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Debris monitoring is useful, but extremely limited, and debris removal is effectively impossible. Strict liability would give countries several distinct incentives to enhance their debris-monitoring efforts. First, monitoring their own debris can help countries avoid liability for collisions. If a country sees that their debris may soon collide with a spacecraft of another country, the two countries can work together to avoid that collision-and thus avoid any liability. Because wealthier countries-such as the United States-are responsible for most of the existing debris, they will have the most motivation to step up their monitoring efforts. In this way, the monitoring costs may be borne by those most able to bear them.
As one commentator has argued, "[a]lthough the current orbital debris problem is a result of international production, the primary responsibility must rest squarely on the spacefaring states who launch the greatest number of objects into space.""' This liability scheme would move toward that goal. Certainly, the United States would be less likely to continue shutting down large debris-monitoring radar arrays in the name of cost reductions.
A second incentive to develop better monitoring capabilities is that doing so would enhance a state's ability to provide evidence when bringing claims under the Liability Convention. With sufficient monitoring capabilities, a state would only need to prove that (1) a damaging collision occurred, and (2) the debris that caused the collision came from one specific country. Debris monitoring would thus become a way to defend a state's investment in a space object. Close monitoring for liability purposes could mean that proof of a country's liability, and thus its responsibility to cover damages, becomes readily available.
Fortunately, the United States is already taking steps in this direction. The 2010 National Space Policy declares, “Space operations should be conducted in ways that emphasize openness and transparency to improve public awareness of government, and enable others to share in the benefits of space” (emphasis added).24 Likewise, the 2011 National Security Space Strategy describes how the DOD “will continue to improve the quantity and quality of the SSA information it obtains and expand provision of safety of flight services to US Government agencies, other nations and commercial firms” (emphasis added).25 In line with this direction, Adm Cecil Haney, commander of United States Strategic Command (USSTRATCOM), recently testified before the Sen- ate Armed Services Committee that
[S]haring SSA information with other nations and commercial firms promotes safe and responsible space operations, reduces the potential for debris-making collisions, builds international confidence in US space sys- tems, fosters US space leadership, and improves our own SSA through knowledge of other owner/operator satellite positional data.26
Similarly, Deputy Assistant Secretary of Defense for Space Policy Douglas Loverro highlighted before the House Armed Services Committee how USSTRATCOM has signed five SSA-sharing agreements with other governments—Australia, Japan, Italy, Canada, and France— and increased the number of agreements with commercial satellite operators to 41.27 Finally,in early 2014, AFSPC commander Gen William Shelton took another important step forward toward transparency at the Air Force Association Air Warfare Symposium. During his speech, he announced that the USAF would send two Geosynchronous Space Situational Awareness Program satellites into orbit this year. Those sat- ellites will augment the nation’s ability to monitor satellites in geo- synchronous orbit for collision avoidance and to detect potential threats.28
Transparency is a precondition of effective and legitimate international rule of law. In the future, both market competition and political disagreements will likely manifest themselves in space. Therefore, demand for AFSPC’s space situational awareness (SSA) capabilities will continue to grow as the importance of monitoring space activity increases. Initially, this heightened awareness of space capabilities will cause alarm, just as Open Skies did in the 1950s. As before, nations will have to decide if revealing more about their capabilities (and po- tentially curtailing some forms of activity) for the greater good of in- ternational security is in their best interest. This decision could be es- pecially difficult for the United States since it will likely be the primary financial backer of an international SSA capability and it could also have the most to lose from the perspective of secrecy. Despite these concerns, this will likely be the price of maintaining US leadership in space in the future.
As the historical evidence suggests, if the United States decides not to promote transparency in space, other nations will. In this scenario, the United States would lose credibility for not having participated in supporting the trend toward openness, jeopardizing the legitimacy of self-help behavior. The negative consequences could also spill over to US commercial entities, which would suffer economically if inter- national competitors capture the market for SSA services.
While the preceding discussion helps demonstrate why the United States should assume the role of the primary custodian for maintaining order in space, it is obvious that implementing this aspect of a space sustainment strategy will be difficult. One difficulty stems from the military controlling, or at least maintaining significant influence over, the predominance of space capabilities. Terrestrially, observers can often divide the control of geographic territory into police forces for suppressing internal threats to order and military forces for defending against external threats. This makes for a relatively clean division of roles and responsibilities. Since space is inherently global, no such clear demarcations between law enforcement and military activity exist. From an international perspective, observers cannot easily distinguish the actions of military forces used in a self-help capacity to uphold the rule of law from those of conquest. Therefore, the use of military forces to police behavior in space may make it difficult for the international community to determine if the intent of those actions is to sustain the greater good or to seize a position of advantage
The restrictions contained in the current body of international law are not the only barriers the United States must overcome to success- fully implement a space sustainment strategy. US export controls on dual-use aerospace technology, such as those contained in the Inter- national Traffic in Arms Regulations (ITAR), have often backfired “as other countries eagerly pick up the slack created by US market withdrawal.”7 By viewing space solely from the perspective of national security and failing to predict the economic consequences, protectionist regulation pushed markets overseas and forced other nations to develop indigenous capabilities. For example, self-imposed restrictions on domestic launch service providers allowed the European Space Agency’s Arianne rocket, which did not enter the market until 1980, to capture 50 percent of worldwide commercial business by 2001.8 In addition to the growth of non-US launch service suppliers, nations are creating their own capabilities for space navigation, earth observation, communication, and space exploration.
In addition to the loss of business, US companies also face harsh penalties for violating these regulations—whether the infringement was intentional or not. The United States severely penalized Hughes and Loral under the Cox Committee for allegedly helping the Chinese identify and overcome engineering deficiencies associated with the Long March rocket.9 Fearing additional retribution, the aerospace industry has shied away from further developing international business opportunities to the extent they could if these prohibitions did not exist. These unfortunate conditions have led to a sharp decline in US space-related exports and a surge in international competition.
