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11 Issues External to NASA INTERAGENCY COOPERATION The guideline known as the 25-year rule,1 which, as mentioned elsewhere in the report, seeks to restrict the post-operational life of objects in space to no more than 25 years, is contained in the U.S. Government Orbital Debris Mitigation Standard Practices2 and NASA Technical Standard 8719.14.3 It could be considered a profes- sional standard practice. However, the fact that waivers are sometimes granted at various stages of mission planning calls this status into question. The 25-year rule is not a “rule” in any legal sense, with one exception. 4 NASA recognizes this fact in its Procedural Requirements.5 Under U.S. federal law, to be a “rule”—that is, a regulation that is legally binding on 1 The “25-year rule” is a guideline under consideration by an international organization the Inter-Agency Space Debris Coordination Com - mittee (IADC), and is described in its “IADC Space Debris Mitigation Guidelines” released in 2002 and revised in 2007. The “rule” encour - ages entities with objects in low Earth orbit to ensure that their spacecraft and/or launch hardware are in an orbit that will decay and cause said object to reenter Earth’s atmosphere within 25 years to mitigate the creation of more orbital debris. Although it may seem as though the IADC has formally adopted the rule, the 2007 revision notes that the “IADC and some other studies and a number of existing national guidelines have found 25 years to be a reasonable and appropriate lifetime limit.” See http://www.iadc-online.org/Documents/Docu/IADC_ Mitigation_Guidelines_Rev1_Sep07.pdf. 2 The first practice is that “[e]ach instance of planned release of debris larger than 5 mm in any dimension that remains on orbit for more than 25 years should be evaluated and justified on the basis of cost effectiveness and mission requirements.” The second practice is to “[l]eave the structure in an orbit in which, using conservative projections for solar activity, atmospheric drag will limit the lifetime to no longer than 25 years after completion of mission.” See NASA, U.S. Government Orbital Debris Mitigation Standard Practices, Section 4-1.a, available at http://orbitaldebris.jsc.nasa.gov/library/USG_OD_Standard_Practices.pdf. 3 NASA, Process for Limiting Orbital Debris, NASA-STD-8719.14 (with Change 4), NASA, Washington, D.C., 2009, available at http:// www.hq.nasa.gov/office/codeq/doctree/871914.pdf. 4 The FCC adopted the 25-year requirement as part of its notice and comment proceeding adopting orbital debris mitigation rules. In the Matter of Mitigation of Orbital Debris, Second Report and Order, 19 FCC Rcd 1157, paragraphs 84-85 (2004). See http://hraunfoss.fcc.gov/ edocs_public/attachmatch/FCC-04-130A1.pdf; Federal Register publication, 69 FR 54581, 54585 (September 9, 2004). 5 “Note: It is recognized that NASA has no involvement or control in the design or operation of Federal Aviation Administration (FAA)-licensed launches or foreign or Department of Defense (DOD)-furnished launch services, and, therefore, these are not subject to the requirements in this NPR for the launch portion. This currently applies to Commercial Orbital Transportation Services (COTS), International Space Station (ISS) Commercial Resupply Services (CRS), and some NASA payloads for which unique launch services have been or plan to be acquired; e.g., Geo - stationary Operational Environmental Satellite (GOES-O), James Webb Space Telescope (JWST), and Lunar Atmosphere and Dust Environment Explorer (LADEE). Such launches are under the authority of other federal agencies (FAA or DOD) or foreign governments for direction and compliance [with] applicable orbital debris requirements. The payloads of such missions, e.g., COTS and CRS orbital vehicles and GOES-O, JWST, and LADEE spacecraft, that have a NASA involvement in the design and operation, are subject to the requirements of this document and process. It is intended that COTS and CRS launch vehicle stages or spacecraft carrying NASA cargo, that will be in the proximity of the ISS or 77
