Deciphering and Defending the European Union's Non-Binding Code of Conduct for Outer Space Activities

By Rohrer, Jameson | Duke Journal of Comparative & International Law, Fall 2012 | Go to article overview

Deciphering and Defending the European Union's Non-Binding Code of Conduct for Outer Space Activities


Rohrer, Jameson, Duke Journal of Comparative & International Law


INTRODUCTION

In 2002, the United States' chief negotiator at the Conference on Disarmament asserted that the interests of all spacefaring states were sufficiently shielded by the "existing multilateral arms control regime." (1) Despite their "groundless" fears, he said, "[t]here simply is no problem in outer space for arms control to solve." (2) The U.S. representative to the United Nations General Assembly (U.N.G.A.) First Committee on Disarmament and International Security echoed the sentiment in 2006, adding that the real threat is "not some theoretical arms race in space, but [anything] that would deny peaceful access to and use of space." (3) And again, in 2007, the U.S. insisted that the "real threats" were "those to the nuclear nonproliferation regime," not a space-based arms-race, which certainly needed no "new agreements." (4)

This last assertion came months after China successfully tested a ground-based ballistic missile against one of its satellites. (5) Headlines such as "Star Wars' Missile Test Heralds New Arms Race in Space" (6) and "A New Arms Race in Space" (7) indicated that much of the world was unconvinced. But even in 2008, when China and Russia campaigned for a treaty to ban weapons from space, the U.S. staunchly "opposed any treaty that sought 'to prohibit or limit access to or use of space." (8)

This paper will analyze threats to satellites, such as cascading orbital debris and armed anti-satellite attacks, as well as solutions--primarily, the European Union's draft Code of Conduct for Outer Space Activities--proposed to allay them. It shall begin by noting the complexity of the orbital environment, the economic and strategic importance of that environment, and the natural and human threats to the orbital satellite infrastructure (primarily, that of the United States, unquestionably the nation most invested in and reliant upon outer space). After surveying the current legal and political playing field, this article will analyze the new Code of Conduct draft, its potential to minimize the risk of orbital catastrophe, and the United States' response to it. Finally, this article shall consider the Code's potential to change how nation-states treat the orbital environment--perhaps through slow crystallization into customary international law (CIL)--and then compare the non-binding Code to other proposed solutions.

II. THE FALLING SKY

A. Complexity and Importance

Around 1,100 active satellites currently orbit the Earth. (9) They travel endlessly through increasingly dense toroid clouds formed from 22,000 tracked objects (10) and "hundreds of thousands of additional objects too small to track" (but still big enough to seriously harm satellites or space stations). (11) "[T]he most useful orbits have also become the most congested." (12)

Many satellites share civilian and military functions. (13) These functions are often generated by the same physical technologies, which evolve quickly; for example, commercial satellites in 1997 possessed imaging resolution of 1 kilometer or greater--useful for environmental monitoring and scientific research, but less tactically potent than modern DigitalGlobe and GeoEye satellites, which, a decade later, possessed "resolutions as low as 0.5m." (14) Peaceful applications, which multiply as satellite technology develops, include "mapping, remote sensing, and natural disaster prevention"; the very same devices can be used, even simultaneously, for "targeting, surveillance, and operational communications relay." (15) These benefits "permeate almost every aspect" of modern civilian life--they augment street navigation, further scientific observation, multiply and reinforce communications, monitor emerging crises both human and natural, and "provid[e] global access to financial operations." (16) A single satellite's loss can cripple an entire communications technology and hamstring economic or government transmissions. …

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