Unsustainable uses of Earth orbits

Bhupendra JasaniDepartment of War Studies

King’s College LondonUK

and

Ram JakhuInstitute of Air and Space Law

McGill UniversityMontrealCanada

Introduction

Space-based capabilities potentially provide sustainable development and security on Earth. However, this cannot be assured if space-based assets are threatened by some of the more aggressive activities being carried out now and those planned in the near future in Low Earth Orbits (LEO) and in Geostationary orbit (GEO). Between 1957 and end of 2012, 5,003 launches were made. Eleven states have acquired space launch capability (see Table 1). As more and more states use space assets, crowding these orbits will present new challenges. More than 55 nations and regional governmental organisations operate satellite in Earth orbits. Increasing number of private companies operate commercial satellites in LEO and GEO.

Table 1. States launching satellites into Earth orbits. D=defence satellites; C=civil/commercial spacecraft

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Uses of space assets

Significant information could be gained with the use of both civil/commercial and defence observation satellites (see Figure 1) about:

a) Earth resources such as agriculture, water and various minerals;b) Weapons of Mass Destructions (WMD) related activities of states; andc) on-going conflicts within a state as well as between states;

Such information is then often transmitted by communications satellites. These and other application spacecraft, such as navigation satellites, could make them very sensitive and therefore prone to attack.

Figure 1. Satellites in different orbit selected according to their missions.

Trends affecting sustainability of space assets

Three trends evolved:

a) use of satellites to enhance development on Earth;

b) increased capabilities of commercial satellites; and

c) development of weapons to destroy satellites in orbits and missiles and warheads in transit through space.

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While considerable impetus was the result of the Cold War, the defence use of space continued even after its end. By 1960, the US Army’s proposal to convert its Nike Zeus Anti-Ballistic Missile (ABM) system into anti-satellite (ASAT) role, established a link between ABM, ballistic missiles and ASAT weapons. With the growing dependence on satellites for operation of terrestrial weapons, increasing capabilities of commercial spacecraft and perceived threats from long and short range missiles, interest in the development of weapons to counter these increased.

Space weapons

Investigations of earth- and space-based weapons aimed at satellites (ASAT systems) and missiles (Ballistic or National Missile Defence systems-BMD or NMD) have been in progress since the signing of the Outer Space Treaty in October 1967. Space weapons (see Table 2) can be broadly grouped into three - nuclear, non-nuclear and non-dedicated space weapons. The latter are those that do not destroy either a satellite or a missile but they destroy their command, control and space surveillance equipment which are vital to the efficient operations of spacecraft and missiles.

Table 2. Various types of space weapons.

It should be noted here that a low power 30-watt laser, used for alignment of a system and tracking of the spacecraft, could blind the satellite temporarily. A device like this was seen to have an advantage as it did not create any space debris like that in the case of a kinetic kill vehicle. Thus, a commercially available laser with a 1.5m diameter mirror could be an effective ASAT weapon. Therefore, if space weapons are developed and deployed, it would be very difficult to convince other space-faring nations not to embark on their own space weapon programmes. It is important that negotiations at the Conference on Disarmament

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(CD) commence as soon as possible. Moreover, even before a workable NMD is developed, we will have very effective ASAT weapons. Finally, these systems will require testing aggravating an already serious debris problem.

Space debris

First ever accidental in-orbit collision between two satellites occurred on 10 February 2009 at 776km altitude. A US privately owned communications satellite, Iridium 33, and a Russian Strela-2M military communications satellite, Cosmos 2251 collided. Over half a century of space activities, some 6,000 satellites have been placed in orbit of which about 1,000 are still operating. More than 16,000 objects (see Figure 2) are tracked by the US Space Surveillance Network, 5-10cm in LEO and 0.3m-1m in GEO.

Figure 2. Monthly number of objects in Earth orbits.