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78 LIMITING FUTURE COLLISION RISK TO SPACECRAFT Studies and Analysis External (to NASA) Interfaces For NASA Commercial Office of Safety and Mission Assurance S/C Owner/Operators: Risk Assessments, Mitigation, Anomalies S/C & Launch Vehicle Vendors: Design, Operations, and Anomalies Core orbital debris program, NPR 8715.6, U.S. Government NS 8719.14, and Satellite Reentries External Relations OSTP: National/International Strategy and Interagency WG NASA Centers DOD: NASA/DOD WG, Partnership Council, MOUs/MOAs DOT/FAA: Launch Vehicle License Assessments, OD Economics Cooperative projects and advisory committee reviews State: United Nations, IADC, and Special Tasking FCC: Spacecraft License Assessments NASA Space Operations NOAA: Spacecraft Disposal and Anomalies International Space Shuttle, ISS, ELVs, etc. UN COPUOS: STSC Presentations and UN Guidelines NASA Programs IADC: Measurements, Modeling, Mitigation, and Guidelines Space Agencies: Collision Avoidance, Anomalies, and Reentries On-orbit and reentry risk assessments International Organizations: IAF, IAA, COSPAR FIGURE 11.1 Interfaces external to NASA for addressing MMOD issues. 11.1 from NASA MMOD Model Figures 31MAY11.eps U.S. entities—it must go through the well-established formal rule-making process required by the Administrative Procedure Act (APA),6 a process that applies to both federal executive departments and independent agencies. Absent this process, there is no legally binding rule. It can be expected that the 2010 National Space Policy will likely increase demands placed on NASA’s meteoroid and orbital debris (MMOD) programs. It can also be expected that clear rules will facilitate the inter- agency process needed to meet this demand (see Figure 11.1 for a diagram of the current interagency structure for addressing MMOD issues). Under the heading of “Preserving the Space Environment and the Responsible Use of Space,” the policy states that the “United States shall . . . [r]equire the head of the sponsoring department or agency to approve exceptions to the United States Government Orbital Debris Mitigation Standard Practices and notify the Secretary of State.”7 This language implies a nascent process relevant to the U.S. standard practices including the 25-year rule. However, it still only states policy. As a national policy, it is a substantial statement of guiding authority. Nonetheless, it still does not rise to the level of the APA rule-making process. Finding: NASA’s Orbital Debris Mitigation Standard Practices, including the “25-year rule,” and NASA’s Procedural Requirements for Limiting Orbital Debris do not uniformly apply to non-NASA missions, launches, and payloads. Recommendation: NASA should continue to engage relevant federal agencies as to the desirability and appropriateness of formalizing NASA’s Orbital Debris Mitigation Standard Practices, including the “25- year rule,” and NASA Procedural Requirements for Limiting Orbital Debris as legal rules that could be applicable to U.S. non-NASA missions and private activities. INTERNATIONAL COOPERATION There are multiple sets of existing guidelines concerning orbital debris, none of which are legally binding. They include those issued by NASA, the European Space Agency (ESA), the Inter-Agency Space Debris Coordination could leave debris near ISS orbit, would be reviewed per the requirements in this document as a part of the approval process to approach the ISS.” See NASA, NASA Procedural Requirements for Limiting Orbital Debris, NPR 8715.6A (with Change 1), Office of Safety and Mission Assur- ance, NASA Johnson Space Center, Houston, Tex., May 14, 2009, p. 5, available at http://orbitaldebris.jsc.nasa.gov/library/NPR_8715_006A.pdf. 6 U.S. Code §§ 500–596, P.L. 79-404. 7 National Space Policy of the United States of America , June 28, 2010, pp. 7-8, available at http://www.whitehouse.gov/sites/default/files/ national_space_policy_6-28-10.pdf, accessed July 6, 2011.
