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Regulating Innovative Activities; In-Orbit Servicing

The fact that the pace of change in technology outpaces the ability of law and regulation to cope with it is not a new issue. But it remains very pertinent to activities in space.

In-orbit servicing operations and active debris removal are not specifically regulated by international law or regulation. The general international legal regime that does exist, particularly the Outer Space Treaty and the Liability Convention, provides little clarity on the mechanisms to govern these activities, including in relation to issues of liability. Yet contracts have already been signed by in-orbit servicing companies in one country and commercial satellite operators in other countries.

The importance of the in-orbit servicing industry - from LEO constellations to GEO satellites and SSA

The importance of the in-orbit servicing industry has recently been discussed in the context of maintaining Low Earth Orbit (LEO) megaconstellations, Space Situational Awareness (SSA) and in relation to active debris removal.

"The proliferation of satellite constellations means that systematic spacecraft End-of-Life (EOL) strategies assuring post-mission disposal are required to maintain the utility of all LEO assets," comments John Auburn, director of Astroscale. "Astroscale's mission is to secure long-term spaceflight safety and reliable and cost-efficient spacecraft retrieval services." Its first EOL technological demonstration mission will be in 2019.

"Removal of existing debris through Active Debris Removal (ADR) missions is also needed, but this is more difficult to implement due to technical and regulatory hurdles, including legal issues with liability and cost-sharing. EOL service can avoid these concerns, as it is conducted under a contract with the satellite operator with mission licensing from the launching state of the constellation," John states. "Proper implementation of EOL services from a regulatory standpoint will contribute to the development of a practical mechanism for international collaboration on ADR."

Daniel Campbell, managing director at Effective Space Solutions, says these services are important in the changing economics of space. "For the ambitions of a growing list of organizations interested in the commercial opportunities of space, it is critical that the costs — particularly capital expenditure — of space activity drops. In-orbit services are going to be a useful component in those changing economics over the coming years. If you can extend the life of existing hardware investments once they are in orbit, you not only defer and reduce capex, but also open up the possibility for significant second-hand markets. If a company can own and operate hardware in space without the risk of launch, or the burden of maintenance, but with confidence in the mid to long term viability of the kit, we will likely start to see a completely different type of organisation owning real estate in orbit."

Regulating private and state actors

The interaction between private and state actors, however, is also not contemplated by the international space treaties — yet this is essential for in-orbit activities. The activities of commercial operators and service providers need to be regulated (authorized and supervised, according to the Outer Space Treaty) by the appropriate state. The state on whose national registry a satellite launched into outer space is carried also retains "jurisdiction and control" over such satellite. Ownership of the satellite is not affected by its presence in outer space.

Creating international best practice

Therefore, the government of the country in which the in-orbit servicing company is based (say the U.K. government) must, in effect, receive the consent of the government of the country where the target or host satellite is controlled from (say the Chinese government), to which it will provide the services. How should the U.K. licence and authorize that mission? What should China look for when providing its consent? There is no international best-practice, just general provisions of international law and perhaps national laws and policies.

Technical advances such as in-orbit servicing have in practice removed the full sovereign power of a state to regulate activities. Instead, states need to react to the activities of commercial players in their jurisdiction. International agreements between states, where international law currently fails to have the solution, are therefore increasingly important.

However, the domain of space requires solutions that are internationally accepted; space technology needs to be regulated according to international norms on a global basis.

The concept of "authorization and continuing supervision" and consent in relation to in-orbit servicing missions needs to be articulated and international norms discussed, drafted and agreed on — before such norms are simply reactive to years of private industry practice. Such practice may create difficult precedents for the international community or jeopardize a potentially successful and important industry that can contribute to the sustainable use of space.

Regulatory clarity is essential for raising finance, risk assessment, quantifying appropriate insurance cover and risk mitigation. States also need the clarity of an internationally agreed process for gaining the consent of other states.

Clarity is also needed in such areas as issues of international responsibility, liability and control, dual-use technology and export controls. Thought needs to be given by the international community too in relation to more specific legal issues such as the definition of "space debris," the possibility to legally "abandon" a space object, possible "salvage" operations, and issues of surveillance and security.

International norms for such activities are essential within the next few years. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), and other international organizations, need to grasp these issues and encourage the creation of such norms. VS