sharing information about ssa and the need for...

The U.S. outer space situational awareness sharing law:

Sharing information about SSA and the need for global cooperation

by

Patrick M. Schwomeyer

A thesis submitted to McGill University

In partial fulfillment of the requirements of

The degree of MASTER OF LAWS (LL.M.)

Institute of Air and Space Law

McGill University

Montreal, Quebec

13 June 2011

© Patrick M. Schwomeyer, 2011

Unless otherwise noted, the conclusions expressed herein are solely those of the

author writing in his personal capacity. They are not intended and should not be

thought to represent official ideas, attitudes, or policies of any agency of the

United States Government. The author has used publicly-available information in

the researching and presentation of this work.

For my little Canuck, Lilla.

i

Acknowledgments

First and foremost I want to thank my wife, Jennifer, who has supported me from

day one. Without her I would fail. Readers will thank her for her editorial support since

without it my incoherence would be unbearable for them.

I want to thank my thesis supervisor, Professor Paul Stephen Dempsey, Director

of the Institute of Air and Space Law. Without Dr. Dempsey‘s guidance, wisdom and

assistance I would have been lost.

I also want to thank Professor Ram Jakhu for sharing his vast expertise of all

things outer space related. Dr. Jakhu‘s enthusiasm and availability to students within the

institute is truly appreciated by all.

To my peers, especially Duncan Blake, Milan Plücken, Timiebi Aganaba, Mike

Mineiro, Ronald Spencer, Jr. and Matthew Burris, many thanks for engaging my many

questions. A special thanks to Emilie Mézi for helping translate the Abstract.

Lastly, I would be remiss if I did not acknowledge and thank the United States Air

Force and my superiors for supporting me and investing in my betterment.

ii

Abstract

The world is quickly realizing how important space situational awareness (SSA)

is to maintain the safety of all space faring entities. In order to achieve the safest

environment possible, the sharing of information is critical. Without SSA data sharing,

both nations and organizations are incapable of possessing absolute awareness of space

and all the space objects orbiting therein.

The field of SSA data sharing will be addressed in three parts. First, the technical

background describing the outer space environment, orbital mechanics, SSA sensors and

SSA data will be explored to provide a foundation for fully appreciating the legal strides

needed in order to achieve greater international cooperation. Next, Section III will

undertake an analysis of the law, policy and participants of SSA collection and

dissemination within the United States by undertaking a review of 10 U.S.C. § 2274. The

last part, Section IV, will broaden the investigation to include the other entire world

players, including foreign governments, private enterprises and astronomers, as well as

review several governance models which could provide potential governance structures

for an international SSA data sharing network.

iii

Résumé

Le monde réalise rapidement l‘importance de la conscience en situation spatiale

(SSA) puisqu‘elle permet le maintien de la sécurité des Etats actifs en matière spatiale.

Dans le but d'atteindre l'environnement le plus sécuritaire possible, le partage de

l'information reste critique. En effet, sans partage de données SSA, nations et

organisations sont incapables de posséder la connaissance absolue de l'espace et de tous

les objets spatiaux en orbite qui s‘y trouvent.

Le partage de données SSA est abordé ici en trois parties. Tout d'abord, il s‘agit

d‘explorer le contexte technique décrivant l'environnement de l'espace, de la mécanique

orbitale, capteurs SSA et données SSA. Cette étude permet d‘établir de solides bases pour

apprécier pleinement les avancées juridiques nécessaires afin d‘atteindre une plus grande

coopération internationale. Ensuite, il s‘agira d‘analyser dans la Section III le système

legislative ainsi que les politiques et les acteurs à la collecte de SSA et sa diffusion au

sein des États-Unis. Cette dernière étude se fera par examen des 10 U.S.C. § 2274. La

dernière partie, Section IV, va élargir l'enquête afin d'inclure d‘autres acteurs, et ce, à

échelle mondiale, incluant gouvernements étrangers, entreprises privées, astronomes,

ainsi que plusieurs modèles de gouvernance susceptibles de constituer un corps de

gouvernance potentiels gérant le partage des données internationales d‘un réseau SSA.

iv

Abbreviations & Acronyms

9/11 September 11, 2001

AFB Air Force Base

AFSPC Air Force Space Command

AFWA Air Force Weather Agency

ALTAIR ARPA Long-Range Tracking and Instrumentation Radar

ARPA Advanced Research Project Agency

CA Conjunction analysis

CCPAISD

Center on Collection, Processing and

Analysis of Information on Space Debris

CFE Commercial and Foreign Entities (Program)

CME Coronal mass ejections

CSMs Conjunction summary messages

CSpOC Combined Space Operations Center

Disaster Charter

Charter on Cooperation to Achieve the Coordinated

Use of Space Facilities in the Event of Natural or

Technological Disasters

DoD Department of Defense

DoS Department of State

DREAM Dynamic Radiation Environment Assimilation Model

EC European Community

EISCAT European Incoherent Scatter Radar

ESA European Space Agency

FTCA Federal Tort Claims Act

FY Fiscal year

GEO Geosynchronous earth orbit

GEODSS Ground-Based Electro-Optical Deep Space Surveillance System

GLONASS Global Navigation Satellite System

GPS Global Positioning System

GRAVES Grand réseau adapté à la veille spatiale

GTO Geosynchronous transfer orbits

v

ICJ International Court of Justice

IGA Intergovernmental Agreement

ISES International Space Environment Service

ISON International Scientific Optical Network

ISS International Space Station

JFCC SPACE Joint Functional Component Command for Space

JSpOC Joint Space Operations Center

LEO Low earth orbit

Liability Convention

Convention on International Liability for Damage

Caused by Space Objects

MEO Medium earth orbit

MIT Massachusetts Institute of Technology

MOSS Moron Optical Space Surveillance System

NASA National Aeronautics and Space Administration

NOAA National Oceanic and Atmospheric Administration

OIG Orbital Information Group

OST Outer Space Treaty

PAR Phased-array radar

PARCS Perimeter Acquisition Radar Attack Characterization System

SBSS Space Based Space Surveillance

SDA Space Data Association

SDC Space Data Center

SEC Space Environment Center

SOHO Solar and Heliospheric Observatory

SP Special perturbations

SSA Space situational awareness

SSN Space Surveillance Network

SSS Space Surveillance System

SSTC Space Surveillance Test and Validation Centre

STM Space traffic management

SWPC Space Weather Prediction Center

vi

TIRA Tracking and Imaging Radar

TLE Two-line element set

U.N. United Nations

U.S. United States of America

U.S.C. United States Code

UCS Union of Concerned Scientists

UNCOPUOS United Nations Committee on the Peaceful Uses of Outer Space

UNIDIR United Nations Institute for Disarmament Research

USAF United State Air Force

USSTRATCOM United States Strategic Command

WWA World Warning Agency

vii

Table of Contents

Acknowledgements ....................................................................................................i

Abstract ......................................................................................................................ii

Résumé .......................................................................................................................iii

Abbreviations & Acronyms ......................................................................................iv

Table of Contents .......................................................................................................vii

List of Figures ............................................................................................................ix

I. Introduction ..........................................................................................................1

II. Background: The Physical SSA Environment .....................................................9

1. Space Objects: Payloads, Debris, & Near-Earth Objects ........................11

2. Orbital Mechanics ....................................................................................18

3. Space Surveillance Sensors......................................................................23

a. Radars ..........................................................................................26

b. Telescopes ....................................................................................30

c. Space-Based Sensors ...................................................................31

4. Satellite Surveillance Data .......................................................................32

5. Space Weather .........................................................................................36

6. Summary ..................................................................................................44

III. SSA & the United States ......................................................................................46

1. History......................................................................................................48

2. 10 U.S.C. § 2274: SSA Services & Information......................................56

a. Legal Authority & Chain of Command: The Joint Space

Operations Center ........................................................................57

viii

b. Eligible Entities ............................................................................64

c. § 2274-Agreements ......................................................................68

d. User Fees & Charges ...................................................................75

e. Immunity ......................................................................................78

3. Summary ..................................................................................................84

IV. Global Outer Space SSA Actors & International Governance Structures ...........86

1. National Participants ................................................................................88

a. Russian Federation .......................................................................88

b. China ............................................................................................89

c. Canada..........................................................................................90

d. Australia .......................................................................................91

2. Organizational Participants ......................................................................92

a. International Space Optical Network ...........................................92

b. ESA & Europe .............................................................................94

c. Space Data Association................................................................98

3. Individual Astronomers ...........................................................................100

4. Summary ..................................................................................................102

V. Conclusion ...........................................................................................................103

Bibliography ..............................................................................................................108

ix

List of Figures

2-1. Monthly Number of Objects in Earth Orbit by Object Type ..............................15

2-2. The U.S. Space Surveillance Network ...............................................................25

4-1. The International Scientific Optical Network .....................................................92

4-2. Overall SSA Sharing Concept ............................................................................96

1

The U.S. outer space situational awareness sharing law:

Sharing information about SSA and the need for global cooperation

_____________

"Knowledge is the antidote to fear."

- Ralph Waldo Emerson

I. Introduction

What is situational awareness? Imagine a man hiking in the wilderness and

looking for wildlife. He is walking along a creek bed in autumn. Each footfall is

deliberately placed, his ears are on high alert for the faintest sounds and his eyes are as

focused as laser beams, and he is utilizing his peripheral vision too. He is aware of the

wind‘s direction and the thunderclouds building to his north. He has spotted a few other

hikers and he is cognizant of their positions around him. This individual is fully aware of

his surroundings. He double and triple checks his map, compass and handheld navigation

device. His situational awareness is extremely high. Now, imagine another hiker

wandering aimlessly about the same forest without a map. He is thinking about work on

Monday and he doesn‘t even notice the thunder clouds behind him spewing lightning or

the turkey gobbling off to his left about 50 meters away. This hiker is oblivious to his

surroundings. Said another way, his situational awareness is poor.

2

No matter what the situation is, from pilots flying in the skies to individuals

driving their cars, awareness of one‘s surrounding is of paramount importance at all times

for safety of life and property—outer space is no exception. As vast as it may appear,

outer space is becoming an extremely crowded place, specifically in the near-Earth

environment which encompasses the portion of outer space used by humans up to

roughly 37,000 kilometers altitude. This is the area wherein all human activity and

technological mastery takes place; consequently it is the most crowded and littered

portion as well. It is vital that everyone utilizing this expanse maintain the highest state

of situational awareness as is possible to ensure safety to themselves, their space objects

and everyone else operating in that location. In order to achieve this difficult task, many

aspects come into play. Sensors, computer programs, analysts and space craft

maneuvering are required to adequately maintain space situational awareness (SSA).

Regulations are needed to ensure the data from these observations are shared and

disseminated as widely as possible, liability is addressed, and structures are in place to

facilitate the exchange of information.

This thesis will examine the technological background, the United States legal

regime surrounding SSA data sharing, as well as the involvement of other nations and

private industry, in an attempt to offer a sound basis for the development of an

international organization capable of synergizing the world‘s SSA data collection abilities

into one centralized data sharing network.

3

Today, the United States tracks more than 22,000 objects orbiting our planet,

which includes operational satellites and space debris.1 Add to this number over 500,000

more untrackable objects which are capable of destroying a satellite even though they are

less than 10 centimeters in diameter and space starts to shrink.2 Even though outer space

may seem vast and an individual awareness of what is orbiting may seem unnecessary, in

actuality outer space, specifically the near-Earth portion is a relatively small area that is

growing more congested every day. The need to know exactly where every object in our

near-Earth environment is located at all times is vital for safety of operations. Since

2007, the number of objects orbiting above has increased nearly 60 percent, with the

majority of new additions attributable to two specific debris-causing events.3 Moreover,

the ability to share the data derived from these tracking endeavors is just as important. If

satellite owners and operators cannot act on this data to avoid collisions in outer space,

then the data is of no use.

Various other nations and private enterprises are collecting data, but there exists

no international standard or means to share and use the information collected. What

exists today is a patchwork of observations and no State alone has the perfect solution.

Although the U.S. SSA sharing law is in its infancy it is a step in the right direction

towards achieving more global synergy. This thesis aims to review the SSA affairs of the

U.S. to better understand the underpinnings of how SSA is conducted and will also

1 T S Kelso, How the Space Data Center Is Improving Safety of Space Operations, report for 2010 Advanced

Maui Optical and Space Surveillance Technologies Conference (Maui: 2010), vol 2010 AMOS Conference Technical Papers, [Kelso, SDC and Safety]. (These objects include active satellites as well as debris from old satellites.) 2 Ibid. Based on a NASA estimate, these objects are in the 1-10 cm range and move at extreme velocities.

They are generally too small to be tracked with today’s sensors. 3 Ibid. The two events are the 2007 China anti-satellite weapon test and the 2009 U.S./Russia satellite

collision, both discussed below.

4

review the SSA sharing law to better understand it‘s genesis, any lacunae and the way

ahead. By undertaking this review perhaps a solution to the problem of the world‘s

incomplete SSA capabilities will be realized. The creation of a viable international

collective data sharing and collision avoidance organization could be the next logical

step. As more and more States become space-faring and begin operating their own

satellites, the United States should not continue to shoulder the entire burden of funding,

maintaining and operating the only actionable space objects catalog. Other nations and

organizations must come together to share resources efficiently and effectively to create

the safest operating environment possible.

In addition to knowing the location of all objects in orbit, space actors must be

aware of the weather in outer space and how it may affect their space assets. This

burgeoning of space object tracking and space weather observation is collectively

referred to as SSA. Civil ―SSA consists of positional data on objects in Earth orbit and

information on space weather.‖4

Only a handful of states have the means to collect SSA data, but far more states

and organizations are operating in outer space. With the advent of micro- and nano-

satellites, the number of space participants will only increase as access to space becomes

safer, cheaper, and easier.5 These burgeoning novice explorers and exploiters of outer

4 Brian Weeden & T S Kelso, Analysis of the Technical Feasibility of Building an International Civil Space

Situational Awareness System, report for 2009 IAC (Daejeong, South Korea: 2009) at 1 [Weeden & Kelso, Tech Issues for a Civil SSA System]. Military SSA would also include the space objects purpose and possible intent, as well as its strengths and weaknesses just like any terrestrial military target. This thesis focuses on civil SSA. 5 Furthermore, as satellites get smaller and smaller they will be even harder to track non-cooperatively.

Also, today one launch vehicle is capable of carrying only a limited number of ‘standard-size ‘satellites as its payload but again, as satellites become smaller one launch vehicle may be able to launch hundreds of micro-satellites into orbit at one time making it even harder to track their orbital entries. It may appear

5

space may not possess the ability to maintain their own independent SSA data and will

come to rely upon those States that do, namely the United States of America. Should the

United States shoulder this burden alone?

Today, more than 50 countries own operational satellites, but only a handful are

capable of tracking their orbits.6 Much like the United States providing free,

uninterrupted global positioning satellite (GPS) signals to the entire world, SSA data is

also shared free via the internet.7 Like GPS, the collection and sharing of SSA data is

truly a global asset. The United States Strategic Command (USSTRATCOM), a unified

combatant command of the Department of Defense, is specifically delegated the space

observance mission and has amassed a rather large database of space objects which are

tracked via sensors all over the world by the Joint Space Operations Center (JSpOC) in

southern California.8 The National Aeronautics and Space Administration (NASA) also

studies space debris within its Orbital Debris Program Office.9 Additionally, the United

States Department of Commerce‘s National Oceanic and Atmospheric Administration

(NOAA), along with the U.S. Air Force Weather Agency (AFWA) and NASA, observe

and forecast outer space weather. Collectively, USSTRATCOM, NOAA and NASA are

continually working to share the information they collect and analyze with other nations

and private satellite owners and operators; however, the current legal regime governing

on radars as if the rocket exploded into fragments. Information must be shared between States and organizations ahead of time. 6 Tony Skinner, “Spatial Awareness: Addressing the Space Debris Threat”, Jane's Strategic Advisory Service

*Skinner, “Addressing the Space Debris Threat”+. 7 See Space-Track.org, discussed in detail in Chapter 3.

8 USSTRATCOM Space Control and Space Surveillance Fact Sheet (July 2010) [Space Control Fact Sheet].

9 NASA, Orbital Debris Program Office Webpage. (Note: All web page addresses can be found in the

bibliography section.)

6

SSA data sharing is in its infancy and there is much that needs to be done to make this

effort truly an international success.

The European Union, through the European Space Agency (ESA), is also actively

planning for its own SSA capability, which up until now is only found within a handful

of European Community states, such as France, Germany and Italy. The Russian

Federation has a rather robust SSA architecture as well, but does not regularly share their

information. Moscow, Russia is also the headquarters for the International Scientific

Optical Network (ISON) which is comprised of scientists and their telescopes from

Russia, other Asian countries, Eastern Europe, Africa and even South America.10

Amateur astronomers, backyard hobbyists and educational institutions are also active in

tracking and identification of space objects. Lastly, and perhaps the most important

endeavor is the ongoing private industry effort to create its own SSA network, known as

the Space Data Association (SDA).11

Even satellites which are labeled as ‗classified‘ for national security reasons by

their respective States are observed, tracked and published by other nations and amateurs

alike. For example, the public portion of the satellite catalog maintained by

USSTRATCOM—and accessible by almost anyone in the world—filters out the United

States classified space objects, yet the Union of Concerned Scientists publishes a list of

active satellites including those kept out of the U.S. public catalog, so to do amateur

astronomers. One argument against global sharing of SSA data is based on national

10

Site of initiative astronomical projects: International Scientific Optical Network (ISON) & Low Frequency VLBI Network (LFVN) [ISON Website]. 11

Space Data Association Website [SDA Website].

7

security, but as is seen when comparing the varying resources no satellite is truly hidden

in outer space.12

These national and private systems are not linked with one another as they ought

to be, even in the face of national security concerns. A unified international organization

tasked with the operational responsibility to gather, refine and distribute SSA data will go

a long way to attain greater safety and understanding of the outer space environment as

well as promote the peaceful use of outer space. Collectively, the burden can be shared

more equitably and unity of effort will prevail. Such an organization would aid in

preventing unneeded redundancy and provide common transparency and confidence for

all space actors who are members of an international organization and agree to share their

SSA data. Furthermore, as the foremost global provider of SSA data the United States

dedicates entire military missions and funding for the cost-free benefit of all space actors,

foreign and domestic. Based solely on the sheer number of satellites the United States

has in space, the United States has the most to lose by not maintaining complete SSA.

However, every space-faring state possessing even a single satellite in outer space must

also maintain SSA over its assets. All states are required as part of international

reasonability to continually supervise all activities undertaken by itself or its private

citizens.13

Any state which launches a satellite or licenses the launch of a satellite is

negligent if it does not then track and avoid collisions with other space objects.14

States

with the means or money to launch a satellite, but without the ability to maintain SSA

12

The issue may then become the intent and purpose of each satellite, but a global SSA data sharing entity does not need this information set in order to maintain safety and avoid collisions. 13

Treaty Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 Jan 67, 610 UNTS 205, 18 UST 2410 [Outer Space Treaty]. Even those States which are not a party to the Outer Space Treaty may have a duty under customary international law. 14

Convention on International Liability for Damage Caused by Space Objects, 29 Mar 72, 961 UNTS 187, 24 UST 2389, [Liability Convention].

8

over the satellite should cooperate fully with those nations that do and provide all

necessary data for creating the most precise orbital track possible. In return they are

ensured their costly asset will not perish from reckless oversight.

The issue of SSA data sharing will be addressed in three parts. First, the technical

background describing the outer space environment, orbital mechanics, SSA sensors and

data will be explored to provide a foundation for fully appreciating the legal strides

needed in order to achieve greater international cooperation. Next, this thesis will

undertake an analysis of the law, policy and participants of SSA collection and

dissemination within the United States. The legislative and political history will be

traced up to the current iteration of the law. The most pertinent sections of the current

U.S. SSA sharing law are examined and lacunae are pointed out when discovered. The

last part, Chapter 4, will briefly broaden the investigation to include the other non-United

States actors active within the SSA filed, including foreign governments, private

enterprise and amateurs. Throughout this thesis several entities will be highlighted as

potential models for creating a global data sharing organization capable of handling the

day-to-day collection and dissemination of SSA data the world over. These organizations

include the International Space Environment Service, ISON and SDA. The concluding

chapter will recommend a new international organization to govern a world-wide,

internationally operated network for global SSA data sharing and analysis.

9

II. Background: The Physical SSA Environment

When one envisions the vastness of outer space and views the marvelous pictures

captured by the Hubble telescope, it is easy to imagine there is so much limitless room to

operate a satellite that the likelihood of collisions between two objects, whether man-

made or naturally occurring, is so minimal that no one needs to worry about one

another‘s space assets. However, space quickly dwindles when we focus on only the

areas most useful to mankind: the low earth orbit (LEO) from roughly 100 kilometers to

2,000 kilometers; medium earth orbit (MEO) from about 2,000 kilometers to 35,000

kilometers, geosynchronous transfer orbits, and the geosynchronous earth orbit (GEO) at

35,786 kilometers in altitude.15

The near-Earth environment is the chief location for

placing satellites which provide the most scientific and technology useful benefits for

mankind. Humans are also best equipped to operate within near-Earth, namely LEO, on

a continual basis. With over 22,000 man-made objects in outer space the vast majority of

them are located only within LEO and GEO.16

In order to continually observe and track both man-made and naturally occurring

objects in space, as well as observe and predict space weather, varying sensors are

required and must be dispersed over the globe as widely as possible for maximum

effectiveness. Many entities operate space observation platforms. For example, the

United States network of sensors for surveillance of outer space is known as the Space

Surveillance Network (SSN) and is comprised of radars, telescopes and satellites working

15

This area is collectively referred to as the near-Earth environment. 16

Space Control Fact Sheet, supra note 8. Several satellite constellations operate in MEO, with the most recognized being those constellations providing positioning, navigation and timing, such as GPS.

10

together to capture the locations of as many objects in space as technically possible.17

These networks combined with the other aspects of the outer space environment, such as

weather, constitute the technical underpinning of SSA.

