On 1 August 2022, a large piece of a Chinese rocket body plunged back through the Earth’s atmosphere, strewing debris across Indonesia and Malaysia. While space debris is the most visible to us when it hits the ground, we should be more concerned about the debris that remains on orbit.
As reduced launch and technology costs have allowed more countries and companies to reach space, it has increased the prevalence of space debris, pieces of which can range in size from a few millimetres to several metres. While these larger pieces can be tracked, and therefore more easily be avoided, smaller pieces still represent a significant danger traveling at speeds upwards of 29,000 kilometers per hour. In 2021, for instance, a small, untracked piece of space junk created a hole in the Canadarm on the International Space Station. It is easy to imagine how just a small shift in the trajectory of that piece of trash could have caused more dire circumstances.
Space debris is problematic for several reasons, the least of which are its increasing presence and its destructive capability. For one, up until recently, technology to remove trash from orbit (remediation) has been relatively nonexistent. While space agencies like NASA make it look easy, it is still rather difficult for one spacecraft to rendezvous with something else in orbit, let alone grab onto it and remove it from space. States have been hesitant to work too much on this technology, given that it could have dual-use purposes—after all, technology that can remove a piece of junk can also remove and destroy an active, functioning satellite. If either the United States or China were to deploy such technology, other countries may perceive this as an increasing threat.
However, developments in the commercial sector look to be alleviating this problem. Astroscale, a company based in Japan, recently tested a debris removal system, and the European Space Agency has also partnered with Swiss start-up ClearSpace to test out their system. Given that the technology needed to address debris has started to appear, the more pernicious problem, then, is in the legal regime that will be necessary to allow these services to operate. Though international space law remains severely underdeveloped, the various treaties that already exist present significant hurdles to the remediation of space debris, including problems of ownership and liability. One potential solution may exist in the creation of industry standards for rendezvous and proximity operations (RPO), specifically regarding third-party liability.
How Close is Too Close? RPOs and Debris Remediation
RPOs are actions that bring two spacecraft close to one another. In some cases, the objective is to dock one vehicle with another, for instance, the International Space Station. In others, the intent may be more malign. For example, in August of this year, the US claimed that a Russian satellite, Kosmos 2558, came within 60 kilometers of an American orbital reconnaissance satellite. While 60 kilometers may not seem like much, when satellites move as quickly as they do, that distance can be closed rapidly. Without clear guidance from the Russians as to the purpose of Kosmos 2558, the implication is that it may be monitoring the US satellite or might come closer to it in the future—close enough to even disrupt its operations.
In order to remove space debris from orbit, RPOs between spacecraft and debris will be necessary. While there is no prohibition against such close approaches, there is a question about liability. Nations are internationally responsible for their nongovernmental actors and liable under the Liability Convention through the act of launching (defined broadly). In other words, once a nation launches a space object, it is always responsible for damage that the object causes.
The ambiguity around third-party liability does not incentivise states to encourage a commercial remediation market. States remain responsible for the activities of commercial actors like Astroscale beyond launch, a duty that continues even once a space object becomes debris. This enduring liability makes states cautious in fostering space activities with a higher probability of collision. RPOs of the type that are necessary to remove space debris are riskier space activities by their nature and have a higher likelihood of causing third-party damage.
Given this, if companies want governments to produce more favourable regulation, they need to begin by self-regulating through the creation of industry standards that alleviate the ambiguity surrounding third-party liability allocation. Industry standards would also help create an insurance market for such missions. If insurance companies can better anticipate risk and cost, they will feel more comfortable insuring such a high-risk activity. One form this could take is model contract provisions that allocate the assumption of risk for third-party liability claims to the various companies involved based on their ability to command and control the operation. A model contract or boilerplate provision gives companies a foundation to start from while allowing for companies to negotiate more specific language that conforms to the specific mission. Creating stock language that allocates the risk of third-party liability based on the ability to cause damage would fall in line with the idea of fault and how we normally attribute damages (money) when an accident happens.
Putting this principle into stock contract language would mean little to the companies, while making governments and insurance companies more comfortable with engaging in debris remediation. In the absence of active state involvement and with the increasing power of commercial space, companies have the power to move forward favourable regulation and insurance creation by participating in soft self-regulation.
For years we have recognised that space debris is an issue that is quickly becoming a crisis. Forward-facing companies have identified a need for mitigation and are quickly creating the technology to meet it. However, governments still predominately control the space economy. Without government support, the active debris removal industry will not get off the ground.
While these companies are subject to the whims of government, they are not helpless. Companies, through industry standards, can make it easier for governments to pursue more favourable RPO policies. This move would lessen third-party liability ambiguity and signal that remediation companies are interested in being responsible actors of their own accord. The self-regulation of the industry would give governments a basis to form regulations and naturally lead to a more favourable regulatory environment.
Remediation of debris is more than science fiction at this point, it is a service that is desperately needed. Governments, especially those that have contributed to the pollution of Earth’s orbits, should enable this industry through better licensing and policy procedures, while also understanding the potential cost of such a high-risk activity. In the meantime, industry can answer this question and must if it expects debris remediation to become an active economic market.
The views expressed in this article are those of the authors and do not necessarily reflect the official policy or position of the United States Air Force Academy, the United States Air Force, the United States Department of Defense, or the United States Government.
Madison Walker is a lawyer with a concentration in air and space law from the University of Mississippi. She has researched regulatory incentive structures and liability issues surrounding space activities. She is passionate about creative solutions to problems facing the space community. You can connect with her at https://www.linkedin.com/in/dovewalker24/.
Wendy N. Whitman Cobb, PhD is associate professor of strategy and security studies at the US Air Force’s School of Advanced Air and Space Studies. Her research focuses on the political and institutional dynamics of space policy, public opinion of space exploration, and the influence of commerce on potential space conflict. Dr Whitman Cobb’s most recent book is Privatizing Peace: How Commerce Can Influence Conflict in Space.
This article is published under a Creative Commons Licence and may be republished with attribution.