Legal Considerations and Future Options for Space Situational Awareness

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Aeronautics,Technology,Military Law

Legal Considerations and Future Options for Space Situational Awareness

Mariel Borowitz^*

Table of Contents

I. Introduction................................................................................696

II. Space Situational Awareness and International Law......698

III. Space Situational Awareness and U.S. Law..........................701

IV. The Future of Space Situational Awareness........................704

A. U.S.-Centric Space Situational Awareness System...........705
B. International Space Situational Awareness Program.......706
C. Multi-Polar Space Situational Awareness System............707

V. Conclusion...................................................................................708

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I. Introduction

On December 20, 2019, President Trump's proposal to create a United States Space Force was signed into law.¹ The Space Force will organize, train, and equip space forces, and provide an elevated focus on the role of space in military activities. As a first step, in August 2019, U.S. Space Command (USSPACECOM) was re-established as the eleventh unified combatant command.² Distinct from the new service branch, USSPACECOM employs forces from each of the military services to achieve missions in the space domain. These missions include deterring aggression and conflict, defending U.S. and allied freedom of action, delivering space combat power for the joint forces, and developing space warfighters.³

One of the key activities that USSPACECOM is taking on is Space Situational Awareness (SSA).⁴ Space Situational Awareness refers to the ability to determine where objects are in space, what they are doing, and where they will be in the future. The U.S. military maintains a catalogue of more than 23,000 objects in Earth's orbit, about 1,800 of which are active satellites.⁵ The remainder are defunct satellites, spacecraft components, discarded upper rocket stages, and other debris. Understanding where these objects are and where they are headed is necessary to ensure expensive military satellites are not damaged by inadvertent collisions. This capability is also necessary to detect and attribute purposeful attacks on satellites. The ability to quickly and accurately detect and attribute any such attacks is key to deterring them.

One of the drivers for the creation of the Space Force is the growing consensus among U.S. leaders that space is a "warfighting domain."⁶ Officials point to the kinetic anti-satellite tests carried out by China in 2007 and India in 2019 and the maneuvering in recent years of Russian and Chinese satellites that included close approaches to other satellites—in some cases, satellites

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owned by the United States.⁷ In 2018, the Commander of the Air Force's 20th Space Control Squadron made the argument that SSA should be thought of as Space Battle Management—"continuous preparation of the battlespace in order to fight and win a war in space"—and emphasized the need for "effective weaponeering of SSA sensors."⁸

However, the U.S. military is not the only entity in need of high-quality SSA data. In fact, all satellite operators require this information in order to avoid accidental collisions that could damage or destroy their spacecraft. As the number of civil and commercial space actors has increased, the risk of collision—and need for data—has been growing. Emerging plans for "mega constellations" of hundreds or thousands of small satellites is adding to the urgency in this area.⁹ Both military and civil satellite operators are aware that collisions in space have impacts reaching far beyond the satellites immediately involved, as these events generate debris that increases the risk of collision for other satellites, with potentially cascading effects.¹⁰

In this rapidly changing environment, there is a recognition that the status quo is not sufficient for U.S. military objectives nor civil and commercial satellite operator needs. In response, multiple steps are being taken. Outside of the United States, many nations are actively developing or improving their SSA capabilities.¹¹ Commercial entities have emerged that are collecting, analyzing, and selling their own SSA data and services. The U.S. military is investing in technical improvements and engaging in cooperative agreements with commercial and foreign entities to improve its SSA capabilities. The U.S. Department of Commerce is preparing to take on a new role in sharing SSA data with commercial and foreign entities.¹² Given the many concurrent and often interrelated developments in this sector, there are many possibilities for future international SSA interactions.

This Article examines the legal issues related to SSA. What is the international and national legal regime that governs current SSA activities, and how might this regime evolve in the future to address challenges in the rapidly evolving space sector?

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II. Space Situational Awareness and International Law

SSA is not explicitly mentioned in any of the outer space treaties, nor in any other legally binding international agreement.¹³ However, there are multiple clauses within these treaties that may bear on SSA activities and responsibilities.¹⁴

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, commonly known as the Outer Space Treaty (OST), provides the broad legal framework for activities in outer space.¹⁵ Gerie Palanca argues that Article I, which states that "exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries,"¹⁶ presents an overall culture of space activity that should aim to mitigate collisions and the creation of space debris.¹⁷ Similarly, he notes, Article IX states that "States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance."¹⁸ Joanne Wheeler, LLM, calls attention to the portions of Article IX that call on states to conduct activities with "due regard to the corresponding interests of all other States Parties to the Treaty," and call on states to "avoid harmful contamination."¹⁹ Based on these clauses, one could argue that in the spirit of the Outer Space Treaty, States operating in space should collect, use, and share SSA information in order to avoid debris creation and ensure that space remains usable for all countries now and in the future.

More commonly, however, experts have called attention to Article VI, which notes that States Parties to the Treaty bear international responsibility for national activities in outer space, even if those activities are carried out by non-governmental entities. States Parties are required to provide "authorization and continuing supervision of these activities."²⁰ Taken together with the

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responsibility to avoid harmful contamination, this could be interpreted to mean that states are required to ensure that satellite operators in their state, both governmental and commercial, use SSA data to avoid collisions that would damage other spacecraft and generate debris that contaminate the space environment.

In addition to the OST, scholars have also noted that the 1972 Convention on International Liability for Damage Caused by Space Objects (the Liability Convention) and the 1976 Convention on Registration of Objects Launched into Outer Space (the Registration Convention) are relevant to this issue.²¹ Article III of the Liability Convention makes clear that States are internationally liable if a space object for which their state is responsible damages the space object of another state.²² This strengthens the incentives that States have to ensure that satellite operators for which they are responsible use SSA data to avoid any potential collisions. If a collision does occur that damages another satellite, the state may be liable for that damage.²³

Further, Article I defines the term "space object" "to include component parts of a space object, as well as its launch vehicle and parts thereof."²⁴ This suggests that states are liable not only for the damage done during the initial collision, but also for any subsequent damage that occurs due to the debris created from the collision. This provides further incentive for the collection and use of SSA data to avoid collisions, as the total amount of damage caused over time could be significant. It also creates an incentive to have access to SSA data of adequate quality to identify the country at fault if a nation's own satellites are damaged by an in-space collision.

Article VI of the Liability Convention adds additional complexity, noting that liability would not hold in cases where "the damage has resulted either wholly or partially from gross negligence . . . on the part of a claimant State."²⁵ So, one might argue that, if a state failed to obtain and act on high-quality SSA data, that state would be ineligible to seek compensation for damage caused by the collision.²⁶ This argument would be stronger if low-cost or

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free SSA data were widely available, creating an incentive for nations to share their SSA data. Yu Takeuchi notes that the criteria for fault liability can gradually change based on advancements in technology and changes in standard operating procedures.²⁷ For example, if freely available SSA data was used by most satellite operators, a satellite operator that chose not to use the data may not be eligible to seek damages in the event of a collision.

Typically, the desire to not lose one's own satellite will be sufficient incentive for any spacecraft operator to do their best to avoid collisions. As the number of relatively small, inexpensive satellites increases, however, the liability-related incentives may become increasingly important. Some spacecraft operators have begun designing constellations with a "Silicon Valley" mindset that allows for failure and rapid replacement of small, relatively inexpensive satellites...