[co-author: Theo Cornish]
Following on from the UK Government’s “Space Industrial Plan” released in March 2024, the UK Government is taking steps to overhaul its approach to regulating on-orbit servicing. The aim being to modernise the 50 year-old regime and ensure it is fit for purpose for the modern era, with space exploitation increasingly driven by commercial players rather than national states.
A key part of that is the UK Government sponsored "regulatory sandbox", involving several leading on-orbit servicing companies, which aims to publish recommendations on how to regulate and license on-orbit servicing by Spring 2025. This programme follows on from a recent bilateral agreement between the United Kingdom and New Zealand, in which the two countries agreed a blueprint for the modernisation of the outer space state liability regime in the context of on-orbit servicing.
These initiatives (and others) indicate an increasing recognition that, for on-orbit servicing to become commercially viable, governments will together need to address the particular legal issues that arise when two space objects interact with one another.
The International Liability Regime in Outer-Space
International space law is developing, but the foundation of state-liability for space objects remains as set out in two foundational United Nations legal instruments, the Outer Space Treaty (1967) and the Liability Convention (1972). Under this regime, a state is liable under international law for damage caused by a space object for which it is a "launching state". The "launching states" consist of (1) the states who launch or procure the launch of a given space object, and (2) the states from whose territory or facility the space object was launched. Where such damage is caused to another space object in outer space, the launching state is liable if the damage results from the fault of that state or persons for whom it is responsible.
Liability and On-Orbit Servicing
On-orbit servicing encompasses a wide range of maintenance performed on spacecraft and satellites in outer space (and, for the purposes of this article, we also use this term to refer to active debris removal). Such capability promises to improve our ability to manage space traffic and debris, including "dead" space objects, and to extend the life of assets in orbit.
An on-orbit servicing mission involves two or more space objects, which may be associated with different rosters of launching states, coming into close proximity. In some cases, such as active-debris removal missions to move non-operational satellites into a graveyard orbit, one space object might take control of another.
The advent of these missions puts pressure on the existing launching state liability framework. They involve a higher risk of damage, raising the possibility of increased mishaps and legal claims in an area of law that has generated sparse case law. Beyond this, the involvement of two different space objects in any mishap could make it difficult to establish which one was at fault, and consequently which launching states are liable. This poses a risk for launching states and a source of uncertainty for commercial actors hoping to invest in this capability.
Next Steps
In this context, the UK-NZ agreement and regulatory sandbox are designed to give on-orbit servicers, their clients and the launching states who ultimately bear international liability for such missions sight of the risks to which they are exposed by establishing a standard formula for liability allocation. While the agreement and sandbox recommendations are yet to be published, Operators in the on-orbit servicing market should stay tuned for further announcements, which could spur on other jurisdictions, and attract further funding for these missions.
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