Space Debris: Another Frontier in the Commercialization of Space
Space “Junk” is a threat to any spacefaring operator, be they a sovereign or private actor. The current legal framework does not directly address space debris, leaving the door open for private companies to not only solve the technical problems of clean up, but also craft the policy that supports their involvement.
According to the European Space Agency, there are 670,000 pieces of space debris larger than 1cm and 170,000,000 between 1mm and 1cm in width. Photo: Wikimages from Pixabay.
By: David Giordano, Staffer
In the Summer of 2021, we got a glimpse of what some hope will be commonplace in the future: space tourism. While it might be billionaires and their associates for now, if this technology is to follow the arc of many other advancements previously reserved for the rich (cell phones and air travel, for example), eventually there may come a time in the future where space tourism is a realistic financial goal for those of more restricted means.
As humanity broaches this great commercial frontier, it will have to clear the great and neglected hurdle of “space junk,” and current trends appear to indicate that industry will shape not only the technology designed to solve the problem, but the policy as well.
As satellites and other projectiles blast into orbit, upon collision they can disintegrate into shards, sometimes just centimeters wide, that remain in orbit, risking further collision. Hollywood captured the potential perils of fairly large pieces of space debris in the opening minutes of the 2013 film Gravity, where space junk threatens the lives of astronauts on a mission.
Outside the realms of fictional space-thrillers, even the smallest pieces of space junk can present real danger. In 2016, a tiny piece of space junk, believed to be a paint chip or a piece of metal no more than a few thousandths of a millimeter across, cracked the window of the International Space Station. In May 2021, a piece of space debris punctured the robotic arm of the International Space Station. This is seriously concerning, as, according to the European Space Agency, there are 670,000 pieces of space debris larger than 1cm and 170,000,000 between 1mm and 1cm in width.
Unfortunately, public action and policy struggles to keep up with these risks. International law affords little clarity on the problem, as its control is a novel, emerging field with many technical tracking and removal challenges. None of the existing space treaties directly tackle the issue, rendering responsibility for it ambiguous. Absent such responsibility, legal incentives are non-existent. Guidelines are occasionally issued by international governing bodies, but provide little legal significance and are more targeted at the practicalities of tracking and removal.
The nation best positioned to notify space actors of collision risks is the United States, and the burden of that task currently falls on the Department of Defense. However, the Trump administration issued a directive in 2018, shifting the responsibility from the DoD to the Department of Commerce, and the transition has yet to materialize, leaving DoD struggling to keep pace with increasing commercial activity. In the face of public paralysis, addressing the problem through industry looks more and more attractive.
This has led some to call for a new legal order that still leaves room for government, but reframes who the rules exist to serve. Rather than our current, rudimentary treaty regime designed to prevent international conflict, commentators have called for an additional regime resembling maritime law that preserves the interests of a more diverse set of stakeholders, including those in the future that can bring technology and interests to space that may not yet exist.
These commentators shun the common conception that space regulation should resemble air-traffic control, which is suited to a narrower set of uses (transport). Under such a “maritime” regime, the light touch of central regulatory bodies, and perhaps their non-existence, is preferred, just as it has been on the seas. This way, individual nations have a degree of flexibility in instituting controls they see fit while leaving room for industry to address problems and introduce new uses for space.
Furthermore, governments seem ready and willing to construct the legal and incentive framework in concert with such private action. In a joint statement this summer, G7 members expressed openness to resolving the technical aspects of the debris problem with private institutions, and there is some promising progress. Apple co-founder Steve Wozniak signaled his plans to address the problem through a new company with a telling name: Privateer Space. Astroscale, a UK-based company, successfully launched a pair of satellites in the Spring of 2021 that will remove certain space debris from orbit. Astroscale also stated their desire to work with governments and international governing bodies to craft policy with private efforts to control the problem top of mind.
In light of public policy’s silence on space debris, the initiative of actors like Astroscale involving themselves in policy may be advised, as it could promote further private investment in technology for space debris removal. A popular policy recommendation among experts is the establishment of public-private partnerships, and Astroscale has entered several such agreements including with Japan and the European Space Agency. Other actors include ClearSpace, OneWeb, and D-Orbit.
Some may want to push back against further private involvement. The congestion of space is, in part, industry’s fault, and if we conceptualize orbital space as a common resource, it might be right to fear the effects of the Tragedy of the Commons. Critics may seek to bolster international treaties, give legal teeth to the guidelines occasionally issued by the UN, and preserve the public posture of the heavens.
These may be welcome adjustments, but unlike a pond that industry overfishes or a well that industry dries up, here industry is working to add more fish and water. Moreover, governments stand to benefit from this private decluttering, as well, as they are expected to be major customers of some of these private actors.
As for the public posture, space has long been a commercial place. Telecommunications companies and government contractors historically depend on space. As the number of commercial satellites set to launch skyrockets, it seems natural to craft policies that are responsive to their interests and provide incentives to remedy issues created in the course of spacefaring, such as space debris. In light of the long silence of international law on such issues and the demonstrated motivation by private actors, space debris represents the latest frontier in the abdication of space from the public concern to the private.
David Giordano is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from The George Washington University in 2017.