”113 While it may seem clear that
contaminating LEO with debris is a deliberate manipulation, whether the Chinese destruction of
their own satellite falls under “deliberate” is questionable.114 Further, as discussed before, while
the orbital decay leading to atmospheric drag and the ultimate destruction of a satellite may align
with the language “natural process,” this process takes decades and the production of man-made
debris is not a “natural process.”115
IV.
UNILATERAL ACTION—ACTING WITHOUT AN INTERNATIONAL ORBITAL DEBRIS
CONVENTION.
The IODC is merely a concept, with the need for a framework of regulations that may be
borrowed from current international conventions. Until its creation, or until a current
international law may be appropriately applied to the Outer Space Treaty to justify the cleaning,
a state or private corporation must act unilaterally if they want to provide cleanup efforts.
Further, the IODC’s creations seems unlikely, considering the last agreement governing the
activities in outer space was in 1979.116 Despite the existence of many important and unresolved
issues, there has been no follow up.
Noteworthy, some authors suggest that no international agreement needs to be created, as
113 Id. (citing Prohibition of Hostile Use of Environment, supra note 110, at art. II (“As used in
article 1, the term "environmental modification techniques" refers to any technique for changing
- through the deliberate manipulation of natural processes - the dynamics, composition or
structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer
space.” (emphasis added)).
114. Id. at 19-20.
115. Id. at 20.
116. See Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,
adopted Dec. 18, 1979, 1363 U.N.T.S. 23002 [hereinafter Moon Treaty].
25
one does not appear to be created any time soon, but that a tragedy of the commons will
inevitably be avoided amongst space-faring nations.117 A tragedy of the commons occurs when
“actors overuse a commonly shared resource,” ultimately destroying the benefit for all.118 In the
orbital debris context, states must calculate the benefit of having their individual satellite in orbit,
with the cost of adding more debris affecting all users.119 Cooperation without a treaty will
require an understanding of the importance of the resource, the possession of reliable
information, shared past success, a desire among actors to be seen as trustworthy, and a means of
applying sanctions.120 A polycentric approach to decision making occurring amongst diverse,
smaller and sometimes overlapping actors may solve the tragedy of the commons.121 This
approach has been evidenced to work in attempts to resolve climate change.122
Launching-states recognize the importance and value of orbit, and that self-interested
actions will lead to disaster, inevitably leading to cooperation and understandings to solve this
problem without the need for a treaty.123 If taking such a gamble on the future of our orbital
space, however, there must be a way to act unilaterally should there be a need. Both U.S.
117. See Kurt, supra note 14.
118. Id. at 310.
119. See id. at 334
120. See id. at 332-33 (citing Elinor Ostrom, A polycentric Approach for Coping with Climate
Change 12 (World Bank, Policy Research Working Paper No. 5095, 2009), available at
http://www.iadb.org/intal/intalcdi/pe/2009/04268.pdf [http://perma.cc/AK53-VEUN]).
121. Id. at 333 (citing Ostram, supra note 118, at 34-46).
122. Id. at 319-32, 333 (citing Ostram, supra note 118).
123. Kurt, supra note 14, at 333.
26
domestic law and international law may provide solutions should, for example, the U.S. or a U.S.
company decide to embark on this cleanup endeavor without an IODC.124 A major criticism of
the U.S.’s leadership includes a failure to clean their own debris, of which the U.S. is responsible
for some 30%.125 This section attempts to show how the U.S. has begun taking steps in trying to
create cooperation to prevent the tragedy of the commons.
A. U.S. Domestic Law
On November 2015, the U.S. passed the Commercial Space Launch Competitiveness Act
(CSLCA).126 This act is unprecedented, as many space law enthusiasts argue it goes against
many of the provisions of the Outer Space Treaty, including whether or not Title IV (explained
below) goes beyond the treaty’s language in preventing appropriation of outer space resources.127
The Spurring Private Aerospace Competitiveness and Entrepreneurship (the “SPACE
Act”) sets up an insurance and liability scheme for both space flight participants and property
launched from the U.S. formulated through studies on orbital traffic management.128 Further, the
124. While outside the limits of this paper, other potential areas of the law to analyze could
include adverse possession laws of both China and Russia, two of the largest contributors to the
debris, to determine if adversely possessing debris in orbit to gain proper ownership could be
allowed. Further, an analysis on activities surrounding naval mining cleanup may prove useful.
125. See Eric Hand, Report: NASA orbital debris office is struggling to keep up with space junk
problem, NATURE.COM (Sept. 1, 2011, 4:39PM),
http://blogs.nature.com/news/2011/09/report_nasa_orbital_debris_off.html.
126. See U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat.
704, 704 (2015) [hereinafter CSLCA].
127. See, e.g., Jeff Foust, Mining issues in space law, THE SPACE REVIEW (May 9, 2016),
http://www.thespacereview.com/article/2981/1 (“At issue is Article 2, which states that celestial
bodies, including asteroids, are ‘not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means.’”).