The outer space environment is very demanding in terms of its weather activity

and the physical effects it has upon satellites. Combined with the weather created by the

Sun‘s radiation, other aspects of space affect satellite efficacy, position and operational

life-span. For instance, the Sun‘s energy when excessively active can cause the Earth‘s

atmosphere to swell from increased heat which in turn causes satellites in LEO to de-orbit

more quickly than when the Sun‘s emitted energy is weaker. These aspects of the outer

space environment include gravity, Earth‘s atmosphere, cosmic rays, and near earth

objects such as asteroids and meteoroids.

The outer space environment is an extremely harsh and dangerous area in which

to operate. Even while Sputnik I was the only man-made space craft circling above; it

was already being impacted upon by the unseen forces of space weather. As equally

important to possessing valuable SSA data regarding the location of objects in outer

space is observing, predicting and disseminating timely space weather data. Much like

weather occurring within the Earth‘s atmosphere and the negative outcomes it can

produce upon humans‘ activities, such as tsunamis, earthquakes, and tornados; outer

space weather too can have drastic effects upon the man-made objects orbiting within.

Knowledge about space weather is vital for the effective fusion of SSA data, as is an

understanding of how gravity and Earth‘s atmosphere operate to affect the orbital

mechanics of an orbiting object in outer space.

17

Ibid.

11

The following sub-sections will discuss these aspects in the following order:

space objects; orbital mechanics; space surveillance sensors; satellite surveillance data;

and finally, space weather.

1. Space Objects: Payloads, Debris, & Near-Earth Objects

There are over 22,000 man-made space objects in orbit today, and interestingly,

only 16,000 are in the United States public catalog.18

The additional 6,000 objects being

tracked are filtered out of the public version of the SSN catalog because there is not

enough sound observational data to refine the objects‘ orbits to safely place it in the

catalog for others to rely upon or they are classified for national security reasons.19

NASA‘s Orbital Debris Program Office has further indicated more than 500,000

small (less than 10 centimeters) objects orbit Earth as well and travel at high enough

velocities to cause catastrophic consequences were they to collide with another space

object.20

The Union of Concerned Scientists also maintains a very detailed listing of the

known active satellites, which as of January 31, 2011 numbers 957.21

As can be seen

from the figures above, the vast majority of space objects in outer space are non-

operational and uncontrollable.

Broadly, space objects are divided into two main categories: naturally occurring

and man-made. Of the man-made, or artificial space objects, they are further divided into

operational space craft and space debris. All categories are briefly described below.

18

NASA, Orbital Debris Quarterly News (Houston: NASA Orbital Debris Program Office, Jan 11) at 9 [Orbital Debris Qtly]. 19

Kelso, SDC and Safety, supra note 1. Classified space craft not listed by the U.S. are often still tracked by other nations and even amateurs. 20

Ibid. 21

See, Union of Concerned Scientists webpage at http://ucsusa.org/satellites.

12

Natural space objects are often referred to as minor bodies or near-earth objects

(NEOs) and include meteoroids, asteroids, and comets.22

NEOs are natural objects which

orbit around the Sun rather than Earth, but a number of their orbits bring them within

very close proximity to Earth, hence the reference NEO.23

The vast majority of NEOs

are simply dust particles measured in millimeters and are too small to track.24

The danger

of micrometeoroids is not their size, but rather their velocities. Traveling at hyper speeds

of 10 kilometers per second they are like bullets from a gun—a very powerful gun.25

They are relatively small, but pack a huge punch; therefore, awareness of NEOs is

important and is often done with statistical computer modeling after examination of the

outer layer, or skin, of space objects which are brought back to Earth.26

Artificial space objects are divided into two primary categories: active space craft

and debris. The Convention on International Liability for Damage Caused by Space

Objects (Liability Convention) offers a slim definition of a ‗space object‘ to include its

component parts ―as well as its launch vehicle and parts thereof.‖27

According to the

treaty‘s drafting history the U.N. Committee on the Peaceful Use of Outer Space‘s

(UNCOPUOS) Legal Subcommittee indicated the term ‗space object‘ had a common

understanding and was clear enough to not require a definition.28

Therefore, a common

22

ESA, Space Situational Awareness Webpage, [ESA SSA Webpage]; International Astronomical Union, Minor Planet Center. See also, Ernst Fasan, “Asteroids and other Celestial Bodies - Some Legal Differences” (1998) 26:1 J of Space L 33. 23

ESA SSA Webpage, supra note 22. 24

Brian Weeden, “The Numbers Game: What's in Earth Orbit and How Do We Know?”, The Space Review: Essays and Commentary about the Final Frontier (26 Jan 11) at 1 *Weeden, “The Numbers Game”+. 25

NASA, Micrometeoroids and Orbital Debris (MMOD) Webpage. 26

Weeden, “The Numbers Game”, supra note 24 at 1. 27

Liability Convention, supra note 14 at Art I(d). 28

W F Foster, “The Convention on International Liability for Damage Caused by Space Objects” (1972) 10 Can YB Int'l L 137 at 139.

13

sense approach is required as there is no clear, detailed legal definition other than the

Liability Convention, Article I(d) cited above.

The term ‗space object‘ includes both functioning space craft as well as any

debris derived therefrom. The United Nations defines space debris as ―all man-made

objects, including fragments and elements thereof, in Earth orbit or re-entering the

atmosphere, that are non-functional.‖29

Space debris takes many forms, but can be

separated into four main types: microparticulate matter, inactive payloads, mission-

related debris, and fragmentation debris.30

The SSN is currently tracking over 10,000

pieces of debris larger than 10 centimeters.31

Inactive payloads are space craft (also referred to as satellites), which are no

longer properly functioning or have simply run out of fuel. These space objects are still

in one piece and are therefore large enough to be tracked by Earth-based sensors. What

is crucial is that these Earth-based sensors be able to recognize inactive payloads as no

longer having the capability to maneuver (if maneuvering were even possible when they

were operational), should a predicted collision be foreseen and require a response that

involves altering the orbit of one or more of the space objects involved.32

Obviously, the

inactive payload will be unable to maneuver on its own.

29

UN Office for Outer Space Affairs, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, UNCOPUOS, (2007) [Debris Mitigation Guidelines]. 30

Michael W Taylor, “Trashing the Solar System One Planet at a Time: Earth's Orbital Debris Problem” (2007-2008) 20 Geo Int'l Envtl L Rev 1 at 9 *Taylor, “Trashing the Solar System”+. 31

HQ AFSPC/XOCS, Satellite Situation Report (Colorado Springs: 7 Mar 11). 32

This is also where it is important for owners and operators to provide their own data to the SSA databases as to the location, maneuvering abilities and maneuvering plans for their respective satellites.

14

Mission-related debris is made up of ―all objects dispensed, separated, or released

as part of the planned mission.‖33

These are items which were intentionally ―launched or

released into space during normal operations.‖34

Operational debris includes nose cones,

sensor covers, deployment articles, upper stages, rocket bodies, bolts, straps, fuel tanks

and anything else jettisoned as the mission proceeds.35

Thankfully, some operational

debris is now designed to re-enter Earth‘s atmosphere more rapidly, and there also exists

more environmentally friendly designed space craft that lessen the amount of operational

debris being created, such as explosive bolt retainers.

The opposite of mission-related debris is fragmentation debris. Any space object

which explodes or has an unplanned break-up results in fragmentation debris. The SSN

currently tracks approximately 9,000 fragments.36

For instance, in October 2010, the

International Space Station (ISS) was forced to move to avoid debris fragments from a

19-year old defunct NASA satellite.37

At least once per year the ISS routinely performs

station-keeping maneuvers to avoid debris.38

Intentional fragmentation events have taken place as well, most commonly in the

form of anti-satellite (ASAT) testing. More recently in 2007, China destroyed its

Fengyun-1C weather satellite in LEO, using a rocket launched from earth.39

As a result,

there are approximately 3,000 new pieces of fragmentation debris being tracked and

33

NASA, Orbital Debris Qtly, supra note 18 at 10. 34

Taylor, “Trashing the Solar System” supra note 30 at 9. 35

Ibid; UN Office for Outer Space Affairs, Debris Mitigation Guidelines, supra note 29. (See for example, Guideline 1. Limit debris released during normal operations.) 36


Ibid at 1. 38

Ibid. 39

Michael C Mineiro, “FY-1C and USA-193 ASAT Intercepts: An Assessment of Legal Obligations Under Article IX of the Outer Space Treaty” (2008) 34:2 Journal of Space Law 321 *“ASAT Intercepts”+; See also, Taylor, “Trashing the Solar System” supra note 30.

15

many more which are untrackable.40

It is predicted these new debris fragments will

remain in orbit below 2000 kilometers for decades.41

Figure 2-1. Monthly Number of Objects in Earth Orbit by Object Type

(Credit: Union of Concerned Scientists)

The unintentional fragmentation event resulting from the collision of the Cosmos-

2251 and Iridium-33 satellites on February 10, 2009, is perhaps the current catalyst for

recognizing just how essential knowledge about what is going on in outer space is and

was a call for greater SSA and an overall world awakening and general appreciation for

the potential ―tragedy of the commons‖ scenario within the outer space environment.42

40

T S Kelso, “How the Space Data Center is Improving Safety of Space Operations” 2010 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui, (2010) at 1 *Kelso, “SDA Improving Safety”+. 41

Mineiro, “ASAT Intercepts”, supra note 39 at 342. 42

Frans G von der Dunk, “Too-Close Encounters of the Third-Party Kind: Will the Liability Convention Stand the Test of the Cosmos 2251-Iridium 33 Collision?” International Institute of Space, Proceedings of the 52nd Colloquium on the Law of Outer Space (2009, American Insitute of Aeronautics and Astronautics,

16

Roughly 87 percent of the man-made objects in orbit are fragmentation debris and

inactive satellites.43

Cosmos-2251 was a defunct Russian military satellite launched in 1993, and

Iridium-33 was fully operational, providing active telecommunications.44

When the two

satellites collided, they created a fragmentation debris cloud in an already congested 785

kilometers altitude, which is projected to remain in orbit for decades.45

Interestingly,

Iridium spokeswomen Elizabeth Mailander, confirmed that had Iridium been given a

‗precise warning‘, then it could have moved Iridium-33 out of the orbital path of

Cosmos-2251.46

Much like NEOs, microparticulate matter is, as the name indicates, comprised of

very tiny pieces of debris. NEOs and microparticulate matter differ in that

microparticulate matter is man-made. This source of space debris most often takes the

form of spent fuel and propellants that went unused during launch.47

Interestingly, the

United Nation‘s (UN) Space Debris Mitigation Guideline 5 calls for space craft

‗passivation‘, which ―requires the removal of all forms of stored energy, including

residual propellants and compressed fluids….‖48

Effectively, this is choosing between

the lesser of two evils, in that if passivation were not implemented, then operational

debris that retains compressed fluids becomes a much greater explosion hazard resulting

in larger fragmentation debris. When the tanks are drained they are no longer an

Inc, 2010) at 199 *von der Dunk, “Close Encounters”+. See also, Garrett Hardin, “Tragedy of the Commons” (13 Dec 1968) Science 1234. 43

Space Control Fact Sheet, supra note #. 44

von der Dunk, “Close Encounters”, supra note 42 at 199. 45

Ibid. 46

Ibid at 203. 47

UN Office for Outer Space Affairs, Debris Mitigation Guidelines, supra note 29 at Guideline 5. 48

Ibid.

17

explosion hazard. Moreover, when space craft surfaces are worn down over time from

the harsh space environment, the surface materials, such as paint, are flecked off creating

additional micro-particulate matter.49

A single, small paint chip can have serious impact

upon larger space objects.

Taking into account the historical increase of active and inactive space objects

orbiting in outer space, there has been a four-fold increase since the space age began 30

years ago.50

The United States current Satellite Box Score reports a total of 15,899

objects being monitored.51

Recognizing that the majority of space debris is currently

untrackable due mainly to its size, there is much improvement that can be done to

advance SSA in this regard. The number of untrackable (less than 1 centimeter in

diameter) and potentially trackable (between 1 and 10 centimeters in diameter) is

reported to be in the billions.52

This ‗potentially trackable‘ range of between 1 and 10

centimeters is the most serious issue facing SSA today because these objects are too

small to track effectively yet they are too large to counter with satellite shielding.53

Perhaps the evolved Space Fence radars due to come on line by the end of the

decade will shed more light on the seriousness of the debris problem.54

The users of SSA

data must know where space objects are located so not to accidentally destroy or interfere

with one another‘s own multi-million dollar assets.

49


Skinner, “Spatial Awareness: Adressing the Space Debris Threat”, supra note 6. 51



Lecture between Brian Weeden and McGill Institute of Air and Space Law (15 Mar 11) [Weeden, Lecture]. 54

The Space Fence concept is discussed below.

18

2. Orbital Mechanics

Space objects basically populate several defined regions in outer space—LEO,

MEO, and GEO. Each of these orbits is better suited for specific missions, such as earth

observation and communications in LEO, navigation satellites in MEO, and

telecommunication and broadcasting satellites in GEO. The geostationary transfer orbit

is used to re-orbit or maneuver GEO satellites into their permanent orbits after being

launched from Earth into LEO. Understanding orbit types and the forces that affect

satellites found in these orbits is essential to a review of the overall importance of SSA,

especially because today‘s technology only allows for predictive tracking abilities versus

actual real-time, continual tracking of objects as seen in the aviation field.

Although there is no legal delimitation to where the atmosphere ends and outer

space begins, it is generally accepted to be approximately 100 kilometers in altitude.55

LEO extends from the ‗end‘ of the Earth‘s atmosphere up to approximately 1,000 or

2,000 kilometers.56

This lower altitude is ideal for greater satellite Earth-imaging camera

resolution. It also requires much less energy to transmit communications back to Earth

and it also requires much less rocket energy to place a LEO satellite into orbit versus

other higher orbital insertions.57

Objects in LEO take about 90 minutes to complete one

trip around the Earth, called a period, and therefore perform many periods around the

55

David Wright, Laura Grego & Lisbeth Gronlund, The Physics of Space Security: A Reference Manual (Cambridge: American Academy of Arts and Sciences, 2005) at 39 [Wright, Grego & Gronlund, Physics of Space]. 56

Ibid at 40. LEO has also been defined as extending up to 2,000 km. 57

Edward P Chatters IV, Bryan Eberhardt & Michael S Warner, “Orbital Mechanics”, Ch 6 in Air Command and Staff College, ed, AU-18 Space Primer (Maxwell AFB: Air University Press, 2009) at 89 [Chatters IV, Eberhardt & Warner, “Orbital Mechanics”+.

19

Earth in a single day.58

Today, manned space flight is only located in LEO;59

in fact, the

International Space Station (ISS) is located here at an altitude of 340 kilometers.60

There

are approximately 462 active satellites in LEO and an untold amount of space debris

ranging from simple bolts to entire rocket bodies.61

With LEO being so close to terra firma, the Earth‘s gravitational pull, although

far less than what is found below 100 kilometers altitude, still affects satellites and space

debris over time.62

This phenomenon is referred to as atmospheric drag. Although it

affects space objects no matter their orbital location, it is most serious for objects in

LEO.63

The gravitational pull exerted on objects also varies due to the Earth‘s imperfect

spherical shape.64

Atmospheric drag will slowly cause a satellite to de-orbit and re-enter

Earth‘s atmosphere; therefore, satellites in LEO must have the ability to boost themselves

up to higher orbits to continually counter the effects of gravity, called station keeping.65

The effects of gravity are important to understand and factor into any predictive

SSA tracking scheme, both to ensure an accurate orbital picture is maintained for each

tracked object, as well as re-entry of old and ‗dead‘ satellites and their launch vehicles,

and the launch of new space objects which must travel to, or through, LEO. These

effects are taken into account by computer modeling.

58

Wright, Grego & Gronlund, Physics of Space, supra note 55. 59


Chatters IV, Eberhardt & Warner, “Orbital Mechanics”, supra note 57 at 90. 61

See, UCS Satellite Database, online: <http://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/technical_issues/ucs-satellite-database.html>. 62

Wright, Grego & Gronlund, Physics of Space, supra note 55 at 39. 63

Ibid. 64

Ibid at 40. 65

Ibid at 39.

20

In addition to the earth‘s gravity, the Moon, Sun and even Jupiter can affect the

orbital track of space objects.66

Furthermore, during high levels of solar activity the

earth‘s atmosphere may expand beyond its normal range, causing even greater

atmospheric drag upon space objects as far up as 200 kilometers, which will re-enter and

burn up more rapidly if not corrected by more constant and costly station keeping.67

The MEO lies in between LEO and GEO from approximately 2,000 kilometers to

36,000 kilometers.68

Satellites in this area perform communications and, most notably,

global positioning. The United States Global Positioning System (GPS) constellation of

31 satellites, and the Russian Global Navigation Satellite System (GLONASS)

constellation of roughly the same number, orbit within this region. The harshest natural

condition impacting satellites in MEO is radiation (the Van Allen radiation belts are

located generally in this area) which harm the satellite‘s electronic components if

radiation hardening countermeasures are not added.69

The GEO holds a unique location in outer space, specifically within the

geostationary orbit (the orbital plane directly above the equator at zero degrees).70

This is

where satellites appear stationary in the night sky because the time it takes them to travel

one period equals the same amount of time it takes the earth to make a single rotation of

its own.71

All objects in GEO take 24 hours to make one rotation around the earth.72

66

Ibid. 67

Ibid at 40. 68

Ibid at 42. 69

Ibid. 70

Note: geosynchronous and geostationary have separate meanings. 71


Ibid at 92.

21

This phenomenon occurs at 35,786 kilometers.73

Geostationary satellites sitting above

the equator are able to cover nearly 43 percent of the Earth‘s surface and are ideal for

telecommunications and broadcasting.74

Regarding space weather, the GEO falls just

beyond the densest region of the Van Allen radiation belts.75

The counter point to this

fact is with the GEO‘s great distance from the earth, it is consequently closer to the sun

and during high solar activity the Sun can damage GEO satellites much more easily than

satellites located within MEO and LEO.76

Of note is one special orbital location in outer space best suited for space weather

observation and therefore important for our discussion of SSA. The scientist, Joseph-

Louis Lagrange, discovered five unique positions within the Sun-Earth system which

offer unique vantage points for observing the solar system.77

Of particular importance for

solar weather observation and prediction is Lagrange Point One (L1).78

L1 is located

―about a hundredth of the distance to the Sun‖ from the earth where the gravitational

forces of both the earth and the Sun effectively cancel one another out, and the satellite

takes 24 hours to orbit the sun exactly like the earth.79

A satellite placed in the L1 orbital

position stays between the Earth and the Sun at all times. From a space weather

standpoint, solar winds emanating from the Sun reach L1 about one hour before reaching

73


Ibid. The earth’s poles are not covered by satellites in the geostationary orbit. 75

Van Allen Radiation Belts are two belts surrounding the earth which contain higher concentrations of plasma that, because of the Earth’s gravitational pull, remain in the same general location. The Sun’s solar winds affect the Van Allen Belts, causing them to have an irregular shape, continually shifting and affecting satellites beyond LEO. 76


European Space Agency, Space Science: What are Lagrange Points? (12 Feb 09). 78

Ibid. (The other four Lagrange points are not useful for space weather applications.) 79

Ibid.

22

Earth providing valuable early warning80

The information relayed from L1 satellites,

such as the ‗solar watchdog satellite‘, provides important situational awareness. Many

satellites can be powered down or placed in ‗safe-mode‘ to protect their sensitive

electronics during solar flares and other space weather phenomenon that has been

observed sooner by space weathers satellites at L1.81

Satellites initially placed into outer space may have to maneuver into their final

position via the geostationary transfer orbit (GTO) which effectively ‗sling-shots‘ the

satellite into its geostationary orbit using the earth‘s rotation and the satellite‘s own

thrusters or rockets. The satellite may have to transit through other highly populated

areas wherein proper SSA is a necessity.

The U.S. Space Surveillance Network endeavors to observe all satellite

maneuvers, but often must rely on historical and out of date data since it cannot perform

real-time tracking of every active payload. This is where the Space Data Association

(SDA) becomes relevant. The newly operational SDA is a consortium of private satellite

owners and operators coming together to share data on the orbital location of their

respective satellites. Owners and operators are always communicating with their

satellites and know where they are. They can track them constantly and in real-time

(however, this could change as newcomers with fewer resources enter the field). Work is

ongoing to synergize commercial data with USSTRATCOM‘s sensor network for better

overall SSA. The SDA is discussed in more detail in Chapter 4.

80

Ibid. 81

NOAA Space Weather Prediction Center, A Profile of Space Weather (Boulder: NOAA, 2010) [NOAA, Space Weather].

23

In addition to space crafts‘ routine orbital movements, there are a multitude of

potential actions space objects execute, known as ‗space events‘.82

Space events are

typically those actions which impact or have the potential to impact a third-party man-

made space object.83

Space events include launches, maneuvers in outer space,

intentional separations, unintentional break-ups, and atmospheric re-entries.84

Space

events are most commonly controlled by operators on the ground; however, adverse

space weather can sometimes cause unplanned or undesired space events to occur. If the

orbital period of a satellite is less than 87.5 minutes, then it is an indicator that the

satellite is decaying and will re-enter Earth‘s atmosphere if not boosted back up to a

higher altitude.85

It is critical for outer space safety that these space events are observed,

tracked and if new space debris is created, it is properly and expediently cataloged.

3. Space Surveillance Sensors

Today, the United States, Russia and a few other entities employ several types of

sensors to gather SSA data. Historically, these sensors were not originally designed for

space surveillance, but rather for Cold War ballistic missile warning.86

This is evidenced

by the geographical location of most sensors arranged in a pattern to protect respective

territorial boundaries. For example, there are no American sensors located in the

southern hemisphere and Russia and China have no sensors outside of their geographic

82

Edward P Chatters IV, “Space Event Processing”, Ch 12, in Air Command and Staff College, ed, AU-18 Space Primer (Maxwell AFB: Air University Press, 2009) at 163. 83

Ibid. 84

Ibid. 85


Weeden & Kelso, Tech Issues for a Civil SSA System, supra note 4 at 2.