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79 ISSUES EXTERNAL TO NASA Committee (IADC), and the United Nations (UN).8 The IADC guidelines were presented to the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) Scientific and Technical Subcommittee (STSC) in February 2003. The guidelines were used by the STSC as a basis for UNCOPUOS’s formulation of its own space debris mitiga - tion guidelines, which were ultimately endorsed by the UN General Assembly (UNGA) 9 in Resolution 62/217 on December 22, 2007. The UNGA acknowledged that the IADC Space Debris Mitigation Guidelines “reflect[ed] the existing practices as developed by a number of national and international organizations” 10 while encouraging other member states to likewise adopt and implement the guidelines in domestic regulations. The UNCOPUOS guidelines are very similar, but not identical, to the IADC guidelines. “The UN COPUOS and IADC guidelines are couched in the form of seven guidelines containing general recommendations to be implemented by States primarily through national legislation, regulations, and/or policy directives.” 11 The IADC and UNCOPUOS guidelines differ in objective, scope, applicability, and terms and definitions, as well as mitiga - tion plans (Table 11.1). These differences will provide opportunity for conflicting views of what is permissible and possible. There is tension between the various guidelines and their influence on nations. A major issue is whether implementing one set or another will impose costs on nations that choose to abide by them. Therefore, it is the position of some nations that costs ought to be borne by the nations that created the debris and that any accepted debris guidelines should be established on a fault-based system. 12 The IADC is “an international governmental forum for the worldwide coordination of activities related to the issues of man-made and natural debris in space” whose “primary purposes . . . are to exchange information on space debris research activities between member space agencies, to facilitate opportunities for cooperation in space debris research, to review the progress of ongoing cooperative activities, and to identify debris mitigation options.”13 Its members are the space agencies14 of 12 space-faring nations.15 The IADC is also the voluntary organization that advocated the IADC guidelines and brought them through an international political process. 8 United Nations Committee on the Peaceful Uses of Outer Space, Towards Long-term Sustainability of Space Activities: Overcoming the Challenges of Space Debris, A Report of the International Interdisciplinary Congress on Space Debris, Scientific and Technical Subcommittee, 48th Session, Document A/AC.105.C.1/2011/CRP.14, United Nations, New York, N.Y., February 3, 2011, p. 27. 9 United Nations (UN), Report of the Committee on the Peaceful Uses of Outer Space, General Assembly Official Records, 62nd Session, Supplement No. 20, Document A/62/20, United Nations, New York, N.Y., 2007, paragraphs 117 and 118 and annex. The UN General Assembly in its resolution endorsed the Space Debris Mitigation Guidelines of COPUOS in 2007. See UN, “International Cooperation in the Peaceful Uses of Outer Space,” General Assembly Resolution 62/217, UN General Assembly Official Records, 62nd Session, Agenda Item 31, Docu - ment A/RES/62/217, UN, New York, N.Y., January 10, 2008, paragraph 26. UN General Assembly resolutions that do not address internal UN matters are nonbinding with the status of recommendations which member-nations have no formal obligations to obey. UN Charter, Articles 10 and 14. 10 United Nations, “International Cooperation in the Peaceful Uses of Outer Space,” January 10, 2008, paragraph 27. 11 United Nations Committee on the Peaceful Uses of Outer Space, Towards Long-term Sustainability of Space Activities: Overcoming the Challenges of Space Debris, A Report of the International Interdisciplinary Congress on Space Debris, 2011, p. 27. 12 Typical of this view is the one expressed by Belgium that a fault standard ought to be applied to any orbital debris guidelines or principles. See J.I. Gabrynowicz, National Center for Remote Sensing, Air and Space Law, University of Mississippi School of Law, “Unpublished notes re: UNCOPUOS LSC AM Session,” on file with author, April 1, 2011. 13 Inter-Agency Space Debris Coordination Committee website, available at http://www.iadc-online.org/index.cgi. 14 For ease of discussion, the word “agencies” is used to refer collectively to centers, administrations, and organizations. Technically, under the national law of the nations in which they exist, these are different legal entities with different legal personalities, rights, responsibilities, and obligations. The reason that a particular nation chooses to establish a particular kind of entity is relevant to its national interests. However, for the limited purposes of this study, it is less relevant and the distinctions are not addressed. However, in the future there could be activities and situations in which the precise legal personality of an entity may be relevant. 15 The IADC’s members are: • ASI (Agenzia Spaziale Italiana) • CNES (Centre National d’Etudes Spatiales) • CNSA (China National Space Administration) • CSA (Canadian Space Agency) • DLR (German Aerospace Center) • ESA (European Space Agency) • ISRO (Indian Space Research Organisation) • JAXA (Japan Aerospace Exploration Agency) • NASA (National Aeronautics and Space Administration) • NSAU (National Space Agency of Ukraine)
