I. Introduction
Technological advances are creating more opportunities to enter outer space. As the frequency of entering outer space increases, so does the need to consider the regulation of this domain. There are currently two major proposals for regulation grounded in existing international law. The first is the pursuit of protected astronomical zones. The other is the concentrated effort to remove debris from our orbit, known as debris management. While both pursuits have important objectives, achieving both highlights a conflict in space law: they are incompatible due to a lack of priority. The root of this conflict stems from ineffective incentive systems. Not only does the current regime encourage ex ante self-interested violating behavior, but it also fails ex post to incentivize nations to adhere after another nation violates a policy. By employing a variety of solutions, it is possible to shift these incentives and thus harmonize the conflicts between protected astronomical zones and debris management.
In Part II, this Comment will briefly overview the important authority that defines space law. Then it will dive into an analysis of protected astronomical zones, exploring their legal footholds and scientific importance. Then, it will conclude with an exploration of debris management’s legal foundations and scientific relevance. Part III will begin looking at how the two policies conflict with each other by looking at interactions in specific protected astronomical zones. These interactions will highlight the inoperable incentive systems followed by an explanation rooted in the tragedy of the commons. Lastly, Part III concludes with ex ante and ex post incentive shifting solutions focused on regulatory and enforcement regimes and different collective action fund structures.
II. What is Space Law?
A. The Foundational Underpinnings
Before diving into the nuances of protected astronomical zones, debris removal, and their resulting conflicts, one needs to understand space law and its underlying principles. Space law “is the body of law governing space-related activities,”1 such as asteroid mining,2 launching privatized space stations,3 and managing conflicts that expand beyond earthly jurisdictions.4 Due to the parties and areas that space law attempts to govern, it is much like international law, comprising international instruments—treaties, conventions, and accords, to name a few. It is commonly understood that there are five governing authorities5: (1) the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty),6 (2) the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Space (Rescue Agreement),7 (3) the Convention on International Liability for Damage Caused by Space Objects (Liability Convention),8 (4) the Convention on Registration of Objects Launched into Outer Space (Registration Convention),9 and (5) the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement).10
Since space law is between nation-states, it faces the same challenge that international law more broadly faces—enforceability. Some scholarship attributes this to the fact that violating international law is “contagious,” despite nations seeking to maximize benefits,11 while others argue it is because this body of law lacks sufficient remedies as it perpetuates the principle of efficient breach.12
It is important to remember that although there are international instruments for space law, the field is still impacted by the broader challenges of international law. Nonetheless, the instruments underpinning space law are important because they create the contours of legal obligations. Further, to avoid overshadowing the more nuanced inadequacies in space law, there will be less focus on the broad-scale issue of nonuniformity of member states. This Comment acknowledges that the foundational authorities are not binding on all nation-states, as even the most signed authority––the Outer Space Treaty––only has 117 parties to it of the 193 United Nations (U.N.) members.13 It is true that all the major space superpowers are signed to the treaty, but there are still emerging space-faring nations who are not. For example, Angola,14 Costa Rica,15 and Turkmenistan16 have all gotten satellites into outer space without even being signatories, let alone ratifying the treaty. As space technology rapidly grows, it is expected that more countries that are currently unsigned will have space capabilities. Although this highlights macro-level enforceability and jurisdictional issues, this Comment will focus on a plethora of micro-level issues caused by other factors.
The Outer Space Treaty is the foundational document for space law, frequently referred to as the “Magna Carta” of space law.17 Thus, it best represents the overarching goals of the field. The two exemplifying provisions are found in Article I and Article IX. Article I states, “the exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries . . . and shall be the province of all mankind” further elaborating it “shall be free for exploration and by all States without discrimination of any kind . . . there shall be free access to all areas of celestial bodies.” And lastly, “there shall be freedom of scientific investigation in outer space . . . States shall facilitate and encourage international co-operation.”18 Article IX goes on to explain that States “conduct exploration . . . as to avoid their harmful contamination [of outer space] . . . [and] to avoid . . . harmful contamination and . . . adverse changes in the environment of Earth.”19
Despite the importance of these goals, the Outer Space Treaty fails to define key terms. In fact, the Outer Space Treaty fails to define any terms, as it does not contain a definition section. This creates ambiguity as to the meaning of “discrimination,” “contamination,” and at what atmospheric point “outer space” even begins. Because the foundation that space law is built on leaves many key terms open for interpretation, efforts to honor the goals of the Outer Space Treaty are challenging.
Unfortunately, the issues of vagueness and unenforceability are common to other governing texts in this area. The Rescue Agreement requires the finding party to give notice to the launching party if the launching party’s space object is found; however, there is no specific timeliness requirement.20 Moreover, there are no enforcement mechanisms.
The Liability Convention only allows for the finding of liability for damages caused in outer space if “fault”21 can be proven. In an environment where tiny22 space objects are moving incredibly fast23 it is almost impossible to tell whose debris are causing damage, making the provision essentially unenforceable.
The Registration Convention requires notice to the Secretary-General of the U.N. “to the greatest extent feasible and as soon as practicable.”24 This is a subjective undefined length of time that the launching party can use to avoid providing an important registration notice under the guise of something like national security.
Lastly, the Moon Agreement only has twenty-one parties to it of the 193 U.N. member nations, and those twenty-one don’t include the major space superpowers like the U.S., China, and Russia.25
Nonetheless, the endeavors to regulate space aren’t fruitless. As observed in other areas of law, effective liability regimes,26 regulatory priorities,27 and licensing mechanisms28 are all tools that can help combat vagueness and enhance enforceability in governing law.
Although these issues complicate the implementation of policies like protected astronomical zones and debris management, these efforts can still be effective. To understand facilitating the cohesion of two conflicting space law policies, it is important to understand each of these policies independently.
B. Protected Astronomical Zones
The idea of a protected astronomical zone can be described as regulating the activities in an area in outer space deemed to be significant for some purpose. This description necessarily appears broad because there is no universal definition for protected astronomical zones. As discussed above, the Outer Space Treaty does not define any zone; it merely invokes general principles against “contamination.”29
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