Evidence: Recently Added
The main reason that the Liability Convention fails to properly address the space debris problem is that it was probably motivated more by a worry about what happens when defunct spacecraft return to Earth than what will happen when objects collide in space.111 This is shown through the differing treatment that is provided for liability for collisions on Earth versus liability for collisions in space.112 Launching parties are "absolutely liable" if their spacecraft cause damage on Earth (or to aircraft within the boundaries of Earth-space).113 If there is damage to another spacecraft in space, however, the launching party will "be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.114 Here, damage refers only to people or property, not to the actual space environment itself.115 Further, the Liability Convention gives no definition of the word "fault," nor does it give any guidelines for an appropriate standard of care to be undertaken during space actions.116
Finally, there are some serious problems with the enforcement of the Liability Convention. Most of the text of the Liability Convention sets up the channels that must be used to recover damages in case of actions that fall under the purview of the treaty.117 As is the case in many judicial proceedings, however, the complication and sluggishness of such proceedings will often create a barrier to their effective use, forcing parties to settle their claims independently of the Liability Convention and thus robbing the treaty of its full force.118
While the commercial space industry currently offers no historical precedent for those types of concerns, another industry does. For years, commercial augmentation has been essential to the United States’ strategic force projection capability—particularly regarding long-range airlift. As with commercial space, the United States relies on the commercial sector for 37 percent of the long-haul airlift for rapid force projection capability, responses to crises, and delivery of aid to foreign partners. During the twilight of the Nixon administration, the situation was very much the same, but the White House’s access to those capabilities suffered in the face of world tensions.17
In October 1973, Soviet-backed Arab forces attacked Israel across the Golan Heights and the Sinai Peninsula during what became known as the Yom Kippur War. As Israeli forces suffered terrible losses, Arab forces closed in and pushed the Jewish state to the edge of defeat.18 Golda Meir’s government called for resupply to their forces, and President Nixon expected to do so with a commercial airlift. Commercial flights would not disrupt the withdrawal of US forces from Southeast Asia or exacerbate tensions with the Soviets or oil-producing Arab states.19
To Washington’s chagrin, American companies refused to place their planes, personnel, and profits at risk when the White House and Pentagon called on them. Companies feared that Arab states would drive up fuel prices, cut them off from transit routes, and contribute to increased air piracy that would undermine their bottom lines.20
As a result, Pentagon planners had to reallocate strategic airlift forces from the drawdown in Southeast Asia to support the Operation Nickel Grass (ONG) resupply of Israeli forces. Arab forces used the delay to inflict heavy losses on Israeli forces and secure territorial gains. Washington had no way to provide desperately needed aid to a key ally during a crisis because it had no plan to help the commercial sector offset risks associated with helping the White House during a crisis.
Adversaries can also use a variety of cyberspace capabilities to influence commercial space operators during crises. For example, Internet denial of service attacks can prevent companies from communicating with their clients. Adversaries can also deploy malware to disable satellite command and control infrastructure and route terrestrial communications, or they can opt for complex command intrusions to reconfigure satellite subsystems in space.7 At the same time, adversaries can execute industrial espionage to expose sensitive client data, compromise intellectual property, and reveal business plans from commercial space operators’ computer networks. Such actions could cause stock devaluations, a loss of business, and undermine competitive advantages.8 Many of those actions have already occurred. Cyber miscreants have attempted command intrusions against the US Geological Survey’s Landsat-7 and NASA’s Terra satellites and absconded with sensitive satellite design data from US space companies.9 In the future, those trends will likely continue in volume and severity.
China and Russia are the amendment's most likely opposition. Russia's Cold War legacy would leave it responsible for a large quantity of debris, and China would be responsible for the effects of their 2007 missile test. Yet there is some hope of persuading these countries. Most of the debris currently in orbit is not tracked, and so even if that debris is located again, there would be no way to determine its country of origin. Establishing liability for collisions caused by already-existing debris would, in practice, be almost impossible. This weakens the strict liability regime, but makes it more palatable for China and Russia. They will be held accountable for what they do from now on, but likely will not be held responsible for their past acts. If necessary, the strict liability amendment could explicitly not be retroactive-strict liability would then only attach to debris created after ratification.
As mentioned earlier, the IADC guidelines are very useful-the problem is that many states ignore them. Amending the Liability Convention to define "fault" as "not complying with the IADC guidelines" would force states to abide by them, or risk liability for damage caused by their debris. This is not a new idea.188 Because such standards now exist, and have the potential to be effective if enforced, writing them in as a defined standard of care would be easier than ever before.
The arguments in favor of this approach are similar to those in favor of strict liability. There would still be deterrence, and there would still be incentive to develop more effective debris monitoring. These effects would likely be weaker, however, because the odds of losing a liability dispute under this code of conduct would presumably be lower than losing such a dispute under a strict liability regime. Transaction costs would also be higher, and disputes would take longer to resolve, because determining compliance with the code could require a lengthy legal debate.
Advantages of a code of conduct over strict liability are obvious. Countries would be more likely to support it, because they would less likely to be found liable for damages. Modifying such a code in the future would be easier and less disruptive than attempting to "modify" a strict and absolute standard such as strict liability. And a code of conduct is inherently more flexible in its enforcement, and therefore there should be fewer instances of false-positives. Strict liability seems overall more effective at combating debris, but a code of conduct would be superior to the current regime.
