Let’s take down the menace to our space dreamsby Alfred Anzaldúa
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| The spacefaring nations’ response to this growing threat has been underwhelming: A set of tepid, often-ignored international and national guidelines about not leaving our satellites in orbit more than 25 years. |
Between 1957 and 1967 there were 83 spaceflights, 57 uncrewed flights and 26 crewed flights. Before these launches began, there were no legal rules governing activities in space,[6] much less those governing orbital debris. By the time the United Nations finally established international space-activity rules with the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space and the 1967 Outer Space Treaty (OST),[7] the practice of leaving trash in space was a fully-baked custom. Pointedly, neither the Legal Principles nor the OST addressed the issue of orbital debris breakups, collisions, and accrual.[8]
Since 1967, there have been many more spacecraft launches, leaving uncontrolled upper stages and defunct satellites in orbit, often breaking up into shrapnel for a variety of reasons. Many of the functioning satellites and much of the debris objects are in polar orbits and cross each other over the Earth’s poles at altitudes between 600 and 1,200 kilometers.[9] However, humans and spacecraft are imperiled by debris in other low Earth orbits, as evidenced a regular series of maneuvers by the International Space Station to avoid approaching debris.
The current situation: accelerating launches and increasingly crowding orbits
Working satellites in Earth orbit currently number more than 3,300,[10] but more than ten times that number are proposed and in the process of being launched.[11] SpaceX alone has recently launched more than 1,400 of its Starlink satellites.[12] Aside from tons of orbital debris, even working satellites are crowding the polar regions of LEO. For instance, in early April a OneWeb satellite had to maneuver to avoid a potential collision with a SpaceX Starlink satellite.[13]
The spacefaring nations’ response to this growing threat has been underwhelming: A set of tepid, often-ignored international and national guidelines about not leaving our satellites in orbit more than 25 years.
Time for orbital debris mitigation (with teeth) and remediation
It is time for spacefaring nations and the space community in general to take responsibility for their past negligence. In the first place, the 25-year rule must be replaced with more stringent mitigation guidelines about de-orbiting or putting spacecraft in salvage orbits sooner and more consistently, and there must be consequences if the new guidelines are ignored. This need not involve an international “police force” for space. The policing could evolve organically from an international consensus leading to customary practice, sanctioning consistently negligent actors with less cooperation and collaboration from non-negligent space actors.
There are myriad ideas about strengthening orbital debris mitigation, from formulating internationally accepted “rules of the road” to greatly enhancing space situational awareness (SSA) and space traffic management (STM). Surely, these orbital debris mitigation enhancements are sorely needed. However, the focus of this op-ed is not on enhanced mitigation but rather on orbital debris remediation, i.e., active debris removal (ADR), either by deorbiting or by salvage for later reuse. Orbital debris has become a menace to our future space plans and dreams,[14] and an international mechanism for ADR is urgently needed. Moreover, orbital debris could become a resource for building large infrastructure in orbit.
Catalyzing orbital debris removal, salvage, and use
Salvage and debris cleanup is difficult under the current international legal space regime and orbital conditions, all of which disincentivize action. [15] First, per Article VIII of the OST,[16] a State Party on whose registry an object is launched into outer space retains jurisdiction and control of the items launched. Moreover, Articles VI and VII of the OST and Article IV of the Liability Convention make multiple launching states involved in a space debris intervention jointly and severally liable for any harm or damage to the persons or property of other States Parties.[17]
Further complicating liability assessment, a lot of orbital debris is unclaimed and neither the spacecraft owner or operator, nor the launching state, can be determined. Moreover, deorbiting debris will often require moving the junk through lower orbits. Further aggravating the issue, moving debris to orbiting salvage yards for later use will sometimes require moving the debris through higher orbits. In each case, there will likely be an increased risk of collision or other accidents.
| Liability and compensation lessons learned and applied in the high seas could potentially inform liability and compensation strategies in space. But maritime strategies cannot be applied wholesale. |
According to Article VI of the OST, which mandates that State Parties bear “international responsibility” for national activities in outer space and also requires “authorization and continuing supervision” of the involved national actors, it can be argued that the moment a State Party, via its national entity, touches the debris, the State Party assumes liability for whatever happens in connection to the debris later.