24

regions. The sensors currently operating are largely antiquated and in need of upgrades

or replacement.

The United States Space Surveillance Network (SSN) is an aging hodgepodge of

sensors employing the aforementioned ―‗predictive‘ technique to monitor space objects;

i.e., [ ] spot checks them rather than tracking them continually.‖87

This predictive

technique uses the data collected by sensors and the orbital mechanics discussed above to

determine the most logical orbit for each object catalogued. So, when an actively

controlled space object is maneuvered or boosted by its owners and operators it may be

lost to the SSN for some time due to its new path.

The SSN is limited to conducting spot checks only mainly because the system is

simply not ubiquitous enough. The SSN will need more sensors with greater geographic

distribution across the entire globe with more accessibility in order to achieve perfect

SSA. This is one of the SSN‘s biggest impediments. Also most sensors are used

primarily for other purposes, like ballistic missile launch detection, before being tasked

for SSA missions.88

These are just a few reasons a global SSA network is necessary.

Combining the world‘s sensor data, or even the sensors themselves, will complement one

another and fill SSA voids. In the future this may allow for continuous tracking

capability as one State‘s sensor hands-off the space object to its next sensor or another

State‘s sensor and so on; as opposed to only employing a predictive technique. The U.S.

SSN‘s sensors mainly include ground-based radars and advanced telescopes but there are

a number of advanced space-based satellites capabilities being tested and developed able

87

Space Control Fact Sheet, supra note 8. 88

Ibid.

25

to track space objects without the earth-based sensors‘ limitations such as clouds and

daylight.89

The general types of sensors engaged by the SSN are phased-array radars,

mechanical radars, electro-optical telescopes, and most recently the Space Based Space

Surveillance (SBSS) satellite.90

Other sensors include electronic signal, laser and

infrared tracking.91

USSTRATCOM, the U.S. military organization charged with overall

management of the United States SSA capabilities, informs that the SSN currently

employs 29 separate sensors spread throughout the world.92

Figure 2-2. The U.S. Space Surveillance Network

(Credit: DoD)

89

Ibid. 90

Ibid. 91

Brian Weeden, Space Situational Awareness Fact Sheet (2010) [Weeden, SSA Fact Sheet]. 92

Space Control Fact Sheet, supra note 8.

26

As indicated throughout this section, some sensors within the SSN possess only

one mission—space surveillance; however, the majority are only performing part-time

space surveillance. Hence, for SSA and SSN purposes, each sensor is labeled either

dedicated, collateral or contributing. (See Figure 2-2 above.) Collateral sensors only

provide SSA data as a secondary or even tertiary mission, and contributing sensors are

not owned by the United States Air Force and perform other missions before providing

the USAF with additional SSA data. The lack of dedicated, immediately taskable sensors

is a critical issue for maintaining accurate SSA.

In addition to the United States SSN, the Russian Federation operates a network

of SSA sensors called the Space Surveillance System (SSS), which is comprised of many

of the same types of sensors which make up the SSN.93

Also, mirroring the SSN, the SSS

is primarily composed of sensors which are not solely tasked to handle SSA, but rather

provide constant missile defense warning.94

a. Radars

Conventional radars use narrow beams of energy and can ‗lock-on‘ and follow a

satellite as it crosses the radars field of view.95

Many conventional types of radar contain

moving antennas to enable active following of the object being tracked.96

SSN

mechanical radars include the Ronald Reagan Ballistic Missile Test Site‘s Advanced

Research Project Agency (ARPA), Long-Range Tracking and Instrumentation Radar

93

Weeden, SSA Fact Sheet, supra note 91 at 2. 94

Ibid. 95

Space Control Fact Sheet, supra note 8; See also, Edward P Chatters IV & Brian J Crothers, “Space Surveillance Network”, Ch 19, in Air Command and Staff College, ed, AU-18 Space Primer (Maxwell AFB: Air University Press, 2009) *Chatters IV & Crothers, “SSN Primer”+. 96

Chatters IV & Crothers, “SSN Primer”, supra note 95 at 249.

27

(ALTAIR) on the Kwajelin Atoll in the Western Pacific, and the Haystack radar operated

by the Lincoln Laboratory of the Massachusetts Institute of Technology (MIT).97

ALTAIR is primarily designed to detect foreign missile launches and is operated by the

United States Army; hence; it is a ‗contributing‘ sensor to the SSN. It is also used for

tracking objects in LEO and GEO.98

Detection of foreign missile launches is essentially

an SSA function as all payloads are launched on missiles (or in non-military terms,

rockets). The only difference is what is being launched by the rocket, either munitions or

satellites. The ALTAIR can track up to 32 objects at a time99

, and it performs over

42,000 tracks per year.100

Additionally, it is used as one of the primary tracking radars

during all manned space flight missions.101

MIT‘s Haystack radar divides it usage between educational research and as a

contributing portion of the SSN.102

It only provides several hundred hours of SSN

tracking data per year, yet is one of the most capable assets on the planet.103

The images

produced by the Haystack radar are used by USSTRATCOM ―to assess satellite

structure, mission, and status‖ and also to track orbital debris down to 1 centimeter in

size.104

Under perfect conditions this civilian-owned and operated system can track

objects the size of only a few millimeters.105

Again, this is an example of United States

radar being tasked for two different usages. Perhaps even more interesting is the fact that

the Haystack radar is used both as a civilian educational tool and as a strategic military

97


United States Army, Space Operations Webpage [USA, Reagan Test Cite]. 99

United States Army, ARPA Long-Range Tracking and Instrumentation Radar (ALTAIR). 100

FAS, Advanced Research Project Agency (ARPA) Long-range Tracking and Identification Radar (ALTAIR). 101

USA, Reagan Test Cite, supra note 98. 102

Massachusetts Institute of Technology, Haystack Upgrade Program Webpage (2004) [MIT, Haystack]. 103


MIT, Haystack, supra note 102. 105

Weeden, “The Numbers Game”, supra note 24 at 1.

28

‗spy‘ radar helping intelligence analysts decipher the actual purpose and intent of a space

craft. Of note as well, is the detail of the data which the Haystack is capable of

producing. This dual-use radar evidences the fact that national security concerns should

not be a deterrent for a globally combined SSN and SSA data sharing, due to the internal

controls and filters that can be placed upon the data transmitted from a national asset to

the global organization.

The newest types of radars are the phased-array radars (PAR), which can scan

vastly larger swaths of outer space and track all objects within its fan-like energy beam

simultaneously.106

PARs do so by continually repeating the fanned signal hundreds of

times a minute and as long as the object is within the radars swath, it will capture the

object‘s orbital path.107

The energy beam is ‗moved‘ electronically without any

mechanically moving parts.108

If part of the energy fan intersects an object, the energy is

reflected back to a receiver which then decodes its location, size and orbit.109

It is this

orbital path (along with other collected data points) that is used to ‗predict‘ the complete

orbital path for the object. PARs offer the best data of all the sensors with their ability to

include range data (height, latitude and longitude) as opposed to an ‗angles only‘ method

which lacks range data used by optical telescopes and space fences.110

In many cases,

space objects being tracked are handed off from one SSN sensor to the next to develop

106


Ibid. 108

Chatters IV & Crothers, “SSN Primer”, supra note 95 at 249. 109


Weeden & Kelso, Tech Issues for a Civil SSA System, supra note 4 at 4 & 7.

29

the best orbital data. The one downside to the sophistication of PARs is obviously the

massive cost to develop and manufacture them.111

One example of a PAR is the Perimeter Acquisition Radar Attack

Characterization System (PARCS) radar,112

located at Cavalier Air Force Station, North

Dakota, approximately 24 kilometers south of the Canadian border.113

It is a fixed radar

with no moving parts and ―is pointed northward over the Hudson Bay.‖114

Reportedly,

the PARCS radar is capable of tracking nearly half of the known space objects in outer

space.115

Although the PARCS radar is an essential asset to the SSN, tracking space

objects is not its primary mission. Its primary mission is to collect real-time sea-launched

and intercontinental ballistic missile launch warnings for United States and Canadian

national defense.116

The Air Force‘s Pave Paws Radar System, of which there are actually two

operating within the United States, also acts as a collateral PAR sensor. One PAR system

which has a dedicated SSA mission is the AN/FPS 85 at Eglin Air Force Base, Florida.117

As mentioned above, dual- and multi-use mission sets for a single asset is one of the

major limitations to the overall ability to conduct thorough SSA data collection.

111


John Pike & Robert Sherman, AN/FPQ-16 Perimeter Acquisition Radar Attack Characterization System (PARCS) (1999) [Pike & Sherman, PARCS Radar]. 113

Peterson Air Force Base, 10th Space Wing Squadron, Fact Sheet [PAFB, 10th Space Wing]. 114

Pike & Sherman, PARCS Radar, supra note #. 115

Chatters IV & Crothers, “SSN Primer”, supra note 95 at 253; PAFB, 10th Space Wing, supra note 113. The PARCS radar tracks essentially any object large enough for its sensor to pick up, including those in polar orbit. 116

PAFB, 10th Space Wing, supra note 113. 117

Chatters IV & Crothers, “SSN Primer”, supra note 95 at 252.

30

Another future project under way to replace aging sensors, particularly the Air

Force Space Surveillance System (AFSSS) radars (formerly the Naval Space Surveillance

system), is the new 3.5 billion dollar S-band, commonly called Space Fence,118

which

began surveying outer space in 1961.119

Colloquially, it is referred to as a ‗fence‘

because it stretches along the 33rd

parallel spanning the southern United States, creating a

narrow, continent-wide energy beam which tracks everything crossing within its fan,

16,000 kilometers into space.120

The new Space Fence will be able to track micro-

satellites and much smaller debris while extending beyond 16,000 kilometers altitude,

and it is expected that the amount of trackable objects will increase tenfold.121

On a related note, the United States and Australia recently signed an agreement to

cooperate in SSA. This agreement may include the addition of a second S-band space

fence in Western Australia providing much need coverage of the southern hemisphere.122

b. Telescopes

The other important group of sensors are of the electro-optical class, which are

essentially large, ultra-sensitive telescopes augmented with digital recording devices and

computers.123

Electro-optical sensors allow for real-time analysis.124

The USAF‘s

premier SSN electro-optical sensor system is the Ground-Based Electro-Optical Deep

118

“USA Moves Ahead with Next-Generation 'Space Fence' Tracking”, Defense Industry Daily online *“New Space Fence”+. 119


Ibid. 121

“New Space Fence”, supra note 118. 122

Weeden, Lecture, supra note 53. 123


Ibid; See also, Chatters IV & Crothers, “SSN Primer”, supra note 95 at 250.

31

Space Surveillance System (GEODSS).125

The GEODSS is comprised of three

operational sites spread geographically across the world.126

The sensitive 1-meter

telescopes coupled with their digital cameras are capable of ‗seeing‘ ―objects 10,000

times dimmer than [what] the human eye can detect.‖127

One limitation relevant to all

optical sensors is their inability to function during daylight due to their high sensitivity,

and fundamental reliance on light reflection from the object being viewed.128

Another

degrading factor is increased cloud cover. When conditions are optimal, GEODSS ―can

track objects as small as a basketball more than [32,000 kilometers] away….‖129

Each

GEODSS telescope (of which each site has multiple) can track numerous objects within

its field of view at the same time and feeds this data instantly to the Joint Space

Operations Center discussed below.130

GEODSS is an example of a single-mission

system dedicated directly to SSA data collection. Another dedicated SSA system

complimentary to the three GEODSS systems is the Moron Optical Space Surveillance

System (MOSS) in Spain.131

The GEODSS and MOSS combined enable the SSN to

monitor the entire GEO region.132

c. Space-Based Sensors

The youngest category of sensors are not terrestrially based, but rather stationed

within the outer space environment itself. The Space Based Space Surveillance (SBSS)

125

United States Air Force Space Command, Ground-Based Electro-Optical Deep Space Surveillance, Fact Sheet (2010). 126

Ibid. (The sites are located in New Mexico, Diego Garcia and Hawaii.) 127

Ibid. 128

Ibid. 129

Ibid. 130

Ibid. 131


Ibid.

32

satellite is a dedicated SSN sensor capable of sensing objects in orbit with its cameras

―mounted on an agile, two-axis gimbal, which allows ground operators to quickly move

the camera between targets without having to expend time and fuel to reposition the

entire spacecraft.‖133

To date there exists only one SBSS satellite, but more are planned

in the future.134

Canada is also active in space-based SSA with its SAPPHIRE satellite

system discussed in Chapter 4.

Altogether these differing sensors combine to observe tens of thousands of space

objects located within the varying Earth orbits. As technology advances, the ability to

track a greater number of objects of even smaller size and with more accuracy will grow.

Even so, radars today, such as the Haystack and the space fence are capable of rendering

extremely detailed images of the objects they track, enabling an assessment as to the

space objects purpose and intent important only for national security reasons. The SSA

data needed to avoid collisions and aid in entry, re-orbit and de-orbit are simply the

following: space weather; surveillance data which is essentially an object‘s orbit; as well

as command and control; that is who owns and/or operates the space object. The owner

or operatory is vital so they can be notified in the event of a potential collision, especially

if their asset can be controlled by maneuvering.

4. Satellite Surveillance Data

The data collected from these sensors is ultimately compiled into a catalog for

analysis and actionable use. Currently, only a few entities possess a catalog in some

form, with the United States‘ SSA catalog being by far the most robust. With over

133


Turner Brinton, “Competition Delayed for SBSS Follow-on Satellite”, Space News online.

33

16,000 objects contained in the public catalog and new entries added daily as well as

deletion of objects which decay and re-enter the earth‘s atmosphere, maintaining the

catalog is no small feat. The ultimate goal is to perform ―cradle-to-grave‖ surveillance,

which entails tracking all new space objects from the moment they are launched until

they re-enter the atmosphere and either disintegrate or return to Earth.135

But how does a

tracked object get into the catalog in the first place? This section provides an overview

about SSA data. The following chapter includes discussion regarding which details the

analysis and dissemination of the collected data via the U.S. SSA sharing law.

The United States alone conducts over 500,000 individual sensor observations per

day.136

This is where the process begins. Specifically, the first observation is hopefully

the terrestrial rocket launch carrying the satellite(s) payload. Military sensors are able to

detect launches as if they were ballistic missile launches and mathematically determine

what their predicted orbits will be.137

Each taskable sensor which falls within the

calculated path of the launch will be notified to look out for the object.138

The sensors

will also watch for mission-related orbital debris. Each new object, including the payload

itself, will be tracked and eventually cataloged. When an object is within a sensor‘s field

of view, it is tracked and the data recorded consists of the object‘s exact location at that

moment in time.139

Newly launched objects require a little time to pass in order to

collect enough observations to create a refined element set. Once the ―positional

135


Weeden & Kelso, Tech Issues for a Civil SSA System, supra note 4 at 7. 137


Ibid. 139


34

accuracy reaches a certain quality,‖ it can be entered into the catalog presuming the

owner of the object is known.140

All 500,000 daily United States sensor observations are routed to the JSpOC, and

the observations for each object are ―combined through a process called track association.

Orbit determination is then applied to these tracks to produce an element set.‖141

―Raw

data from SSN sensors flows into the JSpOC where they are collated and through a series

of calculations turned into equations called element sets that describe the location and

movement of objects in orbit.‖142

Two-line element sets (TLEs) are the bread and butter

for SSA since they can be used to predict the space objects orbital path and hence any

possible collisions. Analysts use the TLEs for a single object to determine its location

―forward and backward in time.‖143

TLEs are the basic data sets made public by the U.S., but unfortunately they are

not the most precise. For national security reasons the United States does not make its

refined data, called special perturbations (SP), publically available. Hence the JSpOC

filters its database to disclose only the more general TLEs.144

The SP data can be made

available to those entities which enter into a more specific bilateral agreement with the

United States.

Tracking new satellites from launch into LEO is rather simple; it is the launches

into GEO that are trickier. Satellites being positioned into GEO must perform several

140





There exists only one U.S. SSA catalog. The JSpOC filters what information it releases to the public.

35

maneuvers in order to achieve their final orbit.145

If the tracking agency is informed

about the scheduled maneuver, called the burn plan, then it is much easier to track the

object. Without the burn plan, the SSN relies on what is called ‗non-cooperative

tracking,‘ which basically means no active cooperation is provided from the object being

tracked.146

The SSN must track non-cooperative active satellites after they perform

maneuvers; this delays the ability to update the object‘s orbit and threatens the ability to

conduct precise conjunction assessments. A lot of satellites are ‗lost‘ for a short amount

of time after they maneuver since sensors are not tasked ahead of time to expect the

satellite in a different position than its predicted path. Most active satellites today

employ onboard GPS or ground based range finding to continually know the precise

location of their satellites.147

Perhaps even more difficult is the tracking of debris, which when newly found,

must be traced all the way back in time to the launching state before it will, as a matter of

policy, be entered into the U.S. public catalog. If the owner of the object is unknown or

the element set data is too weak to create high enough accuracy, then the objects are not

entered into the public catalog, even though they are still tracked. This is why the

publically accessible catalog only contains roughly 16,000 objects when the United States

is often quoted as tracking over 20,000 objects.148

All 20,000 objects are taken into

account when conjunction assessments and other advanced services are performed.

145


Kelso, “SDA Improving Safety”, supra note 40 at 2. (Non-cooperative tracking is most often associated with the tracking of space debris.) 147

Ibid. 148


36

When factoring weather, gravity, atmospheric drag and other physical

characteristics, the location of all objects can be calculated and collisions can be avoided.

This process is repeated over and over to continually update and maintain the precision of

the space object catalog. Overall, this entire operation is what was originally referred to

as space surveillance, but today is better known as SSA, because information other than

orbital position is collated to include space weather observations and predictions.149

While maintaining the catalog and continually updating the pathways for each

object, the analysts are also maintaining overall SSA and looking for any potential

collisions. From a safety standpoint, collision avoidance is the reason why good SSA is

vital. The element sets are utilized for conjunction assessments (CA), which ―is the

process by which close approaches between two objects in orbit are determined.‖150

As

each element set is used to create a track for each object that can then be predicted

forward, CAs can be constantly performed with the aid of computer modeling. The

difficulty is in the ‗all versus all‘ CA analysis needed for all 22,000 objects, not just one-

on-one collisions.151

5. Space Weather

I believe we’re on the threshold of a new era in which

space weather can be as influential in our daily lives as

ordinary terrestrial weather.152

-Richard Fisher

149


Ibid at 6. 151

Ibid. 152

“More Active Sun Means Nasty Solar Storms Ahead”, Space.com online *“Active Sun”+. (Quoting Richard Fisher, head of NASA’s Heliophysics Division.)

37

The space weather threat is much greater than any intentional man-made threat.

Many people believe outer space is a vacuum, or void, where all is calm and heavenly,

but to the contrary, outer space is renowned for its violence where natural conditions can

change rapidly. Last, but not the least bit important is the interaction of outer space

weather and objects in orbit. Understanding the weather in outer space is truly an

extraordinary science. As this thesis is being prepared, the Sun is also preparing to

become much more active as it enters into its 11-year cycle of peak solar storms.153

This

section only attempts a cursory introduction to space weather to impart its importance to

SSA. The ability to observe, decipher and disseminate how the weather in outer space is

affecting satellites, both physically and electromagnetically, aids in real-time space object

tracking as well as predictive tracking abilities and anomaly resolution.

Terrestrial weather on Earth is not to be dismissed in dealing with SSA, since

there are many ground stations and nodes interacting continually with the assets in outer

space. Some have noted the need to understand terrestrial weather is just as important as

knowing outer space weather—‗mud to sun‘.154

Like weather on Earth, space weather

originates with the Sun where nuclear fusion occurs at its center, resulting in

electromagnetic and plasma (charged particles) discharges outwards in all directions.155

This includes the visible light one can see and the infrared radiation one can feel.156

The

Sun‘s charged particles also move quickly, but not at the speed of light. They generally

move at approximately 1.3 million kilometers per hour through the solar system in the

153

Ibid. 154

Kelly Hand, et al, “Environmental Space Situation Awareness and Joint Space Effects” 2010 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2010) at 3 *Hand, “Environmental SSA”+. 155

Ibid at 4. (“Electromagnetic energy travels at the speed of light, taking about 8 minutes to travel the 93 million mile distance from the Sun to the Earth.”) 156

Ibid.

38

form of solar wind interacting with the gravitational pull of planets and moons.157

The

solar winds first interact with the Earth‘s gravitational field at approximately 1.6 million

miles out. The Sun‘s energy interacting with the Earth‘s magnetic gravitation field in

turn creates the magnetosphere which encompasses the planet.158

The interactions

between the Sun‘s energy and the Earth‘s magnetosphere are what create space

weather.159

NOAA‘s Space Environment Center (SEC) operates the Space Weather

Prediction Center (SWPC), whose primary responsibility is to observe and forecast outer

space weather. The SEC explains, ―the active elements of space weather [include]

particles, electromagnetic energy, and magnetic field, rather than the more commonly

known [terrestrial] weather contributors of water, temperature, and air.‖160

The SEC is

also the World Warning Agency (WWA), of the International Space Environment

Services organization (ISES), discussed in more detail below.161

From time-to-time outer space experiences solar storms which increase solar

winds from their benign speeds of 1.3 million kilometers per hour to nearly 7.2 million

kilometers per hour.162

The SWPC categorizes solar storms into three areas; geomagnetic

157

NASA, Solar Dynamics Observatory, [NASA, SDO Webpage]. (This is the cycle much like the cycle of water vapor and cloud formation on earth, which is heated by radiation and evaporated from the surface until it forms clouds heavy enough to release their water as precipitation back down to the Earth’s surface. “Another important difference is that, unlike the atmosphere we live in, the tenuous gas in space is ionized. This means that some (or all) of the electrons have been stripped from the atoms, resulting in a gas of positively charged ions and negative electrons called a plasma. These charged particles are steered and accelerated by the magnetic fields that pervade the solar system.”) 158

Kelly Hand, “Environmental SSA”, supra note 154 at 4. 159


NOAA, Space Weather, supra note 81 at 1. (The SWPC is also referred to as the SEC.) 161

ISES, International Space Environment Service [ISES Webpage]. 162

NASA, SDO Webpage, supra note 157.