As the above Section demonstrates, space debris is a complicated problem with no quick or easy solutions. No one proposal can solve everything. As the predictions above show, even stopping all future spacecraft launches would do little to mitigate the dangers of current debris, and would not do much to clear the Earth's orbit, at least not quickly. The international community must focus on practical, albeit imperfect, policies that limit debris growth until a way to remove debris can be found.
Perhaps the simplest solution is to amend the Liability Convention so that "fault" is no longer required for liability for damage in space."' States would be strictly liable for all damage their debris causes, whether that damage happens in orbit or on the ground. This was actually proposed when the Liability Convention was being drafted, but it was met with "universal disapproval."80 This idea was disfavored in the 1990s, because it seemed politically impossible.'"' Discussion of such a solution has abated in the last ten to fifteen years. Given the current severity of the problem, now is the time to revisit this admittedly harsh option.
The debris-mitigation standards adopted by the U.N. are useful, and could well work if they were enforceable. The IADC estimates that, with a ninety percent compliance rate with these mitigation guidelines, the orbital debris population will grow by only about thirty percent over the next two hundred years.134 This is not ideal, but such measures would allow for continued space operations, and would partially stave off what the Kessler Syndrome predicts. But the U.N. standards are guidelines, not rules.
Even states that openly approve of these guidelines do not always follow them. In 2009, Russia left three defunct satellites to drift in GEO, and in 2008, the U.S. and Russia each left one satellite in GEO.135 Even if these satellites never collide with other space objects, they take up valuable GEO 'slots.' This data also shows that the U.S. often fails to follow its own regulations, which require responsible disposal of satellites. Globally, only one in three satellites in GEO is put into a graveyard orbit.136 If the U.S. often fails to comply with the U.N. guidelines, imagine what compliance rates will be like for countries that are more cavalier in their approach to space operations, such as China, the state that deliberately destroyed a satellite in orbit.
The Cascade Effect, more popularly known as the Kessler Syndrome, comes from a 1978 paper by NASA scientist Donald Kessler.100 The basic hypothesis is that, initially, most of the debris in orbit will be made up of larger objects.101 Those objects will collide, producing more and more fragmentation, which in turn makes subsequent collisions more likely.102 Since debris stays in orbit for over a million years there will be exponential growth in the amount of orbital debris, as more collisions create more debris, which in turn creates more collisions.103 This could "eventually produce an impenetrable cloud of fragmentation debris that will encase Earth," making space travel nearly impossible.104
In a 2010 paper, Kessler and several NASA scientists revisited these predictions using more advanced mathematical models. They concluded that the Cascade Effect is still a substantial threat to spacecraft in orbit, even with no additional spacecraft launches.105 Their models suggest that, over the next fifty years, the number of major collisions could triple that of the last fifty years, with further increases still possible.106 The timeframe for the gradual increase in space collisions is very uncertain, with some predictions holding that the collision cascade could begin as soon as in a decade.107
Many developed states, the U.S. in particular, depend on satellites for national security.96 Satellites are vital to modern military intelligence-gathering and navigation. Satellite- powered GPS guidance is vital to ensuring that guided missiles and bombs hit their targets.97 In a 2006 hearing, members of Congress addressed the issue of satellites and national security:
Lieutenant General C. Robert Kehler, then the Deputy Commander, United States Strategic Command, stated that "space capabilities are inextricably woven into the fabric of American security." He added that these space capabilities are "vital to our daily efforts throughout the world in all aspects of modern warfare" and discussed how integral space capabilities are to "defeating terrorist threats, defending the homeland in depth, shaping the choices of countries at strategic crossroads and preventing hostile states and actors from acquiring or using WMD."98
Until recently, there was virtually no public discussion on how the U.S. national security space community would address the last elements of the 2011 NSSS—deterring and defeating attacks on U.S. national security space systems.
That has changed, somewhat, with the passage of the NDAA for 2015, which directs the Secretary of Defense and the Director of National Intelligence to jointly develop an update to the 2011 NSSS that includes space control and space superiority aspects. The 2015 NDAA also requires that the majority of the funds allocated to the Space Security and Defense Program be used to develop offensive space control and active defensive strategies and capabilities.
Active defensive capabilities go beyond passive defenses, such as hardening of satellites or creating plans for evasive maneuvers, to include taking action against a hostile object to prevent it from destroying a protected object.
Examples of active defenses from other domains include using flares to deceive heat-seeking air-to-air missiles, electronic countermeasures to jam radio-controlled improvised explosive devices, reactive armor to protect armored vehicles from shaped charges and missile defense to intercept ballistic missiles.
In the context of space, potential active defenses could range from using cyber or electronic warfare methods to interfere with the ability of an adversary’s ASAT weapon to target and track a protected satellite, to kinetic methods that involve destroying the adversary’s ASAT weapon before it reaches the protected satellite.
The boundary between active defenses and outright offense can be fuzzy at best. While the examples of flares, ECM and reactive armor are all mechanisms that are clearly defensive in nature, other types of active defenses are not.