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Public Contract Law Journal

Public Contract Law Journal Vol. 52, No. 4

Clear Skies Ahead: Why the United States Should Not Develop Active Debris Remediation Technology Through Space Force's Orbital Prime

Jaeho Lee


  • Examining US Space Force's initiative to combat space debris through ADR, within historical and regulatory context.
  • Advising against US Space Force procurement of ADR with potential dual-use as space weaponry, due to treaty violations and international cooperation risks.
  • Proposing NASA's involvement in ADR technology development via Space Act Agreements, citing past successes, cooperative history, and treaty compliance.
  • Emphasizing urgency in combating growing space debris threat, highlighting necessity for careful international considerations in procurement decisions.
Clear Skies Ahead: Why the United States Should Not Develop Active Debris Remediation Technology Through Space Force's Orbital Prime
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This Note analyzes the United States Space Force’s Orbital Prime program to develop commercial technology to clean up space debris through Active Debris Remediation (ADR) in the context of the history of space debris and international regulations. Primarily, this Note argues that, while the Space Force could dramatically expand the United States’ space procurement capabilities, it should not procure ADR or other space technology with a possible “dual use” as a space weapon because it could destabilize international space cooperation and violate the 1967 Outer Space Treaty. This Note also advocates for NASA to develop ADR technology through a Space Act Agreement (SAA) under its Other Transactional Authority because of NASA’s prior success of using SAAs in developing commercial space capabilities, because of its history of cooperation with rival nations’ space agencies, and because a NASA SAA would remain true to the Outer Space Treaty, unlike Orbital Prime.

I. Introduction

One of the most iconic scenes in the 2013 award-winning film Gravity occurs when a debris field, caused by the intentional destruction of a defunct Russian spy satellite, crashes into the fictional Space Shuttle Explorer, leaving astronauts played by Sandra Bullock and George Clooney as the only survivors and forcing an evacuation of all orbital space stations due to impact damage. This scenario, known as Kessler Syndrome, might soon become a reality with the hazard of the rapidly growing orbital debris field of spent launch stages, decommissioned satellites, lost equipment, paint chips, and other detritus.

To prevent Kessler Syndrome, the United States Space Force (Space Force) has launched the Orbital Prime program. The program will expand On-orbit Servicing, Assembly, and Manufacturing (OSAM) services for Space Force and commercial satellites, starting with Active Debris Remediation (ADR) of orbital debris. Notably, the United States, unlike other countries, is currently developing ADR technologies that will openly run through the military instead of a government civilian agency.

The National Aeronautics and Space Administration (NASA) should develop ADR technologies, not the Space Force, because it has a history of cooperation with rival nations’ civilian space agencies and a successful track record in developing commercial space technology. Utilization of NASA for such procurement would remain in line with the Outer Space Treaty principles regarding peaceful space exploration and international cooperation. Although the Space Force offers new opportunities to expand U.S. space technology development, using it to develop “dual-use” technologies like ADR threatens to accelerate the weaponization of space and goes against the principles of the Outer Space Treaty. This is especially concerning since the Space Force explicitly reserved its right in the initial Orbital Prime solicitation to use any developed technology for military purposes. This could turn the emerging space competition between the United States and other nations, including China and Russia, into a hostile conflict that could threaten future space exploration.

This Note, in Part II, will first analyze the background of space debris, international treaties and agreements regarding the regulation of outer space, and concerns over weaponization of space and how active removal technologies could be perceived as weapons by rival countries. Part II then explores the history of NASA’s Other Transactional Authority and the agency’s successful utilization of that power in outer space procurement and technology development. Part III analyzes the potential international response to the Orbital Prime program developing military technology. Then this Note compares the strengths and weaknesses of both the Space Force and NASA as vehicles for future commercial and government space procurement. Lastly, Part III explains why NASA is the better choice for future commercial and government space procurement because it maintains more cordial relationships with its rival nation counterparts than the Department of Defense (DoD) and because the United States needs to consider international relations when strategizing future government needs in space.

II. The Delicate Relationship Between Space Debris Concerns and Current International Space Law

Space debris has been a threat to space exploration since humans first began launching objects into orbit. NASA defines space debris, or “space junk,” as “any human-made object in orbit about the Earth that no longer serves a useful function.” While the international community recognized the threat of space debris during the early stages of space exploration, efforts to resolve the problem have stalled for a variety of reasons, including non-prioritization of the development of removal technology and international treaties regulating who owns man-made space objects and articulating penalties for interfering with said objects.

Various national and international entities are researching ADR as one solution to resolving the debris crisis, but ADR technology remains in the development stage while commercial use of outer space has rapidly expanded, subsequently increasing debris generation. ADR development is further complicated due to the complex international regulations regarding ownership of space objects. As a result, global implementation of ADR is limited by the arrangements that would need to be made between countries owning space debris. Historically, the United States has been successful in stimulating commercial space technology development through programs run by NASA using its Other Transaction (OT) Authority. The greater private interest in commercializing space has recently stimulated interest in ADR development to protect commercial space interests, which the United States could cultivate using OT Authority. However, there are still concerns regarding the potential “dual-use” of ADR technology by countries as weapons against rival countries’ orbiting technology.

A. The Growing Problem of Space Debris

All orbiting debris was generated within the last sixty-six years. Most debris is in Low Earth Orbit (LEO), which is the region of space up to 2000 kilometers above the Earth. This region is also the most frequently utilized orbit for commercial satellites and the International Space Station (ISS). As the debris field grows, and as more satellites are launched, the risk of collisions increases not only for satellites, but also for every manned spacecraft launched from Earth.

