A recent report from from an event held at McGill University’s Institute of Air and Space Law discusses the increasing problems posed by space debris in satellite orbits and the legal/regulatory issues that must be faced.

Guidelines for minimizing the possibility of creating space debris are in place, derived from work by the Inter-Agency Space Debris Coordinating Committee (IADC) and the United Nations Committee on Peaceful Uses of Outer Space (UN COPUOS). Many space-faring nations now observe these or similar guidelines. For example, the FCC requires all satellite operators to meet strict rules on construction, launch and operation of satellites to avoid contributing to the problem. The draft European Union Code of Space Conduct contains several relevant provisions.

Nevertheless, the sheer mass of non-functioning or out of control man-made objects means that we have a problem for decades, even centuries, to come. Many of the objects will slowly decay and burn up on reentry into the earth’s atmosphere. Until they do, they pose a risk of destruction or severe damage to critical space resources.

The McGill report was from the Third International Interdisciplinary Space Debris Congress, held in Canada in November last year. A final version of the report was submitted to a UN COPUOS subcommittee meeting held in February this year.

The scope of the situation is serious. The report says that “the total amount of debris measuring between 1 cm and 10 cm in orbit at all altitudes is around 750,000, whereas the total amount of debris measuring more than 10 cm in size is around 24,000.” Anything more than 10 centimeters cannot be effectively shielded against — if one of these hits a satellite, the result is “complete destruction.”

The report continues “even if we do nothing, taking into account the number of objects already in orbit, the space environment (at least in the most used Earth orbits) might not be sustainable on a business as usual basis if no mitigation or remediation efforts are undertaken.”

Mitigation or remediation efforts include going out and getting the stuff out of orbit, through various different technical means. However, active debris removal raises a series of tricky legal and regulatory questions that need answers.

As a starting point, there is no stable legal definition of space debris, with standards for who can remove a particular piece of debris. Further, space law treaties say that the “launching state” for a space object never loses authority over the object. Even if an object is in a thousand pieces or no longer functional, the launching state is legally liable for problems it causes.

This liability situation means that one country cannot just go out and retrieve the larger orbital debris without any consideration of who owns it.

Moreover, an approach towards active debris removal raises new liability questions. What happens if the debris collides with other objects during the process of removal? The space law treaties apply a fault standard for any damages between objects in space, which could lead to extremely complicated assessments of who was at fault. If the damage occurs on land or to airplanes in flight, the standard is strict liability, which means the launching state could be on the hook for damages even if it had nothing to do with the debris removal process.

Other considerations arise for some classes of space objects. Some objects may have military or security aspects. The U.S. International Traffic in Arms Regulations (ITAR) likely still apply to objects with U.S. content — taking control of debris could technically be an “export” subject to all the ITAR rules. Also, many if not most, technical proposals for debris removal have some overtones of military applications.

The McGill report discusses the form of international cooperation and organizational frameworks that might be considered. One possible approach is establishing an inter-governmental organization (IGO) based on the early Intelsat model. The international appetite for establishing another such IGO may not be realistic, especially as the report itself refer to “the lack of political will both at the national and international levels” for these issues.

Until such an international effort is mounted, the report and common sense indicate that governments should take action unilaterally for this troublesome issue.

Gerry Oberst is a partner in the Hogan Lovells Brussels office.