Don’t Make the Same Mistake Twice

by William Goldberg

Space is infinite, but earth’s orbits are a finite natural resource that must be managed properly.[1] The problem of orbital debris pollution is complex and serious.[2] Orbital debris, also known as space trash, is an umbrella term to describe non-active satellites and other pieces of spacecraft orbiting the earth.[3] Orbital debris travels at speeds up to 4.3 to 5 miles per second, roughly seven times faster than a bullet, and can cause catastrophic damage to space infrastructure.[4]

NASA scientists fear the amount of orbital debris in certain orbits may reach critical mass and set off “a sequence of ever more frequent collisions—a chain reaction that would expand until, within decades, certain portions of Earth orbit would be rendered virtually unusable.”[5] This cascading chain reaction is known as the Kessler syndrome.[6] Popularized in the 2013 film Gravity, the Kessler syndrome poses an apocalyptic and mathematically realistic scenario where critical orbits become permanently unusable.[7] Orbital debris threatens space infrastructure, including the International Space Station, weather satellites predicting dangerous weather systems, military telecommunications satellites controlling drones in warzones, GPS navigation for commercial airliners, satellites supporting financial transactions and internet protocol, and much more.

The existing space law regime is not sufficient to address the growing issues presented by the increasing creation of orbital debris.[8] The space treaties and conventions of the 1960s and 1970s failed to account for today’s rapid growth of technological capabilities in space, especially the proliferation of non-state commercial activity in space.[9] Under current international law, mitigation guidelines are voluntary and there is no enforcement mechanism preventing anti‑satellite missile tests, which create large amounts of orbital debris.[10] Left unchecked, the lack of an international legal and regulatory framework to provide sufficient guidelines and requirements to space-faring nations may provide an environment under which anti-satellite missile tests proliferate, and the creation of universal externalities in orbital debris continues to expand. Fortunately for the international community, this is not our first rodeo.

The successes and failures of international regulation of ocean waste provide a basis for developing a model for effective regulation of orbital debris. Like earth’s orbits, earth’s oceans are a global common where externalities from marine debris are typically not experienced by the producer of the pollution. Several robust international treaties address ocean pollution, and because orbital debris is created from spacecraft, the best lessons can be learned from the International Convention for the Prevention of Pollution from Ships of 1973 and 1978 (MARPOL).

The International Convention for the Prevention of Pollution from Ships of 1973 and 1978 (MARPOL) was developed to minimize pollution of the oceans and seas, including dumping, oil, and air pollution.[11] Under MARPOL, port states assert jurisdiction over ships in their territorial jurisdiction and over violations that occur at high seas.[12] Countries that are party to MARPOL examine ships at port to verify conformity with international standards and are authorized under MARPOL to detain noncompliant ships.[13]

MARPOL is particularly important for the regulation of marine pollution from ships spilling oil and other harmful substances.[14] As of 2018, 156 states are parties to the convention, being flag states of 99.42% of global shipping tonnage.[15] Because violations of MARPOL can result in detainment of noncompliant ships, and those ships’ potentially valuable cargo, MARPOL forces the compliance of any ship seeking to use the port of a state party to MARPOL without penalty.[16]

MARPOL outlines specific technical requirements that ships at sea must adhere to.[17] And by specific, I mean specific. For example, the maximum capacity of a segregated ballast tank, and any other space within a ship’s cargo tank, must be arranged as to comply with a specific mathematical formula.[18] This formula, among others, requires party states to ensure ships satisfy the required technical specifications under international standards prior to engaging in international transportation of goods.[19] MARPOL is a successful treaty because it requires member states’ ships to adhere to specific technical requirements that serve to establish the international norm. We need to do the same in space.

The Inter-Agency Space Debris Coordination Committee (IADC) is an international forum of governmental bodies for the coordination of activities related to orbital debris and has developed the IADC Space Debris Mitigation Guidelines.[20] The IADC Space Debris Mitigation Guidelines provides a basis for international regulation of orbital debris. Like MARPOL, the technical language of the IADC Space Debris Mitigation Guidelines should be explicitly incorporated into international law and given an enforcement mechanism to ensure compliance.[21]

We cannot wait decades to act like we did with earth’s oceans.[22] The time for an international convention on space trash is now!

[1]Thierry J. Senechal, Orbital Debris: Drafting, Negotiating, Implementing a Convention, Massachusetts Institute of Technology, June 2007, 1, 4 (http://web.mit.edu/stgs/pdfs/Orbital%20Debris%20Convention%20Thierry%20Senechal%2011%20May%202007.pdf).

[2] Id.

[3] NASA, Astromaterials Research & Exploration Science Orbital Debris Program Office, (https://orbitaldebris.jsc.nasa.gov) (last visited Nov. 7, 2019).

[4] Id.

[5] Matthew J. Kleiman ET AL., The Laws of Spaceflight a Guidebook for New Space Lawyers 22, 217 (2012); Donald J. Kessler & Burton G. Cour-Palais, Collision Frequency of Artificial Satellites: The Creation of a Debris Belt, 83 J. Geophysical Research 2637-46 (1978).

[6] Id.

[7] Id.

[8] Id. at 10.

[9] Thierry J. Senechal, Orbital Debris: Drafting, Negotiating, Implementing a Convention, Massachusetts Institute of Technology, June 2007, 1, 4 (http://web.mit.edu/stgs/pdfs/Orbital Debris Convention Thierry Senechal 11 May 2007.pdf).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] See id.

[15] Raunek, MARPOL (The International Convention for Prevention of Marine Pollution For Ships): The Ultimate Guide, Maritime Law, Nov. 4, 2019, https://www.marineinsight.com/maritime-law/marpol-convention-shipping/(last visited Feb. 9, 2020).

[16] International Convention for the Prevention of Pollution from Ships, 12 ILM 1319 (1973).

[17] Protocol of 1978 relating to the International Convention for the prevention of pollution from ships, 1973 (with annexes, final act and International Convention of 1973), U.N., Feb. 17, 1978, Vol. 1340, 1-22484 No. 22484, at 73. https://treaties.un.org/doc/Publication/UNTS/Volume 1340/volume-1340-A-22484-English.pdf.

[18] Id.

[19] Id.

[20] Inter-Agency Space Debris Coordination Committee, IADC Space Debris Mitigation Guidelines, Sep. 2007, (https://www.unoosa.org/documents/pdf/spacelaw/sd/IADC-2002-01-IADC-Space_Debris-Guidelines-Revision1.pdf).

[21] Inter-Agency Space Debris Coordination Committee, supra note 124.

[22] See e.g., Space X, https://www.spacex.com/news.