1. What Counts as Debris?

NASA separates debris into the following four categories: (1) nonfunctional spacecraft; (2) abandoned launch vehicle stages; (3) mission-related debris; and (4) fragmentation debris. Nonfunctional spacecraft are formerly active objects like satellites and space probes that cannot be controlled because they have either run out of propellant to control their orbit or have suffered a malfunction. Abandoned launch vehicle stages refer to “any stage of a launch vehicle left in Earth orbit,” where launch vehicles are “any vehicle constructed for ascent to outer space, and for placing one or more objects in outer space, and any sub-orbital rocket.” Some of these stages end up stuck in orbit because, in order to reach enough speed to escape Earth’s gravity, “rockets are made up of several [stages] . . . [that] detonate at a given interval to provide enough power to propel the rocket further.” Mission-related debris, the third category, includes objects like tools lost by astronauts during extravehicular activity. Last, fragmentation debris is the result of collisions between objects in space. This debris can be created through accidental collisions between defunct objects or by intentionally using rockets to destroy defunct satellites in anti-satellite (ASAT) tests.

2. What’s Up There? Tracking Space Debris

Debris has been part of human space exploration since the Space Race, and mankind has been tracking space debris since it created the first piece. In March 1958, the United States created the first piece of permanent space debris with the Vanguard 1 satellite, which is still orbiting the Earth today. According to space historian Loretta Hall, the defunct Vanguard 1 will continue to orbit the Earth for another 200 years.

As the international community began launching space vehicles, countries also began tracking objects they put into orbit. In the early days of the Space Race, the DoD created the Space Object Catalog, or the Space Catalog, to record orbital objects, both active and defunct, of a size larger than ten centimeters. Today, the DoD’s global Space Surveillance Network (SSN) tracks over 27,000 pieces of orbital debris, though this number excludes the millions of pieces that are too small to track. Scientists have noted that LEO debris fields have increased fifty percent in the last five years alone.

3. Current Problems: ASAT Tests and Collisions

Any debris orbiting 800 kilometers or higher can last centuries in orbit, during which it poses a collision hazard for other objects, such as the millions of ASAT test debris fragments. Debris can only re-enter the Earth’s atmosphere in two ways: naturally, through orbital decay, or artificially, if something actively pushes it back into the atmosphere. Large objects like abandoned launch stages and defunct satellites can cause significant collision damage themselves, but when these objects break up or are intentionally destroyed, they can create hundreds—if not thousands—of pieces of fragmentation debris, which regardless of size can have devastating effects should they collide with other objects.

A 2005 study by NASA’s Orbital Debris Program Office found that even if countries stopped launches completely, “collisions between existing satellites would increase the ten-centimeter and larger debris population faster than the atmospheric drag would remove objects.” In 2009, NASA predicted that by 2055, collisions would become the primary source of debris generation. NASA astrophysicist Don Kessler hypothesized a worst-case scenario, the “Kessler Syndrome,” where debris fragments from satellite collisions increase the probability of further collisions. This would eventually cause a runaway chain of collisions to create a vast orbiting debris that would continue to hit spacecraft and generate more debris with each orbit until it eventually destroys all orbiting spacecraft. Not only would this endanger astronauts, as shown in Gravity, but it would have devastating effects on Earth due to the hazard of radiation from falling debris and human reliance on satellite technology for everything ranging from military surveillance to communications to weather forecasting.

As of March 2023, over 7,000 active satellites and two operational space stations are in orbit: the ISS and the Chinese Tiangong Space Station. All are threatened by the growing debris field. In fact, the biggest threat to space stations like the ISS, aside from aging components, is damage from orbiting debris like that generated by ASAT tests. Over the years, the United States, Russia, India, and China have all conducted ASAT tests that contributed significantly to the debris field and the danger posed to active spacecraft. In November 2021, Russia executed an ASAT test that created a debris field of at least 1,500 trackable objects, forcing the ISS crew to shelter in the station’s attached spacecraft.

The European Space Agency (ESA) and the United Nations Office for Outer Space Affairs (UN OOSA), which promotes “international cooperation in the peaceful use of space,” estimate that collision events between manmade satellites account for 9.01% of debris, and intentional breakup events like ASAT tests account for 23.77% of debris. Orbiting debris can “travel at speeds up to 17,500 mph, fast enough for a relatively small piece of orbital debris to damage a satellite or spacecraft.” For comparison, a bullet fired from an AK-47 travels at 1,500 mph. A 2011 NASA report estimated the average speed of orbiting objects that impact is “approximately 10 km per second—more than 10 times faster than a bullet,” which means that every piece of space junk becomes a projectile. The danger inherent in any collision with a manned spacecraft, such as damage to vital systems or a hull breach, is so high that ISS protocols dictate executing debris avoidance maneuvers if collision probability is as low as 0.00001% or one in 100,000. Fragmentation debris poses the greatest threat to active spacecraft because of the sheer number of objects generated through events like ASAT tests. Satellites and space stations must adjust their orbit to avoid debris, despite the fact thatmillimeter-sized debris is difficult to detect and therefore hard or impossible for space objects to avoid, leading to inevitable collisions.

Tracking detectable debris has proven useful in maneuvering active spacecraft away from debris fields, but such debris remediation efforts are not completely effective. In 2009, an operational communications satellite owned by Iridium Satellite LLC struck a defunct Russian Cosmos communication satellite. The Iridium-Cosmos collision created over 2,300 trackable debris fragments and was the catalyst for the international community to create emergency evasive procedures for spacecraft and the ISS if the SSN detects the collision between their orbital flightpaths and those of debris.

Despite the growing LEO debris field, neither governments nor private companies have stopped launching spacecraft into orbit. Satellite constellations, which are networks of thousands of tiny satellites such as Space Exploration Technologies’ (SpaceX) Starlink communications constellation, are potential sources of debris creation, either through collision with current debris or by becoming debris post-mission. A 2021 report by NASA’s Office of Inspector General (NASA OIG) found that the addition of “large constellations” like Starlink significantly increased the potential amount of debris generated. As governments and the private sector draw up plans to launch new satellite constellations and space stations into orbit, such as Blue Origin and Sierra Space’s proposed Orbital Reef space station, the threat of debris strikes against active spacecraft continues to grow.