Distribution of space objects

Most debris is at altitudes between 800km and 1,000km and near 1,400km while in the GEO and Navsat orbits the concentration is 2 to 3 orders of magnitude lower (see Figure 3). Tables 3a, b and c, are the summaries of some collisions and close encounters in outer space between objects in that environment.

Figure 3. Distribution of catalogued objects in LEO.

Source ESA

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(a)

Figure 3. Distribution of catalogued objects near GEO.

(b)

Table 3a. Summary of some collisions and close encounters.

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Table 3b. Summary of some collisions and close encounters continued.

Table 3c. Summary of some collisions and close encounters continued.

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Measures to ensure sustainable use

Existing legally binding measures:

The increasingly crowding of the LEO, MEO and GEO has prompted re-examination of existing measures, both legal and non-legal, to ensure sustainable uses of Earth orbits. The current international legal regime consists of several international treaties, five of which have been negotiated at the United Nations General Assembly (UNGA).1 These treaties have by and large been successful to achieve and maintain peaceful uses of outer space. One of the main reasons for the success of the existing regime has been that space activities were being carried out by a very small group of developed states. However, with the entry of new actors (more states, international organisations and private entitles) into the space arena and the rapid growth in the number of space activities, the inadequacy of the existing international space law regime has started emerging. For example, Article IV of the Outer Space Treaty does not adequately regulate military activities in outer space per se and ASAT activities, thus states feel free to expand the number of satellites for military uses and to test their ASAT weapons in space. Consequently, there is a rapid increase in space militarization, active development of space weapons and the generation of space debris. Secondly, under the Outer Space Treaty and the 1975 Registration Convention each launching state is obliged to register satellites belonging to its public and private entities with the UN. However, the recent trend shows that states are not registering all their launched space objects. This will eventually cause problem in their identification, particularly if they are involved in any accident, and also decrease transparency which these two treaties are designed to enhance. It is therefore important to revisit the UN space treaties and update their provisions, including those dealing with militarization, weaponization and registration.

1 They are: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, there are 102 ratifications and 26 signatures (as of 1 April 2013); the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement"), adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968, there are 92 ratifications, 24 signatures, and 2 acceptance of rights and obligations (as of 1 April 2013); the Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972, there are 89 ratifications, 22 signatures, and 3 acceptances of rights and obligations (as of 1 April 2013); the Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976, there are 61 ratifications, 4 signatures, and 2 acceptances of rights and obligations (as of 1 April 2013); and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”), adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984, there are 15 ratifications and 4 signatures (as of 1 April 2013).

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On the other hand, the 1963 Partial Test Ban Treaty,2 which prohibits the conduct of any nuclear weapon test explosion, or any other nuclear explosion in the atmosphere, including outer space, has been fairly successful as no such test has been carried out by anyone, including over 120 states parties to the Treaty.

Over a period of several decades, the International Telecommunication Union (ITU) has managed to develop a successful and extensive international regulatory regime3 that governs the access to and use of radio frequencies and orbital positions, which are indispensable resources for all space operations. However, as the demand for these resources is increasing exponentially, particularly by military satellites, abuse of the existing legal regime has started occurring. This abuse takes place in two forms: i.e. (1) Contrary to the provisions of the existing legally binding regime, various satellite operators use radio frequencies for purposes other than the ones they have been allocated for. This is resulting in radio frequency grabs by more advanced entities and nations to the detriment of those who are late comers in the use of outer space. (2) Secondly, unintentional and intentional interference (jamming) is increasing. This results in loss of millions of dollars to the satellite industry. It is therefore imperative that the existing rules, particularly those that deal with equitable access to radio spectrum and intentional interference, must be revised and strengthened by appropriate regulatory and procedural measures, including the imposition of penalties on those who do not comply with them.