Fortunately, individual liabilities or lack thereof can be determined via liability apportionment agreements per Article V of the Liability Convention.[18] An example of such is liability agreement used for the nation states collaborating on construction and operations of the ISS.[19] But even with a multilateral agreement to determine the liability of various actors in an space debris intervention, there would remain the issue of funding the compensation for any party harmed. Given this complexity, can any lessons be gleaned from liability and compensation regimes for salvage or the removal of pollution and debris in the maritime context?
Salvage lessons from international marine salvage tradition and law
In developing liability and compensation provisions to manage orbital debris, it is important to note that Earth orbits are present in an environmental situation more akin to the maritime environment than the aviation environment. Among other things:
- When aircraft create debris consequent to catastrophic failure over land, it is usually confined to one identifiable terrestrial area. Conversely, ocean vessels sometimes suffer loss of control, are shipwrecked, or contaminate large swaths of the maritime environment with mobile debris. Such consequences of catastrophic failure and normal operations also result in the outer space environment, where whole defunct spacecraft and other debris remain uncontrolled and moving in orbit.
- Space activities sometimes resemble specialized maritime activities, where the destination is an emplaced artificial structure (the ISS, for example) in the space medium and serviced by spacecraft, like ships servicing offshore oil rigs within an ocean medium.
- The commercial space-launch industry resembles the maritime sector much more than the air-transport sector in that a large part of the business is exposed to international competition. The US aviation industry, however, enjoys a large protected domestic market and is further protected by international aviation agreements.
Given the similarities of navigating and working in the two above-described environments, liability and compensation lessons learned and applied in the high seas could potentially inform liability and compensation strategies in space. However, because unique liability provisions of the international space treaties, especially the Outer Space Treaty and Liability Convention, maritime strategies cannot be applied wholesale.
Maritime tradition of compensation and liability for commercial operators
Much can be learned from the long tradition of maritime salvage, which dates from the ancient Phoenicians, Greeks, and Romans. To deal with human-produced sea perils, commercial "salvors" were and still are rewarded financially for rescuing ships and their cargo, clearing shipwrecks from shipping lanes, and eliminating or preventing other environmental hazards.[20]
How is maritime liability compensation/third-party indemnity insurance funded?
Protection and indemnity insurance (P&I insurance) is a form of mutual maritime insurance provided by a P&I club. A P&I club is a mutual insurance association—a non-profit cooperative—that provides risk pooling, information, and representation for its members, who today are shipowners, ship operators or charterers, freight forwarders, and warehouse operators. Whereas the insured pays a premium to an underwriter for coverage lasting for a specified time, the P&I club member pays a “call”: a sum of money paid into the club’s pool. If at the end of the year, there are still funds in the pool, each member will pay a reduced call the following year. But if the club has a major payout, club members will have to pay a further call to replenish the pool. By eliminating the underwriter’s profit margins, P&I insurance is significantly cheaper.
P&I space clubs could likewise provide indemnification for risks, which traditional space insurers will not handle. Considering the likely ten-fold increase in commercial satellites to be launched mostly into LEO for broadband and other data services, commercial satellite companies have a great opportunity to proactively “fatten” P&I space club pools destined to reward salvors and other debris contractors and to pay out liability compensation. If carried out proactively involving multiple launch and satellite companies internationally, such a pool could accrue multiple billions of dollars simply by charging a penny per dollar to satellite service end users. Moreover, an international trust fund so created could be accessed by multiple P&I space clubs worldwide as a major resource for their funding pools.
Compensation for removing pollution in the space environment
Standard agreements and contracts detailing liability compensation, based on tariff rates agreed upon in advance in accordance with agreed-upon liability apportionment among all the parties involved in an orbital debris effort, present a pathway forward. P&I space clubs (composed of commercial spacecraft owners, operators, debris remediation salvors/contractors) could carry out a liability apportionment and compensation agreements with national governments, underwriters, investors, etc.—basically all the stakeholders in a space debris effort, whether in orbit or on a planetary surface. As in the maritime case, compensation funding would be provided before any debris remediation effort via “calls” into a mutual pool, with contributors this time being not only the P&I space club members but also traditional insurance company underwriters, freight forwarders, national governments, and all other stakeholders in each orbital debris remediation effort.