B. Non-Ground Rules: International Regulations on Outer Space

Although the need for ADR services is becoming more urgent, any debris removal operation, either private or public, must comply with United Nations regulations and treaties, which collectively stress the risk of liability and ownership rights of nations that launch space objects. The United Nations Committee on Peaceful Uses of Outer Space (COPUOS), a subsection of UN OOSA, is the major international body that reviews peaceful global usage of outer space and which developed the current treaties and “declarations and legal principles” regarding outer space. Two of these international treaties, the “Outer Space Treaty” and the “Liability Convention” (U.N. Space Treaties), are particularly relevant to ADR procurement and how any future ADR missions would play out.

1. The Outer Space Treaty

The first and most important of the treaties is the “Treaty on Principles Governing the Activities in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” otherwise known as the “Outer Space Treaty,” which contains the general principles governing space activity. The treaty laid out basic declarations of responsibility regarding space objects and activities, all of which are relevant to ADR efforts. As part of those responsibilities, Article III of the Outer Space Treaty stresses that signatory nations agree to carry out space activities “in the interest of maintaining international peace and security and promoting international co-operation and understanding.” To that end, Article IV prohibits “any objects carrying nuclear weapons or other kinds of weapons of mass destruction” and “install[ing] such weapons on celestial bodies, or station weapons in outer space,” but does not outright prohibit space weapons. Article VI further declares that “States Parties to the Treaty shall bear international responsibility for national activities in outer space,” such as if their spacecraft knocks another nation’s spacecraft out of orbit. Article VII generally provides that any nation-state launch participant, whether it launched its own satellite or, if it lacks launch capabilities, procures satellite launch services from another launch-capable nation, is liable for any damage suffered by other “State[s] Party to the Treaty” or their “natural or juridical person” by the object or its components either on Earth, in the air, or in outer space. Article VIII describes that nations “shall retain jurisdiction and control over” launched objects registered to them while in outer space in perpetuity. As such, while the treaty creates the concept of liability, it does not include consequences for non-compliance.

2. The 1972 Liability Convention

Although the Outer Space Treaty established the concept of liability for state actions in space, it did not establish how nations would pursue liability claims against other nations. To address this gap, the United Nations organized the 1972 Convention on International Liability for Damages Caused by Space Objects, also known as the “Liability Convention.” Through this convention, the United Nations established a system of liability between international persons in space. Expanding upon Article VII of the Outer Space Treaty, the Liability Convention provides that any launching state would be “absolutely liable” for damage caused by its space objects on Earth or in space.

Although the Liability Convention lays out a claim process, the process is voluntary, because both countries must agree to the dispute resolution process. Article III states that launching nations are liable for damages resulting from incidents “elsewhere than on the surface of the earth,” but “only if the damage is due to [the launching nation’s] fault or the fault of persons for whom it is responsible.” Thus, making a claim for in-orbit collisions would be difficult, since the Liability Convention establishes liability if the launching state or states were responsible, whereas damage caused on the Earth’s surface or in the atmosphere—such as if falling debris hits a plane—creates absolute liability without the need to establish fault. If a country no longer controls a piece of debris and it hits another country’s active space object, it is difficult to establish the debris-owning country’s liability, especially if the debris-owning country has previously informed the other country of the relative orbital path of the debris. Due to this roadblock, there have been no claims for in-orbit collisions, and the Convention only briefly mentions non-terrestrial damages, since it was created before there was an international understanding of the true possibility of space collisions caused by orbital debris.

To date, only Canada has exercised its rights under the Liability Convention when it settled a claim with the Soviet Union for radioactive material cleanup costs from the 1978 Cosmos 954 satellite crash in Canadian terri-tory. This was an in-atmosphere incident, and therefore the Soviet Union was absolutely liable under Article IV of the Liability Convention. On the other hand, despite the accusations of fault by the owners of the satellites in the Iridium-Cosmos collision, neither the United States nor Russia filed claims under the Liability Convention and instead absorbed their losses internally.

3. International Space Regulations and Their Effects on ADR

An issue stemming from the U.N. Space Treaties is ADR because the treaties establish the eternal state ownership and liability of space objects and require removing states to get permission from the launching party or parties to interact with the object. The launching state remains responsible for any damage its space object causes, even if the damage occurs while another party, with the state’s permission, removes the object. These regulations prevent any private or public entity from unilaterally initiating indiscriminate ADR efforts, because they will need to ensure that they can remove pieces of debris before doing so. This requirement hurts ADR technology development because it means all parties must cooperate before ADR operations can commence, significantly delaying debris removal and increasing the risk of collision.

Despite this predicament, retrieval of foreign space objects is neither impossible nor unprecedented. For example, a joint venture by NASA and a private U.S. company successfully retrieved, fixed, and relaunched an Indonesian satellite launched in 1984 that failed to reach geosynchronous orbit and was stuck in LEO. While Indonesia remained liable as the launching state, the United States government willingly assumed joint liability with Indonesia so the private company could retrieve the object, and the company willingly transferred title back to Indonesia once the fixed satellite was relaunched to its proper orbit. The Indonesian satellite example highlights the necessity of cooperation between a country performing ADR services and the debris-owning country.

4. The Artemis Accords: Modern Space Cooperation or Controversy?

The U.N. Space Treaties have not changed significantly since their enactment, despite multiple calls from legal scholars for updates or new agreements that reflect the advances made in space exploration. Attempts to create new U.N. treaties are more difficult because there are significantly more spacefaring states in the twenty-first century with opposing interests than there were during the Cold War. In 2020, the United States unveiled the Artemis Accords (Accords) as a new international cooperation initiative based on NASA’s Artemis Program to return mankind to the Moon. As of May 2023, twenty-three countries have signed the Accords.

