The SpaceX/NASA Give Way Agreement

Updated: Jan 18




Earlier this year, the United States' National Aeronautics and Space Administration ("NASA") announced that they had entered into an agreement with Space Exploration Technologies ("SpaceX") covering the sharing of information and coordinating certain space traffic management issues. Unlike the hundreds of other agreements that NASA enters into with private companies, this agreement represents the first time in which one satellite operator agrees – in writing – to 'give way' to another in orbit.


This Comment will consider the nature of this agreement and its key operative provisions.


Space Act Agreements

NASA is authorised by US law to enter into agreements related to its functions. The 1958 National Aeronautics and Space Act (the law that created the US Government entity) created a general power for NASA to enter into agreements with a range of parties on a broad range of different matters and projects.


Since 2010, §20113 of Title 51 of the US Code authorises the NASA Administrator to ‘enter into and perform such contracts ... as may be necessary in the conduct of its work and on such terms as it may deem appropriate...’. This power has been used for a wide range of projects. In recent history this has included the Commercial Orbital Transportation Services (COTS) program, Commercial Crew Program and Commercial Lunar Payload Services(CLPS) programs.


Background

Space is becoming more congested, especially when considering plans for satellite constellations comprising thousands to tens of thousands of individual satellites. SpaceX ‘s Starlink constellation is the largest currently in orbit, with just over 1,400 satellites active at the time of writing. The constellation is intended to provide low-cost internet services across the globe through the use of up to 12,000 individual satellites. SpaceX applied to the US’s Federal Communications Commission to increase this number to 42,000 in 2019.


With this number of satellites in orbit, there is an increased risk of collisions between satellites operating in similar orbital planes. While the individual units of the Starlink satellite constellation are equipped with autonomous manoeuvrings capabilities, this does not make them immune from space traffic management (“STM”) concerns. In September of 2019, the European Space Agency announced that it had 'for the first time ever, ... performed [a] "collision avoidance manoeuvre" to protect one of its satellites from colliding with a "mega constellation"'. The ESA was responding to conjunction probability of 0.1%.


The rise of other mega constellations also presents concerns. In April 2021, there were reports of a potential conjunction event between a SpaceX Starlink satellite and OneWeb satellite and that inter-operator cooperation took place to ensure the risk of a collision was reduced. Despite substantial sparring in the media, there was no collision and the event demonstrated a genuine need for operators to cooperate on STM matters.


The Agreement

On 7 January 2021, NASA and SpaceX entered into an agreement for flight safety coordination with NASA assets("the Agreement").


The Agreement requires SpaceX and NASA to coordinate operations with a view to avoid collisions in outer space. Article 2 of the Agreement - which states the Agreement's purpose - provides that:

NASA has agreed to not maneuver in the event of a potential conjunction to ensure the parties do not inadvertently maneuver into one another. NASA will operate on the basis that the autonomous maneuvering capability of the Starlink satellites will attempt to maneuver to avoid conjunction with NASA assets, and that NASA will maintain its planned trajectory unless otherwise informed by SpaceX.

Further, NASA and SpaceX recite that the overarching purpose of the Agreement is to increase coordination on matters of flight safety, conjunction assessments, launch collision avoidance.


The Agreement creates two overarching obligations:

  1. an obligation that SpaceX will avoid conjunction with NASA assets in orbit; and

  2. a mutual obligation to share information and expertise between NASA and SpaceX on certain matters.


Conjunction Obligations

As may be expected, the obligation to avoid in-orbit collisions is one-way and in favour of NASA. SpaceX have agreed to use ‘reasonable efforts’ to ‘perform evasive action’ in order to ‘mitigate close approaches and avoid collisions’ between SpaceX assets and NASA objects (see Art 3(B)(1) of the Agreement).


The obligation goes further, it requires SpaceX to:

  1. operate assets in a way that avoids any notifiable conjunctions with the International Space Station (“ISS”) (described as being within ±2 x ±25 x ±25km radius of the ISS);

  2. select Starlink launch injection orbits that are at least 5km above or below the ISS’s apogee and perigee; and

  3. take steps to avoid selecting injection orbits that are within 5km of the ISS or other NASA assets.


Looking at this provision, it is clear that NASA’s focus is on protecting human spaceflight. Conjunctions with the ISS, whether they involve active spacecraft or debris, would be devastating. Highlighting this position was former NASA Administrator, Jim Bridenstine’s comments after the 2019 Indian ASAT test, that activities that create debris are ‘not compatible with the future of human spaceflight.


Information Sharing

Access to information is central to ensuring that all parties operating in orbit do so in a way that respects others and considers the true nature of orbit as a domain for all operators.


As foreshadowed above, the Agreement creates a series of mutual obligations around information sharing. The majority of these obligations relate to the provision of ephemerides (a data file which includes calculated positions of space objects over a specified period. A simpler description would be ‘orbital information’ for a space object) on a regular basis. The Agreement requires both NASA and SpaceX to provide this information to the US Air Force 18thSpace Control Squadron (“18SPCS”)– the division of the US Air Force responsible for the Space Surveillance Network. Worth noting is that both NASA and SpaceX have agreed to provide this information to the 18SPCS no less than three times daily. This information is ultimately used to provide conjunction assessments and eventually act on it if appropriate.

Discussion

The Agreement takes a rapid and public step towards deconfliction of space activities. While the Agreement is only in force between NASA and SpaceX, it has the potential to set the terms of any subsequent agreements between the operators of mega constellations and high-value space assets.


From an interna