39

storms, solar radiation storms, and radio blackouts.163

These storms pose hazards to

space, their ground stations and any other piece of technology utilizing radio frequencies

or even simply electricity. For example, space weather, which causes interferences to

satellite communications during certain periods of time, can be planned for by ―switching

to terrestrial communications or using more robust [satellites].‖164

The sources of the Sun‘s space weather include coronal holes, coronal mass

ejections (CME), and solar flares.165

Galactic cosmic rays and interplanetary dust also

play a role as well.166

Coronal holes create ―a continuous outflow of high-speed solar

wind.‖167

CMEs can contain billions of ―tons of matter that can be accelerated to several

million miles per hour…‖.168

All of this solar material interacts with whatever object

happens to cross its path, whether it is a planet, an astronaut, a functioning space object,

or debris. The strongest CMEs can reach Earth in less than 24 hours causing major

black-outs on the ground and destruction of satellites in orbit.169

Solar flares are bright

flashes of x-rays that can make the Sun appear 1,000 times brighter and wreak havoc on

radio communication waves.170

X-rays damage solar panels causing quicker aging of

163

NOAA, Space Weather, supra note 81 at 3. (Geomagnetic storms can cause electric charges in space wherein the surfaces satellites can become over-charged. When geomagnetic disruption occurs in the upper atmosphere, radio frequencies become degraded and the physical satellites can experience ‘satellite drag’ which can cause them to slow down and even change orbit. Solar radiation storms may harm astronauts, equipment and radio frequency.) 164

Kelly Hand, “Environmental SSA”, supra note 154 at 6. 165

NOAA, Space Weather, supra note 81 at 3. 166

NASA, SDO Webpage, supra note 157. 167

NOAA, Space Weather, supra note 81 at 3. 168

Ibid. (The high speeds can range from 250 to 1000 km/s (about 600,000 to 2,000,000 mph).) 169


Ibid. (X-rays are a type of electromagnetic radiation (between ultraviolet light and gamma rays in wavelength, frequency, and energy) - basically, it's light that is way past the blue-violet end of the visible spectrum - we cannot see it. They have a shorter wavelength (and higher frequency) as compared to visible light. Each photon of X-ray radiation has a lot of energy. X-rays can go through most solid objects. X-ray images of celestial objects are one way of learning about their high-energy properties. For example,

40

equipment.171

When severe space weather occurs in outer space and travels from the Sun

to Earth, it interacts with the earth‘s magnetosphere, causing long-lasting geomagnetic

storms. These storms can occur particularly around the same altitude of the

geosynchronous orbit.172

This interaction is the cause of the magnificent Aurora Borealis

lights over the North Pole.173

The Sun‘s energetic particles are also known as cosmic rays, which include all

forms of energized particles traveling in outer space and interacting with Earth no matter

their source.174

Galactic cosmic rays are those cosmic rays that originate from outside of

our solar system, but typically from within our own Milky Way galaxy.175

They travel at

nearly the speed of light and have been traveling around the Milky Way for millions of

years, trapped by the galactic magnetic field.176

Galactic cosmic rays interact with

satellites just like the Sun‘s cosmic rays. Cosmic rays can contain ―…a billion times

more energy than is possible in man-made particle accelerators on Earth.‖177

Accurate prediction and sharing of space weather information is very important to

the safety of operations in outer space. Particularly, space weather affects

communications in a variety of ways, and radio operators must have up-to-date space

the sun's corona emits X-rays, especially over sunspots. The Einstein X-ray satellite was launched in 1978 to survey celestial X-ray sources: source, http://cse.ssl.berkeley.edu/cms/.) 171

Ibid. 172

NOAA, Space Weather, supra note 81 at 4; NASA, SDO Webpage, supra note 157. “The Earth's magnetosphere is a bubble created around us by our magnetic field that protects us from most of the particles the Sun throws at us.” 173


NASA, Cosmicopia - Cosmic Rays Webpage. 175

Ibid. 176

Ibid. 177

“Death Rays from Space”, Astrobiology Magazine online.

41

weather data.178

Precise navigation and timing systems are also affected. A radiation

storm can cause ship and plane navigation equipment to be off by kilometers.179

Outer

space weather can also cause the Earth‘s atmosphere and magnetosphere to overheat and

expand. Satellites in LEO interact with the expanded atmosphere and de-orbit more

rapidly, re-entering the atmosphere sooner than expected. 180

Charged energy particles

have also physically damaged microchips and even altered the software of space-based

systems, so much so that many satellites are placed in safe-mode during solar storms.181

One instance of concern for the adverse effects of space weather manifested itself during

the accident investigation of the Space Shuttle Columbia‘s tragic disintegration during re-

entry on February 1, 2003.182

On January 31, 2003, either a CME or solar flare erupted

from the Sun and was thought to have passed through the Earth‘s atmosphere at roughly

the same time the shuttle was beginning its de-orbit burn.183

The Columbia Accident

Investigation Board saw this event as possibly affecting the orbiter‘s re-entry but later

ruled it out as a contributing factor. This example demonstrates space weather‘s affects

upon spacecraft may have a potentially deleterious impact and must always be taken into

account during anomaly resolution. The JSpOC often checks space weather when

performing anomaly resolution for unexplained satellite errors and malfunctions.

178

NOAA, Space Weather, supra note 81 at 4. (These weather updates include solar radio bursts and geomagnetic alerts.) 179

Ibid at 5 180

Ibid. “Skylab is an example of a spacecraft re-entering Earth’s atmosphere prematurely as a result of higher-than-expected solar activity.”) Strategically, some satellites are capable of boosting themselves back up to higher orbits. 181

Ibid at 5. 182

Columbia Accident Investigation Board, ed, Columbia Accident Investigation Board Report Volume 1 (Washington DC: 2003) at 90. 183

Ibid. (Investigation by the SWPC found no correlation with the CME and the Columbia explosion.)

42

Additionally, as more and more humans venture into outer space or undertake

routine sub-orbital point-to-point travel or even long-distance commercial aviation over

the North Pole, space weather will pose new health hazards in the form of increased

exposure to harmful radiation.184

There are several weather satellites located at the L1 point, which contribute to the

collection of weather data.185

One such satellite is the solar watchdog satellite that is

currently observing the Sun.186

It is operated jointly by NASA and the ESA as part of the

Solar and Heliospheric Observatory (SOHO) project.187

NASA also operates the Solar

Dynamics Observatory (SDO) to study the Sun‘s radiation,188

and the Solar Terrestrial

Relations Observatory (STEREO), which will study coronal mass ejections and can

image 90 percent of the solar surface.189

Currently, NASA offers access to its web-based dissemination system called the

Integrated Space Weather Analysis System, which offers ―space weather information that

combines forecasts based on the most advanced space weather models with concurrent

space environment information.‖190

The AFWA provides a magnetosphere modeling

forecast in three hour intervals; this predicts how plasma may interact with satellites.191

In the future, there is a possibility of placing weather sensors on every new

satellite launched in order to determine the immediate space weather surrounding the

184

NOAA, Space Weather, supra note 81. 185

Lagrange point 1 is discussed in detail below. 186

NASA, SOHO: Solar and Helospheric Observatory. 187

Ibid. 188


NASA, STEREO: 3D View of the Sun and Heliosphere Webpage. 190

NASA, Integrated Space Weather Analysis System Webpage. 191

Kelly Hand, “Environmental SSA”, supra note 154 at 7.

43

space craft.192

ESA hosts its own online space weather web server as well.193

The Royal

Observatory of Belgium operates the Solar Influences Data Center, providing forecasts,

space weather warnings and real-time monitoring as does the Chinese Solar Activity

Prediction Center in Beijing. These agencies are just two examples of the 13 regional

space weather warning centers (RWC) of the International Space Environment Service.194

Internationally, the ISES represents the pinnacle of weather data sharing

―provid[ing] standardized rapid free exchange of space weather information and

forecasts…‖ globally.195

As mentioned above, NOAA‘s SEC is the lead agency for ISES

and also acts as the main data distribution hub.196

The network of RWCs enables the

ISES to synergize its efforts to produce a usable end product for the entire world. Each

RWC is better suited to provide tailored data to entities, including government agencies,

commercial enterprises and scientific organizations operating within its respective

region.197

The data exchanged are highly varied in nature and in format,

ranging from simple forecasts or coded information up to more

complicated information such as images. An important strength

of the data exchange system is that RWCs often have access to

data from unique instrumentation available from the scientific

community in its region. Exchange through ISES makes these

data available to the wider international scientific and user

community.198

192

Skinner, “Adressing the Space Debris Threat”, supra note 6. (Statement made by Joseph Rouge, Director of the DOD National Security Space Office.) 193

ESA, Space Weather Web Server Webpage. 194

Regional Warning Center - China, “Solar Activity Prediction Center, NAOC” Webpage; Royal Observatory of Belgium, Solar Influences Data Analysis Center Webpage. 195

ISES Webpage, supra note 161. The 13 regional centers are located in: China (Beijing), USA (Boulder), Russia (Moscow), India (New Delhi), Canada (Ottawa), Czech Republic (Prague), Japan (Tokyo), Australia (Sydney), Sweden (Lund), Belgium (Brussels), Poland (Warsaw), South Africa (Hermanus) and Brazil (São José dos Campos). 196

Ibid. 197

Ibid. 198

Ibid.

44

ISES is governed by a Constitution and bylaws, and managed by an international

Directing Board meeting annually.199

The Directing Board management includes an

elected Director, Deputy Director, Space Weather Secretary and World Days

Secretary.200

Additionally, each RWC provides a representative to the Board. Liaisons

from affiliated scientific unions are also present.201

Thomas Bogdan, Director of the SWPC, stated in an interview during the Space

Weather Enterprise Forum, ―[s]pace weather forecasting is still in its infancy, but we‘re

making rapid progress.‖202

Only continued international cooperation will make it so, and

more importantly, the fusing of space weather data with the SSA data created from

observing objects in orbit will create more safety and security in outer space. A recent

report from the Los Alamos National Laboratory specifically targeted the real-time

integration of space weather into SSA and unveiled its prototype space weather tool

called the Dynamic Radiation Environment Assimilation Model (DREAM).203

The

information processed by DREAM is derived from information gathered by the SWPC.

6. Summary

As can be seen from the explanation above, the outer space environment is not as

friendly as one might generally envision. Space weather has deleterious effects upon

space objects and creates an extremely harsh environment which is in constant motion

and change. The ability to predict space weather improves every day.

199

Ibid. 200

Ibid. 201

Ibid. 202

“Active Sun”, supra note 152. 203

Geoffrey D Reeves, “Integration of Space Weather into Space Situational Awareness”, 2010 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2010).

45

The diverse types of space objects found throughout the near-Earth environment

must all be tracked. The space debris too small to track today, but too large to effectively

shield against, must be dealt with promptly. As new technologies are developed and

sensors deployed, the ability to track objects smaller than 10 centimeters will greatly

improve SSA and multiply the current catalog of tracked space objects many fold. This

will require more funding and analysis to understand it all. New satellites will be smaller

and more readily available, and the potential for collisions will only increase as more and

more non-space actors obtain the ability to exploit space with their own means.

The importance of SSA is evidenced by the recent Cosmos-Iridium collision, and

even though the probability of two space objects colliding with one another is relatively

minuscule, it is not impossible. Combined, sensors are able to track various sizes and

types of space objects, space events and space weather to contribute to a safe outer space

environment. The SSA data collected is only valuable if it (or the end product of

conjunction assessment analysis) is disseminated to all of the users of outer space. This

will allow those with the capability to maneuver to do so and avoid risk of a costly

collision.

Many countries and organizations currently participate and contribute in some

form or another to the advent of SSA. Unfortunately, there is unneeded duplication of

effort and a lack of sharing which can be overcome technically, legally and politically.

The remainder of this paper examines how this sharing is currently accomplished

throughout the world, particularly within the United States, and how it can be performed

superiorly through the creation of an international organization.

46

III. SSA & the United States

…the United States will pursue the following goals in its

national space programs: … Strengthen stability in space

through: domestic and international measures to promote

safe and responsible operations in space; improved

information collection and sharing for space object

collision avoidance…204

-National Space Policy, 2010

Beginning with the launch of Sputnik I in 1957, the United States has possessed

the need to know what is happening in outer space, particularly by their Cold War

counterparts the Soviet Union. With the birth of the space age, the necessity for SSA

quickly followed. In fact, in 1958, shortly after the passage of the National Aeronautics

and Space Act, NASA began providing SSA data to foreign countries by mailing them

the information through the postal system.205

SSA was yet another characteristic of the

Cold War between the United States and the Soviet Union—both observing the heavens

and trying to decipher what was peering down upon them from above.

Today, the United States and the Russia Federation remain the most prominent

actors in the field of space surveillance. However, between the two countries, the United

States has the most advanced capabilities to both survey outer space and analyze the

collected data. As was seen in the previous chapter, the United States possesses many

capabilities for SSA data collection with its vast array of radars, telescopes and satellites.

The Russian Federation possesses many of these capabilities as well; however, the

204

White House, National Space Policy of the United States of America (28 June 2010) (Washington DC: 2010) (President: Barack Obama). 205

Charles Spillar & Mike Pirtle, “Commercial and Foreign Entities (CFE) Pilot Program Status Update and Way Ahead” 2009 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2009) at 3 *Spillar & Pirtle, “CFE Pilot Program”+.

47

sharing aspect is non-existent.206

The United States has the technical capabilities and

manpower to crunch the data into useable information for, among other things, collision

avoidance and re-entry prediction. Although the United States is quite capable, it is also

not 100 percent effective as evidenced by the recent Iridium-Cosmos collision. There are

gaps in the SSN‘s coverage due to geographic limitations and sensor distribution. There

are also concerns over system maintenance and the increasing funding necessary to

maintain the needed operational capability for such a vast undertaking. Throughout this

chapter, these potential problems with the United States‘ SSA capabilities will be

highlighted in an attempt to demonstrate a rational basis for creating an international data

sharing organization.

Specifically, the focus of this chapter addresses the United States and its legal

relationship with SSA information sharing. A brief history discussing the lead-up to the

current SSA sharing legislation is first discussed, followed by a detailed analysis of the

current SSA sharing law located at 10 U.S.C. § 2274. Space situational awareness

services and information: provision to non-United States Government entities. This

analysis includes: what entity within the United States government is delegated the legal

responsibility to manage SSA collection and sharing; how the information is collated;

who (what foreign entity) is entitled to access SSA data, either via the publicly available

catalog accessible over the internet or by specific legal agreement under 10 U.S.C. §

2274; what a ‗2274-Agreement‘ encompasses; fees associated with the program; and the

immunities afforded the United States government and its constituents in relation to this

program.

206

Non-United States entities involved in SSA are discussed in the next chapter.

48

1. Legislative History

The United States Congress created the original pilot program for SSA sharing

not too long ago, in 2004.207

This was an attempt ―to determine [the] feasibility and

desirability of providing space surveillance data support‖ to both commercial satellite

owners and operators and foreign entities, such as other governments and their space

agencies.208

Prior to the creation of this test program, NASA handled the dissemination

of SSA data to all entities outside the U.S. government referred to as ‗Commercial and

Foreign Entities‘ (CFEs).

With a memorandum of agreement between the DoD and NASA, NASA provided

the unclassified element sets and other data to CFEs through the Goddard Space Flight

Center‘s Orbital Information Group‘s (OIG) website, to anyone who simply registered

online.209

Security protocols were nil. NASA acted as a buffer between the CFEs and

the United States military; yet, CFEs were still wary of having to rely solely upon a

foreign country for their SSA data, even if not solely upon a foreign military.

The disseminated SSA data had always been collected by the military‘s Space

Surveillance Network for national defense purposes and remains so today; however, the

only change is who has the legislative responsibility to disseminate the SSA data to

CFEs.210

When the USAF officially took sole control over the new pilot program, there

was even more consternation among CFEs and astronomers who rely on the SSA data for

207

National Defense Authorization Act for Fiscal Year 2004, PL 108-136, Sec 913 (24 Nov 2003). [NDAA 2004]. 208

Michael W Taylor, “Space Debris Mitigation Measures: United States Department of Defense”, Power point presentation delivered at the Institue of Air and Space Law (2009) at 7 *“Debris Mitigation Presentation”+. 209

Spillar & Pirtle, “CFE Pilot Program”, supra note 205 at 3. (The OIG website is no longer operational.) 210

Effectively, any non-United States government entity is referred to as a ‘CFE’.

49

safety and science. The move to an all-military run program was viewed as a step back in

cooperation and transparency by many in the international community. Today, this is one

of the biggest complaints by end-users, that is, having to rely on a foreign military for

their data, much like the reliance upon the DoD‘s GPS system for positioning, navigation

and timing. No one can fully trust that the proverbial plug will never be pulled.

In 2000, the DoD initiated a review of the SSA sharing program to determine

possible options for more streamlined management, national security oversight,

efficiency and simply the best way to move forward. The Air Force created the SSA

Task Force who, upon review of the current sharing program, discovered among other

things, a potential violation of United States fiscal law.211

The United States government,

under Title 10 of the United States Code, was expending federal funds in support of non-

United States entities by providing SSA data and analytical products free of charge

without legislative authority to do so. Generally, ―[t]he established rule [of law] is that

the expenditure of public funds is proper only when authorized by Congress, not that

public funds may be expended unless prohibited by Congress.‖212

Fundamentally, all

federal government expenditures must be traceable back to a specific authorization and

appropriation or else the expenditure is unlawful.

The DoD General Council and Air Force Space Command (AFSPC) legal officers

determined new legislation was needed to ensure fiscal law was not violated.213

This

review would eventually lead to the drafting of 10 U.S.C. § 2274, a law which would

211

Spillar & Pirtle, “CFE Pilot Program”, supra note 205 at 3. 212

United States v. MacCollom, 426 US 317 at 321 (1976). 213

Spillar & Pirtle, “CFE Pilot Program”, supra note 205 at 3.

50

authorize the expenditure of monies for SSA data sharing to CFEs as well as the option

for charging fees for reimbursement of expenses.

Nevertheless, before this move occurred, a DoD level decision was made to

maintain the status quo and keep the link between the SSN and the CFEs via NASA

without pushing for the new legislation.214

However, with the tragic terrorist events of

September 11, 2001 (9/11), NASA‘s role as civil intermediary would hurriedly come to a

close.

As 9/11 unfolded and U.S. security measures were heightened, on September 12,

2001, several questionable users registered for access to satellite data through the OIG‘s

SSA data sharing website.215

Namely, from somewhere inside Afghanistan a new user

registered suspiciously as ‗newboy1‘.216

In 2006, it was later reported that the U.S.

military had ―recovered documents detailing the passage of spy satellites‖ from

Afghanistan caves which had been abandoned by al Qaeda.217

In the wake of 9/11, anything and everything which posed a potential threat to

United States national security was scrutinized, including NASA‘s lax satellite data

dissemination policies and oversight surrounding the OIG website and SSA sharing. At

this time, the SSN was tracking and publically cataloging around 10,000 space objects,

none of which were classified United States military or intelligence community assets.218

214

Ibid. 215

William Harwood, “Satellite watchers worried about Air Force restrictions”, CBS News "Space Place" online (2005) *Harwood, “Watchers worried”+. 216

Ibid. (Newboy1 was not publically elaborated upon by the US military or intelligence community, i.e., whether Newboy1 was an actual terrorist or simply an amateur astronomer.) 217

Patrick Radden Keefe, “I Spy”, Wired 14:2 (2006) *Keefe, “I Spy”+. 218

Harwood, “Watchers worried”, supra note 215. (The public U.S. catalog does however include foreign military assets.)

51

It was determined a revived review of the SSA data sharing program was once again in

order.

The review quickly culminated in August of 2002, resulting in draft legislation for

a 3-year CFE pilot program administered directly to CFEs by the DoD.219

NASA‘s role

as SSA data dissemination liaison was over. The legislation was added to the National

Defense Authorization Act for Fiscal Year 2004 at section 913, which amended Chapter

135 of Title 10 of the United States Code.220

During a presentation at the annual

Advanced Maui Optical and Space Surveillance Technologies Conference, Lieutenant

Colonel Charles Spillar and Major Mike Pirtle from Air Force Space Command,

described the CFE pilot program as follows:

The overarching goal of the CFE effort is to engage the U.S. on

the world stage to encourage international cooperation and

transparency with foreign nations and/or consortia on space

activities that are of mutual benefit. In other words, the U.S. will

provide space situational awareness (SSA) information to CFE

mission partners in order to protect manned spaceflight, prevent

on orbit collisions, and minimize the debris field surrounding the

Earth. It is in the best interests of all space-faring nations and

consortia to protect the assets they have on orbit; the CFE program is designed to provide U.S.-generated data to help

accomplish that goal.221

The new program would provide the same basic data dissemination which was

offered by NASA, as well as even more advanced product offerings and more meticulous

data sets under more specific bilateral agreements. The CFE Pilot Program only awaited

delegation of authority from the Secretary of Defense pursuant to 10 U.S.C. § 2274(a)

before being officially initiated. As originally enacted, 10 U.S.C. § 2274(i) read, ―…[t]he

pilot program under this section shall be conducted during the three-year period

219


NDAA 2004, supra note 207. 221

Spillar & Pirtle, “CFE Pilot Program”, supra note 205 at 1.