Proponents of U.S. missile defense and U.S. military superiority in space have responded to the PPW proposal in a familiar way, objecting to the lack of definitions, verification, and enforcement—the same arguments they have been using to head off serious discussion of space arms control since the late 1970s.11 The dual-use nature of much space technology does make it hard to distinguish between those space capabilities that are threatening and those that are benign, especially without highly refined mechanisms for sharing compliance information and managing compliance concerns. This ambiguity, though, poses a greater problem for unilateral space security strategies than it does for cooperative ones, so it is not a reason to assume that negotiations would be pointless.
Exploitation of space is particularly critical to effective U.S. power projection, as it provides the U.S. military with the ability to operate effectively over global distances, beyond the reach of what U.S. ground-based and aerial assets, limited by range and endurance, can provide. As General John Hyten, Commander of U.S. Air Force Space Command, recently said on CBS’ 60 Minutes, because of space “we can attack any target on the planet, anytime, anywhere, in any weather.”5 Thus Washington’s ability to project credible and effective military power to key regions such as the Western Pacific, Europe, and the Middle East – which is elemental to the U.S. national security strategy of forward engagement – relies on space. And this reliance is increasing.
Furthermore, while space is crucial for U.S. power projection and an effective military posture in key regions, it is also vital for crucial homeland defense and deterrence functions. Space-based assets provide early warning of missile attacks against the United States (and others) and serve as a crucial component in the command and control system for U.S. nuclear forces in the event of war – including a nuclear war.6 As the 2011 U.S. National Security Space Strategy, a document bearing the signatures of the Secretary of Defense and the Director of National Intelligence, summarized, “[s]pace capabilities provide the United States and our allies unprecedented advantages ... create a decision advantage ... [and are] vital to monitoring strategic and military developments ... Maintaining the benefits afforded to the United States by space is central to our national security.”7
Two clear U.S. priorities can be determined from the general principles of the current national space policy: the United States is intent on reserving the right to use space for national security measures,154 and it views itself, as "the leading space-faring nation,"155 a protector of space as a global commons.156 Any approach taken toward international agreement that seeks the support of the United States in the remediation of space debris will have to allow for both of these priorities.157 Most notably, any approach that does not allow for the priority of national security maneuverability will face certain opposition from the White House, Congress, and the U.S. Military.158
An ICOC approach allows the United States to best uphold these priorities. First, an ICOC allows the United States to maximize its national security maneuverability by providing flexibility.159 An ICOC, including the draft ICOC prepared by the EU, would place a constraint on U.S. behaviors, not its capabilities.160 In other words, the United States would be permitted under an ICOC approach to develop whatever space system it deemed necessary for its national security or for any other reason.161
Indeed, an ICOC approach does a better job of this than other potential approaches to international agreement. A binding agreement would place too much constraint on the United States, forcing it to concede some of its national freedoms in exchange for international agreement.162 A binding agreement would also provide the United States with the least amount of flexibility to respond to perceived national security threats.163 Unlike a binding agreement, an ICOC provides countries with flexibility to address highly technical areas of space law, such as space debris remediation.164
Likewise, a voluntary regime of national policies is not an effective option. While this approach would allow the United States the greatest leeway in establishing its own guidelines, it would also provide this freedom to all other space-faring countries.165 National governments would have little incentive to set guidelines that would provide concessions to the international community.166
While some may argue that a binding agreement is the best long-term solution to tackling the issue of space debris,174 particularly if the United States is able to use its position as a major space-faring power to establish favorable regulations with respect to national security maneuverability, a binding agreement is unlikely to be established anytime soon.175 General international apathy has existed towards using formal channels to create such a binding agreement for at least the past twenty years.176 However, an ICOC approach offers a short-term resolution that moves the international community towards a more permanent solution to the remediation of space debris.177 An ICOC is the best approach for the United States in the shortterm, particularly regarding national security maneuverability, because: (1) it can be accomplished quickly; (2) an ICOC approach has proven successful for the United States military in the past; and (3) it offers achievable progress towards a potential longer-term solution.
An ICOC has the benefit of a speedy enactment versus other international agreement alternatives. By design, an ICOC allows for a faster approval process. Unlike a binding agreement, United Nations agreement, or new intergovernmental organization agreement, an ICOC is primarily drafted before the parties are assembled at the negotiation table.178 This has the benefit of limiting the vast amounts of negotiation to the edges of the agreement, rather than bogging down the process with deliberations over the essence of the agreement.179 Granted, even under this approach, in order to increase its chances of passage, the United States would still have to consider other national parties' perspectives when drafting an ICOC.180 But, the distinction with this approach is that by taking the vast amount of the drafting process out of negotiation, the ultimate approval process is greatly sped up.181 Upon submitting its draft ICOC, the United States would be able to devote its efforts to diplomatic persuasion rather than perpetual negotiation.
In addition, the number of parties that the United States would need to court to create a truly international agreement is relatively small. With no more than a dozen space-faring countries,182 the United States would not have to exert time and diplomatic energy attempting to have every country sign onto an agreement. Indeed, if the United States could convince most of the space-faring group to sign on, it is more likely that other countries will fall in line,183 or at least not pose a threat to the agreement's effectiveness.184
Further, the ICOC approach allows the United States to work around formal governmental structures that might present roadblocks to the passage of an agreement. For example, an ICOC does not require formal state action to be created.185 Indeed, national space agencies or private space operators can agree to be bound by an ICOC without having national agreement at the international level.186 Allowing these groups to opt-in to adherence places additional pressure on the national entity, thereby encouraging a faster agreement and a more comprehensive group of bound parties.187