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80 LIMITING FUTURE COLLISION RISK TO SPACECRAFT TABLE 11.1 Inter-Agency Space Debris Coordination Committee (IADC) and United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) Space Debris Mitigation Guidelines IADC Guidelinesa UNCOPUOS Guidelinesb International Guidelines offer consensus of IADC members In Resolution A/Res/62/217 on December 22, 2007, the consensus (space agencies, not nation-states). UN General Assembly endorsed, but did not adopt, the UNCOPUOS Space Debris Mitigation Guidelines, which, as previously noted, relied in great part on the input of the IADC. The endorsed UN guidelines are very similar, but are not identical, to the IADC guidelines. Objective A main objective of the IADC guidelines is to The UNCOPUOS guidelines endorse mitigation provide measures that limit the generation of recommendations for the safety of Earth and space missions. space debris in the environment. It does not address environmental protection. Scope The scope of the IADC guidelines is four-fold: The UNCOPUOS guidelines specifically divide the space (1) limitation of debris released during normal debris issue into two categories: (1) curtailment and operations, (2) minimization of the potential for mitigation of space debris generation for the near term, and on-orbit breakups, (3) post-mission disposal, (2) long-term debris mitigation. and (4) prevention of on-orbit collisions. Applicability The IADC guidelines apply to mission planning The UNCOPUOS guidelines apply to “mission planning and the design and operation of spacecraft and the operation of newly designed spacecraft and orbital and orbital stages. Existing spacecraft/orbital stages” and “if possible to existing ones.” The UNCOPUOS operators are encouraged to apply it. guidelines are not legally binding on nation-states. Terms and The IADC provides definitions of terms for the The UNCOPUOS guidelines do not adopt or transfer definitions reader’s convenience. The IADC defines “space the IADC definitions and aeronautical formulations, or debris” as “all manmade objects including generally define terms. The UNCOPUOS guidelines, in fragments and elements thereof, in Earth orbit the “Background” and only “[f]or the purpose of this or re-entering the atmosphere, that are non- document,” restate the IADC definition of “space debris.” functional.” Mitigation plan IADC guidelines identify six specific and The UNCOPUOS guidelines do not adopt the IADC essential elements necessary in a mitigation mitigation plan outline per se. However, they endorse a plan. revision of the seven IADC guidelines for consideration in space mission planning, design, manufacture, and operations. a Inter-Agency Space Debris Coordination Committee, Space Debris Mitigation Guidelines, IADC-02-01, revision 1, September 2007, available at http://www.iadc-online.org/index.cgi?item=docs_pub. b United Nations Office for Outer Space Affairs, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, United Nations, New York, N.Y., 2010, available at http://orbitaldebris.jsc.nasa.gov/library/Space%20Debris%20Mitigation%20 Guidelines_COPUOS.pdf. A central feature in the making of the IADC and UNCOPUOS guidelines is that the process avoided the more political, but more authoritative, process of law making.16 In pragmatic terms, this resulted in affirmative progress because consensus was established and guidance defined that would have been less likely in a formal law-making process. Because the success of a treaty-making process was dubious, the existence of the less formal, nonbind - ing IADC and UNCOPUOS guidelines is a positive development. However, there is an equally pragmatic and yet to be determined development: the success of the IADC and UNCOPUOS guidelines going forward. In the near and medium term, it is not possible to depend on the force of law for their further development and enforcement, and for compliance. • ROSCOSMOS (Russian Federal Space Agency) • UKSpace (United Kingdom Space Agency). 16 For purposes of this study the terms “law making” and “treaty making” are the same.