Other helpful maritime conventions
Beyond the above-mentioned mechanisms and conventions dealing with maritime debris liability and compensation, there are two other international maritime conventions that could be used as partial models for dealing with space debris, whether in orbit or on a planetary surface. Those conventions are the London Convention[21] and MARPOL 1973/1978.[22] Description of these conventions and how their provisions might apply to the space context is beyond the scope of this op-ed. However, readers are encouraged to continue this line of study.
Beyond maritime tradition and law
Because many unclaimed and undesignated orbital debris objects exist, even the best-written liability and compensation agreements would be inadequate for dealing with the orbital debris remediation problem without some voluntary mechanism or system for facilitating the adoption (jurisdiction and control) of debris objects. Fortunately, there are also non-maritime approaches that can illuminate a path towards such a mechanism or system. For the sake of cost-effectiveness, such as system must offer incentives for states to prefer using commercial operators as their jurisdiction and control agents to work on, salvage, or deorbit debris, while they limit the commercial operator’s liability.
| Because many unclaimed and undesignated orbital debris objects exist, even the best-written liability and compensation agreements would be inadequate for dealing with the orbital debris remediation problem without some voluntary mechanism or system for facilitating the adoption of debris objects. |
A way forward appears possible following a theorem developed by economist Robert Coase, and often discussed in the context of externalities such as pollution—and orbital debris is pollution. This theorem argues that under conditions of low transaction costs and competitive markets, “parties to a dispute over property rights (not necessarily ownership, per se) will be able to negotiate an economically optimal solution, regardless of the initial distribution of the property rights.”[23] The key is to remove obstacles to bargaining and define the equivalent property rights to allow easy trade in the debris externality and the risk it imposes.
Two precedents are important to the discussion: First, according to Dr. Armel Kerrest, “A space object may be sold/bought while in outer space” and “There is no objection by principle to a transfer of registration,”[24] which brings with it “jurisdiction and control” per Article VIII of the OST. Such a transfer has already taken place with the transfer of AsiaSat 1 and 2 from the United Kingdom to China,[25] the first occurring in 1984, and later when Sweden bought in-orbit the United Kingdom’s BSB-1 (“Marcopolo-1”) and renamed it Sirius-1 in 1996.[26] Second, as noted above, the 1998 Multilateral Agreement among states involved in ISS operations contains a cross-waiver of liability provision, which addresses liability issues for all ISS member states.
Creating an international Space Salvage Entity (SSE) to recover sebris
Article VI of the OST states that “State Parties to the Treaty shall bear international responsibility for national activities in outer space…whether such activities are carried on by governmental agencies or by non-governmental entities….” Also, “the activities of non-governmental entities…shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” Finally, Article VI states “When [such] activities are carried on in outer space…by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.” [emphasis added]
With OST Article VI and Article VIII squarely in mind and framing our discussion, the author and his colleagues earlier proposed the establishment by State Parties of a new international organization, specifically an intergovernmental Space Salvage Entity (SSE) via multilateral agreement[27] responsible for:
- Assuming jurisdiction and control, ownership, authorization and continuing supervision and a degree of liability for unclaimed derelict space objects.
- Licensing and contracting commercial entities to deorbit or salvage space debris, whether in orbit or on a planetary surface, for immediate or eventual recycling of materials, or for spacecraft servicing, rehabilitation, refurbishment, enhancement, or repair.
- Selling salvaged, recycled, or refurbished items at market auctions.
Actuarial index
We proposed that this SSE create an actuarial (statistical calculation of) risk for every trackable piece of orbital debris, using actuarial models to generate probability and severity of collisions due to mass and orbit, such as how NASA establishes impact risk for asteroids. We proposed that creating such a rank-ordered “leaderboard” of the most potentially consequential pieces of debris become a basis for insurance costs, creating natural incentives to remove risk.
We believe that insurance firms and P&I space clubs would pay close attention to an independent index of actuarial risk and to which State Parties those risks are attributed. If insurance companies account risk to State Parties based upon such an actuarial index of risk, it will be to the advantage of State Parties to either remove high-risk debris or divest of debris for which they have jurisdiction and control and liability risk.