128. See CSLCA, Pub. L. No. 114-90 §§103, 109.
27
CSLCA provides for the indemnification of space flight participants129 by the U.S. government
for their claims against private space companies operating under a license granted by the
CSLCA.130 Most importantly, section 106 provides that “Federal courts shall have exclusive
jurisdiction of any claim by a third party or space flight participant for death, bodily injury, or
property damage or loss resulting from an activity carried out under the commercial space launch
or reentry license.”131 This language seems to indicate that other countries (or private citizens in
those countries) harmed by a U.S. registered launch-vehicle now have rights to extend their
jurisdiction and have a cause of action in U.S. courts. While this has not happened yet, this could
lead to a judgment requiring that country’s debris be removed as a remedial measure.
NASA estimates on average one piece of orbital debris returns to the Earth’s surface each
day.132 While being struck by reentering space debris is extremely rare, with only one reported
case, private individuals will need a recourse.133 Currently, if a private individual wanted to bring
129. See id. at § 112(c)(4); see also 51 U.S.C.A. § 50902(2) (2015) (“[C]rew” means any
employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or
transferee, who performs activities in the course of that employment directly relating to the
launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human
beings;” § 50902(20) (“[S]pace flight participants” means an individual, who is not crew or a
government astronaut, carried within a launch vehicle or reentry vehicle.”).
130. See CSLCA, Pub. L. No. 114-90 §103.
131. Id. at §106 (emphasis added).
132. Orbital Debris, NATIONAL GEOGRAPHIC,
http://science.nationalgeographic.com/science/space/solar-system/orbital/ (last visited Dec. 13,
2016).
133. See FoxNewsSciTech, Woman hit by space junk, lives to tell the tale, FOXNEWS.COM (Oct.
21, 2011), http://www.foxnews.com/tech/2011/09/21/woman-gets-hit-by-space-junk-lives-totell-tale.html (describing the 1997 news story of an Oklahoma resident struck by woven material
from a Delta II rocket launched in 1996).
28
a claim against the U.S. for U.S.-registered falling debris that struck her, she must either
convince her national government to bring a claim on her behalf, or bring a claim on her own
behalf in a State court with proper jurisdiction.134 In any case, there is no guarantee the opposing
State would honor an outside court’s judgment.135 The U.S. being the first to allow outside states
to sue U.S. registered launches may open the door for other countries to do the same. This is one
of the first steps to cooperation and preventing the tragedy of the commons.136
Further, “[a] U.S. citizen engaged in commercial recovery of an asteroid resource or a
space resource shall be entitled to any asteroid resource or space resource obtained, including to
possess, own, transport, use, and sell it according to applicable law, including U.S. international
obligations.”137 The statement makes the CSLCA unprecedented. Never before has a country
acknowledged property rights on celestial bodies, and the Outer Space Treaty specifically bans
it.138 However, the U.S. government is keen to state that the government itself is not claiming the
property.139 The question under this provision, then, is whether we can interpret the definition of
“space debris” to mean a “space resource” in the provision. While international law may not
recognize this, a private, U.S. actor collecting these items without authority from the U.S.
government (because the U.S. government claims it is not appropriating these resources to
134. KLEIMAN, supra note 2, at 125.
135. Id.
136. See Ostrom, supra note 120, at 12.
137. CSLCA, Pub. L. No. 114-90 §402 (emphasis added).
138. See Outer Space Treaty, supra note 11, at art. II.
139. See CSLCA, Pub. L. No. 114-90 §403.
29
private citizens) could now justify they own the “space resource.”
Again, the launching-state that owns the collected debris may have a cause of action for
damages.140 This is because the private, U.S. collector will likely be a “licensed launcher” when
launching from the U.S., and is causing “damage” by removing the sovereign territory from
orbit.”141 While this will increase the amount of law suits against U.S. companies (considering
the U.S. has the leading commercial industry in space),142 the effect of giving a country a means
of recovering in the U.S. may discourage an aggressive stance on the harmful debris’ removal.
This seems to create an inverted astro-salvage regime, where the launching-state, rather than the
salvor, is paid for the “damages.” In order for this to be effective, the U.S. will need to establish
an incentive program to encourage U.S. salvors, such as tax benefits for their environmental
cleanup efforts, or indemnifying them should they be sued.
Another example of mitigation may be expressed through a hypothetical. In the next few
years (and even right now) U.S. companies will be launching hundreds of thousands of cubesatellites and other assorted satellites into orbit.143 These will not be U.S. government owned
140. Id. at §106.
141. This may set up the issue of forum shopping, where U.S. based orbital debris salvors may
register their launches in other countries willing to take the risk to avoid litigation in the U.S.
142. See Trent Perrotto, NASA, Commercial Industry Creating Historic Economic Opportunities,
NASA.GOV (last updated Jul. 30, 2015), https://www.nasa.gov/feature/iss-commercialeconomic-opportunities.