52

beginning on a date specified by the Secretary of Defense, which date shall be not later

than 180 days after the date of the enactment of this section.‖ (Emphasis added.) 222

Interestingly, subsection (a) read, ‖[t]he Secretary of Defense may carry out a pilot

program to determine the feasibility and desirability of providing to non-United States

Government entities space surveillance data support…‖ (Emphasis added). The program

was optional, but must be started within six months or else the opportunity was lost. In

any event, delegation of authority was quickly performed, and by the end of 2004,

AFSPC was paving the way for the Air Force‘s SSA sharing trial run.223

The 3-year period would have ended on May 21, 2007; therefore, Congress

amended the act to replace the above quoted subsection (i) with, ―may be conducted

through September 30, 2009.‖224

In 2008, Congress amended the law yet again to extend

the pilot program for an additional year.225

Meanwhile, in January of 2005, the Air Force implemented the ‗CFE Storefront'

which operates the DoD website at ‗www.space-track.org‘ and was to initially operate

alongside the NASA OIG‘s SSA data sharing website during the transitional hand-off

phase between the two programs.226

Unfortunately, the OIG‘s website suffered a

catastrophic malfunction only a few months into the transition phase, and in lieu of

repairing the site it was simply taken offline.227

The website, www.space-track.org was

222

Space Surveillance Network: pilot program for provision of satellite tracking support to entities outside United States Government, 10 USC § 2274 (2003) [10 USC § 2274 (2003)]. 223

Spillar & Pirtle, “CFE Pilot Program”, supra note 205. 224

Space situational awareness services and information: provision to non-United States Government entities, as amended, 10 USC § 2274 (2009) [10 USC § 2274]. (See amendments section.) 225

Ibid. 226

Spillar & Pirtle, “CFE Pilot Program”, supra note 205. 227

Ibid.

53

by then fully functioning anyway. This marked the military‘s initial sole-source

dissemination of basic United States SSA data to CFEs.

During the ensuing years and until 2009, the pilot program was refined and

reworked. The CFE Storefront was to ―field, process & track requests, package & deliver

products, establish contractual relationships with customers, develop[] new

tools/processes for DoD to better support CFE request, [and] work with DoD to develop

[a] long term plan.‖228

The Storefront was operated by Aerospace Corporation, a government contractor

in charge of the overall CFE Support Office.229

The initial plan called for providing basic

data for free via www.space-track.org and eventually through more detailed bilateral

agreements, providing technically advanced assistance for a fee, including:

Launch Support. Pre launch safety screenings and/or early

orbit determination

Conjunction Assessment (CA). CA determines the likelihood

of a conjunction between orbiting objects. This includes

screening for planned maneuvers

End-of-life support. Includes reentry support and planned

de-orbit operations

Anomaly resolution support. Includes altitude determination,

spacecraft configuration.230

In the interest of safety, the DoD also provides emergency support for potential

conjunction to all CFEs unconditionally by providing unsolicited emergency notifications

to anyone whose space assets is predicted to potentially collide with another object.

―Even if the requesting agency has no pre-existing agreement with AFSPC, AFSPC will

228

Dave Maloney, “Space Surveillance Support to Commercial and Foreign Entities (CFE) Pilot Program” at 9 *Maloney, “CFE Pilot Program .ppt”+. 229

Capt Angie Blair, Press Release, “Air Force Space Command Website Provides Worldwide Space Surveillance Support”, Story ID 05-001; See also, Aerospace online: http://www.aero.org/index.html. 230

Maloney, “CFE Pilot Program .ppt”, supra note 228 at 18-19.

54

assist that agency, if doing so will prevent on-orbit collisions or will otherwise enhance

the flight safety of on-orbit assets, including all manned spacecraft from any country.‖231

Early on, as of mid-2009, there were nine signed agreements with commercial

users for the more detailed conjunction analysis and launch support information.232

Today, there are more than 19 such agreements.233

Initially, there were over 39,000

registered accounts with the Space Track website from 110 different countries.234

This

number has grown exponentially today.

Space Track is the gateway to the DoD‘s unclassified ‗public catalog‘ mentioned

in the previous chapter and discussed in more detail below. Space Track users are privy

to only the basic orbital data comprised of two-line element sets. Currently, the site

boasts over 81,730,258 two-line element sets in the database.235

The User Agreement

provides the following warning:

WARNING!

TWO-LINE ELEMENT (TLE) SET IS THE MEAN

KEPLERIAN ORBITAL ELEMENT AT A GIVEN POINT IN

TIME FOR EACH SPACE OBJECT REPORTED. A TLE IS

GENERATED USING THE SIMPLIFIED GENERAL

PERTURBATIONS THEORY AND IS REASONABLY

ACCURATE FOR LONG PERIODS OF TIME. A TLE

AVAILABLE TO THE PUBLIC SHOULD NOT BE USED

FOR CONJUNCTION ASSESSMENT PREDICTION.

SATELLITE OPERATORS ARE DIRECTED TO CONTACT

THE JOINT SPACE OPERATIONS CENTER … FOR

ACCESS TO APPROPRIATE DATA AND ANALYSIS TO

SUPPORT OPERATIONAL SATELLITES.236

231


Taylor, “Debris Mitigation presentation”, supra note 208 at 10. (The DoD did not charge a fee for the advanced services.) 233

“Space Debris Threat Needs International Response, Military Official Says”, Space.com online (22 Mar 11). 234


Space Track: The Source for Space Surveillance Data,Website [Space Track Website]. 236

Space Track User Agreement, online [Space Track User Agreement].

55

Furthermore, users must also agree not to redistribute any data without prior express

permission, pay user fees, and hold the United States harmless for any legal issues arising

from the use of Space Track.237

Upon accessing Space Track by username and password, the user has access to

the TLE data as well as satellite decay and re-entry information, access to the Satellite

Catalog, searchable by launch date, decay date, common name, satellite designator

number, or users may simply view the satellite ‗box score‘ which provides satellite data

for each space faring country.238

As of April 2011, Space Track has cataloged over

38,000 objects.239

In order for an object to be publically cataloged, the owner must be

identifiable. For this reason, there are additional objects not found in the public catalog

but which are still being tracked for SSA. Once the owner (if ever) is identified, then the

object can be placed in the public catalog.

The CFE pilot program concluded in 2009, after the House Committee on Science

and Technology‘s Subcommittee on Space and Aeronautics finalized its hearings

surrounding SSA sharing wherein the SSA sharing law was overhauled.240

On December

22, 2009, the USAF‘s pilot program was transferred to USSTRATCOM as a fully

operational mission.241

The program was revamped and strengthened to include more

237

Ibid. Discussed in more detail below. So far the United States is not charging for access to the basic data. 238

Space Track Website, supra note 235. (Registration required for access.) 239

Ibid. This includes objects which have already decayed. As of April 2011, the SATCAT contains 16,070 objects currently in orbit. 240

“Committee Examines Ways to Make the Space Environment Safer for Civil and Commercial Users”, Space Ref online. 241

Duane Bird, “Sharing Space Situational Awareness Data”, 2010 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2010) at 1 *“Sharing SSA”+.

56

analysts, updated internal procedures and additional computational capabilities in order to

avoid another collision like the recent Iridium-Cosmos catastrophe.242

2. 10 U.S.C. § 2274: SSA Services & Information

On October 28, 2009, the most current amendment to 10 U.S.C. § 2274 officially

transitioned the SSA pilot program to a full-fledged operational SSA sharing, services

and information program. This section will review and comment on the amended law in

detail.243

242

Ibid. 243

10 USC § 2274, supra note 224. Reproduced infra: § 2274. Space situational awareness services and information: provision to non-United States Government entities (a) Authority. The Secretary of Defense may provide space situational awareness services and information to, and may obtain space situational awareness data and information from, non-United States Government entities in accordance with this section. Any such action may be taken only if the Secretary determines that such action is consistent with the national security interests of the United States. (b) Eligible Entities. The Secretary may provide services and information under subsection (a) to, and may obtain data and information under subsection (a) from, any non-United States Government entity, including any of the following: (1) A State. (2) A political subdivision of a State. (3) A United States commercial entity. (4) The government of a foreign country. (5) A foreign commercial entity. (c) Agreement. The Secretary may not provide space situational awareness services and information under subsection (a) to a non-United States Government entity unless that entity enters into an agreement with the Secretary under which the entity-- (1) agrees to pay an amount that may be charged by the Secretary under subsection (d); (2) agrees not to transfer any data or technical information received under the agreement, including the analysis of data, to any other entity without the express approval of the Secretary; and (3) agrees to any other terms and conditions considered necessary by the Secretary. (d) Charges. (1) As a condition of an agreement under subsection (c), the Secretary may (except as provided in paragraph (2)) require the non-United States Government entity entering into the agreement to pay to the Department of Defense such amounts as the Secretary determines appropriate to reimburse the Department for the costs to the Department of providing space situational awareness services or information under the agreement. (2) The Secretary may not require the government of a State, or of a political subdivision of a State, to pay any amount under paragraph (1).

57

This rather brief piece of legislation may prove to be the catalyst for much greater

cooperation and organization for outer space activities, not just SSA, but perhaps even

future space traffic management (STM). STM is the logical follow-on from SSA, as

without SSA it would be fundamentally impossible to control traffic and provide active

management, protocols and guidance over movements in outer space.

a. Legal Authority & Chain of Command: The Joint Space Operations Center

Many decades-old policies have been changed as a result

of rationally questioning why the policy originated. In

some cases, we have re-looked at security issues and

decided the risk of not sharing the data out-weighed the

risk of sharing it.244

NASA originally possessed the legal power to distribute SSA data to CFEs, but

the events surrounding September 11, 2001, and the ensuing CFE pilot program ended

(e) Crediting of funds received. (1) Funds received for the provision of space situational awareness services or information pursuant to an agreement under this section shall be credited, at the election of the Secretary, to the following: (A) The appropriation, fund, or account used in incurring the obligation. (B) An appropriate appropriation, fund, or account currently available for the purposes for which the expenditures were made. (2) Funds credited under paragraph (1) shall be merged with, and remain available for obligation with, the funds in the appropriation, fund, or account to which credited. (f) Procedures. The Secretary shall establish procedures by which the authority under this section shall be carried out. As part of those procedures, the Secretary may allow space situational awareness services or information to be provided through a contractor of the Department of Defense. (g) Immunity. The United States, any agencies and instrumentalities thereof, and any individuals, firms, corporations, and other persons acting for the United States, shall be immune from any suit in any court for any cause of action arising from the provision or receipt of space situational awareness services or information, whether or not provided in accordance with this section, or any related action or omission. (h) Notice of concerns of disclosure of information. If the Secretary determines that a commercial or foreign entity has declined or is reluctant to provide data or information to the Secretary in accordance with this section due to the concerns of such entity about the potential disclosure of such data or information, the Secretary shall, not later than 60 days after the Secretary makes that determination, provide notice to the congressional defense committees of the declination or reluctance of such entity.

244 Bird, “Sharing SSA”, supra note 241 at 5. (Major Duane Bird was speaking on behalf of USSTRATCOM.)

58

that authority. Today, 10 U.S.C. § 2274(a) explicitly delegates SSA sharing to the DoD.

The Secretary of Defense is authorized to administer a discretionary SSA sharing

program for providing data to CFEs. The law also allows the DoD to ‗obtain‘ SSA data

from CFEs, thus creating a two-way cooperative information sharing process.245

The Secretary of Defense must make a positive determination that the security of

the nation is not jeopardized by entering into each specific SSA data sharing

agreement.246

This threshold issue is necessary for every SSA data sharing agreement,

whether the data is provided automatically via Space Track‘s public catalog (which

requires extremely basic registration requirements) or a more detailed one-on-one

agreement providing more detailed special perturbation SSA data and analytical services.

National security interests are often defined as those interests that are vital to the

protection and safety of a State and its citizens including ―freedom from foreign

interference or influence—military, economic, or political—in domestic affairs.‖247

What is in the United States‘ national security interests is for the United States alone to

determine, as security can only be defined from the subjective standpoint of the State

itself.248

Effectively, sharing SSA data with a CFE who in turn may cause harm to the

United States must not be allowed. This was the concern with the registration of

Newboy1 from within Afghanistan shortly after the 9/11 terrorist attacks. Being a

subjective test, the potential interpretation of what exactly constitutes a national security

245

10 USC § 2274, supra note 224 at (a). 246

Ibid. 247

George Kurian, ed, ‘National Security Policy’, in The Encyclopedia of Political Science (Washington DC: CQ Press, 2011). 248

See, Robert J Art, ‘Security’ in The Oxford Companion to the Politics of the World, 2e, Joel Krieger, ed. (Oxford University Press Inc, 2001) Oxford Reference Online.

59

threat tends to change with the shifting political winds that blow through the national

capital.

Within the DoD, the Secretary of Defense delegated the SSA Sharing program to

U.S. Strategic Command located at Offutt Air Force Base, in Omaha, Nebraska.249

This

occurred on December 22, 2009.250

Upon receiving the new mission, General Kevin P.

Chilton, then Commander of USSTRATCOM, pronounced, ―[w]e will continue to work

closely with the commercial and foreign space communities to understand their evolving

needs and desires for space situational awareness information, and continue to grow out

cooperative relationships to share information in ways that will improve space flight

safety.‖251

STRATCOM offers two avenues for sharing SSA information, either the

basic Space Track services or through a more detailed signed agreement under 10 U.S.C.

§ 2274(c).

Amateur astronomers and scientists often make use of the basic data, while active

satellite owners and operators, such as Intelsat, tend to rely on the 2274-Agreement for

more precise data. While USSTRATCOM oversees the entire SSA operation and enters

into the agreements with non-United States entities, it has further delegated the day-to-

day operations to one of its subordinate units.

United States Strategic Command is one of the ten United States military unified

commands within the DoD and is responsible for three main missions: cyberspace

operations; global strike capabilities, including management of the nuclear arsenal; and

249

US Strategic Command, Press Release, “Commecial & Foreign Entities Pilot Program Transitions to U.S. Strategic Command” (Jan 4, 2010) *“CFE Program moves to USSTRATCOM”+. 250

Bird, “Sharing SSA”, supra note 241 at 1. 251

“CFE Program moves to USSTRATCOM”, supra note 249.

60

all space related operations.252

SSA data sharing falls within the third mission set and is

further delegated to the Joint Functional Component Command for Space (JFCC

SPACE), located at Vandenberg Air Force Base in southern California.253

JFCC SPACE

further sub-divides its space mission into three main areas: the Joint Space Operations

Center; The Joint Navigation Warfare Center, which handles the GPS constellation; and

the Missile Warning Center, which ―coordinates, plans, and executes world-wide missile,

nuclear detonation and space re-entry event detection to provide timely, accurate and

unambiguous strategic warning in support of the United States and Canada.‖254

Of the three main JFCC SPACE missions, the JSpOC oversees and manages the

day-to-day SSA operation as well as other space related missions. With the primary goal

of detecting, tracking and identifying all man-made space objects, the JSpOC‘s SSA

Operations Team operates 24 hours a day, seven days a week.255

The JSpOC has the

ability to task any sensor within the SSN to observe particular objects of interest or

specific areas of space. The data gathered allows the JSpOC team to ―maintain a current

computerized catalog of all Earth-orbiting man-made objects, charts preset positions,

plots future orbital paths, and forecasts times and general location for significant man-

made objects reentering the Earth‘s atmosphere.‖256

Aside from tracking space objects, the JSpOC is also capable of providing the

more advanced analytical features mentioned throughout this thesis. For instance, the

JSpOC routinely provides conjunction analysis and collision avoidance warnings for all

252

USSTRATCOM Webpage, Fact Sheet [USSTRATCOM Webpage]. 253

JFCC SPACE Webpage, Fact Sheet [JFCC SPACE Webpage]. 254

Ibid. 255


Ibid.

61

active satellites, including NASA‘s recently retired manned space shuttle and all

International Space Station operations.257

The JSpOC accomplishes this by creating a

―theoretical box around a high interest object (e.g. the Space Shuttle or satellite), and

projects the flight path several days in advance. If any of the catalogued objects

intersects this theoretical box, the JSpOC forwards the analysis to the‖ appropriate owner

or operator who decides whether a maneuver is necessary.258

It is important (for a

discussion on liability if nothing else) to point out that the JSpOC does not suggest or

recommend specific maneuver actions, but only provides the information needed for the

third party to make its own decision whether to maneuver or not.

The process for notifying CFEs is by Conjunction Summary Messages (CSMs),

which ―contain vector and covariance data computed using Special Perturbations

theory.‖259

This method provides extremely accurate and actionable SSA far beyond the

basic general perturbations (TLE) data available on Space Track. The JSpOC also tracks

and screens 6,000 additional, un-cataloged objects referred to as ‗analyst satellites.‘260

Analyst satellites include the aforementioned objects which cannot be traced back to their

Launching State or the responsible owner is not yet known.261

Analyst satellites also

include the portion of classified military and intelligence space assets which for national

security reasons are filtered out of the public version of the space objects catalog.262

Additionally, the DoD also may decide not to disclose foreign space assets whose

governments deem them classified, such as France who in 2007 threatened to disclose the

257

Ibid. 258

Ibid. 259


Ibid at 2. 261

Ibid. 262

Ibid.

62

location of 20 to 30 classified United States space objects, which France was tracking

with its GRAVES Radar, if the U.S. did not reciprocally remove positional data relating

to France‘s classified space assets from the U.S. public catalog.263

The U.S. subsequently

removed France‘s sensitive satellites from the public catalog.

Effectively, the DoD maintains only one catalog. The public catalog with the less

actionable GP data is simply a filtered version of the more robust classified catalog.

Also important is the ability to provide emergency CA notification to any and all

CFEs whether or not there is an agreement in place to do so, based on common ―space

flight safety‖ concerns.264

The U.S. military indicates, ―[a] close approach must be

within one kilometer and less than 200 meters radial miss distance in low Earth orbit or

within five kilometers in deep space to warrant contact with an owner-operator.‖265

If a

potential collision is sighted, then the JSpOC is authorized to contact the owner or

operator 72 hours prior to the ‗Time of Closest Approach.‘266

This 72-hour period is a

very short window for the CFE to digest the data received, decide if more information is

desired, and determine whether a maneuver is warranted. The JSpOC has the

owner/operator contact information for roughly 93 percent of all active satellites and will

‗cold-call‘ them if the situation is deemed an emergency.267

Major Duane Bird, speaking on behalf of USSTRATCOM, also notes that the 72-

hour warning time often shrinks because of the bureaucracy of international politics,

―[u]nfortunately, our Department of Defense, at the request of a handful of governments,

263

Peter B de Selding, “French Say 'Non' to U.S. Disclosure of Secret Satellites”, Space News online. 264


Tiffany Chow, SSA Sharing Program: SWF Issue Brief (Superior, Colorado: Secure World Foundation, 2010) at 5 [Chow, SSA Sharing Program]. (Citing, Amy Ianacone, "614 AOC/COD Conjunction Assessment" presentation.) 266

Bird, “Sharing SSA”, supra note 241. 267

Ibid.

63

is serving as a middle-man. Instead of [the JSpOC] sending these warnings directly to

the [owner/operator], they send it [up the DoD chain of command who then sends it] to

the US embassy in that country, who then forwards it to the host nations, who then passes

it on to the proper agency or organization.‖268

Currently, the two nations requiring this

method of contact happen to be the two most active space fairing nations in outer space

besides the United States—Russia and China.269

Should the JSpOC experience an event causing an inability to carry out its SSA

mission an alternate military facility, the 614th Air and Space Operations Center,

Detachment 1, located in the greater Washington D.C. area acts as a back-up and is in a

continual ready state to take over day-to-day operations if necessary.270

The SSA data sharing program is rapidly evolving and the DoD is providing more

and more data to varying non-United States Government entities. In this regard, there

have been recent talks of moving the JSpOC from solely a United States operation to a

combined coalition effort.271

Mr. Bill Lynn, Deputy Secretary of Defense, noted on

November 3, 2010, ―[t]urning our space operations center into a coalition enterprise, with

close allies working side-by-side with our own commanders, could bring levels of

cooperation to new heights.‖272

Furthermore, the Air Force Space Command High

Frontier Journal, reports that the Combined Space Operations Center (CSpOC) concept

268

Ibid. 269

Chow, SSA Sharing Program, supra note 265 at 5. 270

Naval Support Facility Dahlgren: 614th Air and Space Operations Center (AOC), Detachment 1 Fact Sheet (2010). 271

The “Joint” in JSpOC refers to the multi-service make-up of the military operation. The JSpOC involves representatives from the Air Force, Army and Navy. 272

Office of the Assistant Secretary of Defense (Public Affairs), Speech #1515, “Remarks on Space Policy at U.S. Strategic Command Space Symposium: As Delivered by Deputy Secretary of Defense William J. Lynn, III, Omaha, Nebraska, Wednesday, November 03, 2010” (3 Nov 2010) *“Bill Lynn, Speech”+.

64

has been exercised on multiple occasions and most recently during the ‗Schreiver

Wargame 2010‘ military exercise involving Australia, Canada and Great Britain.273

US Strategic Command has begun discussions with key coalition

partners to develop the way ahead for establishing a CSpOC.

These early discussions suggest the initial iteration of the

CSpOC will likely be based on virtual connections and data

sharing between coalition nations‘ space operations centers and

the US Joint Space Operations Center.274

Working together will enable greater SSA data sharing, analysis and preservation

of a safe outer space environment. The migration from a JSpOC to a CSpOC would be

one excellent step in alleviating the world‘s concern over reliance on the United States

military as the sole-source provider of actionable SSA data.

b. Eligible Entities

10 U.S.C. § 2274(b) describes those entities to which the Secretary of Defense

may provide services and information to, as well as receive data from.275

The JSpOC is

continually urging both foreign governments and commercial entities to participate.276

Fundamentally, any non-United States Government entity is eligible to participate if the

legal requirements are fulfilled and national security concerns are non-existent.