Assumption of liability risk
We further proposed that a State Party that transfers registration (and therefore jurisdiction and control) to the SSE be relieved of liability risk, and that such jurisdiction and control and associated risk be assumed collectively by the member State Parties of the SSE in coordination with the P&I space club system.
While states would be allowed to directly transfer registration/jurisdiction and control of an asset for disposal or salvage independently of the SSE, once transferred to the Space Salvage Entity that piece of salvage now exists as an asset that may be sold via auction, contingent on the relevant State Party of the buyer assuming registry ownership and therefore jurisdiction and control over the auctioned asset per OST Article VIII and the Registration Convention.[28] Liability would be apportioned between the buyer, the relevant State Party of the buyer, and Space Salvage Entity by agreement, with acceptable insurance coverage (from a P&I space club and/or traditional underwriter) being required of the buyer.
The SSE would be empowered to provide licensing for deorbiting or salvage to the buyer or the buyer’s contracting commercial operator. In coordination with the relevant State Party or Parties, the Space Salvage Entity would license the deorbiting or salvaging commercial operator/salvor. Risk liability would be apportioned by agreement between the operator, Space Salvage Entity, and the relevant State Party or Parties of the operator(s) conducting the deorbiting or salvage. In designing the liability apportionment agreement, partial liability protection for the operator would help to incentivize the deorbiting or salvaging operation.
SSE becomes an international orbital debris remediation platform
The SSE would become a platform enabling multiple actors, private and public, to collaborate in a market to dispose of or salvage derelict objects. Such an entity would reduce transaction costs for all participants. For example, satellite owner-operators could work within a Space Salvage Entity to place economic rewards, compensation, or bounties on specific debris objects or actions to prevent debris.
| The SSE would become a platform enabling multiple actors, private and public, to collaborate in a market to dispose of or salvage derelict objects. Such an entity would reduce transaction costs for all participants. |
This op-ed anticipates that there could be private economic interests for whom it would be economically efficient to clear specific orbits at rates faster than set by the SSE. Owners and operators of satellites, be they states or commercial firms, often have disproportionate incentive to clear particular debris objects or orbits due to the value of their current or future investment. For example, a company wishing to launch a large LEO satellite constellation might desire to have that orbit cleared before they populate that orbit. Since most owner-operators will not have their own deorbit capability, they would desire to be able to access de-orbiting like a commodity or market. Because the SSE would ideally already have structured a market with minimal transaction costs, private entities would be able to make use of it. Toward that end, we have proposed that the SSE be structured to allow states, owner-operator firms, insurance firms, or private or non-governmental organizations to place special financial rewards on clearing objects and orbits.
Laser ablation of debris involving the collaboration of all spacefaring nations
It will be expensive, risky, and impractical to deorbit or move some debris objects to salvage orbits. A less expensive and more practical way to remove at least lower-altitude debris would be via powerful, ground-based lasers, which would ablate given objects to de-orbit them or, if small enough, obliterate them entirely[29]. But couldn’t powerful lasers be misused as weapons?
To answer this objection, this op-ed proposes the establishment and operation of an international entity composed of all spacefaring nations in coordination with the private sector and in coordination with the proposed SSE. Too much is at stake to allow geopolitical grievances to interfere with an internationally coordinated response to the menace of orbital debris. The ISS has shown that space has been the one endeavor where peaceful international cooperation can take place despite geopolitical tensions in other areas. In fact, the ISS could be the ideal platform with which to begin engaging and expanding the international space community for first steps in establishing a laser-based system to deorbit space debris.[30] A potential bonus to such a laser entity could be cooperation and a lessening of tension in other areas.
Conclusion
Against a backdrop of more than 8,000 tons of orbital debris and accelerating satellite launches into LEO, this op-ed urges all spacefaring countries and the private space community to finally do something about not only enhancing orbital debris mitigation, but also getting serious about orbital debris remediation, i.e. the active removal of orbiting waste. This op-ed proposes various ways to handle the liability and ownership issues that remediation will entail, some borrowed from maritime custom and law. Finally, this op-ed draws principally from an earlier published article and policy paper[31] to suggest ways to establish, through multilateral agreement, an international platform to carry out various proposals for public and private orbital debris disposal and salvage.