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81 ISSUES EXTERNAL TO NASA The IADC and UNCOPUOS guidelines’ success will depend on the ongoing ability of the IADC to withstand the inevitable political forces that will arise over time; the reasonable assumption that the participating entities intend to keep their agreements; and the political will of both the IADC members and the international commu - nity. Compliance will be a matter of peer pressure and political will. This can be a delicate balance to strike. The importance of good political will is demonstrated by the fact that the IADC sought to interact with the UNCOPUOS STSC and the UNGA. That an alternative to a law-making process was intended is evident in three strategies that were used to establish the guidelines: first, only space-faring nations were organized to promote them; second, a forum with the competency to address only scientific and technical issues rather than legal issues was employed; and third, entities, in this case space agencies, were used that did not have the authority to legally bind their nations. The first two of these each has the potential to generate a corresponding negative political force that could inhibit further development and application of, or compliance with, the IADC and UNCOPUOS guidelines. These can include, for example, bloc votes by nonspacefaring nations and attempts in the UNCOPUOS Legal Subcommittee of Committee on the Peaceful Purposes of Space (LSC) to assert its competency regarding orbital debris issues. The Czech Republic submitted a working paper regarding debris guidelines at the March 2011 session of the LSC.17 It contains a proposal that the LSC turn the UNCOPUOS guidelines into a set of principles that, the working paper further proposes, will also be presented to the UNGA for adoption. The existing declarations of principles address the exploration and use of outer space;18 direct television broadcasting;19 remote sensing;20 nuclear power sources;21 and, international cooperation.22 A major rationale for proposing that a set of orbital debris principles be formulated is that the UNCOPUOS guidelines “are generally conceived as a list of specific measures ‘that curtail the generation of potentially harmful space debris in the near term’ and ‘that limit their generation over the longer term’ [but] [t]he guidelines do not mention the protection of the environment as one of their aims.” 23 The working paper is the first step toward formally placing the subject of orbital debris principles on the LSC agenda. If the subject is placed on the agenda, the next step is to begin deliberations to formulate the guidelines as a statement of principles. If the LSC agrees on a set of principles, the document is sent to UNCOPUOS for adoption and referral to the General Assembly for further acceptance. When the working paper was introduced, nine nations supported it.24 As of this writing, the United States has not taken a position on the paper. Two major 17 United Nations Committee on the Peaceful Uses of Outer Space, “Review of the Legal Aspects of the Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, with a View to Transforming the Guidelines into a Set of Principles To Be Adopted by the General Assembly, Working Paper Submitted by the Czech Republic,” Document A/AC.105/C.2/L.283, United Nations General Assembly, New York, N.Y., March 9, 2011. 18 United Nations, “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space,” General Assembly Resolution 1962 (XVIII), United Nations General Assembly Official Records, 18th Session, 1280th Plenary Meeting, U.N. Doc. A/ RES/1962(XVIII), United Nations, New York, N.Y., December 13, 1963. 19 United Nations, “Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting,” General Assembly Resolution 37/92, United Nations General Assembly Official Records, 37th Session, 100th Plenary Meeting, U.N. Doc. A/ RES/37/92, United Nations, New York, N.Y., December 10, 1982. 20 United Nations, “Principles Relating to Remote Sensing of the Earth from Outer Space,” General Assembly Resolution 47/68, United Nations General Assembly Official Records, 47th Session, 85th Plenary Meeting, U.N. Doc. A/Res/47/68, United Nations, New York, N.Y., December 14, 1992. 21 United Nations, “Principles Relevant to the Use of Nuclear Power Sources in Outer Space,” General Assembly Resolution 47/68, United Nations General Assembly Official Records, 47th Session, 85th Plenary Meeting, U.N. Doc. A/Res/47/68, United Nations, New York, N.Y., December 14, 1992. 22 United Nations, “Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Inter - est of All States, Taking into Particular Account the Needs of Developing Countries,” General Assembly Resolution 51/122, United Nations General Assembly Official Records, 51st Session, 83rd Plenary Meeting, U.N. Doc. A/Res/51/122, United Nations, New York, N.Y., December 13, 1996. 23 United Nations Committee on the Peaceful Uses of Outer Space, “Review of the Legal Aspects of the Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, with a View to Transforming the Guidelines into a Set of Principles To Be Adopted by the General Assembly, Working Paper Submitted by the Czech Republic,” March 9, 2011, p. 2. 24 The nations are Belgium, Brazil, China, Germany, Italy, Morocco, the Netherlands, Portugal, and Saudi Arabia. Belgium expressed the view that a fault standard ought to be applied. China reserved the right to make additional comments under a different agenda item (J.I. Ga - brynowicz, “Unpublished notes re: UNCOPUOS LSC AM Session,” 2011).
