Governing the Final Frontier: A Polycentric Approach to Managing Space Weaponization and Debris

• Author: Scott J. Shackelford
• DOI: http://doi.org/10.1111/ablj.12031
• Date: 01 June 2014
• Published date: 01 June 2014

Governing the Final Frontier:

A Polycentric Approach to Managing

Space Weaponization and Debris

Scott J. Shackelford*

INTRODUCTION

In 2007, China performed a successful anti-satellite (ASAT) test and

destroyed an aging weather satellite at an altitude of some f‌ive hundred

miles.1This event contributed more than 35,000 pieces of space debris,2

increasing at a stroke the amount of total orbital space debris by approxi-

mately twenty-f‌ive percent.3The Chinese ASAT test continues to rever-

berate with resulting debris causing ongoing alerts for the International

Space Station (ISS),4as the larger problem of space debris threatens

satellites, and potentially hinders “space commerce, space tourism, [and]

*Assistant Professor of Business Law and Ethics, Kelley School of Business, Indiana Univer-

sity; Distinguished Visiting Fellow, University of Notre Dame Institute for Advanced Study;

J.D. Stanford Law School; Ph.D., politics and international studies, University of

Cambridge. Thanks to the late, great Professor Elinor Ostrom, as well as Professors

James Crawford and Michael Oppenheimer, Dr. Markus Gehring, Dr. Sandra L. Bunn-

Livingstone, Sergiy Negoda, Steve Doyle, and Michael Mineiro for their invaluable comments

and advice. This article is dedicated to James M. Shackelford, DDS.

1See David Kestenbaum, Chinese Missile Destroys Satellite in 500-Mile Orbit, NPR (Jan. 19, 2007),

http://www.npr.org/templates/story/story.php?storyId=6923805.

2NASA, Chinese Anti-satellite Test Creates Most Severe Orbital Debris Cloud in History,11ORBITAL

DEBRIS Q. NEWS 2, 2 (2007) [hereinafter NASA Orbital Debris].

3See Leonard David, Ugly Truth of Space Junk: Orbital Debris Problem to Triple by 2030,

SPACE.COM (May 9, 2011), http://www.space.com/11607-space-junk-rising-orbital-debris-levels

-2030.html.

4Clara Moskowitz, Space Junk Alert Called Off for Space Station Crew, MSNBC (Nov. 23, 2011),

http://www.msnbc.msn.com/id/45407947/ns/technology_and_science-space/.

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429

the scientif‌ic exploration of space....”

5The 2007 ASAT test is only one in

a string of incidents that has led to the proliferation of orbital debris.6

Unfortunately, governance regimes have thus far failed to manage the

interrelated problems of space weaponization and debris. This raises con-

cerns about a brewing tragedy of the space commons and underscores the

need for sustainable development of the f‌inal frontier.7

With the human population continuing to grow and resource scarcity

increasing, space technology is becoming an increasing essential tool for

promoting sustainable development.8Indeed, in some ways “the key to the

world’s wealth and power has shifted to the heavens....”

9This fact

renders global cooperation in space, including the proactive development

of appropriate legal frameworks, a primary imperative for policy makers.

Thus far though, applicable governance regimes remain amorphous and

outdated.10 This article analyzes how and why this is the case by investi-

gating the impact of technology, politics, and resource scarcity on space

law. The article then examines the growth and effectiveness of

“polycentric”11 networks in managing the collective action problems of

5Thierry Sénéchal, Orbital Debris: Drafting, Negotiating, Implementing a Convention 99

(2007) (unpublished M.B.A. Thesis, MIT) (on f‌ile with Sloan School of Management, MIT),

available at http://hdl.handle.net/1721.1/39519.

6Space debris is becoming so commonplace that it may even be crashing through rooftops in

Massachusetts. See Natalie Wolchover, Space Junk? Mysterious Object Crashes into Warehouse Roof,

NBC NEWS.COM (Dec. 2, 2011), http://www.msnbc.msn.com/id/45529518/ns/technology

_and_science-science/. Indeed, it is becoming so well known that in 2013 it became the subject

of a blockbuster motion picture, Gravity.See GRAVITY (Warner Bros 2013).

7The “commons” may be def‌ined as resource domains in which common pool resources are

found, which may be overexploited and degraded, unlike public goods such as knowledge.