273

Lt Gen Larry D James, “Senior Leader Perspective: The Challenge of Integration, Lessons from Schriever Wargame 2010” (2010) 7:1 Air Force Space Command High Frontier Journal 9 at 9. (“The 2010 edition of Air Force Space Command’s Schriever Wargame (SW 10) explored the complex world of 2022 … a world comprised of peer space and cyberspace competitors; a world where reliance on coalition space and cyber capabilities would be key to warfighting success; and a world where space and cyberspace capabilities would be challenged both kinetically and non-kinetically in the air, sea, land, space, and cyber domains.”) 274

Ibid at 10. 275

10 USC § 2274, supra note 224 at (b). (“(b) Eligible Entities. The Secretary may provide services and information under subsection (a) to, and may obtain data and information under subsection (a) from, any non-United States Government entity, including any of the following: (1) A State. (2) A political subdivision of a State. (3) A United States commercial entity. (4) The government of a foreign country. (5) A foreign commercial entity.”) 276

See generally, Bird, “Sharing SSA”, supra note 241.

65

If the DoD shares SSA data with another United States government entity, the

inter-agency agreement would not fall within the purview of 10 U.S.C. § 2274. The DoD

routinely provides NASA with CA for the ISS and any other manned space flight

mission, as well as CA for any one of the myriad NASA scientific satellites. Other

United States Agencies operating satellites and requiring SSA data include the

Intelligence Community (i.e., the National Reconnaissance Office and the Central

Intelligence Agency), the National Oceanic and Atmospheric Agency and the United

States Geological Survey. The JSpOC also operates a United Sates government entity-

only web site called ‗Space Data Source‘ for accessing unclassified space data

information within the Federal government.277

Additionally, the emergency CA

situations which warrant the JSpOC to notify the owners or operators without request or

agreement whose satellite may be in danger are also not covered under 10 U.S.C. §

2274.278

Although the law expressly states ―any non-United States Government entity‖

(emphasis added), it goes on to list five specific categories of eligible entities: States,

political subdivisions of a States, United States commercial entities, the governments of

foreign countries, and foreign commercial entities.279

The two commercial entities

(foreign and domestic) are relatively straight forward. These entities makeup the global

space industrial base and include the likes of Boeing, Intelsat, Iridium, and United

Launch Alliance from the United States; as well as, Arianespace from France;

277

See generally, spacedatasource.org at https://www.spacedatasource.org/perl/login.pl. (Authorized U.S. government users must complete the STRATCOM Orbital Data Request form.) 278

Taylor, “Debris Mitigation presentation”, supra note 208 at 12. 279

10 USC § 2274, supra note 224.

66

MacDonald, Dettwiler and Associates from Canada; and Surrey from the United

Kingdom.

The complication arises when defining ‗entity.‘ The law includes States, their

political subdivisions, and foreign countries as eligible entities. Presumably, this was

done with respect to the geo-political climate which is constantly in flux. One could

make an argument that country ‗x‘ is not an ‗entity‘ as defined under this law and is

therefore ineligible to receive SSA data. However, by listing the potential eligible

entities, the intent of the law can be seen to include every imaginable form of non-United

States government entity. One question might arise in regard to individual scientists or

backyard sky-watchers not associated with an entity but requesting a 2274-agreement for

more refined data. Presumably they are not an eligible entity as the law stands, although

they can register for access to the Space Track website for the weaker TLE data.

Black‘s Law Dictionary defines an ‗entity‘ as, ―[a]n organization (such as a

business or a governmental unit) that has a legal identity apart from its members.‖280

It

goes on to include political subdivisions as a possible ‗public entity.‘281

‗Country‘ is

defined as ―[a] nation or political state [or] the territory of such a nation or state.‖282

Hence, the crux of the definition falls to whether or not the organization, structure or

body seeking SSA data must have the capacity to enter into legal agreements as required

under subsection (c) of the SSA sharing law.

Furthermore, the Convention on Rights and Duties of States adopted by the

Seventh International Conference of American States of 1933 (Montevideo Convention),

280

Bryan A Garner, ed, Black's Law Dictionary, 8th ed (St Paul: West Publishing Co, 2004) at 573. 281

Ibid. 282

Ibid at 377.

67

Article 1 reads, ―[t]he state as a person of international law should possess the following

qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d)

capacity to enter into relations with the other states.‖283

Therefore, any non-commercial

governmental entity which does not possess all four of these elements would fall within

Category 4 as a foreign country or even outside of one of the enumerated categories since

they are merely representative and not wholly inclusive of ‗non-United States

government entity‘ under the SSA sharing law. For example, according to the United

States Department of State (DoS) webpage entitled ―Independent States in the World,‖

Taiwan is not listed.284

Per the accompanying note with respect to China being listed as

an independent State, the DoS remarks, ―[w]ith the establishment of diplomatic relations

with China on January 1, 1979, the US Government recognized the People's Republic of

China as the sole legal government of China and acknowledged the Chinese position that

there is only one China and that Taiwan is part of China.‖285

Taiwan, a space-faring

nation, typically does not meet this definition of a state, but could still garner recognition

as an eligible entity by the United States government as a foreign country or a political

subdivision of China.286

In summary, this law is meant to include as many space faring entities as possible

in order to maintain the safest outer space environment imaginable.

283

Convention on Rights and Duties of States adopted by the Seventh International Conference of American States (Montevideo Convention), 26 Dec 1933, Vol CLXV LNTS 3802, 49 Stat 3097, Treaty Series 881. 284

Independent States in the World, online: Dept of State webpage <http://www.state.gov/s/inr/rls/4250.htm>. 285

Ibid. 286

Taiwan owns and/or operates numerous satellites including Formosat I and II.

68

c. § 2274-Agreements

In accordance with 10 U.S.C. § 2274(c), there must be an agreement between the

United States Government and the CFE prior to any exchange of data.287

This currently

occurs in one of two ways, either by: (a) simply accessing Space Track online and

completing the user agreement or (b) via the more detailed written bilateral contract.

Either way the entity must agree: (1) to reimburse the costs, if any, associated with

sharing the SSA data, (2) not to transfer any of the shared information to a third party

without express permission288

, and (3) all other appropriate terms and conditions (the

obligatory catch-all).289

The government is not yet charging fees for reimbursement of

SSA services provided.290

With respect to subsection (c)(2), there was some concern by commercial satellite

owners and operators that the data provided to the JSpOC could possibly ―reveal

proprietary ‗trade secrets‘ that could give competitive advantage‖ to others.291

Purportedly, subsection (c)(2) will address and protect this concern. The legislative

history also discloses discussion concerning this issue and its relationship to the Freedom

of Information Act (FOIA). The FOIA entitles anyone interested in publically held

information the right to obtain United States government records in whole or in part so

287

10 USC § 2274, supra note 224 at (c). “(c) Agreement. The Secretary may not provide space situational awareness services and information under subsection (a) to a non-United States Government entity unless that entity enters into an agreement with the Secretary under which the entity—“ 288

This restriction was not seen in the earlier SSA sharing rules and could be hard to enforce or lead to more restrictive requirements if it is actually found too hard to enforce. 289

10 USC § 2274, supra note 224 at (c)1-3. “(1) agrees to pay an amount that may be charged by the Secretary under subsection (d); (2) agrees not to transfer any data or technical information received under the agreement, including the analysis of data, to any other entity without the express approval of the Secretary; and (3) agrees to any other terms and conditions considered necessary by the Secretary.” 290

Bird, “Sharing SSA”, supra note 241 at 1. Charging for this service may be a valid concern should the costs of maintaining SSA skyrocket with the anticipated number of smaller objects which will soon be trackable increases. 291

Chow, SSA Sharing Program, supra note 265 at 8.

69

long as they are not exempted from disclosure under the law.292

How would these trade

secrets be protected should a concerned citizen submit a FOIA request asking for

government disclosure of public documents encompassing any and all information

surrounding the SSA sharing program? These records would have to be released unless

one of the nine enumerated FOIA exemptions apply, which limit by law what must be

released. Of the nine listed exemptions there are only two applicable to this situation,

generally, national security related information and confidential trade secrets.293

During drafting of the SSA sharing law, it appeared there was a push for adding a

specific FOIA exemption within 10 U.S.C. § 2274, but it was ultimately determined that

the current exemptions under FOIA would suffice. Specifically, House Report 111-288

discloses that ―[t]he [Senate] provision included an exemption from the [FOIA] to

exclude from disclosure any data or analysis provided pursuant to a space situational

awareness (SSA) agreement, as well as the SSA agreement itself. The House bill

contained a similar provision (sec. 912). The House recedes with an amendment that

would delete the exemption from the FOIA.‖ 294

The House of Representatives found:

The commercial and foreign entities, including satellite owners

and operators, are under no obligation to provide any data to the

DOD under SSA agreements. Not only would the information be

voluntarily provided, but in many instances, the SSA data or

information could be proprietary, business sensitive, or trade

secrets. In evaluating whether an agency may protect certain

kinds of financial or commercial information from public release

under the FOIA, the courts have looked at whether the

information was provided to the government voluntarily or under

compulsion. The conferees believe that the current exemptions in

law pertaining to the FOIA are adequate to protect the SSA data

292

See generally, Freedom of Information Act, as amended, Pub L No 89-554, 80 Stat 383 (1966) [FOIA]. 293

Ibid. See Exemptions (b)(1) and (b)(4). 294

US, HR Rep 111-288, National Defense Authorization Act for Fiscal Year 2010 Conference Report, 111th Cong, 2009 (Conference Report to Accompany HR 2647) at 792.

70

and information, related analysis, and the agreements under

which the data and information are provided from disclosure.295

Had an express FOIA exclusion made its way into the final SSA sharing law, then

FOIA Exemption (b)(3) would have clearly applied, as it exempts information

―specifically exempted from disclosure by statute.‖296

As it stands, FOIA Exemption

(b)(4), which protects "trade secrets and commercial or financial information obtained

from a person that is privileged or confidential" may apply, or Exemption (b)(1), which

prevents disclosure of national security information (basically, classified information)

concerning the national defense or foreign policy.297

Upon accessing Space Track, the new user is required to complete the online

registration form and agree to the terms of use. The terms include (1) and (2) set out

above as well as notifying all entities that there are currently no charges being charged

for SSA data.298

The only condition falling within the catch-all provision is an agreement

―not to share, assign or transfer his or her username or password to another.‖299

Users

must also agree to hold the United States Government harmless and to acknowledge the

government has immunity provided by 10 U.S.C. § 2274(g).300

Users must agree that: (a)

United States Federal law governs, (b) unilateral termination is authorized, and (c)

written SSA sharing agreements (2274-Agreements or individual Orbital Data Requests)

prevail over any of the terms applicable to initiating a basic Space Track account.301

295

Ibid at 793. 296

FOIA, supra note 292 at (b)(3). 297

Ibid at (b)(4) and (b)(1). 298

Space Track User's Agreement, supra note 236. 299

Ibid. 300

Ibid. (Immunity is discussed in more detail below). 301

Ibid.

71

Approved Space Track users are able to access the GP data and the Satellite

Catalog free of charge. Space Track users may also request CA and launch support

services by contacting USSTRATCOM directly and entering into a more detailed, per

occurrence written agreement (the so-called Orbital Data Request). The USSTRATCOM

point of contact is located within its Plans and Policy Directorate (J5).302

Written bilateral agreements between the U.S. and commercial entities are entered

into more easily than non-commercial, non-United States governmental entities, mainly

due to the bureaucracy involved when negotiating on an international government-to-

government plane which necessitates the involvement of the Department of State (DoS).

The J5 Directorate only has the legal authority to directly enter into agreements with

commercial entities.303

―The services [the JSpOC] can provide include conjunction

assessment and launch support, both tracking and launch CA, but also anomaly

resolution, re-entry or de-orbit support, disposal/end-of-life support and electromagnetic

interference resolution.‖304

Inter-governmental agreements involve the detailed DoS‘s review process,

commonly referred to as the ‗Circular 175 procedure.‘305

This review ensures the legality

of all international agreements and treaties and that they are entered into in accordance

with international law and the U.S. Constitution. It is clear 2274-Agreements do not rise

to the level of an international treaty (requiring Senate approval) so far as the United

302

Space Track Website, supra note 235. (‘J’ standing for ‘Joint’ since USSTRATCOM is a unified military command comprised of personnel from all services of the DoD. The Air Force, Navy, Marine Corps, and Army comprise the ‘services’.) 303


Ibid. 305

“United States Department of State Circular No. 175” (1956) 50 Am J Int'l L 784. (This journal reproduces the Circular in full. Circular No. 175 was issued on December 13, 1955. Current procedures are found at 22 CFR 181.4 and 11 FAM 720.)

72

States is concerned. The true question concerns the ‗other international agreements‘

rhetoric. The DoS states:

Specifically, the Circular 175 procedure seeks to confirm that the

making of treaties and other international agreements by the

United States is carried out within constitutional and other legal

limitations, with due consideration of the agreement's foreign

policy implications, and with appropriate involvement by the

State Department.

…

The more typical Circular 175 request is an action memorandum

from a bureau or office in the State Department to a Department

official at the Assistant Secretary level or above, seeking

authority to negotiate, conclude, amend, extend, or terminate an

international agreement. A ―blanket‖ Circular 175 authorization

may be appropriate where a series of agreements of the same

general type are to be negotiated according to a more or less

standard formula.

…

The Circular 175 procedure does not apply to documents that are

not binding under international law. Thus, statements of intent or

documents of a political nature not intended to be legally binding

are not covered by the Circular 175 procedure. The

determination whether a document is or is not an "international

agreement" must be made by the Office of the Legal Adviser at

the State Department.306

Regardless of whether the DoD determines a 2274-Agreement rises to the level of

an international agreement is for the DoS Legal Advisor to decide. This author believes

such SSA data sharing agreements are in fact international agreements, thus falling

within the purview of the Circular 175 process as well as being bound under international

law.307

An agreement between two sovereign entities fundamentally involves

306

US Department of State, Circular 175 Procedure, online: DoS <http://www.state.gov/s/l/treaty/c175/index.htm>. (The Circular 175 process covers both types of international agreements, treaties and executive agreements. This thesis is not concerned with ‘treaties’ per se, requiring advice and consent of the U.S. Senate, as they are not applicable to SSA data sharing agreements.) 307

See generally, Marian Nash, “Contemporary Practice of the United States Relating to International Law” (1994) 88 Am J Int'l L 515 at 515-19. (Entails a discussion on international acts not constituting agreements.)

73

international law. The International Court of Justice (ICJ) in the Case Concerning

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), found no hard and

fast rule governing the form required for an international agreement.308

A 2274-

Agreement, in written form between two States, would be an international agreement.309

Hopefully, as data sharing becomes more commonplace, the DoS will be able to

approve a blanket authorization enabling USSTRATCOM to enter into SSA sharing

agreements more expeditiously. The DoD defines an ‗international agreement‘ as:

E2.1.1.1. Any agreement concluded with one or more foreign

governments (including their agencies, instrumentalities, or

political subdivisions) or with an international organization, that:

E2.1.1.1.1. Is signed or agreed to by personnel of any

DoD Component, or by representatives of the DoS or

any other Department or Agency of the U.S.

Government;

E2.1.1.1.2. Signifies the intention of its parties to be

bound in international law.

E2.1.1.1.3. Is denominated as an international agreement

or as a memorandum of understanding, memorandum of

agreement, memorandum of arrangements, exchange of

notes, exchange of letters, technical arrangement,

protocol, note verbal, aide memoire, agreed minute,

contract, arrangement, statement of intent, letter of

intent, statement of understanding or any other name

connoting a similar legal consequence. …310

To date, only three ‗potential‘ international agreements have been accomplished.

The first, with Australia, was penned on October 27, 2010.311

Although, this joint

announcement more than likely is not the actual SSA data sharing agreement 308

Case Concerning Maritime Delimitation and Territorial Questions (Qatar v Bahrain), [1994] ICJ Rep 112 at 120-22. 309

See generally, Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331. 310

DoD Directive 5530.3—International Agreements, incorporating, Change 1, 18 Feb 1991, ed, 1987) at Enclosure 2. 311

Joint Announcement by the United States of America and Australia on Bilateral Cooperation in the Civil Use of GPS and Civil Space Activities, United States & Australia, 27 Oct 10 [Obtained from DoS].

74

contemplated under 10 U.S.C. § 2274 (and more of a political statement), it does

pronounce that ―this cooperative framework will identify mechanisms to support

monitoring and managing the space environment, including reducing the threat of

satellite collisions and space debris.‖312 It is believed that through this agreement the

United States will try to build a second ‗Space Fence‘ S-band radar in Australia, greatly

expanding the overall geographical coverage of SSA in LEO and beyond.313

More recently, as reported on February 8, 2011, the United States and France

signed a more specific SSA data sharing agreement and it is also reported that the United

States and Canada are finalizing an SSA agreement as well.314

It is interesting that the

agreement between the United States and France was signed at a very high level (by the

respective Defense Secretaries) and not by USSTRATCOM/J5 personnel or the

USSTRATCOM Commander, adding greater weight to the agreement. USSTRATCOM

has indicated it is seeking authorization to enter into international agreements directly and

has stated, ―[w]e hope to be given the authority to sign agreements and start sharing data

with other governments as well, but the process to get that authority from our government

has not been completed yet.‖315

Such a high level of involvement—that of the DoS with

its Circular 175 review, the signatory authority higher than desired, and the valid national

security concerns—would tend to add to the weight of such international agreements as

binding under international law. This coupled with STRATCOM‘s endeavor to enter into

all future government-to-government SSA sharing agreements would further lead to the

312

Ibid. 313


Dan De Luce, “US, France agree to share space data”, Google News online (8 Feb 11); See also, ed. Yan, “U.S., France sign space agreement”, Xinhua News, English News online (8 Feb 11). 315

Bird, “Sharing SSA”, supra note 241 at 5.

75

conclusion that these are indeed more than mere political statements, but are instead

operational, quasi-contractual instruments.

d. User Fees & Charges

Section 2274(d) discusses the possibility of charging user fees to cover

reimbursement for the costs incurred by the DoD for associated SSA sharing operations.

The law expressly requires the entity to agree to such charges as a condition precedent to

receiving SSA data and services.316

The applicability of fees however, does not apply to

2274-Agreements between the United States and another State or one of its political

subdivisions.317

As discussed previously, the original SSA sharing regime was

potentially violating U.S. fiscal law because no express authority existed for the DoD to

expend taxpayer funds for the benefit of foreign entities and SSA sharing.

Current funding for SSA sharing comes from primarily two sources, the Air Force

Research, Development, Test and Evaluation budget and USSTRATCOM‘s budget.318

Currently, the United States does not charge user fees for SSA sharing.319

One can only

imagine the monetary resources needed to fund the operation as the technology develops

316

10 USC § 2274, supra note 224 at (d). “(d) Charges. (1) As a condition of an agreement under subsection (c), the Secretary may (except as provided in paragraph (2)) require the non-United States Government entity entering into the agreement to pay to the Department of Defense such amounts as the Secretary determines appropriate to reimburse the Department for the costs to the Department of providing space situational awareness services or information under the agreement. (2) The Secretary may not require the government of a State, or of a political subdivision of a State, to pay any amount under paragraph (1).” 317

Ibid at (d)(2). 318

Chow, SSA Sharing Program, supra note 265 at 3. (“Collection of the SSA data made available through the SSA Sharing Program is funded primarily through [the RTDE budget], while the actual maintenance of Space Track and support for the program’s partnerships and other logistics are financed through both the AFSPC’s and JSpOC’s budgets.”) 319

Bird, “Sharing SSA”, supra note 241 at 1. (“It’s not right to charge satellite owner/operators * + for data that will enable them to keep their satellite from breaking into hundreds or thousands of pieces; further polluting the final frontier.”)

76

to track and catalog more and more objects. ―From FY 2010 to FY 2011, the requested

SSA budget increased 70 percent to roughly $900 million.‖320

With the current global,

and more pointedly the U.S., budgetary woes the need for an international solution may

become clearer in the near future. As an example of the manpower and effort expended,

the JSpOC conducts re-entry assessments around the clock and the typical re-entry

assessment goes something like this:

When an object is appears to be re-entering within seven days,

orbital analysts in the JSpOC will increase sensor tasking

(monitoring) and begin to project a refined re-entry time and

location. At the four-day point, a monitor run is accomplished

three times a day. Messages indicating the calculated re-entry

time and location are transmitted to forward users and customers

at the four-, three-, two- and one-day points. Starting at the 24-

hour point, the object is monitored at the highest level of

scrutiny, with processing at the 12, six, and two-hour points.

Again, ground traces and messages are transmitted. The object

is monitored through re-entry.321

The JSpOC runs this operation for every object that begins to decay and prepares for re-

entry into the Earth‘s atmosphere.

Other reasons postulated for why it might prove undesirable for the United States

to initiate user fees is that it might create a disincentive for users to cooperate.

They may prefer to use an alternative source of SSA information

instead. Since SSA sharing Program partners provide data on

their space assets to the United States as part of the agreement,

their defection from the program could harm the quantity and

quality of data available to the United States.322

Although this statement has some merit in regard to cooperating satellites vis-à-vis non-

cooperative space objects, this author doubts ‗defection‘ would prevail should the United

States initiate cost reimbursement. What might happen should the U.S. take this

320

Chow, SSA Sharing Program, supra note 265 at 3. 321

Space Control Fact Sheet, supra note 8 at 2. 322

Chow, SSA Sharing Program, supra note 265 at 8.

77

approach is a demand by users for the United States to undertake some form of liability

or guarantee which is currently avoided under domestic U.S. law.323

This argument can

best be surveyed by comparing SSA sharing to the provision of free GPS signals by the

U.S. to the world over.

Currently, GPS is provided free of charge. Furthermore, it is legislatively

forbidden to ever charge for its use in the future.324

The United States government has

asserted its position in disfavor of an international liability regime for GPS service in

favor of domestic law claims. In so doing, it often cites to the fact that it does not charge

direct user fees. The same rationale could also be applied to SSA sharing. Since the

United States does not charge user fees it should not incur liability for SSA services.