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82 LIMITING FUTURE COLLISION RISK TO SPACECRAFT spacefarers, France and Russia, expressed doubts about the utility of creating a set of principles at this stage. 25 The LSC is fundamentally a political body; therefore, if the subject is placed on the agenda and if deliberations and debate begin, then anything is possible. The IADC and UNCOPUOS guidelines process is representative of an existing and growing trend in which voluntary intergovernmental organizations attempt to generate agreements that may be categorized as “soft law” 26 but whose actual status is far from clear.27 These include, for example, the Group on Earth Observations, the Committee on Earth Observations Satellites (CEOS), and the International Charter—Space and Major Disasters, as well as the IADC.28 This “soft law” approach may, in the indeterminate long term, influence the behavior of nations that in turn could become legally binding custom. Finding: The institutions and agreements that have been used to address issues related to orbital debris are primarily political, not legal, in nature. The success of those agreements will thus depend on a com- plex interplay of good faith; political will; and political, economic, and, sometimes, legal forces. Recommendation: NASA should continue to engage the international community in efforts to develop cooperation and political will regarding activities concerning orbital debris. Cooperation with the Private Sector The issue of cooperation is appropriately addressed with commercial and civil space organizations, as well as the private sector. Until very recently, the U.S. government provided NASA support only for collision avoidance in Earth orbit. Some members of the committee have personally observed some operators incorrectly assuming that the government was screening for potential threats and would notify them if such an occasion arose and would then direct them to take specific remedial action. In fact, the only screening being done was for DOD and NASA satellites, despite national dependence on commercial satellites for the majority of communications supporting operations in Iraq and Afghanistan. Combined with the assumption that the government screened for potential threats, many operators also assumed that, despite the large number of objects in orbit, space itself was so large that the chances of collision were small. 29 That assumption changed somewhat following the Chinese anti-satellite missile test. Iridium briefly worked with the JSpOC in an attempt to screen Iridium satellites. However, the process proved to be so onerous and the data so poor that Iridium ceased the effort. Although about the same time, a number of GEO operators were realizing that they were not receiving suffi - cient quality data for their spacecraft in order to make decisions about maneuvers to avoid collisions in increasingly crowded orbits. Therefore in 2009 Intelsat, SES, and Inmarsat formed the not-for-profit Space Data Association 30 to provide a legal foundation for prototype efforts. By then, a large number of GEO operators were convinced of the utility of self-managing the crowded orbit problem to protect their investments and avoid unnecessary or overly strict future government regulation that they believed might impose undesirable requirements. In addition, many LEO operators, frustrated by the U.S. government’s limited capabilities, also expressed interest. Since that time, the U.S. Strategic Command (USSTRATCOM) has shown a heightened interest in providing these services. USSTRATCOM provides a subset of its Special Perturbations (SP) data to commercial satellite 25 K. Hodgkins, U.S. Department of State, e-mail response to inquiry by Committee for the Assessment of NASA’s Orbital Debris Programs, April 9, 2011, National Research Council, Washington, D.C. 26 “Soft law,” and what it comprises, is an important and developing legal trend. However, there is no relevant or conclusive consensus or authority that currently exists or will exist in the time frame being addressed by this study. 27 M. Ferranzani, Alternative approaches to international space cooperation, ESA Bulletin, No. 110, pp. 76-80, May 2002, available at http:// www.esa.int/esapub/bulletin/bullet110/chapter10_bul110.pdf. 28 Ferranzani, ESA Bulletin, 2002. 29 J. Campbell, K. Hackmeier, K. Hodgkins, G. Jansson, T.S. Kelso, and R. Reese, “Forum on National Security Space: Examining Codes and Rules for Space,” Washington Roundtable on Science and Public Policy, George C. Marshall Institute, Washington, D.C., June 7, 2007. 30 Space Data Association website, available at http://www.space-data.org/sda/.
