66 Am. U. L. Rev. 1495 (2017)

*Articles Editor, American University Law Review, Volume 67; J.D. Candidate, May 2018, American University Washington College of Law; M.A. Candidate, December 2018, American University School of International Service; B.A., International Relations and Political Science, 2011, University of Arkansas.  I would like to extend my gratitude to everyone on the Law Review staff for all the time and energy they have put into preparing this piece for publication.  I am also grateful to Professor Pamela Meredith for her guidance in developing this topic and her insights throughout.  Mom, Dad, Louis, and to all my family and friends:  thank you for your unwavering support and encouragement.  You inspire me daily to keep pursuing my dreams.

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With the growing commercialization of outer space, the threat of damage to satellites from detritus hurtling through space could prevent the continued installation of satellites.  The cure for this issue cannot simply come from mitigation efforts; governments and organizations involved in spacefaring activities must participate in active remediation measures.  International space agency guidelines and U.S. statutes and regulations are productive preventative measures against further accumulation of debris.  In addition, a number of organizations are working on new technology to actively reduce orbital debris.  These active processes for culling debris from orbit are essential for the reduction of debris buildup.

One possible barrier to the organizations looking to clean up outer space is property ownership rights.  Enforcement of ownership rights rests with domestic law, which would accordingly need to be applied extraterritorially to satellites in space to uphold ownership interests.  Though the U.S. Supreme Court has set forth a presumption against extraterritorial application of domestic laws, U.S. domestic laws apply in the narrow instance of suits arising when actions in international areas do not invoke international law or create a conflict of laws problem.  With this the case, remediators should look to the doctrine of abandonment as a way to easily facilitate the capture of debris and defunct satellites.  Under this doctrine, an owner has abandoned the property if he unilaterally relinquished “all title, possession, or claim to or of [the property].”

Applying the abandonment doctrine to post-mission satellites can help determine the legal ramifications of trying to clean up post-mission satellites and how those actions might impact ownership rights.  Owners generally take one of two actions as regards post-mission satellites:  (1) leaving the satellite in its mission orbit or (2) moving the satellite from its mission orbit to its disposal orbit.  When owners fail to move post-mission satellites into a disposal orbit, the satellites qualify as abandoned property and can therefore be captured.  A more nuanced, case-by-case analysis must apply when owners take the prescribed steps to move post-mission satellites to a disposal orbit.  While post-mission satellites can be analyzed through the doctrine of abandonment, orbital debris does not easily fit into the analysis and cannot be reduced through the avenue of abandonment and capture.

Introduction

Space is littered with junk, and we cannot simply call in the garbage collectors to clear it all up.  The rapid increase of companies and nations installing satellites in orbit—amounting to “[m]ore than 5000 launches since the start of the space age”—has resulted in a ring of space objects around the Earth.[1]  An unhealthy production of orbital debris[2] has developed from failures to successfully remove defunct satellites from orbit, collisions of objects in space, and installations of new satellites.[3]  For instance, in 2007, the Chinese government intentionally destroyed a weather satellite during an anti-satellite missile test, producing approximately 2500 pieces of orbital debris.[4]  Experts consider this “the most prolific and serious fragmentation” in space exploration history.[5]  Similarly, in 2009, a non-functional Russian satellite crashed into a functioning American communications satellite.[6]  This disaster was the first instance of two intact satellites accidentally running into each other,[7] and the collision caused upwards of 2000 pieces of orbital debris.[8]  Orbital debris is not only an environmental concern, but it also poses a danger to current and future missions in outer space.[9]

Recognizing this growing concern, domestic and international agencies have created guidelines and parameters to mitigate the increase in orbital debris.[10]  Yet the even bigger challenge remains remediation, or cleaning up debris that already exists.[11]  Companies and nations are now turning to Active Debris Removal (“ADR”) to address existing orbital debris and its rapid reproduction.[12]  ADR “involves changing the orbit of a debris object via the actions of another system.”[13]  This system may take different forms, and a number of interested parties have developed ADR systems to remedy the growing space debris problem.[14]  Some companies suggest utilizing a laser cannon,[15] while others suggest using a net[16] or adhesive on the side of a spacecraft that sticks to debris and drags it out of harm’s way.[17]

Although strategists are advancing many possible approaches for addressing orbital debris, the lack of a cohesive and comprehensive legal framework frustrates these efforts.[18]  As companies and nations seek to take possession of or destroy orbital satellites and debris, the question of property and ownership rights lingers.  While remediation efforts generally have broad support, private companies and countries still may not have the legal right to destroy objects in orbit due to a lack of ownership.[19]  There is the option for companies to undergo an ownership transfer process, but doing so could be oppressively expensive, remarkably inconvenient, or exceedingly time consuming.[20]  Consequently, property law could make remediation efforts impractical and hinder cleanup efforts if a company must seek to transfer ownership of every satellite and piece of debris before taking remediation action.[21]

