Tanishka Goswami and Shikhar Aggarwal, students at National Law University, Delhi, discuss the deployment of satellites by different non-governmental entities in the Low Earth Orbit, and the impact that this would have on international space law...
On 15 May 2021, SpaceX launched 52 satellites as part of its Starlink mega-constellation, less than a week after it had launched the previous batch with 60 satellites. When fully deployed in the Low Earth Orbit (“LEO”), this constellation would form a network of thousands of satellites providing affordable access to high-speed internet. Starlink faces competition from the likes of OneWeb, which has so far deployed 146 satellites in its LEO constellation. This (planned) deployment of satellites by different non-governmental entities (“NGEs”) raises concerns over increasing congestion in the LEO. This could escalate risks of in-orbit satellite collisions and impinge upon freedom of access to outer space, which forms a core principle of customary international law in outer space.
Until the 1990s, large mobile-communication satellites used to be deployed in a circular orbit located approximately 36,000 km above the equator, known as the Geostationary Orbit (“GSO”). Subsequently, companies developed novel space-based communication systems, envisioning satellite constellations deployed at an altitude of less than 2000 km. Unlike a single GSO satellite providing permanent coverage over a large area, LEO mega-constellations stretch across several kilometers of orbit, providing extensive coverage over the Earth’s surface. Subsequently, the GSO came to be recognized as a scarce natural resource, under Article 44 of the Constitution of the International Telecommunication Union (“ITU”).
The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty” or “OST”) establishes the legal regime governing outer space activities. In Article VI, it envisages direct responsibility of States for their ‘national space activities‘: it obligates an appropriate State to ensure authorization and continuing supervision over space activities of non-governmental entities, without defining any of these concepts. States have enacted national space legislation defining the scope of their jurisdiction and establishing authorization and supervision regimes by way of licensing and regulatory mechanisms.
The current form of Article VI OST emerged from an American-Soviet compromise, at a time when there was little-to-none involvement of NGEs in outer space activities. Fifty years thereafter, commercialization has emerged as an outcome of outer space activities being conducted in an ever-globalizing world.
For instance, OneWeb’s satellites have been launched from the Russian spaceport Vostochny Cosmodrome since 2019: however, the Russian government did not allow OneWeb to provide internet connectivity services in Russia, citing national security concerns. OneWeb also filed an application before the United States’ Federal Communications Commission last year, to increase the number of satellites in its constellation. Additionally, the United Kingdom government and India-based Bharti Enterprises Limited recently acquired a stake worth US$1 billion in OneWeb. Evidently, given the involvement of multiple States in their operations, it is difficult to pinpoint the State(s) responsible for the activities of any mega-constellation operated by NGEs (or even the appropriate State whose authorisation-supervision regime OneWeb is subject to, for instance).
Bearing this in mind, scholars have understood the phrase ‘national space activities’ under Article VI OST as referring to all activities: first, having a ‘special connection’ with the concerned State; or second, over which a State exercises effective territorial, quasi-territorial, and personal jurisdiction (see Bin Cheng, here). That said, private space law instruments such as the Cape Town Convention and Space Protocol may assist in the development of frameworks that supplement the State responsibility regime created by the OST.
Proceeding further, Article II OST prohibits ‘national appropriation’ of outer space by claims of sovereignty, use/occupation, or any other means. Understood in light of Article I OST that declares outer space to be the ‘province of all mankind‘, the non-appropriation principle bars States from asserting exclusive rights in outer space. Preserving this customary law principle assumes greater relevance with respect to mega-constellations, which involve the deployment of satellites and exercise of States’ jurisdiction over several orbital planes.
In contrast to States that develop and launch mega-constellations, developing nations that lack abilities to fuel such large-scale space projects are at a significant disadvantage in exploring outer space. Voicing their concerns, in 1976, certain equatorial States claimed exclusive rights over portions of the GSO located above their territory, to preserve their interests in conducting scientific investigations in outer space. Referred to as the Bogota Declaration, these claims did not receive any international support or recognition. However, this highlights the dilemma in international space law of balancing concerns of orbital congestion alongside equitable access.
Further, the principles enshrined under the existing space treaties and ITU frameworks do not currently envisage a mechanism for space traffic management. In fact, the ITU allocates orbital slots and spectrums to countries launching telecommunication satellites on a ‘first come, first serve’ basis. Hence, the exclusive orbital use by a mega-constellation for economic benefits is still a fairly unregulated domain. Therefore, a two-fold impact of this legal vacuum can be drawn out: first, equitable access to the LEO for developing countries stands to be impeded; and second, light pollution caused by these bright satellites in the Dark Skies would potentially hinder astronomical research.
The crucial question posed before the body of international space law is whether the launch of mega-constellations by NGEs violates Article II OST. Advocates of such large-scale projects may argue that: first, these mega-constellations aim at serving the ‘benefits and interests of’ all mankind by providing affordable global broadband services; second, the use of outer space to that end does not constitute an assertion of any ownership rights or sovereignty; and lastly, in any case, international space law does not prohibit the launch and operation of mega-constellations.
On the other hand, those opposing these advancements assert that: first, the deployment of mega-constellations and associated risks of collision impede similar outer space endeavors by developing countries; second, the phrase ‘any other means’ in Article II indicates that there may be means other than claims of sovereignty or ownership that constitute appropriation of outer space. To that end, there exists a possibility of the development of subsequent practice influencing treaty interpretation as per Article 31(3) of the Vienna Convention on the Law of Treaties, thereby establishing a contemporary meaning of Article II OST.
Hence, the issue of equitable access to outer space needs to be addressed today more than ever before, in light of the emerging NewSpace wave. Mega-constellations appear to be the way forward; however, the concerns raised with respect to their deployment by a few NGEs are bound to surge with the entry of new market players. Even Chinese State-run space enterprises have announced plans to soon launch and deploy the Guowang constellation, comprising of 13,000 satellites. A recent study conducted by the University of British Columbia suggested that the activities of even any one of such constellations, in an already-overcrowded LEO, may cause the occurrence of a ‘tragedy of the commons’ in outer space.
The absence of guidelines or any binding framework to manage space traffic and allocation of orbital slots in the LEO for mega-constellations has intensified the ultra-hazardous nature of outer space activities. Recently, OneWeb and SpaceX satellites dodged a potential in-orbit collision, after coming as close as 190 feet of each other. Even though the Space Debris Mitigation Guidelines are a step towards maintaining the long-term sustainability of space activities, any potential LEO collisions can exponentially exacerbate the risk of space debris accumulation.
These challenges to the nature of outer space as the ‘common province of mankind’ highlight an urgent need for moving beyond the treaties and ‘soft law’ currently in force. The tensions caused by the launch, deployment, and operation of mega-constellations can be resolved through improved inter-State coordination and clarity in national regulatory frameworks.
Tanishka Goswami and Shikhar Aggarwal are third-year B.A.LL.B. (Hons.) students at National Law University, Delhi.
Suggested citation: Tanishka Goswami and Shikhar Aggarwal, SpaceX, OneWeb and the ‘Mega’ Effect of Mega-Constellations on International Space Law, JURIST – Student Commentary, May 31, 2021, https://www.jurist.org/commentary/2021/05/goswami-aggarwal-international-space-law/.
This article was prepared for publication by Vishwajeet Deshmukh. Please direct any questions or comments to her at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.