Endnotes
- Foust, Jeff. “The growing case for active debris removal,” The Space Review, March 29, 2021.
- European Space Agency video, “Space Debris- How it got there, What to do about it?”.
- …of which only around 17,000 are regularly monitored. Ibid.
- Whitcomb, Isobel, “How do tiny pieces of space junk cause incredible damage?” Live Science, March 14, 2021.
- Ibid.
- Scharf, Michael P. “Outer Space Law,” Customary International Law in Times of Fundamental Change, 2013.
- Full name of the 1967 OST is Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.
- One can argue that Article IX of the OST indirectly addresses orbital debris because it calls on State Parties to conduct their activities in space “so as to avoid their harmful contamination….” However, the space community did not generally see this as applying to the accumulation of orbital debris, until perhaps recently.
- European Space Agency video, “Space Debris- How it got there, What to do about it?”.
- “Satellite Database Update: More than 3,300 Active Satellites Orbiting the Earth (Union of Concerned Scientists),” February 18, 2021.
- Etherington, Darrell. “SpaceX launches 60 more Starlink satellites, now at 300 in just one month,” April 7, 2021.
- Boyle, Alan. “Amazon picks the rocket that’ll lauch the first Kuiper satellites – and it’s not from Blue Origin,” GeekWire, April 19, 2021.
- Tayeb, Zahra. “SpaceX and OneWeb satellites nearly crashed into each other in orbit, according to reports,” Business Insider, April 10, 2021.
- Foust, Jeff. “The growing case for active debris removal,” The Space Review, March 29, 2021.
- Material for this section, including verbatim, is taken largely from Garretson, Peter; Anzaldúa, Alfred B.; Davidson, Hoyt. “Catalyzing space debris removal, salvage, and use: Maritime lessons and a proposal for a space salvage entity and pollution credit system,” The Space Review, December 9, 2019. Also see “Space Debris Removal, Salvage, and Use: Maritime Lessons,” Position paper of the National Space Society, October 2019.
- United Nations, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies.
- Convention on International Liability for Damage Caused by Space Objects.
- Ibid.
- NASA, Partners Sign ISS Agreements, January 29, 1998.
- International Convention on Salvage, 1989. Also, for a detailed explanation of salvage tradition and law see Garretson, Peter; Anzaldúa, Alfred B.; Davidson, Hoyt. “Catalyzing space debris removal, salvage, and use: Maritime lessons and a proposal for a space salvage entity and pollution credit system,” The Space Review, December 9, 2019.
- Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972.
- International Convention on the Prevention of Pollution from Ships, 1973/1978.
- Beggs, Jodie. “Introduction to Coase Theorem,” ThoughtCo, Updated January 17, 2019.
- Kerrest, Armel. “Legal Aspects of Transfer of Ownership and Transfer of Activities,” IISL/ECSL Symposium COPUOS Legal Subcommittee, 2012, Accessed April 25, 2021.
- De Gouyon Matigon, Louis. “In Orbit Transfer of Ownership.” Space Legal Issues, June 13, 2019/
- Oaki, Setsuk, “Satellite Ownership Transfers and the Liability of the Launching States,” IISL/ECSL Symposium, March 19, 2012.
- See Garretson, Peter; Anzaldúa, Alfred B.; Davidson, Hoyt. “Catalyzing space debris removal, salvage, and use: Maritime lessons and a proposal for a space salvage entity and pollution credit system,” The Space Review, December 9, 2019.
- Convention on the Registration of Objects Launched into Outer Space.
- Phipps, Claude. “Clearing space debris with lasers,” SPIE, January 20, 2012.
- Anzaldua, Al; Barnhard, Gary; Dunlop, David; Claude Phipps. “A path to a commercial orbital debris cleanup, power beaming, and communications utility, using technology development missions at the ISS,” November 6, 2017.
- Garretson, Peter; Anzaldúa, Alfred B.; Davidson, Hoyt. “Catalyzing space debris removal, salvage, and use: Maritime lessons and a proposal for a space salvage entity and pollution credit system,” The Space Review, December 9, 2019. Also see “Space Debris Removal, Salvage, and Use: Maritime Lessons,” Position paper of the National Space Society, October 2019.
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