The Accords were designed to “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of civil exploration and use of outer space.” They emphasize “important obligations contained in the Outer Space Treaty and other instruments.” However, unlike previous space agreements, such as the Outer Space Treaty, the Artemis Accords only apply to “civil space activities conducted by the civil space agencies of each Signatory,” not state military organizations. Additionally, the Artemis Accords were not developed through COPUOS, meaning that Russia and China did not participate in their drafting, unlike the Outer Space Treaty. For example, Russia and its civil space agency, the State Space Corporation (Roscosmos), condemned the Artemis Accords as “too U.S.-centric” because they were not created in the same spirit of cooperation between historical rivals like previous multi-state space agreements. China is also unlikely to sign the Accords given the animosity between it and the United States.

C. As Below So Above: Concerns over Weaponization of Space

Despite the success of the U.N. Space Treaties in establishing an era of relatively cooperative international space exploration, space is becoming mired in the growing conflict between the United States, China, and Russia, and current proposed ADR methods might only exacerbate the issue. Mankind’s space activities tend to mirror the general global state, from the Space Race during the Cold War, to the ISS program after the fall of the Soviet Union, to the current tension over rival space programs and militarization of space. While the Outer Space Treaty was created in part to deescalate space weaponization, it only bans placing nuclear weapons and “other kinds of weapons of mass destruction” in space or testing said weapons or military maneuvers. It does not define “other kinds of weapons of mass destruction” and makes no mention of conventional weapons, or objects that could be used as weapons.

In response to this seeming gap in the Outer Space Treaty, Russia and China have introduced the “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects,” which would define “weapon in outer space” as

any outer space object or its component produced or converted to eliminate, damage or disrupt normal functioning of objects in outer space, on the Earth’s surface or in the air, as well as to eliminate population, components of biosphere important to human existence, or to inflict damage to them by using any principles of physics.

The treaty also defines the term “use of force” and “threat of force” as “any intended action to inflict damage to outer space objects under the jurisdiction and/or control of other States.” Under Article II of the proposed treaty, states party to the treaty agree not to “place any weapons in outer space” or “resort to the threat or use of force against outer space objects of State Parties.” The United States has rejected this proposed treaty because the treaty does not cover ASAT tests or other ground-based weaponry capable of destroying space assets.

ASAT tests by the United States, Russia, China, and India have all created debris clouds that pose a threat to active satellites. Article IX of the Outer Space Treaty provides that states party to the treaty “shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.” Countries that conduct ASAT tests inherently disregard other “States Parties” interests because ASAT-created fragmentation debris threatens those parties’ active satellites. Thus, ASAT tests violate Article IX.

Such tests have provoked condemnation by other countries. NASA Administrator Bill Nelson characterized the test as “irresponsible and destabilizing,” and lambasted Russia for endangering the ISS crew, including its own cosmonauts, as well as the crew of the Tiangong Space Station. In response, the Russian military called the United States “hypocritical,” arguing both that it knew the debris did not pose a threat to active space vehicles and that it itself was guilty of risking peaceful international cooperation in outer space through its military space program and licensing approval of dense American corporate satellite constellations.

In a 2021 U.N. report on reducing space threats, nearly all submitting states expressed their concerns about the development of “various anti-satellite weapons” and the “use of such capabilities” risking “initiating or escalating a conflict, including in outer space.” The report had a list of “anti-satellite weapons” concepts, including “[d]ual-use co-orbital systems includ[ing] . . . active debris removal.”

While such systems are regarded as important for ensuring the sustainability of outer space activities, such capabilities are inherently of dual use and could be used to damage, degrade or destroy a satellite. It is also noted that any satellite capable of carrying out rendezvous and proximity operations and placed in the same orbit as another satellite could be regarded as a threat.

Multiple nations highlighted the importance of the circumstances behind usage of “dual use” technologies. Germany proposed a “behavioural approach” to space threats, based on “a combination of capabilities and behaviour, or from the observation of actual actions, operations and activities.” China and Russia openly expressed their disapproval of the United States’ government and commercial space activities, including the X-37B military space shuttle, the establishment of the Space Force, and satellite constellations like Starlink, which they viewed as creating hazards for their own space programs. While the U.N. General Assembly acknowledged the threat of dual-use technology, it also highlighted the importance of countries continuing to develop such technology to safeguard the future of space exploration.

D. Please Take out the Trash: Current ADR Efforts

As the threat of orbital debris grows increasingly clearer, nations have begun exploring ADR options to reduce associated threats, keeping in mind the fears of the “dual use” of such technology. This increase in ADR development has occurred in response to the rapid surge in orbital debris caused by ASAT tests and satellite collisions and the increase in the number of both active space vehicles and spacefaring parties (both public and private).

ESA was the first agency to take active steps towards contracting for ADR services, announcing in 2020 that it had awarded an €86 million contract to the Swiss start-up ClearSpace for a debris removal mission scheduled for 2025. The Japan Aerospace Exploration Agency (JAXA) was the second, selecting the start-up Astroscale for an ADR demonstration mission scheduled for 2023.

China is also developing ADR technology, but, due to the insular nature of China’s government procurement, little is known of its current capabilities, making some concerned that China’s ADR technology could be space weaponry to interfere with other nations’ space operations. For example, China recently launched the Shijian-21 military satellite, which Chinese state media claimed was to test ADR methods. However, the lack of details as to the satellite’s capabilities raised nervous speculations, particularly among conservative American media, that it was testing technology to disable foreign satellites.

Until recently, the United States lacked a contracting program for ADR services, much less a program to develop such technology, despite being largely at risk for financial damages from debris collisions. Even though the 2010 National Space Policy directed NASA and the DoD to prioritize developing ADR technology development by 2021, NASA had not made any significant progress. Later in 2021, senior DoD officials emphasized the need for commercial ADR as opposed to government-led ADR efforts, due to concerns that rival foreign governments would see government ADR technology as “dual use” anti-satellite weapons.

