Potential Export Control Challenges and Constraints for Emerging Space Debris Detection and Removal Technologies: The Case of On-Orbit Collision

The sustainability of Outer Space in a context of increased human activity in low Earth orbit (“LEO”) has been much debated lately. The discussion focuses on how space debris appears, how they can be limited and, possibly, removed. Commercial proposals for Active Debris Removal (ADR) and providing life-extension services to satellites are slowly emerging as precursory technological tools. Those technologies will involve so-called on-orbit servicing activities (“OOS”), i.e., activities performed on a spacecraft, while it is in or near its operational orbit and will require that one spacecraft approach, rendezvous, and interact with the asset/the debris to be removed; they raise a host of legal, regulatory, and policy challenges that need to be discussed as those projects progressively mature. Those cutting-edge technologies have potent capabilities and a potential for military and missile technology applications. As a result, they will likely be controlled by export control regulations (possibly by US export control regulation) and might fall under the stringent ITAR requirements. OOS inevitably involves the coupling of two different actors, the servicing spacecraft performing the services, and the asset to service. From an export control perspective, depending on the circumstances of each mission, in particular on the nationality of the servicing spacecraft and the one of the debris, the exchange of information between them might qualify as an export of technical data and would need to be licensed and authorized accordingly. In addition, because of the coupling of those two actors, the OOS model presents an inherent complexity: it creates a greater risk of technical failures, in particular of on-orbit collisions. As a consequence, it can induce more opportunities to exchange technical data in a context of urgency that prompts omissions and ultimately, more opportunities for violating export controls. This would apply even if technical data are exchanged for insurance or investigation purposes. Thus, any situation of on-orbit failure in the context of an OOS presents a risk of inadvertent export control. In the past, inadequately managed launch-failure investigations of satellites launched on non-US launchers caused major export control violations and were to have a profound impact on the US export control system. After observing how technological measures can mitigate risks of export control violations, this paper will propose a normative suggestion to mitigate potential ITAR violations and to avoid inadvertent export control situations in case of on-orbit failures in the context of OOS.