See, e.g., Paul A. Samuelson, The Pure Theory of Public Expenditure,36R

EV.ECON.&STAT . 387,

387–88 (1954).

8Space technology has myriad applications in health, education, disaster management, com-

munication, and energy. See Joseph A. Bosco, International Law Regarding Outer Space–An

Overview,55J.AIR L.&COM. 609, 610–12 (1990).

9Stephen Jones, Can the UK Remain a First Division Player in Military Operations Without Signif‌i-

cant Additional Investment in Space-Based Capability?, 12 RAF AIR POWER REV. 16, 17 (2009).

10See Eric Sterner, Beyond the Stalemate in the Space Commons,in THE CONTESTED COMMONS 107,

116 (Abraham M. Denmark & James Mulvenon eds., 2010).

11Elinor Ostrom, A Polycentric Approach for Coping with Climate Change 32–33 (World Bank,

Policy Research, Working Paper No. 5095, 2009), available at http://www.iadb.org/intal/

intalcdi/pe/2009/04268.pdf.

430 Vol. 51 / American Business Law Journal

space weaponization and junk, and argues for the application of sustain-

able development policies to better manage the space commons.12

National and commercial interests are increasingly tied to space in

political, economic, and military arenas. Beyond fanciful notions of solar

energy satellites, fusion energy, and orbiting hotels, contemporary political

issues such as nuclear nonproliferation, economic development, and

human rights are also intimately tied to outer space.13 Operating in space is

now essential to global communications and trade, and to the world’s

leading militaries.14 Space has become vital to every nation relying on

everything from weather forecasting to satellite telecommunications.15 In

2006, the satellite telecommunications market alone exceeded $100

billion.16 By 2012, the global space industry was worth more than $300

billion.17 These f‌igures demonstrate that the space industry enjoys a

12See generally Scott J. Shackelford, Was Selden Right? The Expansion of Closed Seas and Its

Consequences,47STAN.J.INT’LL. 1 (2011) (taking a similar approach analyzing the expansion

of closed seas and its consequences).

13See Ty S. Twibell, Space Law: Legal Restraints on Commercialization and Development of Outer

Space,65UMKCL.REV. 589, 591–92, 636 (1997).

14See James Kraska, Indistinct Legal Regimes,in SECURING FREEDOM IN THE GLOBAL COMMONS 49,

58–60 (Scott Jasper ed., 2010). “Outer space” is def‌ined as the area above airspace. See John

C. Hogan, Legal Terminology for the Upper Regions of the Atmosphere and for the Space Beyond the

Atmosphere,51A

M.J.INT’LL. 362, 373 (1957). Since the composition of the atmosphere

changes gradually as elevation increases, def‌ining exactly where airspace ends and outer

space begins has proven problematic. See id. Proposals have ranged from eighty to one

hundred kilometers; other proposed def‌initions rely on a more functionalist perspective,

such as the point at which artif‌icial satellites may be placed into orbit. See Leo B. Malagar &

Marlo Apalisok Magdoza-Malagar, International Law of Outer Space and the Protection of Intel-

lectual Property Rights, 17 B.U. INT’LL.J. 311, 314–17 (1999).

15See OECD, The Space Economy at a Glance, OECD ILIBRARY ( July 22, 2011), http://www.oecd

-ilibrary.org/economics/the-space-economy-at-a-glance-2011_9789264111790-en.

16See Kenny Fuchter, China’s Military Space Strategy, 12 RAF AIR POWER REV. 52, 63 (2009). To

underscore its importance, consider the early loss of a satellite in 1998 that affected some

forty-f‌ive million people. Those impacted ranged from “on-call doctors, who could not be

contacted via their pagers, to gas station owners who lost pay-at-the-pump functions.” Mike

Manor & Kurt Neuman, Space Assurance,in SECURING FREEDOM IN THE GLOBAL COMMONS 99, 100

(Scott Jasper ed., 2010).

17See Press Release, Space Foundation, Space Foundation’s 2013 Report Reveals 6.7 Percent

Growth in the Global Space Economy in 2012 (Apr. 2, 2013), available at http://www

.spacefoundation.org/media/press-releases/space-foundations-2013-report-reveals-67

-percent-growth-global-space-economy; ROBERT C. HARDING,SPACE POLICY IN DEVELOPING

COUNTRIES:THE SEARCH FOR SECURITY AND DEVELOPMENT ON THE FINAL FRONTIER 2 (2013).

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