On Monday, April 8, 2024, Cleveland looked to the stars and celebrated the total solar eclipse, a celestial event which has led many conspiracy theorists to claim it is a sign of the apocalypse.[1] This primal fear of the eclipse is nothing new, as the word “eclipse” traces its roots to the Latin “eclipsis,” drawn from the Greek “ekleipsis” meaning abandonment or disappearance because in ancient Greek mythology, it was believed that eclipses were a sign that the gods were angry or upset with humans, which led to the sun disappearing from Earth and bringing untold misery.[2] Regardless of the merit of these eclipse fears, this celestial event has drawn intrigue and concern from ancient civilization until today, but somehow a more practical and growing issue affecting our nearest heavenly bodies have gone relatively unnoticed by the public at large: Anti-Satellite (ASAT) Testing and its creation of orbital debris. The continued use of ASAT testing and the orbital debris resulting from them has created its own apocalyptic theory known as the Kessler Syndrome, which parallels the “abandonment” or “disappearance” of key doctrines of Article IX of the Outer Space Treaty (OST): (1) States should consult with other State Parties before activities which would cause potentially harmful interference; and (2) States should conduct their activities with due regard to the corresponding interests of all other States Parties.[3]
ASAT Testing
ASAT testing refers to the testing of weapons or systems created to destroy or disable satellites in space. These tests can involve various methods, including kinetic, cyber, and potentially nuclear.[4] The motivations behind ASAT testing vary, ranging from States assessing their orbital military capabilities to intimidating potential adversaries. Despite questions as to whether these tests violate the ‘due regard’ doctrine of Art. IX and/or ‘peaceful purposes’ of Art. IV of the OST, States have deemed it in their interest to conduct these tests for decades.[5] However, the consequences of ASAT tests extend far beyond the legal doctrine of Space Law.
Implications of ASAT Testing
ASAT testing poses significant risks to global space operations and the long-term sustainability of space exploration. One of the most pressing concerns is the creation of orbital debris, with a single ASAT test creating the possibility of polluting Earth’s orbit with hundreds of smaller pieces of debris from the destruction of satellites.[6] The proliferation of debris in Earth’s orbit with the new era of Sub-orbital space activity and proliferation of Low Earth Orbit (LEO) satellites abnormally increases the likelihood of collisions with operational satellites, spacecraft, and even crewed spacecraft.[7] These collisions may lead to private and state economic waste in failed space missions and satellite loss, as well as the potential environmental threat to all space activities based on the generation of additional debris in a cascading effect known as the Kessler Syndrome. The Kessler Syndrome, named after NASA scientist Donald J. Kessler, who proposed it in 1978, describes a scenario where increasing collisions in low Earth orbit would create a hazard that exceeded that of meteors and eventually create a dystopian level of space debris where any hope of activity in space would be eclipsed by a ring of space junk![8] While more modern studies have found the growth rate of debris predicted by Kessler to be exaggerated, it has not invalidated the potential harm he warned of created by space debris proliferation.[9]
Due Regard versus Reasonable Regard
As an acknowledgment to the societal, environmental, and legal threat that ASAT testing creates, several states have proposed agreements to cease conducting ASAT tests such as the United States.[10] However, other states have asserted their sovereignty to conduct these tests and see these agreements as a means to maintain the power in nations with more established private and public space activities.[11] Further, states have argued the OST’s interpretation of “due regard” in the context of ASAT testing raises does not nullify their ability to conduct themselves as necessary for their own national security interests.[12] This argument seems to imply a more flexible definition of ‘due regard’ acknowledging the complexities of space governance and the competing priorities of spacefaring nations. This definition seems to acknowledge the concerns about the potential for unilateral actions that could undermine international cooperation and exacerbate tensions in space, but only holds nations should only seek permission in space activities such as ASAT testing if it has a direct impact on another nation.
Yet, this definition fails to recognize the mistake of confusing the OST’s use of the phrase ‘due regard’ rather than ‘reasonable regard.’ ‘Reasonable regard’ was used in earlier United Nations treaties such as the first United Nations Convention on the Law of the Sea (UNCLOS I) which adopted that the freedoms of the high seas ‘shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas’.[13] This meant that states in their use of the high seas must take reasonable measures not to interfere with other nations use of the sea. It is straightforward analysis to see this standard was less than the positive obligation of actively considering the interest and rights of other nations required with ‘due regard,’ simply by seeing the phrases replacement in later version of UNCLOS with UNCLOS III and the Exclusive Economic Zone (EEZ) section which limited the sovereign power of coastal States in exercising rights and duties within the EEZ so that “the coastal State shall have due regard to the rights and duties of other States.”[14] Thus, the higher standard of ‘due regard’ creates a positive duty of states acting with sovereign power to consider and acknowledge their actions interference with other nations. One could argue, ASAT testing directly contradicts this standard by ignoring the interference that space debris creates and the harm the test does to the interest of all nations in private and public use of space.
