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Finally, while building a set of enduring norms of behavior in space operations is very much in the interests of the U.S. and other space-faring nations, it is far from clear how any CoC is better at establishing and instilling such norms than the widespread adoption of the norms already practiced by commercial satellite operators— norms established by experts (rather than diplomats) based on pragmatic need, enabling satellite operators to compete in the marketplace while at the same time engaging in mutual cooperation to avoid collisions, spectrum interference, and other mishaps.
Rejection of the PPWT is thoroughly justified and this sentiment should be reiterated to China and the Russian Federation. Similarly, the U.S. should eschew the draft CoC, given that it undermines U.S. interests and does not constrain countries of concern. Instead, the United States should complement the rejection of formal and semi- formal space arms control with a serious and concerted effort to bilaterally engage in space confidence-building measures with key space-faring nations, and support and encourage the establishment of meaningful norms of behavior in space operations as practiced by space operators every day.
The Department of Defense ("DoD") has implemented rules that track closely with U.S. Standard Practices.54 However, DoD also has policies and programs that distinguish it from other U.S. agencies involved in the mitigation of orbital debris. In the event of military hostilities, for example, DoD's Standing Rules of Engagement provide that "space defense operations will be conducted, insofar as practicable . . . . [to] minimize the creation of space debris."55 Furthermore, DoD administers the U.S. Space Surveillance Network ("SSN") through the U.S. Strategic Command. SSN continuously tracks space objects via an array of optical and radar sensors and helps to prevent collisions by providing its data to both governmental and commercial operators.56 Unfortunately, the SSN program relies on technology built in the 1960s and 1980s, and is unable to track space objects smaller than 10 centimeters in diameter.57 Because much smaller debris can still wreak havoc on spacecraft windows and electrical systems,58 the U.S. Air Force has proposed supplementing the existing SSN infrastructure with a network of satellites dedicated to tracking orbital debris.59
The strategic significance of outer space cannot be overstated. Although Article III of the Outer Space Treaty calls for outer space to be used only in the interest of "maintaining international peace,"85 increasing military reliance on satellite technology has led states to cautiously protect their sovereignty in the outer space environment.86 Since 2007, both China and the United States have tested anti-satellite weapons. While the United States conducted its 2008 test at a sufficiently low altitude - 210 kilometers - to avoid creating debris,87 China's test in 2007 "created over 2,000 pieces of junk bigger than 10 cm, and an estimated 35,000 pieces more than 1 cm across."88 The Chinese experience illustrates the high costs of the militarization of space technology. These costs could further escalate as new countries seek to develop anti-satellite technology.89 Ultimately, the necessity of a functioning outer space environment will almost certainly push states toward a reliable and cooperative orbital debris framework, but, in the short term, it has been difficult to construct any agreement that could curtail national sovereignty.
Another possible explanation for the United States' relatively strict debris mitigation regime is the number of advantages it may have had in implementing regulations. First, the United States' vibrant commercial market provides a greater wealth of expertise to draw upon when drafting and establishing mitigation standards. The United States' administrative rulemaking procedures provide concerned parties ample opportunities to participate actively in the process of crafting agency regulations.95 In this sense, the intense concentration of commercial satellite operators in the United States may have proven to be a valuable resource in hastening the creation of an American commercial regulatory regime. The second U.S. advantage is derived from game theory. Because of the size of the U.S. commercial satellite industry, each American operator receives a relatively great benefit for its investments from domestic debris mitigation regulations. When the costs of adherence can be spread proportionally among the large community of U.S. operators, each operator shares in the overall benefit of cooperating to create a safer outer space environment. This potential payoff may have encouraged commercial operators to encourage the U.S. government to form commercial debris mitigation policies.
These new technical standards would be most effective if they were used as the basis for a system of certification. Certification, conditioned on satisfying the mitigation standards, could be granted either on a corporation- by-corporation basis, or at the level of individual projects. Certifying individual projects would be the most thorough, but also the most expensive option. However, the burden of individual project certification ultimately may not be so onerous, because private operators licensed in countries such as the United States may be able to rely on the same documentation used to satisfy existing domestic regulatory standards.101 As a less expensive option, corporate certification may be more attractive to a new organization; however, it would also provide a less rigorous standard. A third option - a compromise between the extremes presented above - could resemble the aviation certification methodology of the FAA.102 To conserve resources, the FAA relies on a system combining manufacturer self-regulation and agency spot-checking. Although the FAA loosely monitors all manufacturers and maintains the authority to review any documents or test results, a manufacturer with a reliable commitment to adherence is supervised less closely than new entrants or manufacturers with a history of regulatory difficulties.103 Any of these or other certification methodologies could be used, and each entails different costs and benefits to the organization and to the certification process more generally.
