Evidence: Recently Added
Satellites as weapons against other satellites fall into two basic categories. Some are spies, snooping on the telemetry or taking images of other spacecraft. Others are attack systems. The most effective way to attack another satellite is to blow it up, either through a direct impact or a close explosion that showers the target with shrapnel. All these systems have been tested by major spacefaring nations over the years.
So, what would a satellite with a robot arm do that was so militarily useful? It could grapple and attach itself to another satellite. But that would do little damage, and quickly alert its controllers. There would seem to be no strategic gain from such a move. Snooping is done discreetly, with remote observations and sometimes close flybys. You don't actually touch another nation's spacecraft.
You could always wrestle with a satellite and gradually render it useless by steering it out of alignment, but that invites countermeasures as controllers steer it back. Realistically, such "soft" attacks are better performed by hacking a satellite's telemetry, a process known as "spoofing".
Spoofing is probably the most effective anti-satellite weapon ever conceived. It replicates the speed and potency of cyberwarfare beyond the planet. Spoofing is powerful, and that's probably why it is not discussed frequently.
Many experts are focused on negotiating international ‘space debris rules of the road’ that could potentially reduce the risk of collision by strictly limiting debris creation and through self-monitoring. There are committees at the UN and even interagency groups within the U.S. government focused on negotiating and implementing just such space ‘rules of the road’ aimed at reducing debris and the risk of collision. The problem is that most spacefaring nations, and those who wish to be, don’t want to conform, and don’t want to be limited. New entrants, both public and private, start the space exploitation process in the least expensive, and therefore messiest way, which causes more debris problems. Experimentation results in messy lessons, and countries are happy to avoid collateral problems in space, unless it impedes their access to all the prestige and benefits of space exploitation. Not to mention maintaining secrecy for their own national security objectives. It is simply not realistic to count on agreements alone to handle the space debris and collision risk problem.
ICOCs are not a new approach to international agreement for the United States.188 Indeed, the United States has relied on ICOCs in the past to govern troop movements in close proximity to Soviet Union forces,189 arms proliferation agreements,190 and crewmember policies for the International Space Station.191 The United States can look to these earlier ICOCs and be confident that utilizing an ICOC approach for space debris remediation can be a successful method for achieving simultaneous national security aims.
While the use of these prior ICOCs provides the United States with confidence in a successful implementation of future military ICOCs, it also provides the United States with institutional knowledge to aid in that pursuit. The negotiations that occurred surrounding prior ICOCs, as well as any diplomatic relationships that developed, can be utilized to ensure the smooth deployment of a future ICOC addressing space debris remediation. Further, it is likely from these earlier efforts that the United States is well aware of the views that each of the space-faring countries holds regarding international space policies and national security implications. All of this information will aid the United States in drafting an ICOC with a high likelihood of success by helping to make certain a faster and more comprehensive framework for agreement.
Prior ICOCs also provide evidence that voluntary ICOCs can serve as a building block for longer-term or legally binding agreements.192 In particular, the experience of the ICOC addressing crew policies abroad the International Space Station provides a clear example of how this might work.193 After establishing an ICOC about crew procedures among the partner states, the parties included a provision invoking this ICOC in the formalized foundation of the International Space Station partnership.194 Specifically, this provision requires partner states to observe the ICOC, inferring that legal consequences might exist for violations.195
The International Space Station example illustrates the building block effect an ICOC can have. By agreeing to voluntary compliance in the beginning through an ICOC, the International Space Station parties were moved closer to the formalization of a longer-term partnership that was built upon their prior agreements.196 Early agreements created through ICOCs can establish initial trust, shared sacrifice, and shared commitment to a common goal-all ingredients necessary for the success of a long-term partnership. More importantly, for those primarily concerned with the threat posed by space debris, an ICOC can provide immediate action, albeit more limited than a comprehensive longer-term approach, while that longer-term approach continues to be hammered out.
An ICOC presents a path of achieving the greatest impact towards space debris remediation while maximizing national security maneuverability. This approach offers the best path forward because it is so closely aligned with U.S. space principles. Any ICOC would allow the United States great flexibility to maintain hawkish military capabilities in outer space should the need arise. Because an ICOC merely places restraint on behaviors that generate space debris, not military capabilities, it offers a realistic solution to the issue at hand that can survive the great scrutiny of Congressional Republicans and DOD officials focused on national security. In addition, it allows the United States to exert greater control at the forefront of the drafting process. Unlike more formal alternatives that rely on consensus, an ICOC ensures that the United States can control the negotiation over final guidelines from the beginning.
The solution to excess debris is regulation of entrants into the extraterrestrial environment. Congress could amend the Commercial Space Launch Act with a specific requirement that private sector space activities must consider and mitigate their contribution to orbital debris beyond the ionosphere. Alternatively and somewhat more feasibly, interested persons should petition the Council on Environmental Quality, the Department of Transportation, or AST, to issue a regulation conditioning the grant of a license on the incorporation of an orbital debris mitigation program for releases beyond the ionosphere.