143. See, e.g., Stephen Clark, Flock of ‘microsats’ launched to measure winds inside hurricanes,
SPACEFLIGHT NOW (Dec. 15, 2016), http://spaceflightnow.com/2016/12/15/flock-of-microsatslaunched-to-measure-winds-inside-hurricanes/.
30
satellites, but the U.S., as the launching state, will have jurisdiction over them.144 These
commercial companies will have a U.S. property right in the satellite in orbit.145 Should another
country’s space debris, or even working satellite, collide and destroy these U.S. satellites, the
question becomes whether there is a right to sue for the loss of that property, and where to file
that claim. The current Outer Space Treaty makes the launching-state responsible,146 and the
CSLCA remains silent but acknowledges the right of third parties to sue for damage done by
U.S. registered launches.147 Under the Outer Space Treaty, the Liability Convention was set up
for just this reason, but doesn’t contemplate private actors, necessarily.148 The CSLCA would be
the avenue in which a state would be able to exert their jurisdiction outside of its territory, and
into the U.S. This fear of being sued for damage caused in space may help deter the creation of
future debris by the U.S. as we become hesitant to create it. Again, this demonstrates one of the
first steps to cooperation and preventing the tragedy of the commons.149
B.
International Law
Current international law and norms may also provide justification should the U.S. or a
U.S.-based actor choose to act unilaterally in their cleanup efforts. One example, the argument of
144. See Ramona Adams, Vector Space Systems Raises Funds for Microsatellite Launch Vehicle
Development, EXECUTIVEBIZ (Nov. 21, 2016), http://blog.executivebiz.com/2016/11/vectorspace-systems-raises-funds-for-microsatellite-launch-vehicle-development/.
145. See CSLCA, Pub. L. No. 114-90 §106.
146. See Outer Space Treaty, supra note 11, at art. VI.
147. See CSLCA, Pub. L. No. 114-90 §106.
148. See Liability Convention, supra note 12, at art. II (referencing only a “launching State”).
149. See Ostrom, supra note 120, at 12.
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self-defense under Article 51 of the U.N. Charter, might be the most beneficial.150 The Outer
Space Treaty provides that a state fearful that their peaceful use of outer space—in the sense of
this paper, the fearful State’s satellite—would be harmed by another State’s actions—in the
sense of this paper, another State’s debris—the fearful State may request consultation.151 While
the Outer Space Treaty does not go into details regarding this consultation, an international
committee (or a national agency created by the U.S.) organizing the consultation, such as an
IODC could set precedent and allow for the destruction of debris posing imminent harm to a
State’s peaceful use of outer space. The SPACE Act, discussed above, requires a study on
management and mitigation of orbital debris under all applicable law that could soon give a
useful solution to this problem.152
However, sometimes a country may not have time to consult before action is necessary to
prevent harm. For example, it may be argued that pieces from the Chinese anti-satellite
explosion153 colliding with functioning satellites is an act of war, or aggression,154 or a “force
150. U.N. Charter art. 51.
151. See Outer Space Treaty, supra note 11, at art. IX.
152. CSLCA, Pub. L. No. 114-90 §109.
153. See Salter, supra note 38, at 6.
154. See U.N. Charter art. 39.
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against the territorial integrity”155 of the functioning satellite’s state.156 Therefore, that state
should have the right to defend itself, perhaps by removing the debris, from that harm.157
V.
CONCLUSION: SPACE MITIGATION EFFORTS WILL BE MOST BENEFICIAL
Due to the issue of determining ownership of the space debris, and that, while we may try
to circumvent the Outer Space Treaty, a nation can always make the argument that the
destruction of their debris goes against international law. Thus, preventing the debris in the
future through mitigation efforts would be the most beneficial and legally justifiable means of
diminishing the Kessler Syndrome.
Unilateral action is only a partial solution. The creation of the IODC will allow for a
sustainable solution to litter in space, providing the political will, and a legal framework with
which to work from. While an IODC may be in its infancy, the regulations they implement will
be crucial to our future use of orbit. Until these regulations gain teeth, justified, unilateral action
will have to suffice. Moreover, the creation of an effective IODC will help avoid political
conflicts in the future. As our cleanup technology becomes more advanced, countries must begin
balancing their free use of the res communis with their ability to use the common in the future,
and allow for certain cleanup efforts to ultimately avoid a tragedy of the commons. Thus, upon
155. Id. at art. 2, para. 4.
156. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14, 147 (June 27) (holding that “by directing or authorizing over Rights of Nicaraguan
territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof,
has acted, against the Republic of Nicaragua, in breach of its obligation under customary
international law not to violate the sovereignty of another State.”).
157. See id. at art. 51 (“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain international peace
and security.”).
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an effective IODC, the best solution will be to implement immediate action under these
regulations.
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