India’s controversial anti-satellite test in 2019 provides the United States an opportunity to demonstrate leadership in preventing future debris-generating events. However, new international space laws or norms are unlikely. Instead, the United States could look to the international space law already in place, particularly the due regard principle contained within Article IX of the 1967 Outer Space Treaty (Article IX). Ignored throughout its history, Article IX’s due regard principle has untapped potential. States, through their practice in the application of treaties, can shape the interpretation of treaty provisions in order to accommodate changing circumstances. The United States has experience in applying this approach to the space domain, having established practices to shape interpretations of the legal concepts of peaceful purposes and non-appropriation. If the United States seeks to lead an international effort to address the threat of orbital debris, then the due regard principle presents a possible tool well worth considering. This Article examines the potential of the due regard principle, the possibility of establishing a functional meaning, and some considerations involved in pursuing such a course of action.
John S. Goehring, Can We Address Orbital Debris with the International Law We Already Have? An Examination of Treaty Interpretation and the Due Regard Principle, 85 J. Air L. & Com. 309 (2020).