An alternative approach, which offers only procedural protection, would be a petition to the Council on Environmental Quality, the Department of Transportation, or AST, to recognize that the space beyond the ionosphere affects the "human environment" and should therefore be considered in an environmental impact analysis. Though procedural protection from NEPA would not require any actual regulation of debris, it would at least provide an additional procedural step which allows the contemplation of the issue.132
The current regulation of private sector space activities is in need of updating to cope with the realities of space economics and the very real dangers of unregulated and expanding usage of space by private companies. Short of notice and comment origin to such regulations, petitioning for issuance of a rule is the most apt alternative for producing the desired effect. Through implementation of private space activities controls, the United States can provide an effective international model in furtherance of the goal of the mitigation of space debris.
Under current industry and agency practice, addition of orbital debris above the ionosphere is not considered in a NEPArequired environmental impact analysis.126 NEPA arguably should be applicable to this region because the addition of debris in orbit significantly affects the "human environment."127 Alternatively, the region beyond the ionosphere can be interpreted as an environment subject to NEPA in its own right, because it would "stimulateH the health and welfare of man," and "enrich the understanding of... natural resources important to the Nation."128 A revision of agency regulations is recommended to reinforce NEPA's application to the release of debris beyond the ionosphere.
It was Congress' intention when it passed the Commercial Space Launch Act to reduce as much as possible the barriers to entry into such an expensive industry.129 The motivations present for the original legislation are now outdated given the fact that private space companies are having little trouble gaining footholds in the space industry and profiting.130 The lack of regulation on orbital debris has the potential to render orbit around Earth inaccessible, unusable, reduce mankind's ability to transmit information and make scientific innovations, and could essentially trap humanity on Earth.131
With a focus on debris reduction, companies would be compelled to invest in new research, engineering, and launch strategies in order to be granted a license to operate. While this would be a significant economic hurdle for companies wishing to enter the market, the greatest mitigation of future dangers could be better achieved at the infancy stages of private sector participation. As it stands, there are only seven private companies licensed to launch spacecraft.115 Proactively addressing this problem could drastically reduce economic impact on the private sector if implemented now, rather than when there are substantially more licensees.
Private space companies are not struggling either. Space is a lucrative business and, as private companies contribute more to the development of space technologies, the industry as a whole is ripe to expand and reduce its relative costs.116 Arguably, such expansion was the main impetus in passing the Commercial Space Launch Act in the first place. It is apparent with the growth of the private sector that economic considerations can no longer be the only source of regulatory inspiration; a consideration on the environmental impacts on outer space is also warranted.
To summarize, the regulatory body of law on private sector additions of orbital debris falls short. International treaties bind countries to use space for peaceful purposes and to allow for space exploitation for the benefit of the human race; domestic space agencies have followed the essence of these treaties, but fall short of effective regulation of the private sector.94 The IADC provided guidelines to government agencies which, upon their adoption, became binding on the agencies, but not necessarily private space operations.95 Congress, through its failure to address the private sector space industry in the latest NASA authorization statute and its effective exemption of private companies from environmental considerations in the Commercial Space Launch Act, has left the private sector, perhaps intentionally, environmentally unregulated.96 The Secretary of Transportation may impose restrictions, such as an environmental restriction upon the grant of a license, but there is no requirement that he do so; even if there were, the Secretary may waive that requirement.97 As a consequence, the only environmental protections against private sector orbital debris come from an Executive policy which is subject to change following a change in administration.98 AST also fails to consider the effects of orbital debris released beyond the ionosphere when reviewing a license applicant's environmental assessment.99 Additionally, NEPA fails to provide any substantive protection to the orbital environment as it is only a procedural statute.100 If applicable, perhaps the most protective is the U.S. Government Orbital Debris Mitigation Standard Practices, which allows for widespread addition of debris below a certain size and also addition of larger debris pending evaluation of non-environmental factors.101 At best, regulation of orbital debris from private sector space launches depends on whether the Secretary sees fit to impose protective requirements; at worst, there is essentially no effective regulation of orbital debris for private sector space activities.
It may also be argued that existing United States space law policies would adequately regulate private sector orbital debris. However, this argument is potentially flawed. United States governmental agencies, such as NASA and the Department of Transportation, rely heavily on the "U.S. Government Orbital Debris Mitigation Standard Practices," a document meant to guide agencies in creating regulations which restrict orbital debris89 This document, developed by NASA and adopted by all United States government agencies by 2001, included meaningful purposive and practical mandates for the limitation and reduction of debris in Earth orbit.90 Although the document itself purports to apply to "all operational orbit regimes" these guidelines have questionable application to private sector space activities.91 The document is silent on which entities are to be regulated, and an external governmental description of the policy's applicability speaks only of "government operated or procured space systems."92 Whether issuance of a license amounts to government operation or procurement of a private sector space system is unclear. Thus, the current United States Standard Practices document is potentially inapplicable to the private sector.