Conclusion
Thus, as we marveled at the celestial wonder that is the Solar Eclipse, we cannot ignore this other space anomaly of our creation. It is essential to recognize the pressing challenges facing space governance and sustainability ASAT testing and orbital debris threaten. We may find ourselves once again looking to the heavens in fear of what we behold, this time not born out of our myths but our own malice or indifference. As we enter this newest era of orbital space activity, the need for responsible behavior and international cooperation is greater now than ever. There is hope that by upholding the true principles of due regard states can mitigate the risks associated with ASAT testing and look to a sunrise of a more sustainable future in space!
By Michael Garetto-Balmer, a member of the Cleveland State University College of Law Global Space Law Center’s Research Council
[1] Mickey Carroll, Solar Eclipse: Experts Debunk Outlandish Claims from Conspiracy Theorists, Sky News, Apr. 7, 2024, Solar Eclipse Conspiracy Theories.
[2] Amelia Benavides-Colon, What Is the Meaning of the Word “Eclipse”? Here Is Its Origin Ahead of April 8 Event, Detroit Free Press, Mar. 25, 2024, Etymology of Eclipse; Alli Goering, Eating the Sun, Creating Stars and Heralding Doomsday: The Mythologies around the Total Solar Eclipse, The Daily Egyptian, Solar Eclipse Doomsday Myths.
[3] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, art. IX (entered into force Oct. 10, 1967) [hereinafter OST], OST; Donald Kessler et al., The Kessler Syndrome: Implications to Future Space Operations, Advances in the Astronautical Sciences 137 (2010), Kessler Syndrome.
[4] Paul Maguire, Satellites and the Specter of IoT Attacks, SpaceNews (Jan. 26, 2024), Cyber IoT Attacks; Natasha Bertrand Liptak et al., House Intel Chairman Announces “Serious National Security Threat,” Sources Say It Is Related to Russia, CNN (Feb. 14, 2024), Rumors of Russian Space Nuclear Tests.
[5] Brian Weeden, History of Anti-Satellite Tests in Space (Secure World Foundation, June 30, 2020), Hist. of ASAT Tests.
[6] Dr. David Wright, Space Debris from Anti-Satellite Weapons. (Apr. 2008), https://www.ucsusa.org/sites/default/files/2019-09/debris-in-brief-factsheet.pdf.
[7] Christine Vanoli, Readying Sub-Orbital Flights to Bring Passengers to Space, ITU Hub (Sept. 25, 2023), Sub-Orbital Space Flights; Sneha Chakraborty, LEO Satellites in Focus: Market Trends and Prospects, LinkedIn (Sept. 27, 2023), LEO Satellites.
[8] Kessler et al., supra.
[9] Kessler et al., supra.
[10]Jeff Foust, United Nations General Assembly Approves ASAT Test Ban Resolution, SpaceNews (Dec. 13, 2022), VP Harris and UN Anti-ASAT.
[11] Theresa Hitchens, UN takes ‘parallel’ paths on space security amid geopolitical rift, Breaking Defense (Nov. 8, 2023), UN takes ‘parallel’ paths on space security amid geopolitical rift – Breaking Defense.
[12] Jeremy J. Grunert, Grounding the Humā: The Legality of Space Denial and (Potential) American Interference in
the Iranian Space Program, 81 A.F. L. REV. 76, 105-15 (2020), Iranian Space Program Interference; see also Jeffrey A. Murphy, The Cold Vacuum of Arms Control in Outer Space: Can Existing Law Make Some Anti-satellite Weapons Illegal?, 68 Clev. St. L. Rev. 125, https://engagedscholarship.csuohio.edu/clevstlrev/vol68/iss1/9/.
[13] Shotaro Hamamoto, The Genesis of the ‘Due Regard’ Obligations in the United Nations Convention on the Law of the Sea, Int. J. Mar. Coast. Law, 34 (1), 7-24 (2019), Genisis of Due Regard.
[14] id. at 7-22; U.N. Convention on the Law of the Sea (UNCLOS III), opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397, art. LVI (2) (entered into force Nov. 16, 1994), UNCLOS III.
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The CSU Global Space Law Center
The sky is no longer the limit…
Thanks for the great article! I always read anything with ASATs in them. Eventually, something might get done with them.