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83 ISSUES EXTERNAL TO NASA operators. Some operators appear to accept that the USG provides adequate service and possesses adequate knowl - edge. Reasons for this acceptance are, perhaps, that such operators are not convinced that they could do as well as the U.S. government and because they believe that using the service removes some of the legal liability from a future collision. However, the U.S. government requires operators to accept a legal agreement that absolves the government of any responsibility in such an event.31 Recommendation: NASA should assess the value of alternative data sets, such as by participating in the not-for-profit Space Data Association, to determine how sharing operator ephemerides might improve the accuracy and efficiency of NASA’s Conjunction Assessment Risk Analysis (CARA) by incorporating the best data possible in its CARA process. INTERNATIONAL COOPERATION AND COOPERATION WITH THE COMMERCIAL SPACE INDUSTRY The space law treaty regime consists of five international treaties, four of which are widely accepted and one of which is less accepted.32 The parts of this regime that are most relevant to orbital debris issues are Article IX of the Outer Space Treaty (see Box 11.1) and the Liability Convention. The degree to which these provisions would apply to any given situation is highly fact-dependent and could vary widely from situation to situation. The space law treaty regime is unquestionably applicable to what has been characterized as “active debris removal (ADR).”33 The 2010 National Space Policy provides that “. . . the United States shall . . . [p]ursue research and development of technologies and techniques, through . . . [NASA] . . . and the Secretary of Defense, to mitigate and remove on-orbit debris . . . .”34 This language limits debris removal activities to “research and development.” However, NASA’s Orbital Debris Program Office has reported that the “key to stabilize the future LEO environment [is] . . . an active debris removal of about five objects per year starting in the near future (~2020) . . .”35 It further reports that the “[o]nly remediation of the near-Earth environment [is] the removal of existing large objects from orbit” and that “[o]wnership, legal liability, policy, etc.” present a “challenge.” 36 This is a forward-leaning stance that indicates an aspiration to go beyond the National Space Policy guidance when possible. It also acknowledges the challenging legal and liability aspects of active debris removal. To the degree that any debris removal activity involves identifying, selecting, and removing any given object— 31 “The User agrees to hold harmless the U.S. Government, any agencies and instrumentalities thereof, and any individuals, firms, corpora - tions, and other persons acting for the United States. Such shall be immune from any suit in any court for any cause of action arising from the provision or receipt of space situational awareness services or information, whether or not provided in accordance with 10 USC 2274, or any related action or omission. See, 10 USC 2274 (g),” Space Track, “User Agreement,” Space Track, August 25, 2010, available at https://www. space-track.org/perl/user_agreement.pl, accessed July 5, 2011. 32 The space law treaty regime consists of five international treaties; the first four are widely accepted, the fifth is less accepted. They are: 1. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205; 2. Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187; 3. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119; 4. Convention on Registration of Objects Launched into Outer Space, opened for signature Nov. 12, 1974, 28 U.S.T. 695, 1023 U.N.T.S. 15; and 5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 21. 33 C. Bergin, “Project ADR: Removal of Large Orbital Debris Interests NASA—Study,” NASASpaceFlight.com, January 9, 2011, available at http://www.nasaspaceflight.com/2011/01/project-adr-removal-large-orbital-debris-nasa-study/, accessed July 5, 2011. 34 National Space Policy of the United States of America , June 28, 2010, p. 7, available at http://www.whitehouse.gov/sites/default/files/ national_space_policy_6-28-10.pdf, accessed July 6, 2011. 35 J.-C. Liou, “NASA’s Long-term Debris Environment and Active Debris Removal Modeling Activities,” presentation at the International Conference on Orbital Debris Removal, Chantilly, Va., Orbital Debris Program Office, NASA Johnson Space Center, Houston, Tex., December 2009, available at http://ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/20100000157_2009042964.pdf, accessed July 5, 2011. 36 Liou, “NASA’s Long-term Debris Environment and Active Debris Removal Modeling Activities,” 2009.
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84 LIMITING FUTURE COLLISION RISK TO SPACECRAFT BOX 11.1 Article IX of the United Nations Outer Space Treaty (1967) Article IX of the UNOST of 1967 is as follows: In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Par- ties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bod- ies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.1 1 See http://www.oosa.unvienna.org/oosa/SpaceLaw/outerspt.html. debris or otherwise—from space, actual removal requires crossing a crucial national and international legal thresh - old. It is a clear international legal principle that no nation may salvage, or otherwise collect, the space objects of other nations that are in space.37 This fact is particularly critical when one considers that only about 30 percent of the objects cataloged by the Space Surveillance Network are attributed to the United States. 