As a result, in October 2021, the U.S. Space Force announced the “Orbital Prime” program, to develop the growing OSAM market sector. The program will award “multiple Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) contracts” to corporations that partner with academic and nonprofit institutions to develop OSAM technology in two rounds of awards. ADR is being folded into OSAM, with the Space Force’s plan to “to select at least one team to conduct an on-orbit demonstration of active debris removal” by 2023.

E. Other Transactional Authority

The United States has been successful in developing space technology and capabilities through public-private partnerships vis-à-vis its OT Authority. While most U.S. government procurements are conducted in accordance with the guidelines of the Federal Acquisition Regulations (FAR), OT Authority falls outside the FAR and presents options not possible under the FAR to develop public-private partnerships.

NASA first gained its OT Authority through the National Aeronautics and Space Act of 1958 (Space Act), which granted NASA the authority to “enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate.” Other Transaction Agreements (OTAs) are not “contracts” like FAR procurements, but rather non-procurement agreements used for “gain[ing] access to research or technology developed by, or in concert with . . . commercial firms.” Since then, several other agencies, including DoD, have obtained OT Authority.

While federal agencies can use FAR-based contracts for R&D procurement, OTAs are superior to contracts for purposes of project specifics, because “agenc[ies] and [their] partners are able to develop a flexible arrangement tailored to the project” and its participants’ needs, promoting “a more collaborative working relationship.” In fact, NASA has utilized its OT Authority through various Space Act Agreements (SAAs) to both develop space technology and stimulate commercial space development.

1. Space Act Agreements

NASA usage of SAAs has become more frequent in recent decades. NASA has used SAAs, its version of OTAs, for many of its initiatives, including the development of the commercial space industry. Such usage aligns with public policy as the United States has moved away from government-funded space activity and towards the commercialization of future space activity through public-private partnerships.

There are four categories of NASA SAAs, including reimbursable, nonreimbursable, funded, and international. Under reimbursable SAAs, private partners reimburse NASA for work the agency does on their behalf, even if NASA also benefits. Conversely, in nonreimburseable SAAs, NASA and the private partner pay their own respective costs. In funded SAAs, NASA directly funds the partner’s work or research. These categories, known collectively as domestic SAAs, are used for everything from basic research to software development to creating new space technology. Finally, under international SAAs, the other party to the agreement is a foreign entity, meaning a “legal entity that is not established under a state or Federal law of the United States and includes a commercial or noncommercial entity or person or governmental entity of a foreign sovereign.” NASA has used such agreements to partner with foreign universities and civilian space agencies for research and development.

2. COTS, CCDev, and CRS: NASA’s Successful Use of SAAs to Develop Space Technology and Capabilities

In 2005, after President Bush announced the retirement of the Space Shuttle program, NASA created the Commercial Orbital Transportation Services (COTS) program to develop crew and cargo transportation capabilities to service and staff the ISS. The program resulted in SpaceX and Orbital Sciences Corporation developing the Dragon and Cygnus spacecraft, respectively, through SAAs with NASA. The Obama administration used the Commercial Crew Development (CCDev) and Commercial Resupply Services (CRS) programs built on the capabilities established by COTS to replace the retired Space Shuttle Program. These SAAs have helped build up the commercialization of space by incentivizing corporations to develop technology for private market use. For example, in September 2021, SpaceX used the Crew Dragon spacecraft, created as part of the CCDev program, to launch space tourists. After using SAAs, NASA then purchased space flight transport using FAR contracts.

With the ISS past its original fifteen-year lifespan and approaching its planned 2031 decommissioning, NASA has switched to contracting out to private organizations for future U.S. inhabited space platforms. In March 2021, NASA announced the Commercial LEO Destinations (CLD) project for companies to compete for funding for private space stations. Additionally, in December 2021, NASA signed three CLD SAAs to “develop designs of space stations and other commercial destinations,” aboard which NASA would “rent” space, eliminating government operation and maintenance costs. This program will likely stimulate commercial space station development just as prior successful funded SAAs, thus further illustrating NASA’s success as using OTAs to develop space technology.

III. Despite the New Procurement Possibilities Presented by the Space Force, NASA Should Run Programs Like Orbital Prime

The United States must develop ADR technology because of the growing threat the orbital debris field poses to future space exploration. Although the Space Force’s Orbital Prime program offers a possible solution to the United States’ lack of ADR technology development and implementation, a NASA-run program is preferable for several reasons.

First, other U.N. countries, specifically China and Russia, have condemned American activities in space, specifically how the Space Force and Starlink constellation affect other countries’ own space activities and add more orbital debris. Other countries might see Orbital Prime’s military procurement nature (albeit for commercial purposes) as a threat. Second, NASA, despite its limitations, has established cordial relationships with rival nations’ civilian space agencies and has a demonstrated history of developing U.S. commercial space capabilities. Thus, any program run through NASA would align with current international space regulations, making it the better option to lead such programs. Third, any opportunities the Space Force could have regarding expanding U.S. space procurement are outweighed by its nature as a military branch and status as a new procuring agency. The Space Force could also violate the U.N. Space Treaties given its military nature. Finally, any wide-scale ADR endeavor will require international coordination and cooperation due to existing space regulations, so in procuring ADR technology and services, the United States must be mindful of how its actions affect said international relations.

A. Other Countries Could Reasonably Perceive the Orbital Prime Program as an Attempt by the United States to Develop Space Technology with a “Dual-Use” as Space Weapons

Orbital Prime is the United States’ solution to catch up with the ADR technology development of other space programs like ESA, JAXA, and the Chinese National Space Administration (CNSA). While the program is a solution to the United States’ lack of ADR technological development, it could be a violation of the Outer Space Treaty. The United States intends to use the program not only to catch up in the ADR development race, but to restore the United States’ advantage in space against rival nations. This project will only further alienate Russia and China, and potentially cause an international incident if these countries perceive the technology as a threat.

