Nebulous Law: Using Soft Law to Give Structure to the Amorphous RPO Industry

Authors

Kylie McLaughlin

Document Type

Note

Abstract

(Excerpt)

Imagine looking down at your smartphone and realizing that you cannot make phone calls or access the internet. A communications satellite enabling these functions on your cellphone has just been struck by a piece of uncontrolled space debris. Now, imagine being in the aftermath of a natural disaster, and search and rescue teams do not know you and your family are missing or in distress. A satellite within the International Satellite System for Search and Rescue has just run out of fuel. Finally, imagine trains, planes, and ships remaining in their stations, gates, and ports because each has lost navigation data about their intended routes. A GPS satellite was just disabled by an antagonistic state’s anti-satellite technology.

While each of these scenarios is drastic to say the least, they are not entirely unprecedented. Satellites control nearly every facet of our technology-dependent society. Any given satellite struck by space debris or low on fuel would create rippling consequences throughout civilization. To combat such scenarios, governments and companies may turn to rendezvous and proximity operations (“RPOs”). RPOs have many capabilities, but primarily, actors in space hope to use RPOs to remove space debris and refuel satellites. These operations can alter and enhance the landscape of technological advancements here on Earth. Unfortunately, the same technology that is used in RPOs to clean up outer space or replenish a satellite’s fuel could also be used to disable a satellite through anti-satellite operations. Such a security risk is threatening the growth of the RPO industry, which in turn threatens the growth of technology on Earth. To exacerbate the situation, only vague and outdated treaties govern outer space activities, none of which specifically address RPO rules and regulations.

This Note argues that the nascent RPO industry should turn to soft law measures to regulate RPO use because soft law is more beneficial to the industry as compared to hard law. Part I of this Note describes what exactly RPOs are and details why it is important to regulate the industry in one form or another. This Part also delves into which treaties currently control outer space activities and discusses how these treaties are too broad to address issues that may arise with RPO use. Lastly, this Part introduces the major players of the RPO industry that are collaborating to create a workable system of rules for the industry as a whole. Part II of this Note details the differences between soft law and hard law and addresses the advantages and disadvantages of using soft law. It also analyzes the Kimberley Process, which is a soft law method of addressing a major security issue resulting from the Blood Diamond Regime in Southern Africa. Part III considers the advantages and disadvantages of the RPO industry using soft law to address its regulatory concerns and argues that soft law is more beneficial to the RPO industry than hard law.