Aug 13

Aug 13 Up in the Air: Turning Space Debris into Opportunities

A small piece of space debris as seen by the Expedition 8 crew on the International Space Station (Courtesy of NASA)

“One man’s rubbish may be another’s treasure”

— Hector Urquhart’s Introduction to the “Popular Tales of the West Highlands”

As more and more objects are launched into the sky above us, the orbital space around earth is getting increasingly crowded. A recent figure notes that there are approximately 24,000 objects, 10-cm or greater in size, circling earth; these objects include both working modules as well as defunct devices such as old satellites, used rockets, and fragments from collisions. But, unlike the trash on Earth, space debris are also traveling at speeds up to 17,500 miles per hour, which means any collision with/among them could end with damaging, dangerous, and deadly results.

One major worry, as visually depicted by the space thriller, Gravity, is the onset of the Kessler Syndrome. Named after the former NASA Scientist Donald J. Kessler, the Kessler Syndrome describes a scenario in which, due to the high density of space debris, a random collision in low Earth orbit would lead to a chain reaction of additional collisions that would create a significant collisional threat to any objects functioning in this and nearby orbits; the resulting high probability for future collisions could lead to certain areas of orbital space becoming unsuitable for space-related activities.

A potential trigger for the Kessler Syndrome is the now-defunct Envisat, an observation satellite that was operated by the European Space Agency. Due to Envisat’s large mass and current positional orbit, two space objects are expected to pass within 200 meters of the Envisat every year. Since the current disposal plan—letting Envisat gradually enter and burn up in Earth’s atmosphere—will take 150 years, this threat is likely to remain for a very long time.

With so much space debris surrounding Earth, there has been an infusion of ideas and plans to collect and eliminate all of this floating garbage. And while some cleanup efforts are gaining major momentum, both within governmental agencies as well as private companies, this space debris mitigation field is still in its infancy. Additionally, as we will explore below, the legal framework surrounding these cleanup efforts is still up in the air.

Space Debris Framework through Treaties

This slow-paced development in the field of space debris cleanup can be partly contributed to the lack of a well-established legal framework. To wit, while there are many technical definitions of space debris, no generally accepted legal definition has yet to emerge. But, two international treaties do provide a broad baseline for the development of a legal regime in this area: The Outer Space Treaty of 1967 (formally, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) and the Space Liability Convention of 1972 (formally, Convention on International Liability for Damage Caused by Space Objects).

Articles VI-VIII of the Outer Space Treaty are relevant to our discussion of space debris; these articles address responsibility, liability, and ownership of space-related objects and activities. First, Article VIII notes that the nation “whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object.” Additionally, ownership of such an object, including “[its] component parts, is not affected by [its] presence in outer space.” But, by having such total ownership over an object, that nation is also responsible, via Article VI, for the activities of such an object. If any mishaps or damages were to result from such activities, the Outer Space Treaty assigns international liability, via Article VII, to the nation that “launches or procures the launching of an object into outer space” along with the nation “whose territory or facility an object is launched [from].”

Hence, these articles suggest that the nation who owns the space object will also be liable for any harm that the object might cause once it becomes space debris. Therefore, each nation is incentivized to ensure the proper disposal of its space debris and having a sunset and/or contingency plan in place long before a particular object is even launched into space. But, this rule also suggests an interesting corollary: since any mitigation efforts related to space debris will undoubtedly involve additional space-related activities (e.g., the launch of additional objects for cleanup efforts), the entity that undertakes such cleanup efforts could be liable for any harm that might result; this responsibility could cover damages to the space debris themselves.

Here, the Space Liability Convention, which elaborates on the liabilities contemplated by the Outer Space Treaty, could come into play. Article III of the Space Liability Convention could be interpreted to assign liability for any damages that result from space debris cleanup efforts to the entity engaged in such efforts since the damages would be “due to [that entity’s] fault.” Additionally, Article IV of the Space Liability Convention indicates that if, during the cleanup effort, the space debris cause further damages to a third nation’s space object, then the first two parties (the party that owns the space debris and the party that engages in cleanup efforts) would be “jointly and severally liable to the third State . . . [and this liability] shall be based on the fault of either of the first two States or on the fault of persons for whom either is responsible.”

So unlike an earth-based trash collector, the entity undertaking cleanup efforts in space cannot just “toss out the trash.” This particular entity will need to think about how it could clean up the debris (i) without damaging the space debris itself and (ii) at the same time, prevent the space debris from further fragmentation that could cause additional harm.

Intellectual Property Issues in the Vacuum

But, in order to ensure that no additional damages can result, it might be necessary to understand the internal design/functions of the derelict space object that is being cleaned up. However, for many of these space objects, understanding how they function could require the original owners/designers of such objects to share trade secrets and other intellectual properties involved in such objects' creation and operation. In the competitive space sector, this might be something that would be difficult to obtain.

Additionally, certain countries, such as the United States, prohibit the transfer of certain technology know-how to other countries. For instance, the International Traffic in Arms Regulations (ITAR) would prohibit the transfer of certain satellite technologies to foreign entities, making it impossible for non-U.S. entities to clean up any derelict U.S. space objects without incurring a significant risk of liabilities.

Directions for the Future

Because of these issues, space debris laws could benefit from some clean-up efforts itself before it is gradually formed into a cohesive legal doctrine. But, with more and more objects being launched into space, many space-related agencies, both by themselves and in partnerships with other organizations, have begun to coordinate efforts for the elimination of and mitigation plans surrounding space debris.

Organizations, such as the Inter-Agency Space Debris Coordination Committee (“IADC”) whose membership is made up of different national space agencies, have been formed to specifically address issues associated with space debris. Other international organizations, such as the International Academy of Astronautics (“IAA”), have come up with position papers on space debris. Different nations’ space agencies have also adopted resolutions and procedures, such as NASA’s procedural requirements, to cut down on future space debris.

Hence, while the legal environment surrounding space debris may still seem like the proverbial Wild West, as we inch toward the realization of the Kessler Syndrome, a growing impetus for the establishment of an internationally enforceable legal and regulatory regime governing space debris is forming. Once this framework is in place and liabilities surrounding space debris cleanup efforts are more clearly delineated, it just might launch a new era of opportunities for companies to turn these space debris into money in their pockets.