The Air Force’s STTR program runs Orbital Prime, meaning that small businesses must partner with academic or nonprofit institutes to be eligible for the program. Phase I proposals are to design prototypes for OSAM purposes. Phase II awards are selected from the Phase I designs to develop a “well-defined, deliverable prototype” for a possible demonstration mission. The objective of Phase II is to “explore Innovative Defense-Related Dual-Purpose Technologies relating to the mission of On-Orbit Servicing, Assembly, and Manufacturing (OSAM).” Phase III grants funding to develop the Phase II prototypes into “viable product[s] or non-R&D service for military or private sector market sales.” The words “dual-purpose” presumably refers to the possible “dual-use” of ADR for military purposes as well as for commercial purposes. Thus, the DoD’s objective seems to be the development of ADR technology for the commercial market, but also to add to the Space Force’s military capabilities to neutralize hostile nations’ space assets.

Various countries have already expressed their concerns over dual-use technology to solve the debris issue. In a 2021 U.N. report on space threats, the United States singled out ADR capabilities as a prime example of dual-use technology. The Orbital Prime provision reserving the right to use ADR technology for military purposes appears to contradict the United States’ commitment in the U.N. report to “maintain a peaceful and secure outer space environment.” In the same report, multiple countries mentioned the type of work that ADR “dual-use” vehicles would be used for as well as how the procuring country would classify them. Russia and China are already opposed to the Space Force and its activities, such as its control over the X-37B military shuttle and satellite warfare technology. As a result, other countries are more likely to take issue with the fact that Orbital Prime’s purpose serves both commercial and military ends. Therefore, Russia, China, and other countries could reasonably perceive that Orbital Prime’s main purpose is to develop space weapons, since it is a Space Force program explicitly stated to develop an end-product for both commercial and military usage.

B. NASA as a Tried-and-True Model: Using NASA to Procure ADR Technology

While the Space Force has some advantages over NASA for ADR procurement, NASA should nevertheless run programs like Orbital Prime because of its established relationships with other space agencies and past success in commercial space procurement. A NASA-run ADR procurement would also be in line with the Outer Space Treaty.

1. NASA’s History of Cooperation with Roscosmos and CNSA

From a public relations perspective, NASA is a better choice because it poses less of a threat to rival nations than the Space Force. Unlike other federal agencies, NASA has a long history of cooperation with its Russian and Chinese counterparts and is therefore relatively insulated against political tensions between their parent governments. For example, Congress currently prohibits NASA from using government funds to partner in any way with “China or any Chinese-owned company” without explicit congressional approval through the 2011 “Wolf Amendment.” In 2019, despite the Wolf Amendment, NASA was able to convince Congress to allow it to collaborate with China on a lunar probe mission so that NASA could access China’s data for the United States’ own lunar mission, based in part on this history of cooperation and scientific camaraderie.

In addition to NASA’s relationship with CNSA, NASA has “longstanding amity” with Roscosmos, the Russian civilian space agency. For example, NASA relied on Roscosmos’ Soyuz spacecraft to ferry astronauts to the ISS after the Space Shuttle Program was decommissioned. Additionally, even after Russia’s 2021 missile test strained U.S.-Russian ties, NASA was able to maintain cordial communications with Roscosmos and make a joint statement condemning the ASAT test’s effect on the ISS. Despite the breakdown of U.S.-Russian relations due to Russia’s 2022 invasion of Ukraine and subsequent U.S. sanctions against Russia’s commercial industries, Roscosmos and NASA’s partnership remains relatively intact. Russia, China, and other rival nations, while unlikely to allow the United States to remove their decommissioned spy satellites at all, would more likely accept such services from NASA for non-military space debris than from the Space Force, a military agency.

2. NASA Has an Established Track Record of Successfully Developing Space Technologies Through Private-Public Partnerships That It Can Use to Develop ADR Technology

While NASA has stalled in its goal of developing ADR technology, the agency’s past projects demonstrate that it is just as capable as the Space Force of procuring such technology. The United States has switched fromgovernment-led development of space capabilities to a private-public partnership. NASA could use its tried-and-true method of funded SAAs to develop ADR technology as it has with COTS and CCDev. Legal scholar, Matthew Schaefer, proposed such a concept in 2014, entitled the “Commercial Orbital Debris Active Remediation Services” (CODARS) program. Noting the prior success of the COTS and CCDev programs, Schaefer noted that “acquisition efficiency is not one of the chief characteristics” of a FAR-based procurement. Ironically, Schaefer, whose proposal pre-dated the Space Force, hypothesized that DoD technology OTA acquisition would not be ideal because “the US government likely [did] not want prototype testing to be done through DOD OTA authority . . . labeled as weapons.” The Space Force, while not explicitly labeling Orbital Prime as a weapon, does reserve the right to use developed technology as a weapon.

Using SAAs would be a way to circumvent the FAR and ensure compliance with the United States’ policy of advancing commercialization of space. Furthermore, funded SAAs would entice private partners because “commercial space agencies can typically successfully negotiate to keep their intellectual property rights” under SAAs easier than in FAR-based contracts. Negotiating intellectual property rights are also generally easier under OTA agreements than SBIR contracts, because SBIR awards offer commercial partners little or no “flexibility to negotiate” with the government on licensing their inventions.