Another possible benefit of certification could be as a defense to liability in the event of an orbital debris collision. Currently, there is great debate on the future of liability in the event of orbital debris collisions. If the international community ultimately determines that a negligence standard should be implemented in litigation over damage caused by orbital debris,111 certification could be used as evidence of reasonable care. In U.S. tort law, adherence to or disregard of industry standards is probative, but not dispositive evidence of a defendant's reasonable care.112 If private operators believe that certification will protect them against future liability, they may be encouraged to participate. Similarly, if the Liability Convention continues to be interpreted to provide governmentalliability for the orbital debris of national private operators,'" governments may encourage their nationals to achieve certification in order to reduce the possibility of negligence damages.
Perhaps the most important justification for encouraging responsibility among private space operators is the likelihood - perhaps already a reality - that the role of government operators will give way to an era of private operator dominance in space activities.'" The Obama administration explicitly recognizes and encourages the trend toward a market-oriented space industry. The first goal of the National Space Policy is to "energize competitive domestic industr[y] to ... advance development of: satellite manufacturing; satellite-based services; space launch; terrestrial applications; and increased entrepreneurship."" The Space Policy Paper further states the new U.S. government policy is "purchas[ing] and us[ing] commercial space capabilities and services to the maximum practical extent."19 As a leader among space-faring states, the United States' transition toward a market-driven space industry may mark the beginning of an international trend. In this context, it is especially important to encourage private operators to participate in the formation of orbital debris mitigation standards.
The international community of space-faring states is slowly moving to address the issue of orbital debris. Thus far, efforts to mitigate this growing problem involve international treaties, non-binding international guidelines, and domestic regulations. Because of the sensitive nature of space operations, however, states have been reluctant to agree upon a unified, binding international legal framework. This piece proposes supplementing the existing tools of debris mitigation with a certification regime, to be designed and implemented by a voluntary organization of private space operators. This proposal has a number of merits. First, an organization of private operators with a limited mission could act more quickly and respond more flexibly than many governments to changes in the industry. Second, a credible international certification system would support a more streamlined and efficient process of regulatory approval for private operators seeking to serve foreign or domestic markets. Third, an international certifying body could provide expertise or model debris regulations for newly space-faring states and for existing space-faring states that are developing commercial markets for space services. Fourth, with a liability regime for governing damages caused by orbital debris, certification could help to establish industry standards for responsible and non-negligent behavior. Finally, and most important, it would place private operators at the forefront of efforts to mitigate orbital debris. As the United States - and possibly the world - moves towards a market-driven model of space services, the involvement of private operators in the formation of mitigation standards will be critical.
Threats to military or civilian satellites could limit the timely and accurate information available to civilian decision-makers and military commanders during crisis situations. This is compounded by how difficult it would be for officials to quickly interpret whether a satellite malfunction was caused intentionally or inadvertently by humans, a damaging space phenomenon (such as solar flares), or routine mechanical failure. Attributing who or what is responsible for such a disruption in space is usually possible, but requires equipment, analysts, and time—all of which may be in short supply during a crisis. This situation could also create a first-strike incentive for U.S. deci- sion-makers seeking to act before its understanding of a terrestrial dispute or its space situational awareness—the ability to view, characterize, and predict the location of manmade objects in space—is interrupted or further degraded.
Third, as the primary guarantor of space access, the United States has a strong interest in pro- moting responsible behavior in space or at least preventing space activities that have the potential to become a source of international instability or potential conflict, in space or on the ground. In- tentional or crisis-related interference in space would undermine the norm of equal access to space for all by introducing space as a domain for crisis bargaining, as well as prompting its further mili- tarization—both of which would be highly destabilizing to international political dynamics. The U.S. Strategic Command’s Joint Space Operations Center (JSpOC) helps to protect the space do- main by providing conjunction assessment notifications to government and commercial space op- erators when their satellites are predicted to collide with other satellites or space debris. JSpOC gathers this information with its “space fence” of ground-based radars and optical sensors located throughout the world.