This Comment addresses the legal issues surrounding space satellite and debris removal by exploring the opportunities and limits property law imposes on companies seeking to conduct ADR.  This Comment also describes the specific remediation actions companies can take in accordance with property law’s doctrine of abandonment.  These available actions are critical knowledge because, on the one hand, investors want to know the hurdles facing remediation companies so that they can understand how a company may conduct remediation legally and profitably.[22]  On the other hand, companies that own satellites in orbit need assurance that these remediation organizations cannot arbitrarily take possession of their property.  These companies want safeguards to protect their property.  Clarification of property rights for objects in orbit is thus critical to easing the way for successful remediation.

Part I of this Comment details the current practices in post-mission satellites.[23]  It explains and addresses both Geosynchronous Earth Orbit and Low Earth Orbit, which are two regions in space where satellites are common.  Section I.A begins with an overview of procedures that agencies, both domestic and international, advise owners to take once satellites complete their missions.  Section I.B details U.S. statutes and regulations that require post-mission orbital debris procedures.

Part II examines the current law that governs property in outer space, assessing the international conventions currently in place and evaluating whether courts could apply U.S. domestic law in outer space.[24]  Part II also discusses when satellites qualify as abandoned for the purposes of ADR by establishing the elements of abandoned property and applying the abandonment analysis to satellites and orbital debris in four common post-mission scenarios.[25]

Part III concludes that because of the lack of a well-developed legal regime pertaining to outer space, companies can, in certain circumstances, strategically use the doctrine of abandonment to capture or destroy post-mission satellites and orbital debris.[26]  When owners fail to move post-mission satellites into a disposal orbit, the satellites qualify as abandoned property and can therefore be captured.  However, when owners take the prescribed steps to move post-mission satellites to a disposal orbit, those seeking to capture the satellites would need to perform case-by-case abandonment analysis before attempting any remediation action because owners likely have not abandoned the satellites.  While post-mission satellites can be analyzed through the doctrine of abandonment, orbital debris does not easily fit into the abandonment analysis and cannot be reduced through abandonment and capture.

I.  Current Practice Regarding Post-Mission Satellites

In 1995, the National Aeronautics and Space Administration (NASA) was the first space agency to produce a comprehensive set of guidelines addressing post-mission satellites and orbital debris mitigation.[27]  Orbital debris mitigation involves “[a]ll legal, regulatory, technical, and other efforts to reduce debris in space and to make space activities more sustainable.”[28]  Following NASA’s lead, the Inter-Agency Space Debris Coordination Committee (IADC) created its own technical post-mission guidelines dedicated to slowing the growth of orbital debris.[29]  Drafters of the IADC guidelines presented their recommendations to the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) Scientific & Technical Subcommittee where the guidelines became the basis for the Space Debris Mitigation Guidelines, which the United Nations (UN) endorsed.[30]  Together, the NASA and IADC guidelines include the procedures satellite owners should follow to prevent orbital debris before, during, and after a mission.[31]

In the United States, President Obama further sought to mitigate orbital debris through the National Space Policy he introduced in 2010.[32]  The policy advocated for the United States to incorporate industry and international standards and guidelines into U.S. efforts to mitigate orbital debris from post-mission satellites.[33]  Accordingly, Congress promulgated statutes incorporating the NASA and IADC post-mission procedures into domestic law.[34]

A.  Post-Mission Satellite Guidelines

Satellites reside in two primary orbital regions:  the Geosynchronous Earth Orbit (GEO) and the Low Earth Orbit (LEO).[35]  These two regions are oriented at different distances from the Earth—the GEO is the farther region and the LEO is the closer region to Earth.[36]  The distance differential determines the speed at which satellites orbit the Earth.[37]  A satellite’s purpose and the speed at which it needs to orbit the Earth determines which region, GEO or LEO, it will occupy.[38]

Because both the GEO and LEO are important for carrying out space activities, both the NASA Handbook for Limiting Orbital Debris and the IADC Space Debris Mitigation Guidelines qualify the areas as protected regions.[39]  As such, each region has its own set of proposed special protective measures pertaining to the generation of orbital debris.[40]  The diagram below shows the parameters for both the GEO and LEO regions.

Figure 1:  GEO and LEO Region Parameters[41]