Even if this argument is faulty from a tortious legal review (versus one based on

contractual law), the U.S. has taken an additional step not seen within the legislation

covering GPS services by expressly asserting its sovereign immunity for all actions and

inactions associated in any way whatsoever with SSA data sharing and the chain of

events that often follows.325

10 U.S.C. § 2274(e) further details how the funds received should be deposited

within U.S. coffers.326

Basically, they are not to be placed into the general treasury, but

are to be made available for specific SSA sharing expenditures. This author believes,

short of instituting an international cooperative organization for SSA sharing, a rational,

323

See, 10 USC § 2274(g) discussed below. 324

Global Positioning System, 10 USC § 2281 (2010) at (b). 325

10 USC § 2274, supra note 224 at (g). See, subsection (g) discussed below. 326

Ibid at (e).

78

minimal cost reimbursement scheme is warranted under the current fiscal constraints

facing the United States government agencies and the military.

e. Immunity

The SSA sharing law provides blanket immunity for any and all ―SSA services‖

of the United States government, its actors and contractors ―from any suit in any court for

any cause of action….‖327

Interestingly, this provision of immunity was not present in

the original SSA sharing law covering the initial pilot program phase from 2004 through

2010. Although ‗SSA services‘ are not explained, the tone of the provision suggests an

all-encompassing definition to include those services offered through Space Track and

the advanced services such as conjunction analysis, launch support and re-entry support.

The failure on behalf of the U.S. to provide SSA information to avert disaster is also

covered as any related ―omission.‖328

Had this subsection not been added to the law, the United States could have

potentially been held liable under domestic law, such as the Federal Tort Claims Act

(FTCA), wherein the U.S. has waived its sovereign immunity for, among other things, its

negligent, non-discretionary acts. Generally, the United States can be held liable:

for injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any employee of

the government while acting within the scope of his office or

employment, under circumstances where the United States, if a

327

Ibid at (g). “(g) Immunity. The United States, any agencies and instrumentalities thereof, and any individuals, firms, corporations, and other persons acting for the United States, shall be immune from any suit in any court for any cause of action arising from the provision or receipt of space situational awareness services or information, whether or not provided in accordance with this section, or any related action or omission.” 328

Ibid.

79

private person would be liable to the claimant in accordance with

the law of the place where the act or omission occurred.329

Specifically, and most applicable to SSA sharing, there is an exception to this limited

waiver of sovereign immunity in that the United States does not accept liability for

negligent acts which are ―based upon the exercise or performance or the failure to

exercise or perform a discretionary function.‖330

Unfortunately, the FTCA does not

define discretionary acts and leaves it for the courts to decipher. For this reason, this

author finds it was a prudent move on behalf of the U.S. legislators to include an express

immunity provision within the SSA sharing law immunizing even those negligent acts

which might be found as non-discretionary and thus exposing the United States under the

FTCA.

Outer space is perhaps the most dangerous and difficult medium in which

humanity operates, and holding operators liable for their negligent acts may stifle the

information sharing process. However, it should be noted that, as written, the immunity

offered could encompass even intentional torts and criminal acts, something that perhaps

is a little too protective.331

Another aspect of the SSA sharing law immunity provision is its relationship with

international law, such as the Liability Convention. Per the United States Constitution,

Article IV, paragraph 2, known colloquially as the supremacy clause, "all treaties made,

or which shall be made, under the authority of the United States, shall be the supreme law

of the land; and the judges in every state shall be bound thereby. . . ."332

Consequently,

329

Federal Tort Claims Act, as amended, 28 USC § 1346(b) et seq [FTCA]. 330

Ibid at § 2680(a). 331

The FTCA also excludes certain intentional torts from sovereign immunity. 332

US Constitution, Art IV, para 2.

80

international treaties are the supreme law within the United States and trump any

domestic legislation which may conflict. This being the case, the immunity provided

under this law may only apply within the domestic legal realm and liability might still be

found at the international level should another State seek U.S. liability for damage

associated with SSA data sharing activities.

The Treaty on Principles Governing the Activities of States in the Exploration and

Use of Outer Space, Including the Moon and Other Celestial Bodies (OST), Article VI(1),

to which the U.S. is a party, asserts that ―State Parties to the treaty shall bear international

responsibility for national activities in outer space … whether carried on by governmental

agencies or by non-governmental entities… .‖333

SSA activities within the U.S. are

clearly national because they are within the purview of the Department of Defense.334

OST, Art. VI(1) ensures the U.S. is primarily (as opposed to vicariously) liable for its

actions surrounding its SSA activities. Additionally, the U.S. could be vicariously liable

for the acts of its agents and contractors performing SSA-related duties on its behalf

should something go awry on an international level.

Attributing responsibility is another issue altogether especially for activities in

outer space and to date there have been no cases before the ICJ or otherwise directly

333

Outer Space Treaty, supra note 13. 334

What about Intelsat or another commercial entity located within the United States and providing SSA data via the Space Data Association? This was one reason the SDA decided to incorporate in the Isle of Man versus the U.S. If Intelsat conducted a maneuver to avoid collision with a third-party, but caused a collision instead, then Intelsat would be liable, but so to would the U.S. under the Outer Space Treaty and Liability Convention for its ‘national activities’.

81

related to State responsibility in outer space. One comparable area of international law

which could, by analogy, be applied to outer space arises from the maritime field.335

The Liability Convention provides a liability regime for damage caused by outer

space objects. The Liability Convention aims at expanding and detailing Articles VI and

VII of the OST.336

The Liability Convention is only applicable in situations where the

launching State(s) and the State suffering damages are parties to the treaty. Including the

United States, there are over 100 parties to the treaty.337

The convention defines the

‗Launching State‘ to include State parties which launch or pay for the launch of a space

object and also includes those States whose territories or facilities are involved.338

Which legal entities under this convention would be held liable to compensate for

damage caused to another legal entity in the context of SSA data sharing activities?

What happens if the JSpOC provides erroneous data which is subsequently relied upon

for maneuver and the maneuver causes a collision with a third-party‘s space object? The

Liability Convention, Article III, provides launching State liability for ―damage caused

elsewhere than on the surface of the earth to a space object…only if the damage is due to

its fault‖ or the fault of those it is responsible for.339

This is not absolute liability; rather

it is fault-based, akin to negligence. Since only the launching State(s) may be held liable

under this convention, it may prove difficult to hold the United States liable for erroneous

SSA data if the U.S. is not one of the launching States. If the U.S. happens to also be a

335

See generally, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania), (1949) ICJ Rep 4. (Holding Albania liable for activities within its territorial waters); But see, Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), (2003) ICJ Rep 161. 336

Outer Space Treaty, supra note 13. 337

This includes ratifications, signatories and successions; 195 total. See, UNOOSA’s webpage: <http://www.oosa.unvienna.org/oosatdb/showTreatySignatures.do>. 338

Liability Convention, supra note 14 at Art I(c). 339

Ibid at Art III.

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launching State for the space object involved in a collision that also involved SSA data

sharing and maneuver, then Art. III may apply. However, the difficulty which arises with

Art. III is a practical one, in that the ability to actually prove damages due to fault is

difficult when operating in outer space.

Much like the U.S. position with respect to provision of free GPS signals where

the U.S. often points out that no other State is obligated to use the signal and therefore the

U.S. does not accept responsibility for any damage arising from the use of the GPS

signals, the U.S. would however recognize responsibility for physical damage caused by

one of its GPS satellites in outer space to another State‘s space asset in accordance with

the Liability Convention, Art. III, or for damages in the atmosphere or on the ground

under Art. II. The U.S. view on GPS liability is contrary to the prevailing view among

the world community who would hold the U.S. liable for any damage arising from faulty

GPS signals, not just physical impacts in space.340

It is this author‘s opinion that should

the scenario arises where faulty SSA data were provided by the U.S. that the U.S. would

take the same position it does with respect to GPS signals. If an SSA satellite, of which

there are very few, were to cause damage to another space object in outer space or

damage on Earth, then the U.S. would accept responsibility under the Liability

Convention.

It would be judicious for the United States to include a cross liability waiver in its

2274-Agreements. This is expressly authorized within the Liability Convention in

accordance with Article XXIII which allows States to conclude ―international agreements

340

Jiefang Huang, “Development of the Longer-Term Legal Framework for the Global Navigation Satellite System” (1997) 22 Ann Air & Sp L 585.

83

reaffirming, supplementing or extending its provisions.‖341

The chief example of the

actual application of Article XXIII can be seen within the International Space Station

Intergovernmental Agreement of 1998 (ISS IGA). Article XVI of the ISS IGA sets forth

the conditions for agreed upon waivers of liability for ‗protected space operations‘ and

subsection (c) explicitly addresses the Liability Convention: ―[f]or avoidance of doubt,

this cross-waiver of liability includes a cross-waiver of liability arising from the Liability

Convention where the person, entity, or property causing the damage is involved in

Protected Space Operations and the person, entity, or property damaged is damaged by

virtue of its involvement in Protected Space Operations.‖342

In essence, the ISS IGA members have contracted away their right to seek

remedies under the Liability Convention between and among partners for certain

happenstances. This provision would not apply to third party, non-partner states such as

a collision between the ISS and a satellite owned by China or India. In such a case the

ISS IGA members would be joint and severally liable.343

The same would hold true between two contracting parties to a 2274-Agreement.

If a satellite collides with another satellite whose owner is not a party to the agreement,

then third-party liability may arise. For this reason the United States may also seek some

form of indemnity from the entity to which it is providing SSA data for maneuvers if said

maneuvers subsequently cause damage to a third party.344

Although the U.S. might be

341

Liability Convention, supra note 14 at Art XXIII(2). 342

Agreement Among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station (ISS Intergovernmental Agreement) at 16. (Obtained from NASA’s website.) 343

Liability Convention, supra note 14 at Art IV. 344

Ibid at V.

84

liable under international law, it may nevertheless seek contractual reimbursement from

its SSA sharing partner involved in the conjunction.

3. Summary

In conclusion, this chapter has attempted to highlight particular issues

surrounding the United States SSA sharing law. 10 U.S.C. § 2274 is a concerted effort to

share with as many willing CFEs as possible, to produce the safest operating environment

allowable under current geo-political conditions. Absent national security concerns all

space faring entities can partake. The agreements required for SSA sharing to commence

are facially simplistic, but raise several issues, including what level of agreement under

international law and politics they amount to, protection of the data and information

transferred as well as potential liabilities which may arise. As the future of the crowded

outer space environment unfolds and the technological innovations increase, these

questions will be definitively answered.

The next part of this thesis introduces the non-United States space actors active in

SSA data collection and sharing as well as potential models for combining the world‘s

SSA assets into one streamlined entity to observe, analyze and distribute SSA

information. The United States is heading in a positive direction for international

cooperation in all matters, especially outer space as seen by the varying official

statements outline above. This is further evidenced by considering President George W.

Bush‘s 2006 national space policy which addressed SSA in a much different light than

the current policy under President Obama. President Bush‘s space policy coldly focused

on the responsibilities of the Secretary of Defense and placed complete responsibility for

SSA therein. The Bush space policy stated:

85

In this capacity, the Secretary of Defense shall support the space

situational awareness requirements of the Director of National

Intelligence and conduct space situational awareness for: the

United States Government; U.S. commercial space capabilities

and operations, particularly human space flight activities and, as

appropriate, commercial and foreign entities.345

Compare President Bush‘s policy from 2006, with President Obama‘s 2010 space policy

and it is clear there is a shift away from President Bush‘s one-way, non-cooperative

process to more bilateral cooperative undertakings.

Even from within the DoD, there are many calling for more international

cooperation. For instance, representatives from within USSTRATCOM consistently

meet with industry and State officials often stressing that ―USSTRATCOM and AFSPC

fervently hope to team with commercial and international consortia to build upon their

current efforts, ultimately leading to an era of unprecedented international cooperation to

keep space safe for manned spaceflight, satellite operations, and scientific research.‖346

345

White House, U.S. National Space Policy, Fact Sheet from the Office of Science and Technology Policy (Washington DC: 2006)(President: George W Bush) at 4. 346

Spillar & Pirtle, “CFE Pilot Program”, supra note 205 at 1 & 3.

86

IV. Global Outer Space SSA Actors &

International Governance Structures

We know now that it is always easier not to cooperate, but

that it is always more difficult to succeed alone.347

- ESA Director-General

Today, States, private entities, universities, and individuals possess space

surveillance capabilities and are actively employing them for national interests, corporate

responsibility and science. Unfortunately, all of the non-United States entities combined

do not have the same situational awareness of space as the United States has alone. With

the near global coverage, manpower, and analytical knowhow, the U.S. is clearly in the

forefront.

However, viewed individually no system is perfect, not even the United States,

but combined they could create a truly global and highly accurate satellite catalog. A

global cooperative governance structure could make the maintenance and update of

sensors more transparent and economical as costs can be distributed among the

participants.348

As well as maintain awareness of the growing space debris issue. Today,

the system maintenance requirements are increasing quickly since most sensors were

brought online during the Cold War and are nearing the end of their useful life unless

costly refurbishments are undertaken. New sensors are coming on line and more data is

being collected which will only result in even more expenditures—both human capital

and monetary for the additional analysis required. ―Cost motivations are the most

347

James D Rendleman & J Walter Faulconer, “Improving International Space Cooperation: Considerations for the USA” (2010) 26 Space Pol’y 143 at 144 [Rendleman & Faulconer, “Improving Cooperation”+. 348


87

important rationale given for cooperation…[and] offers the opportunity to improve the

efficacy of the expenditures.‖349

The United States could team with other entities in forming an international

framework for direct SSA sharing if only certain obstacles are overcome. If the world‘s

political will and global interest succeed the global SSA players will be able to synergize

their efforts and the resultant product can exceed what one country, even the U.S., might

achieve on its own.

This section will look at the non-U.S. actors and international organizations active

in the SSA field. Russia, China, Japan, Canada and several countries within Europe are

involved as well as several international organizations, such as ISON, ESA and SDA.

The aim will be to offer sound references for a central clearing house aimed at the

collection and dissemination of SSA data, including space weather, orbital data, and

direct satellite owner and operator contact information. Members of such an organization

would be able to share their data and have access to all other member‘s pooled SSA data

to analyze and utilize for peaceful purposes. Such a data center could also provide

analytical skills to members lacking the knowledge and wherewithal to decipher SSA

data related to the direct safety of their satellites.350

Mr. Bill Lynn, the Deputy Secretary of Defense, recently emphasized that there

are 60 nations operating in some form or another in outer space.351

However, only a

handful have SSA capabilities. As micro and nano-satellites become commonplace and

the cost to access space declines, more and more nations will make use of space for far

349

Rendleman & Faulconer, “Improving Cooperation” supra note 347 at 144-45. 350


Bill Lynn, “Speech”, supra note 272.

88

less than what it cost their predecessors. Perceivably, with only one micro-satellite in

space a small nation may not appreciate the potential mission impacts and intertwined

safety issues which abound. A global SSA data sharing network can alleviate this

concern and provide education and operational assistance to these smaller space actors.

Although not as robust as the United States Space Surveillance Network and its

SSA analytical capabilities, many other entities are active on some level. This section

will review the activities of these States, international organizations and other players.

1. National Participants

a. Russian Federation

With the second largest SSA network behind the U.S., Russia‘s network of

sensors are sometimes referred to as the Space Surveillance System (SSS).352

Just like

the United States SSN, the Russian SSS radars were primarily developed at the beginning

of the Cold War for missile defense and only later re-allocated for SSA data collection.

Geographically, Russia‘s network of government sensors are even more poorly

distributed than the United States network. The SSS is solely within Asia and Eastern

Europe greatly limiting its orbital reach. The SSS is primarily operated by the military

with its Okno optical tracking station in northern Tajikistan being of prominence.353

There are numerous sensors ―located in former Soviet republics and are operated by

Russia under a series of bilateral agreements with the host countries.‖354

In fact, nearly

352


Brian Weeden, Paul Cefola & Jaganath Sankaran, “Global Space Situational Awareness Sensors” 2010 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2010), *Weeden, Cefola & Sankaran, “Global Sensors”+. ‘Okno’ means ‘window’ in Russian. 354

Weeden, SSA Fact Sheet, supra note 91 at 2.

89

half of Russia‘s SSA sensors are located just outside its territorial boundaries.355

This

regionally limited distribution ―leads to degraded accuracy of [LEO] objects and a very

limited catalog of objects in geostationary orbit as those stationary over the Western

Hemisphere are essentially untrackable.‖356

The Russian Federation‘s satellite catalog is not publicly accessible, however,

during the United Nations Institute for Disarmament Research (UNIDIR), 2009 Space

Security Conference, Andrey Grebenshcikov of the Russian Ministry of Foreign Affairs,

suggested a ―better system for data exchange be developed.‖357

To this end Russia will

officially submit proposals to the U.N on this matter.358

b. China

Like much of China‘s government and military matters, SSA is often the product

of speculation. It has been reported, however, that China does operate a series of eight

phased-array radars and one long-range precision mechanical tracking radar.359

Much

like Russia‘s geographic limitations, China does not operate any radar on foreign soil, but

does possess ―two Yuanwang tracking ships which can be deployed to broaden its

coverage. These ships are primarily used to support China‘s human spaceflight activities,

and could be deployed to provide SSA for other activities.‖360

China‘s optical sensors

355

Weeden, Cefola & Sankaran, “Global Sensors”, supra note 353 at 5. 356


Space Security 2009: Moving towards a Safer Space Environment, Conference Report 15-16 June 2009, report for UNIDIR (Geneva: United Nations, 2009), vol UNIDIR/2009/9 at 9 [Space Security Conference]. 358

Ibid. 359


Ibid.

90

include ―the Purple Mountain Observatory, which operates multiple telescopes in four

separate locations …[but] does not have global coverage of the GEO belt.‖361

c. Canada

Canada entered the space surveillance field alongside the United States in 1958,

operating telescopes and radars, but by 1992 the program was decommissioned due to

outdated technologies and budget constraints.362

Canada‘s newly energized Surveillance

of Space Program operates, inter alia, a renewed space-based SSA mission. Soon

Canada will bring online its Sapphire satellite whose primary mission is SSA. Canada

has largely ‗leap-frogged‘ the SSA field by forgoing the development and operation of

new, dedicated SSA radars and telescopes and has elected to develop space-based SSA

sensors instead.

The space segment of the Sapphire System is comprised of the

Sapphire Satellite - an autonomous spacecraft with an electro-

optical payload which will act as a contributing sensor to the

United States (US) Space Surveillance Network (SSN). It will

operate in a circular, sunsynchronous orbit at an altitude of

approximately 750 kilometers and image a minimum of 360

space objects daily in orbits ranging from 6,000 to 40,000

kilometers in altitude.363

Currently, the Near Earth Object Surveillance Satellite (NEOSSat) is actively tracking

space objects in high altitude Earth orbits.364

The advantages of space surveillance from space include the lack of weather

interference and artificial light interference.365

One of the primary purposes of re-

361

Ibid at 9. 362

Paul Maskell & Lorne Oram, “Sapphire: Canada’s Answer to Space-Based Surveillance of Orbital Objects” 2008 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference (2008) at 1-2 *Maskell & Oram, “Sapphire”+. 363

Ibid at 1. 364

Weeden, Cefola & Sankaran, “Global Sensors”, supra note 353 at 9.

91

establishing itself in space surveillance is Canada‘s desire to re-integrate itself with the

United States SSN.366

By offering the Sapphire for tasking by the JSpOC, Canada

assures continual access to the United States‘ higher fidelity SSA data.367

Here is another

example of the potential for a more global SSA network. With Canada as an example of

how a foreign State contributing to the U.S. SSN may well be successful, other State‘s

resources could be ‗plugged in‘ as well.368

To the contrary, the JSpOC could plug-in to

an already existing network such as ESA, SDA or ISON, enable a security filter for

removing the national security data, like purpose and intent of a space object, to

effectuate global data sharing.

d. Australia

Much like Canada, Australia has primarily chosen to partner with the United

States to fulfill its SSA needs. Geographically, Australia is in a great position because it

is ideal for placing SSA sensors for coverage of Asian and Middle Eastern based space

launches as well as tracking orbits over the southern hemisphere.369

With talk of building

a new Space Fence within its territory, Australia would become a major contributor to

space surveillance.370

365

Maskell & Oram, “Sapphire”, supra note 362. 366

Ibid. 367

Ibid. 368

Of course, the aim would be to create an autonomous internationally governed organization. 369

Brett Biddington & Roy Sach, Australia's Place in Space: Toward a National Space Policy (Canberra: Kokoda Foundation, 2010) vol 13 at 43-56. “Space launches from Iran, China, North and South Korea, and Japan into typical highly-inclined LEO orbits are conducted in a southerly direction. The actual launch almost certainly will be detected by US satellites with powerful infrared sensors … However, the US has no reliable means of detecting the payload until it has crossed Antarctica and is ascending northwards across the Atlantic. In the intervening 40 minute period, especially if one vehicle has launched several satellites, they can have been placed into discrete orbits to achieve quite different operational objectives.” 370


92

2. Organizational Participants

a. International Scientific Optical Network

Headed by the Keldysh Institute of Applied Mathematics of the Russian Academy

of Sciences, the ISON is an extremely capable civilian space surveillance cooperative.371

As can be seen from Figure 4-1 below, the ISON network is robust consisting of over ―30

telescopes in 20 observatories in 10 countries.‖372

It is the ―largest optical space

surveillance telescope network in the world,‖373

and it has taken more than one million

measurements.374

Figure 4-1. The International Scientific Optical Network

(Credit: ISON)

371

Igor Molotov, et al, “Faint High Orbit Debris Observations with ISON Optical Network” 2009 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference (2009), *“ISON Optical Network”+. 372

Weeden, Cefola & Sankaran, “Global Sensors”, supra note 353. 373


Space Security Conference, supra note 357 at 10.

