There are major legal, political and financial challenges that hinder the conduct of active debris removal (ADR) activities. Legally, a piece of space debris is a “space object” — a definition broad enough to encompass everything from functional spacecraft to spent rocket parts. Complicating matters, the technology that can be used for space debris removal can also be used for offensive purposes against functional space objects.
Three important considerations must be kept in mind with respect to active debris removal. First, in accordance with the 1967 Outer Space Treaty, no private company can legally undertake any activity on a space object like active debris removal without prior authorization (licensing) and continuous supervision (monitoring) from the government that has jurisdiction over that company and/ or the space object. Second, all space activities carried out by private entities, including ADR or on-orbit servicing, are legally considered activities of their home governments, which ultimately are responsible and could be held liable for any damage or injury caused by such activities. Third, an “open technology” policy, which does not mean free-of-charge access to proprietary technology, is necessary to eliminate any dual-technology concern.
A 2017 study conducted by McGill University and the International Association for the Advancement of Space Safety (IAASS) — published in the Journal of Space Safety Engineering as “Regulatory framework and organization for space debris removal and on orbit servicing of satellites” — examined the operational and regulatory principles needed to make space debris removal commercially feasible. The study identified four key elements:
- Establishment of an intergovernmental organization to procure the development, deployment, and commercialization of debris-removal spacecraft. This organization would be modeled after the early INTELSAT, which operated as an international governmental organization for nearly four decades. The proposed organization, which we tentatively refer to as INREMSAT — short for the International Debris Removal Satellite organization —could later transition to a private corporation (as Intelsat did in 2001).
- Nations participating in INREMSAT would commit, through the signature of a separate treaty or agreement, to procure on commercial basis the removal of a number of existing big pieces of space debris, such dead satellites and spent upper stages, created by their national space missions or by the commercial space activities of their nationals. Agreed-upon criteria would be used for selecting target debris but the ultimate decision would be with each country. Countries not participating in the INREMSAT consortium would also be invited to join such a treaty or agreement.
- A country which commits to the removal of its own space debris would be allowed (perhaps by the World Trade Organization?) to impose a national “space garbage collection” tax. Such a tax would be levied on the final users of space-based commercial services available in the country.
- Spacefaring countries would make changes to their national space licensing rules by introducing an “assured removal” clause as prerequisite to obtaining a license to launch or operate a satellite, by means of national or foreign launcher. Such a clause would apply to both the satellite and the upper stage of the launcher used for the launch. Specifically, the “assured removal” clause would require that the operator demonstrates the systems in question either have the capability (and plans in place) to perform autonomously at the end of their design life or mission a safe, controlled re-entry or removal to a graveyard orbit, or that they have contracted INREMSAT or similar commercial service provider for such activity. Furthermore, the operator would be required to have insurance in case a failure or malfunction prevents autonomous disposal. The insurance company would then procure and cover the cost of the relevant active disposal service.
THE INTELSAT STORY
With the advent of satellite communication technology in the early 1960s, the United States government led an effort to establish a global system for satellite communications. Preliminary negotiations were held in 1962 with the United Kingdom and Canada. Subsequently, other nations joined the negotiations. The negotiations eventually culminated in the 1964 adoption of interim agreements for a global commercial communications satellite system. These instruments marked the birth of a multinational organization established initially to provide the space segment of a global satellite communications system. In 1971, the 1964 agreements were superseded by agreements formally establishing the International Telecommunications Satellite Organization, better known as INTELSAT.
The overarching INTELSAT Agreement itself was a multilateral treaty that could only be signed by nation states. However, under the provisions of the INTELSAT Agreement, each state was permitted to designate a public or private telecommunications entity to sign the associated Operating Agreement. Thus, membership in INTELSAT was thereby opened to private-sector telecommunications entities from states party to the treaty-level agreement. The original INTELSAT may be conceived as a group of public and private joint ventures combining their technical and financial resources to establish and operate facilities which each participant intended to use to provide services within its defined market area. Each participant, therefore, obtained the technical, economic, and political benefits flowing from a common cooperative effort. Private-sector involvement and participation in the scheme could only be achieved by virtue of the two-instrument approach.
The INTELSAT Agreement clearly set out the scope of activities of the organization, the financial principles upon which its activities would be funded, and the structure of the organization, among many other things. With regard to the structure of the organization, the following four bodies were established: (1) the Assembly of the Parties; (2) the Meeting of Signatories; (3) the Board of Governors; and, (4) an executive body responsible to the Board of Governors. Despite the fact that the INTELSAT Agreement spelled out the role to be performed by each of these four bodies, it would seem that in practice there were significant overlaps (and redundancies) between the roles respectively performed by the Assembly of the Parties and the Meeting of Signatories.
The Operating Agreement, on the other hand, set out the rights and obligations of each signatory, including the obligation to make financial contributions to INTELSAT, the basis and modalities for determining investment shares in the organization, the utilization of charges and revenues and many others. The establishment of principles for determining investment and ownership shares and setting specific investment percentages in INTELSAT presented one of the thornier problems for negotiation. The determination of investment shares had to be predicated on a principle with which all or most of the participants could agree; one which was pertinent to the nature and purpose of the venture; which minimized or eliminated strictly political consideration; and, which objectively reflected the potential use of the system by the respective participants. Failing agreement on a rational and objective standard, the negotiation would have floundered. The principle ultimately agreed upon was that each signatory to the Operating Agreement would have an investment share in the organization proportional to its use of the INTELSAT space segment during the six-month period immediately preceding the date of determination of investment shares. After 30 years of successful operations, INTELSAT was transformed from an international organization into a private company in 2001.
INTELSAT AS MODEL
In essence, the INTELSAT approach allowed for governments and public and private telecommunications entities to collaborate in an unprecedented manner to provide global satellite communications infrastructure and services reaching all corners of the Earth while providing mutual benefit to all participants. Although this occurred during an era of increased international cooperation within the framework of the International Telecommunication Union, it nevertheless provides several lessons worthy of emulation and capable of adaptation to meet the current space debris scenario.
First, it is clear that active debris removal activities can only be successfully and economically conducted in an environment of increased cooperation between governments acting in close collaboration with each other as well as public and private space operators. The adoption of a two-instrument approach (as was done in the case of the original INTELSAT) for the establishment of a regulatory regime and an international organization for ADR activities would no doubt facilitate the conduct of such activities. Finally, the investment shares concept used for INTELSAT Operating Agreement could be adapted to fund the activities of the proposed international ADR organization while also enhancing its financial position.
Tommaso Sgobba is the executive director of the International Association for the Advancement of Space Safety, a Noordwijk, Netherlands-based nonprofit founded in 2004. He co-authored the 2017 McGill University-IAASS study upon which this article is based.
This article originally appeared in the March 16, 2020 issue of SpaceNews magazine.