Existing other measures:

Since the development of legally binding regime has almost stopped since 1979, there is a trend towards the adoption of soft-law as well as other measures of non-legal nature and importance. Two of these measures are the Missile Technology Control Regime (MTCR) and the Hague Code of Conduct, which are of direct relevance to the subject at hand. The MTCR, established in 1987, is an informal and voluntary group of 34 countries, that “share the goals of non-proliferation of unmanned delivery systems capable of delivering weapons of mass destruction, and which seek to coordinate national export licensing efforts aimed at preventing their proliferation”4 through a mechanism of mutually agreed upon Guidelines for Sensitive Missile-Relevant Transfers.5 These Guidelines are a voluntary mechanism, which is believed to have some effect in controlling the proliferation of missile technology. However, on the whole the MTCR is not much appreciated6 since China is not a

2 The Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, (the “Partial Test Ban Treaty”) of 5 August 1963; U.N.T.S. 43. (126 ratifications and 10 signatures, as of 1 April 2013).3 The two most fundamental international treaties that create international regulatory regime governing satellite communications are the Constitution and Convention of the International Telecommunication Union and the Radio Regulations of the International Telecommunication Union (193 states parties). 4 http://www.mtcr.info/english/ 5 http://www.mtcr.info/english/guidetext.htm6 Timothy V. McCarthy, “The Missile Technology Control Regime,” http://cns.miis.edu/opapers/op3/mccarthy.htm

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member of the group,7 MTCR members are free to ignore these Guidelines, and the Guidelines have been subjectively and wrongly been used to impose sanctions on some countries that wish to develop their independent access to space even for civilian purposes.8

The Hague Code of Conduct (the International Code of Conduct against Ballistic Missile Proliferation)9 attempts to curb and prevent the proliferation of ballistic missiles capable of delivering weapons of mass destruction, and to exercise maximum possible restraint in the development, testing and deployment of such missiles. There are 135 states that subscribe to this Code, with China, India and Pakistan being the major exceptions. Moreover, as correctly stated by Paul Meyer, the “experience of the Hague Code of Conduct is not necessarily promising …..… as many of its subscribing states failed to follow through with its notification and information sharing provisions.”10

It will be better to convert the Guidelines and the Code into a binding treaty which prevents missile proliferation but allows members states to freely transfer among themselves launch technology for civilian purposes under appropriate monitoring and enforcement system.

Proposed measures, both in and outside the UN:

Due to the weaknesses in, and inadequacy of, the existing legal and non-legal measures to fully ensure sustainability of uses of Earth orbits, several new measures have been proposed, both in and outside the UN. The followings are the initiatives that relate to space debris, anti-satellite weapons (ASAT), transparency and confidence-building measures, and the International Code of Conduct for Space Activities.

The generation of space debris is not specifically prohibited by any of the existing binding treaties. Essentially based on the Inter-Agency Space Debris Coordination Committee (IADC) Space Debris Mitigation Guidelines, the UN Committee on Peaceful Uses of Outer Space (COPUOS) adopted its own Space Debris Mitigation Guidelines in 2007. The COPUOS

7 http://www.armscontrol.org/act/2004_10/Zaborsky8 Ram S. Jakhu, “Legal Issues Relating to the Global Public Interest in Outer Space”, 32 Journal of Space Law, 2006, pp. 31, at 61. 9 http://www.hcoc.at/#

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Paul Meyer, ,“The Judgment of PAROS: How Best to Prevent an Arms Race in Outer Space,” Simons Papers in Security and Development, No. 19/2012, School for International Studies, Simon Fraser University, Vancouver, March 2012, p. 12. Paul Meyer, who is a former Canadian diplomat and served as Ambassador and Permanent Representative to the UN and the Conference on Disarmament in Geneva, also adds that the “record on voluntary reporting and submission of information under other international agreements in the arms control and disarmament field (e.g. NPT, BWC) is also not especially encouraging.” Ibid.