93

As the name ‗ISON‘ indicates it is only made up of telescopes. There are no

radars within this network, but combined these telescopes can reach deep into the outer

reaches of GEO and the highly elliptical orbits.375

Its main focus being the GEO region,

ISON was initiated in 2004 ―is an open international non-government project mainly

aimed at being a free source of information on space objects for scientific analysis and

other applications.‖376

The ISON has also teamed up with the Astronomical Institute of

the University of Bern, Germany, focusing primarily on space debris.377

The multiple

telescopes dedicated to ISON are subdivided into smaller groups depending on the region

in outer space they are best geared towards, but more importantly all of the data collected

by the individual sensors, whether it be from the Collepardo Observatory in Italy, the

Russian Milkovo Observatory, or the Tarija Observatory in Bolivia, all of the data

collected is sent to the Center on Collection, Processing and Analysis of Information on

Space Debris (CCPAISD) in Russia.378

This concerted effort should be lauded for its cooperative value and its

governance structure employed as a template for an even greater global SSA network to

include radars and data provided by the owners and operators of space objects. Vladimir

Agapov, Senior Scientist-Researcher at the Keldysh Institute, stated while speaking at the

2009 UNIDIR conference, ―[t]he success of the ISON project has proven the feasibility

of creating an international observation network and data centre.‖379

375

Weeden, Cefola & Sankaran, “Global Sensors”, supra note 353. 376

Igor Molotov, et al, “ISON Optical Network”, supra note 371. 377

Ibid. 378

Ibid. 379

Space Security Conference, supra note 357 at 10.

94

b. ESA & Europe

Today, Europe taken as a whole does not have a SSN of its own and relies

primarily on the United States and Russia for its SSA data.380

However, there are several

individual European States which do possess their own SSA sensors including France,

Germany, the United Kingdom, Norway, Spain, and Italy; and recently, Europe though

ESA, has begun a preparatory program to study the feasibility of operating its own

European SSS.381

―The Preparatory Programme will develop plans, architectures, and

policies to provide space surveillance of Earth orbit, space weather prediction and

warning, and tracking and identification of hazardous Near-Earth objects such as

asteroids.‖382

This is an example of European reluctance to rely upon foreign States for

its critical SSA needs.

The ESA Ministerial Council officially launched this preparatory program in

2008, but its origins date back to 2002 when ESA initiated the first design study, which

aimed to create a catalog of objects greater than 10 cm in size within both LEO and

GEO.383

In 2002 ―[i]t was estimated that such a system would be capable to maintain the

orbits of 98 % of the LEO objects and 95 % of the GEO objects contained in the

USSTRATCOM catalogue.‖384

In fact, today ESA publishes the ‗Classification of

Geosynchronous Objects‘ list which contains many objects in GEO that are not listed in

380

T Schildknecht, T Flohrer & T Michal, “Proposal for a European Space Surveillance System - Results of an ESA Study” 2006 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2006), [Schildknecht, Flohrer & Michal, “European SSA Proposal”+. 381


Ibid. 383

Schildknecht, Flohrer & Michal, “European SSA Proposal”, supra note 380. The SSA Preparatory Program is voluntary and the following EU States are involved: Austria, Belgium, Finland, France, Germany, Greece, Italy, Luxembourg, Norway, Portugal, Spain, Switzerland, and United Kingdom. 384

Ibid.

95

the United States SSN public catalog.385

There have, however, been naysayers which

believe such an ESA-wide system will not work ―due to [the] military aspects‖ inherent

in SSA operations, but does see the potential for a trilateral operation between the United

States, France, and Germany.386

The ESA preparatory SSA program is another excellent model to study how

several States are able to combine their efforts into one synergized system. The aim of

the preparatory program is to determine ―customer requirements and their integration, the

initiation of an integrated catalogue, extension of correlated data to service provisions

and international cooperation and data fusion.‖387

The program will look into governance

as well as data and security policies, all of which would be applicable to a global SSA

data sharing network. Figure 4-2 below, demonstrates the overall concept envisioned in

any SSA sharing endeavor and as the ESA SSA preparatory program matures the concept

can be refined and expanded globally.

385

Weeden, “The Numbers Game”, supra note 24 at 2. “This list includes 103 dead payloads or rocket bodies listed in the US military catalog without orbital elements and another 67 pieces of debris not listed at all but which can be clearly identified with a particular launch.” 386

Amy Butler, “EADS Astrium Sees Limited Cooperation”, Aviation Week online. 387

Emmet J Fletcher, “Status and Progress in the Space Surveillance and Tracking Segment of ESA's Space Situational Awareness Programme” 2010 AMOS Conference Technical Paper delivered at the Advanced Maui Optical and Space Surveillance Technologies Conference, Maui (2010) at 1 [Fletcher, “Status of ESA's SSA Programme”+.

96

Figure 4-2. Overall SSA Sharing Concept

(Credit: ESA)

The system architecture envisioned for ESA‘s SSA system would first integrate

the existing nationally owned sensors, pool State‘s individual expertise, and then evolve

to add new ESA-owned sensors. The main issues with creating seamless interoperability

include data standardization and fusion.388

With respect to the governance and data

management hurdles, ESA has built the Space Surveillance Test and Validation Centre

(SSTC) near Madrid, Spain, as its central data center with the goal of handling both civil

and military data while managing the individual national security issues involved in such

cooperation.

Emmet J. Fletcher of ESA eloquently summed up international SSA cooperation

in his address during the 2010 Advanced Maui Optical and Space Surveillance

Technologies Conference:

388

Ibid at 7.

97

ESA has always worked to cooperate actively with its

international counterparts. Many science missions have entailed

a large degree of interdependency with the US, Russia, Japan,

India and other agencies. SSA is no exception to this policy.

ESA has received excellent assistance from the US to ensure that

its satellites do not contribute to the debris population.

On Jan. 21, 2010, 02:53 UTC, Envisat-1 would have had a close

conjunction with a 3.8 ton Chinese CZ-2 2nd stage at a distance

of 48m. Due to the slightly eccentric CZ-2 orbit, with a

correspondingly low accuracy of its Two-Line Element (TLE)

data, the risk potential of the event was only detected by the US

JSpOC (Joint Space Operations Center), who have access to

precise orbit data and alerted ESA on Jan.18. The highest risk

predicted with ESA‘s means described above using the TLE

information was only 1/365096 due to a radial separation of -

346m, hence far below any reaction threshold.

Based on 5 passes of the German TIRA radar, ESA established a

fly-by geometry at a total distance of 48m, with 15m in radial

and 7m in cross-track [ ]. This result closely matched the JSpOC

forecast. This improved assessment results in a probability of

collision exceeding 1 in 80. This was the highest risk that ESA

had noted in 15 years of conjunction assessments. At the same

time, it was the event with the largest combined masses (8 tons +

3.8 tons), exceeding the Cosmos-2251/Iridium-33 mass (that led

to 1,500 tracked catalogue objects) by a factor of 7.6.

This example of international cooperation, initial alert triggered

by the US, follow-up tracking delivered by Germany for a

European spacecraft is a template for how the global SSA system

should develop in the future. The development of internationally

recognised – and used – standards is a central theme for this

future cooperation. Fortunately, the [Consultative Committee

for Space Data Systems] standards are widely recognised,

although work will need to be made in such areas as conjunction

warning, where no such standards are currently in place.

Cooperation between sensors is also envisaged. Even though the

coordinated tracking campaign for the SSA [Preparatory

Programme] is experimental for a specific aim, the IADC also

performs regular coordinated tracking campaigns across the

different communities. Extending this further enriches all parties

through the improvement of tracking techniques, refining orbit

determination algorithms and extending cross-entity

communications and protocols.389

389

Ibid at 8.

98

Fletcher mentions the Tracking and Imaging Radar (TIRA) system operated by

Germany‘s FGAN Research Institute which is ESA‘s primary partner for space debris

observation and tracking.390

The TIRA system can detect space objects as small as 2 cm

at 1,000 km in altitude.391

Norway is also home to several sensors primarily the

European Incoherent Scatter Radar (EISCAT) system, which can detect 2 cm objects, and

the GLOBUS II tracking radar focusing on the GEO region.392

The French military

operates the Grande Reseau Adapte a la Veille Spatiale (GRAVES) radar mentioned in

the previous chapter, which operates much like the U.S. Space Fence and can cover a

very broad area.393

ESA does already operate several of its own telescopes, with its

primary optical sensor being the Space Debris Telescope located in Spain.394

Taken as a whole, ESA‘s endeavor to create a cross-boundary SSA network

within Europe and eventually owning its own compliment of sensors is another

governance structure that can be refined and implemented on a global scale.

c. Space Data Association

Perhaps the most promising multi-entity organization for shared SSA data is the

Space Data Association (SDA) comprised of a number of private satellite corporations

who own and operate various satellite systems throughout the world.395

It was initiated in

2009 by three of the world‘s largest communication satellite companies—Inmarsat,

390

ESA, Space debris measurements Webpage, online: ESA 391

Ibid. 392

Ibid; See also, Weeden, Cefola & Sankaran, “Global Sensors”, supra note 353. 393


Ibid at 7. 395

SDA Website, supra note 11.

99

Intelsat and SES—as a non-profit organization.396

It is incorporated in the Isle of Man

partly to curb fears from CFEs over placing the database on U.S. soil garnering U.S.

oversight.397

The SDA now boasts a membership of more than 20 different owners and

operators with a ―legal framework to protect and control the use of shared data.‖398

Reportedly, the SDA is negotiating with the United States and ISON to create even more

robust data sharing agreements.399

The members of SDA each provide ―their own orbital data—including planned

maneuvers…‖400

Since members typically use their own internal data format the SDA

must turn each contributor‘s data into a single, standard format. This data integration

issue is often one of the cited hurdles for an international data sharing organization.

Senior Research Astrodynamicist for Analytical Graphics, Inc. (AGI), Dr. T.S. Keslo,

recently emphasized ―[w]hen the data is combined with SSN data for non-member

satellites and debris, [the SDA] provides the best overall SSA for screening close

approaches available today.‖401

Although the JSpOC may disagree with this statement,

no one can deny that the more entities involved and actively sharing SSA data the safer

outer space will be.

396

Ibid. 397

Peter B de Selding, “Satellite Operators to Create Database to Combat Interference”, Space News online (2009) *de Selding, “Database to Combat Interference”+. These fears must be reconciled before a truly global SSA data sharing organization can be realized. 398

Space Data Association, Press Release, “Space Data Association Now Performs Conjunction Screening for More Than 300 Satellites” (Jan 21, 2011). 399


Kelso, “SDA Improving Safety”, supra note 40 at 3. The SDA will also concentrate on radio frequency interference; See further, de Selding, “Database to Combat Interference”, supra note 397. “The database will assemble information on satellite location, broadcast frequencies and power, signal polarization and coverage areas.” 401

Kelso, “SDA Improving Safety”, supra note 40. Dr. Kelso works for the Analytical Graphics, Inc., at the Center for Space Standards and Innovation which manages the SDA’s satellite database.

100

Not only does the Space Data Center provide improved SSA for

satellite operators and support more efficient decision making, it

could be used by the Joint Space Operations Center (JSpOC) at

Vandenberg AFB to improve their SSA, too. Instead of having

to dedicate additional resources to closely tracking and

recovering maneuvering satellites, the JSpOC could simply use

the SSN to verify the operator-reported orbits from the [Space

Data Center] periodically, freeing up SSN resources for tracking

noncooperative objects. …

Of course, to encourage maximum participation by satellite

operators in such a data sharing arrangement, the US must be

willing to reciprocate by sharing the best available orbital data

they have on as many objects as possible. That means US data

policy should be changed to support the release of high-accuracy

orbital data—in line with the new US national space policy.402

The SDA is clearly a model of genuine cooperation, albeit without the geo-

political hurdles often seen when States are involved. Of all of the organizations and

agreements surveyed, the SDA may be the best model for creating a fully integrated and

global SSA data sharing network.

3. Individual Astronomers

As far back as 1958 amateur sky watchers, backyard scientists and professionals

were scouring the sky for man-made space objects. Even the U.S. Air Force was utilizing

this niche with its Harvest Moon program with the aim to collaborate with amateurs for

better SSA.403

It was the military‘s Harvest Moon program which eventually evolved

into the SSN.404

Today, the internet is a powerful tool in every respect and is not lost on

astronomy. Amateur astronomers have been collaborating to provide a valuable resource

to global SSA. ―Amateur observers around the world [ ] do an excellent job of tracking

402

Ibid at 3-4. 403

Maskell & Oram, “Sapphire”, supra note 362 at 1. 404

Ibid.

101

larger, and often classified, objects that governments don‘t like to talk about. Armed

with binoculars, stopwatches, and backyard telescopes, they can be surprisingly accurate

and well informed.‖405

Amateurs often specialize in the so-called ‗black satellites‘ or

classified space objects which are not disclosed to the general public via national means,

such as through the U.S. public space catalog. For instance one amateur astronomer

armed with only binoculars and a stop watch has successfully tracked the U.S. Central

Intelligence Agency‘s highly classified KH-11 "Keyhole" satellites.406

Together

astronomers track over 140 classified space objects407

and have organized themselves

around the website called Heavens Above, which publicizes data on all types of satellites

as well as NEOs and planets.408

Even the member States of the U.N. have recognized the inability to maintain

secrecy in outer space and during the 2009 UNIDIR Conference on Space Security

found:

In the discussions about space object databases, it was proposed

that, in the future, space activities will become transparent and

the idea of ―hiding‘ objects in space will be irrelevant. The

question is one of starting this database, which is dependent on

the good will of the key players involved. Once the key players

engage, momentum is expected to rapidly increase—more

information from key players will be donated to the database and

more new players will become involved.409

The takeaway from the work of individual astronomers is the fact that no satellite

is hidden in outer space, even though States actively pursue satellite stealth technologies.

Spy agencies often attempt to hide their space assets from states, but it is proving harder

405


Keefe, “I Spy”, supra note 217. The Keyhole satellite can discern objects on Earth as small as a softball. 407

Ibid. 408

See generally, ‘Heavens Above Website’, <http://www.heavens-above.com/>. 409

Space Security Conference, supra note # at 9.

102

and harder with all of the amateur‘s eyes on the sky. It is often cited that the complete

globalization of a SSA data sharing network could never be accomplished because the

distinct military and civilian purposes for SSA are too conflicting. Backyard astronomers

are proving this reasoning wrong. With the work of amateurs and civilians, even

classified space objects whereabouts are known. Their data is made public and with this

information any State can determine where all objects are in space. What one won‘t

necessarily know is the object‘s mission or purpose which is unnecessary for an

international SSA data sharing network with safety its main priority.

Furthermore, the Union of Concerned Scientists (UCS) continually updates and

publishes its UCS Satellite Database which currently lists 957 active satellites.410

The

UCS pulls from all publically available sources, including the United Nation‘s satellite

registries, Heavens Above and the JSpOC‘s public catalog. Their aim is to consolidate

down all the differing public satellite lists into one complete database, to include State‘s

classified space objects.411

4. Summary

When taking a step back and examining the non-United States SSA actors it is

clear there is ample activity occuring daily. Unfortunately, it is also clear there is not a

lot of cooperation, at least not on a global scale. The infrastructure and management is in

place, but the political will has not surfaced to force the next step of even greater

teamwork.

410

See generally, Union of Concerned Scientists (UCS) Website, online: <http://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/technical_issues/ucs-satellite-database.html>. (Includes launches through January 31, 2011.) 411

UCS, “The Nature of the UCS Satellite Database Information” online: <http://www.ucsusa.org/assets/documents/nwgs/common-misconceptions.pdf>.

103

V. Conclusion

Given the current state of affairs, it would seem that there

is little that satellite operators can do to protect their

satellites. Yet, we will see that a more thorough review of

existing complementary capabilities suggests that parts of

the problem can be addressed through collaboration,

freeing up more capable resources to focus on the

particularly challenging aspects of providing improved

space situational awareness (SSA).412

As can be seen from the technical and legal aspects of SSA and data sharing, there

is much to be done in this rapidly evolving field of technology and law. However, from

this review, several short and long term conclusions can be drawn. The necessity of

possessing SSA for safety is growing. New players will begin using space just as the old

players have done in the past, but with smaller (and hence harder to track) and cheaper

space objects. If not for the worldly acknowledged issue of space debris, the recognized

need for SSA would still lie dormant. The nascent legal regime surrounding SSA sharing

has a strong foundation in 10 U.S.C. § 2274 which will only grow stronger as

international cooperation matures.

It is this author‘s opinion that the world‘s space actors are realizing just how

important SSA is, how costly it is to possess and maintain the ability to collect raw SSA

data, and the importance of knowing how to apply it. Cost aside, the issue of space

debris is perhaps the strongest argument for sharing SSA with every actor in outer space.

Even though the United States operates the most advanced SSA data collection and

catalog maintained in the world, it is not without its shortcomings, which include:413

location and distribution; age of sensors and the hardware and software systems to

412

Kelso, “SDA Improving Safety”, supra note 40 at 2. 413

Weeden & Kelso, Tech Issues for a Civil SSA System, supra note 4.

104

analyze the data; and the lack of cooperative (versus noncooperative) data from other

actors.414

From this it is clear that more sharing is the only way to cost-effectively

maintain adequate SSA.

The U.S. SSA sharing law is functioning as intended, although it appears quicker

implementation of 2274-Agreements between the U.S. and other States is desired. This is

true of any international political-legal process. SSA sharing agreements with

commercial entities appear to be growing steadily with more and more companies

entering into agreements with the U.S. The SDA also appears to be maturing into a

position of leadership among SSA sharing endeavors.

Upon review of the SSA sharing law, it is clear the Joint Space Operations

Command is the nerve center for the United States SSA sharing mission. Delegated

down from the Secretary of Defense, the JSpOC works all day, every day, to ensure outer

space is as safe as possible. Unfortunately, its capabilities are not sufficient to ensure

total safety of space, as evidenced by the recent Iridium-Cosmos collision, which went

unpredicted by the JSpOC. The limitations of the U.S. SSN have been highlighted

throughout this thesis and the challenges of going it alone are evident. The JSpOC has

evolved as rapidly as any military mission can be expected, but budgetary constraints are

clear throughout the entire DoD, and only getting worse. It is this author‘s opinion that

transforming the JSpOC into a CSpOC is the perfect first step towards greater

transparency and sharing of information first among allies, such as Australia, Canada,

and Great Britain, and then with other CFEs. After a successful combined operation is

414

Kelso, “SDA Improving Safety”, supra note 40.

105

proven, more nations can be invited into the sharing pool, including the members of the

SDA who don‘t already possess a sharing agreement with the United States.

One clear strength of 10 U.S.C. § 2274 is its breadth of allowable participants.

With virtually no limitation of who can work with the United States to share SSA data (so

long as there are no national security concerns present) more and more CFEs will move

to become partners with the U.S. and the JSpOC. Indeed, during a recent UNIDIR

conference it was discussed that:

[s]atellite operators complain that the US Air Force is often slow

to respond to requests. That is understandable, given the

demands of maintain SSA against ever increasing amounts of

debris and satellites. The US Air Force budgets for maintaining

such a capability have generally not kept up with the need for

personnel and information tools. … Because the US military

advantage in maintain a closed catalogue is therefore declining,

it would be in the interest of the United States to lead the way in

a cooperative programme for SSA, first with close allies, and

then broadening to other space-capable nations as experience is

gained.415

Perhaps another legal limitation is the speed at which it takes the U.S. to

internally review a proposed State-to-State 2274-Agreement via the State Department‘s

Circular 175 process. Hopefully, a blanket Circular 175 authorization will be

forthcoming to standardize the formal agreement process between the U.S. and foreign

States. If the USSTRATCOM Commander is given the ability to work directly and enter

into 2274-Agreements with the State‘s agency or agencies involved in space activities,

agreements will be entered more swiftly.

As additional nations such as Canada and Australia, and other organizations such

as ESA and ISON, develop and mature their own space surveillance assets, their value to

415

Security in Space: The Next Generation, Conference Report 31 March - 1 April 2008, report for UNIDIR (New York: United Nations, 2008), vol UNIDIR/2008/14 at 183.

106

the world SSA community will increase and more reciprocal, cost-effective cooperation

will be realized. The United States could demonstrate its commitment to international

cooperation by amending the SSA sharing law to legislatively disallow reimbursement

for data sharing related costs as seen with the current GPS law. The U.S. policy is

already against charging SSA sharing reimbursement fees and with more and more two-

way cooperation on the horizon, it will make even less sense to request fees in the

future.416

This measure may also alleviate concerns over dependence on a foreign

military for SSA data from States and amateurs alike. Furthermore, with respect to the

immunity afforded to U.S. suppliers of SSA data, it should be scaled back to exclude

intentionally tortious acts and acts of gross negligence.

Overall, the SSA sharing law has proven effective, but much more can be done.

As the law matures, it will be seen that cooperation is the best policy. So much so that by

pursuing a robust domestic SSA sharing policy through the implementation of 10 U.S.C.

§ 2274, it may lead to an international SSA data sharing network with U.S. acting only as

another cog in the wheel.

The creation of a viable international collective data sharing and collision

avoidance organization could be the ultimate logical step. The technical challenges of

sharing SSA data, such as synchronized data formats and data security elements, will be

overcome as entities share more and more information and the kinks are worked out.

Furthermore, an international SSA sharing network would be best suited to ―detect non-

compliance with applicable international treaties and recommendations, support liability

416

In the near term it may be prudent for the U.S. to charge fees in order to maintain the SSN, until other nation’s assets are integrated and costs are spread more evenly.

107

assessment and enable the allocation of responsibility for space objects to launching

States or Organizations.‖417 Using the lessons learned from ESA‘s attempt to create a

European State-to-State international SSA sharing program will prove vital. By

combining the International Space Environment Service‘s space weather data networking

knowhow for sharing in real-time and integrating the infrastructure of the SSN‘s sensors

and the ISON‘s optical assets will create seamless data collection. Combining all of

these factors with the analytical and managerial capabilities of the commercial Space

Data Association and a CSpOC, perhaps then a truly global network can be realized.

417

Fletcher, “Status of ESA's SSA Programme”, supra note 387 at 3.

108

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