Using NASA SAAs like the CODARS program proposal is the best option to procure ADR technologies, even in light of options like the Space Force that scholars like Schaefer could not have anticipated. From an international public relations perspective, a NASA-run debris removal program looks less threatening than a Space Force-run program. If the U.S. government decides to negotiate with countries like Russia and China, the other two biggest generators of space debris, for debris removal, a successful negotiation to use U.S.-based contractors is more likely if the technology was developed from a NASA prototype, not a Space Force one. Russia and China would see Orbital Prime as just another U.S. progression in the “New Space Race,” a way for the U.S. military to maintain its status. If NASA funded ADR technology research using an SAA, its history of doing so for the benefit of the commercial space industry would likely not cause as much protest from Russia and China as Orbital Prime as run by the Space Force would.

As an alternative to running the program solely through NASA as an SAA or the Space Force’s SBIR program, NASA could develop Orbital Prime and then transfer the complete or near-complete program to the Space Force or another DoD branch. Such an action is not unprecedented. For example, the X-37B unmanned space shuttle, now operated by the Space Force but originally managed by the Air Force’s Space Command, originated from NASA’s X-37 project.

The X-37 program was a cooperative agreement between Boeing and NASA for a flight demonstration of an unmanned reusable spacecraft, as well as technology experiments. A Cooperative Agreement is like OTA insofar as neither is subject to the FAR. Cooperative agreements are “legal instruments that facilitate the transfer of something of value from federal executive agencies to state, local governments, and private recipients for a public purpose or benefit.” For various reasons, NASA ultimately never built an X-37 spacecraft, and the program was transferred to the Defense Advanced Research Projects Agency (DARPA) in 2004, where it was developed into the modern X-37B. The United States could pursue a similar trajectory with Orbital Prime by having NASA develop it through one or more SAAs, and then the Space Force could develop its own classified project specifically for military use based on NASA’s success. That way, rival nations would view private U.S. ADR technology and services separate from any potential military application. Even if U.S. adversaries like Russia and China interpret this transfer as sidestepping the potential military dual-use of ADR technology, the crucial point is that the military would not be linked to the entire project, but only to a Space Force offshoot. Russia and China would be more likely to accept a private U.S. company’s NASA-developed ADR services than a Space Force-developed one, even if they disagree with allowing the Space Force to develop a military-grade version.

3. NASA’s Procurement of ADR Technology Would Stay True to the Outer Space Treaty.

Finally, NASA should be responsible for procuring ADR technology and services because a NASA ADR procurement would be within the scope and spirit of the Outer Space Treaty, whereas a Space Force ADR procurement might not be. While the U.S. Artemis Accords only apply to civilian space agencies, they were designed to augment—not replace—the Outer Space Treaty, which the Space Force’s procurement might violate. There would be fewer concerns by rival nations that a NASA-run ADR procurement program would be used in a way that did not factor in other nations’ interests unlike Orbital Prime, because NASA’s interests include preserving cordial relationships with other nations’ civil space agencies.

C. The Space Force Represents a Fresh Opportunity to Obtain ADR Capabilities and Future Government Space Procurement Without NASA’s Funding and Logistical Limitations, but These Advantages Are Undercut by the Agency’s Military Nature and Relative Inexperience in Government Contracting.

While NASA has made strides in advancing debris remediation efforts, its research into active debris remediation and procurement of such services is non-existent. The Space Force represents an opportunity to address not only U.S. ADR procurement, but also the United States’ shortcomings in fulfilling other government space needs, because of its greater financial and procurement capabilities. However, the Space Force is a relatively new agency, its status as a U.S. military branch could create perception issues on the international stage, and its procurements could violate the Outer Space Treaty.

First, the Space Force, and DoD in general, have enhanced congressional funding and financing capabilities compared to NASA. While OTAs reduce government costs by passing some costs onto private partners, OTAs still cost agencies money, and the Space Force is in a better position than NASA to spend that money. To illustrate, the 2022 National Defense Authorization Act authorized $740 billion for the DoD, including over $15 billion for space technology research and development (R&D). The Space Force has asked for $17.4 billion from Congress for the 2022 appropriations bill, not including R&D. In comparison, NASA’s budget request for fiscal year 2022 was $25 billion total, including the Artemis Program and its current commercial SAA programs. Unlike NASA, the DoD has limited authority to transfer money between military branches and projects and is working to expand the Space Force’s power to transfer funds.

Additionally, unlike NASA, the Space Force’s status as a new agency grants more flexibility in terms of existing project commitment. NASA has a backlog of several major projects, including the ISS, the CLD project, and the Artemis Program. A NASA OIG 2021 audit found that the Artemis Program comprised the bulk of the agency’s budget and was behind on its schedule to return mankind to the Moon. The report blamed the delay on a combination of the COVID-19 pandemic, changes to the program, the Artemis program going significantly over budget, and a lawsuit over the award for building the Artemis program’s lunar lander delaying work on the lander.

Despite these advantages, the Space Force is still a relatively new agency and does not have the private-sector relationships, experience, or procurement infrastructure that NASA or the DoD at large have. It is true that the Space Force has the same OTA capabilities as NASA, a larger budget, and could begin procuring ADR technologies by copying NASA’s existing programs. For example, NASA has used its SBIR program and contracts with startups and small businesses to successfully develop many types of space technology, and the Space Force could do the same. Orbital Prime’s solicitation even appears to mimic NASA’s 2022 SBIR FY2022 solicitation. By mimicking NASA’s public-private partnerships, the Space Force could relieve the NASA backlog and potentially double the number of U.S. space technology SBIR/STTR programs. However, the Space Force’s procurement inexperience still presents a risk for space contractors, who might be hesitant to work with such a new agency. While these concerns could be abated over time, if the Space Force continues to reserve the right to militarize any technology, then it could cause international questions as to whether the United States is fulfilling its obligations under the Outer Space Treaty.

