engineering can contribute greatly to crafting an acceptable and practical definition of “debris”; it can address important practical questions regarding an object’s design, threat potential, functionality or lack thereof, and so on. In the final analysis, however, each object placed in space is legally analogous to a piece of sovereign territory on Earth. As such, they are matters of intense sovereign interest. The question of whether or not a particular object is to be removed from space as “debris” will be scrutinized through a strong filter of national interests and security. The legal principle that forbids one nation from taking the space object of another has deep roots: it goes back to the early days of the Cold War era when the USSR and the United States wanted to deny each other a facile excuse to seize one another’s satellites in order to engage in reverse engineering. The Cold War is over, but the acute sensitivity regarding satellite technology remains. It is not in the U.S. national interest to use a less-than-formal process to reach agreements with other nations regarding debris removal. Absent a formal, transparent, officially acknowledged process, active debris removal could be easily perceived as illegal interference with the space objects of other nations.
Even if the United States were to retrieve only its own objects, another kind of legal threshold would have to be crossed at the national level. Formal congressional involvement in debris removal activities would be catalyzed because they precipitate potential U.S. responsibility and liability for those activities at international law.42 It would also trigger the necessity of determining which objects the government appropriately removes and which are appropriately removed by a private entity.43 “The development of this new technology may require both governments and the private sector working together.”44 Congress will also have to address a debris removal risk-sharing regime between and among the government and private actors. The risk-sharing liability and cap system that has been part of U.S. national launch law since 198445 could provide a model for retrieval activities. In three different instances of removal of an object from space, that is, an Intelsat satellite, the Palapa, and a Westar satellite, the government required agreements in which it was to be held harmless in the event of an accident.46 Whether this practice is desirable or sustainable for the long term will have to be addressed.
Finally, even if the United States were to retrieve only its own objects, it is still in the U.S. national interest to use a formal process to inform appropriate space actors about U.S. actions through a formal, officially acknowledged, confidence-building process regarding its national actions. This is necessary to avoid perceptions of the United States taking unilateral actions that may be a cover for nonpeaceful purposes or illegal actions.
Finding: Debris removal activity that involves selecting and removing any given object—debris or otherwise—from space, crosses crucial national and international legal thresholds.
Recommendation: NASA’s meteoroid and orbital debris programs should engage the NASA General Counsel’s Office and, through that office, the U.S. State Department regarding the legal requirements and diplomatic aspects of active debris removal.
Dordrecht, The Netherlands, 1989, p. 132.
42 The Outer Space Treaty, Art. VI: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, 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.”
43 “All objects which pose a threat to safety in space flight should be subject to governmental capture and removal under international regulations. However, errant satellites, representing substantial residual value, and not threatening the orbital paths or trajectories of functioning ones, should be a private, not a public responsibility.” See H. DeSaussure, The application of maritime salvage to the law of outer space, p. 131 in Proceedings of the 28th Colloquium on the Law of Outer Space, 1986, American Institute of Aeronautics and Astronautics, New York, N.Y.
44 J.-C. Liou and N. L. Johnson, Risks in Space from orbiting debris, Science 311(5759):340-341, 2006.
45 49 U.S.C. Sec. 70101 et. seq.
46 C. Kunstadter, XL Insurance, verbal response to inquiry by the Committee for the Assessment of NASA’s Orbital Debris Programs at the Workshop to Identify Gaps and Possible Directions for NASA’s Micrometeoroid and Orbital Debris Programs on March 9, 2011, National Research Council, Washington, D.C.