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Guidelines suggest measures for curbing the production of space debris. However, these Guidelines are not legally binding and their implementation is left to the discretion of individual states. The Guidelines are limited to the prevention of creation of new debris and do not deal with extensive debris currently in orbit that will automatically continue multiplying. Such preventive measures, if fully and effectively implemented by all space-faring nations, are important but are not sufficient to keep space environment safe enough for the sustainable use of Earth orbits. More importantly, space debris mitigation efforts must be supplemented by active debris removal. However, no piece of space debris can be removed without the prior permission of its state of registry which is entitled to exercise jurisdiction and control over that object. Thus remediation operations would require changes in existing international space treaties. Unfortunately, no international regulatory effort is currently being made to facilitate active debris removal.

Similarly, the testing of ASAT weapons is not specifically prohibited by any of the existing international treaties. For the last 18 years, the UNGA has been annually adopting resolutions on the Prevention of Arms Race in Outer Space (PAROS). These resolutions (a) recognize that an arms race in outer space would pose a grave danger for international peace and security, and thus must be prevented, and (b) call upon all states to contribute actively to the objective of peaceful use of outer space and of the prevention of an arms race in outer space. Unfortunately, the PAROS resolutions, so far, have no real effect because they are non-binding and one state (namely the US) has been consistently opposing them.

In 2008, China and the Russian Federation presented to the Conference on Disarmament (CD) a draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT). The PPWT suffers from major flaws resulting in a strong difference of views between states and no progress has been made since 2008 because the PPWT is not taken very seriously. Consequently, a space arms race continues and there is a strong possibility that some additional states may test ASATs in the near future.

In view of the failure of the CD in making any real progress to control space arms race, two other efforts have been made in the form of a Code of Conduct for Outer Space Activities, and Transparency and Confidence-Building Measures for outer space.

In 2010, the European Union initiated its Code of Conduct for Outer Space Activities, which has recently been revised and now is being promoted as an International Code of Conduct for Outer Space Activities. This Code is a means to achieve enhanced safety and security in outer space through the development and implementation of transparency and confidence-building measures. However, the Code offers nothing significantly new and essentially reiterates certain arbitrarily selected commitments that are already included in some binding agreements and other non-binding resolutions and guidelines. Like the PPWT, there have been mixed reactions to this Code. The US showed interest in the Code but made it clear that it “will not enter into a code of conduct that in any way constrains [its] national security-related activities in space or [its] ability to protect the United States and [its]

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allies.”11 Consequently, global acceptance of the International Code of Conduct appears to be a bit gloomy, at least in the near future.

In 2011, pursuant to the UNGA resolution (A/RES/65/68), the UN Secretary-General established a group of governmental experts (GGE) from 15 states to conduct a study on outer space transparency and confidence-building measures, without prejudice to the on-going substantive discussions on the prevention of an arms race in outer space within the framework of the CD. The GGE held three meetings. On 12 July 2013, by consensus the GGE adopted its final study that will be submitted to the UN General Assembly at its sixty-eighth session in September 2013. The Group “recommended that in order to build confidence and trust among states, efforts should be made to reach universal participation, implementation and full adherence to the existing legal framework relating to outer space activities.”12 The TCBMs recommended by the GGE are voluntary in nature.

It is difficult to predict the future. Since the US, has been consistently opposing the adoption of any international agreement or non-binding arrangement that would limit its freedom of action in outer space, it is not realist to expect that the US would agree to even non-binding TCBMs in the near future. China and Russia seem to be leaning towards the adoption of TCBMs, though they keep insisting on the need for a binding international treaty. The European-initiated International Code of Conduct, if unexpectedly signed by the US, might be accepted by several states. Soft-law measures in the form of Guidelines or Codes are not substitute for binding measures ensuring sustainable use of Earth orbits. However, they may facilitate the negotiation of binding legal instruments, if the subscribing states have sufficient political will, which unfortunately has so far been missing, especially on the part of major powers.

11 Hillary Rodham Clinton, U.S. Secretary of State, INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE ACTIVITIES, Press Statement, Washington, DC, January 17, 2012.12 http://www.un.org/News/Press/docs/2013/dc3441.doc.htm

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