Per Article IX of the Outer Space Treaty, the United States must keep in mind the outer space interests of other nations like China and Russia and consult with them if U.S. actions “would cause potentially harmful interference” with the space activities of other countries. China and Russia could argue that Orbital Prime and any resulting ADR missions or future Space Force procurements violate Article IX, due to the inherently antagonistic intent of the Space Force militarizing ADR technology. Given that the United States has flown clandestine military space missions before and taken unilateral steps to shape international space regulations, China and Russia and other rival nations could argue that these actions show the United States has not conducted space activity “with due regard” to their space interests, and either China or Russia could bring a claim to the International Court of Justice (ICJ) to this effect.

It should be noted that any potential violations of international treaties, however, might not have significant ramifications, considering the United Nations’ seeming indifference to China’s secretive military space program. It is possible that China has already developed and tested its ADR technology, all without any significant consequences from the United Nations. Presumably, Orbital Prime would similarly not cause any substantive U.N. backlash. Furthermore, the U.S. Artemis Accords, which the United States hopes will set the standard for future space exploration, apply only to civilian space agencies, not military programs. However, the nature of ADR and orbital debris means that international cooperation is paramount to successfully reducing the current debris field and mitigating further growth, meaning that cordial U.S. relations with Russia and China will be necessary for international ADR efforts.

The United States is still a party to the Outer Space Treaty and other international regulations, so it should still abide by those regulations, and not take provocative steps like China has that could lead to the breakdown of the U.N. Space Treaties and eventual space warfare. Therefore, despite the potential that the Space Force represents for expanding U.S. space procurement capacities, NASA remains the better option for developing ADR technology and procuring ADR services.

D. Strategizing Future Government Needs in Space in the Context of International Space Relations and Sustainability Goals

Orbital Prime is symptomatic of a larger issue in U.S. space policy. The United States needs to shape its future space needs, including what role the Space Force will play in procuring technology and R&D, while considering the necessity for international cooperation in tackling issues like debris removal and sustainable space usage for future missions and explorations beyond Earth. Space has so far been free of any open conflict, and any conflict would only increase the debris field and possibly trigger the Kessler Syndrome, so it is in the United States’ best interest to avoid hostile space disputes with its rivals. The United States must be strategic and mindful of the international implications of developing ADR technology, and the complexities of existing international regulations, particularly as the United States continues to expand its military operations and capabilities in space.

The recent era of relatively amicable international space exploration cooperation between the United States, China, and Russia is over and unlikely to resume any time soon. The United States and Russia are at odds for a variety of terrestrial reasons, from allegations of interference in U.S. federal elections to Russia’s invasion of Ukraine. The international community’s sanctions in response to Russia’s 2022 invasion of Ukraine caused Roscosmos to terminate existing partnerships with foreign states and companies. Russia also stated its intention to withdraw from the ISS in 2024, threatening the station’s future as the boosters that maintain the station’s orbit are located on the Russian portion of the station.

U.S.-China relations have deteriorated over China’s theft of classified U.S. technology and information and U.S. retaliatory sanctions, tensions over Taiwan’s independence, and the COVID-19 pandemic. In December 2021, China formally complained to the United Nations that it had to maneuver Tiangong to avoid two Starlink satellites, despite such avoidance maneuvers being a common occurrence by all nations as the number of satellitesincreases. The timing of their complaint, less than a month after the United States protested Russia’s ASAT test as a threat to the ISS, implies it was a veiled criticism of the U.S. complaint about the ASAT test. Despite their protests about the Space Force, neither China nor Russia nor any other rival nation has formally accused the United States of violating the U.N. Space Treaties. However, given Russia’s recent ASAT test and China’s Starlink complaint, the likelihood of either country filing such an accusation with the ICJ is growing. Due to Russia’s reaction to the Artemis Accords, the breakdown of U.S.-Russian relations over Ukraine, and the possibility that Russia will pull out of the ISS agreement, a scenario could occur where Russia or China reevaluate their commitment to the U.N. Space Treaties.

Additionally, Russia and China are more closely aligned with each other than with the United States in space relations. As such, U.S. military space actions like the X-37B and the creation of the Space Force, have unified them against any U.S. military space development. Both countries introduced the Proposed Prevention of an Arms Race in Space (PAROS) Treaty, which some scholars have interpreted as an attempt to halt U.S. development of anti-satellite and other space weapons, technology that Russia and China already possess. In January 2022, the two countries announced an agreement to construct a jointly operated lunar base, likely in response to NASA’s Artemis Program’s goal to establish an American lunar facility. It is likely that China and Russia will continue to strengthen their relationship in space, while growing more hostile towards U.S. space endeavors.

While this alliance likely will not directly inhibit future U.S. space development, any international ADR procurement will require the cooperation of both the country responsible for the debris and the country (or the country responsible for the party) doing the removal, and even possibly the permission of countries whose space assets are relatively near the removal operation. It is unlikely that a U.S.-Indonesia-style agreement could currently happen with Russia or China. Furthermore, even “domestic” ADR mission accidents could cause conflicts. As such, the United States must be mindful of how it procures ADR technology. To maintain international cooperation in the exploration of space and to ensure access by all nations with developing space programs, the United States should consider how its actions are viewed by the international community. To that end, procuring ADR technology through NASA, not the Space Force, is the better option.

IV. Conclusion

The United States’ development and procurement of ADR technology is important because the debris field in orbit is continuously growing and poses an imminent and serious threat to space exploration. However, because of existing international regulations, any government procurement of ADR technologies or development must consider the international implications of who does the procuring and how that process could affect international relations. Although the Space Force has funding and administrative capacity advantages over NASA, its nature as a military branch and antipathy by rival nations towards its existence mean that those nations, like China and Russia, could perceive Orbital Prime as a space weapons development program.

Although NASA has more limited funding compared to the Space Force and a “full plate” of current projects, it is ultimately the better option because of its history of cooperation with rival civilian space agencies, prior success in commercial space capability development, and any procurement run through it would comply with the Outer Space Treaty. The United States needs to actively assess how the international community views its space-related procurement and how its actions will impact space sustainability and cooperation.