38 No state has the legal authority to remove a debris object from space without the express consent of the object’s state of registry. In the United States, obtaining that consent would involve formal diplomacy and the U.S. State Department. A bilateral or multilateral agreement to retrieve debris would require a technical exchange of data and information about an object’s design that could involve national security, foreign policy, the International Traffic in Arms Regulations (ITAR), contractual rights, intellectual property rights, and other interests. “Space salvage and removal operations in space will cause international friction, if they are undertaken in the absence of international consensus . . . .”39 Absent formal diplomatic engagement with other nations, the United States would be limited to retrieving only objects on its own registry. Finally, and most significantly, no accepted legal definition of “debris” exists. The term does not exist in any of the treaties. The Liability Convention defines “space object” as follows: “[t]he term ‘space object’ includes component parts of a space object as well as its launch vehicle and parts thereof.” 40 “However, it is unclear from the legal documents, [and] related writings . . . whether ‘space object’ includes space refuse.”41 Science and 37 N. Jasentuliyana, Regulation of space salvage operations: Possibilities for the future, Journal of Space Law 22(5):5, 1994, available at http:// www.spacelaw.olemiss.edu/jsl/pdfs/back-issues/jsl-22-1.pdf. 38 J.-C. Liou, ed., Satellite box score, Orbital Debris Quarterly News 15(3):10, 2011. 39 R.C. Hall, Comments on salvage and removal of man-made objects from outer space, Journal of Air Law and Commerce 33(288):3, 1967. 40 Liability Convention Art. 1 (d). 41 H.A. Baker, Space Debris: Legal and Policy Implications, Utrecht Studies in Air and Space Law, Volume 6, Martinus Nijhoff Publishers,
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85 ISSUES EXTERNAL TO NASA engineering can contribute greatly to crafting an acceptable and practical definition of “debris”; it can address important practical questions regarding an object’s design, threat potential, functionality or lack thereof, and so on. In the final analysis, however, each object placed in space is legally analogous to a piece of sovereign territory on Earth. As such, they are matters of intense sovereign interest. The question of whether or not a particular object is to be removed from space as “debris” will be scrutinized through a strong filter of national interests and security. The legal principle that forbids one nation from taking the space object of another has deep roots: it goes back to the early days of the Cold War era when the USSR and the United States wanted to deny each other a facile excuse to seize one another’s satellites in order to engage in reverse engineering. The Cold War is over, but the acute sensitivity regarding satellite technology remains. It is not in the U.S. national interest to use a less-than- formal process to reach agreements with other nations regarding debris removal. Absent a formal, transparent, officially acknowledged process, active debris removal could be easily perceived as illegal interference with the space objects of other nations. Even if the United States were to retrieve only its own objects, another kind of legal threshold would have to be crossed at the national level. Formal congressional involvement in debris removal activities would be cata - lyzed because they precipitate potential U.S. responsibility and liability for those activities at international law. 42 It would also trigger the necessity of determining which objects the government appropriately removes and which are appropriately removed by a private entity.43 “The development of this new technology may require both govern- ments and the private sector working together.”44 Congress will also have to address a debris removal risk-sharing regime between and among the government and private actors. The risk-sharing liability and cap system that has been part of U.S. national launch law since 198445 could provide a model for retrieval activities. In three different instances of removal of an object from space, that is, an Intelsat satellite, the Palapa, and a Westar satellite, the government required agreements in which it was to be held harmless in the event of an accident. 46 Whether this practice is desirable or sustainable for the long term will have to be addressed. Finally, even if the United States were to retrieve only its own objects, it is still in the U.S. national interest to use a formal process to inform appropriate space actors about U.S. actions through a formal, officially acknowl - edged, confidence-building process regarding its national actions. This is necessary to avoid perceptions of the United States taking unilateral actions that may be a cover for nonpeaceful purposes or illegal actions. Finding: Debris removal activity that involves selecting and removing any given object—debris or oth- erwise—from space, crosses crucial national and international legal thresholds. Recommendation: NASA’s meteoroid and orbital debris programs should engage the NASA General Counsel’s Office and, through that office, the U.S. State Department regarding the legal requirements and diplomatic aspects of active debris removal. Dordrecht, The Netherlands, 1989, p. 132. 42 The Outer Space Treaty, Art. VI: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental enti - ties, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.” 43 “All objects which pose a threat to safety in space flight should be subject to governmental capture and removal under international regula- tions. However, errant satellites, representing substantial residual value, and not threatening the orbital paths or trajectories of functioning ones, should be a private, not a public responsibility.” See H. DeSaussure, The application of maritime salvage to the law of outer space, p. 131 in Proceedings of the 28th Colloquium on the Law of Outer Space, 1986, American Institute of Aeronautics and Astronautics, New York, N.Y. 44 J.-C. Liou and N. L. Johnson, Risks in Space from orbiting debris, Science 311(5759):340-341, 2006. 45 49 U.S.C. Sec. 70101 et. seq. 46 C. Kunstadter, XL Insurance, verbal response to inquiry by the Committee for the Assessment of NASA’s Orbital Debris Programs at the Workshop to Identify Gaps and Possible Directions for NASA’s Micrometeoroid and Orbital Debris Programs on March 9, 2011, National Research Council, Washington, D.C.