Anna Gurova, PhD in Law and an expert in space law.
Each of us has had the opportunity, if not to feel like heroes, then at least to observe the phenomenon depicted in the famous American movie “Jingle All the Way”, where Arnold Schwarzenegger’s character fights for the last toy for his son with another “doting father”. Here, we can agree with Hayoung Chang that economics is primarily about human psychology, and then about numbers. This brings to mind Say’s Law: supply creates demand. It seems like a universal truth, though there are some reservations: “what happens when the resource that can meet the demand is limited though everyone has access to it?” At this point, everyone starts to negotiate and develop rules.
The famous American biologist and ecologist Garrett Gardin wrote that common property might be justified only in conditions of low population density, because as humanity and its needs grew exponentially, they initially abandoned the commonality of food gathering, by fencing off agricultural land and limiting pastures and hunting and fishing areas, then the regulated places to dispose of waste, and only now we are coming to realize the evils of commonality in matters of entertainment (advertising, noise, etc.). This development follows as a pattern of the tragedy of the commons, a concept developed by G. Hardin, according to which there is a contradiction between personal interests and the public good, which is the inability of a large group of people to effectively manage a common resource. This concept has been tested thousands of times, just to mention the development of new lands and the extermination of the indigenous population, the “gold rush” with predatory mining methods and the growth of crime, the extermination of northern fur seals, the infamous and well-known consequences of receiving land by peasants and the means of production by workers according to the Soviet model. The tragedy of the commons implies that if there is freedom of access to an exhaustible resource for all without determining the rights of fair distribution for each, sooner or later a situation arises where the exercise of the relevant freedom by one prevents its exercise by another.
Since the beginning of space exploration, there has been a concept of “Big Sky”, the essence of which is the vastness of space and the possibility of its most reckless exploitation, which, in principle, justified itself while the density of users in orbits was quite small. The situation changed dramatically with the commercialization of space activities, the realization that Earth orbits are a resource for providing paid services for communication, navigation, meteorological, agricultural, environmental and any other information, as a result of which the earth’s economy has become almost completely dependent on space technologies. And as has already happened in the context of global climate change, the same relationship has developed between humans and outer space: demand is growing so fast that supply may be threatened by the limited resources that provide it.
And now consider some facts. According to the NORAD satellite catalog, there are currently more than 25 thousand tracked objects in near-Earth space. Almost 9 thousand of them are operational satellites. At the same time, more than half of them (4,800 satellites) are part of the Starlink group, and another 630 are part of OneWeb. If we add to this a large number of military satellites that are “invisible” to official statistics, the realization of the desire of every country in the world to have its own satellites, statistics on space debris, which in the size range from 1 to 10 cm is about half a million, and from 1 mm to 1 cm – 135 million, as well as statistics on plans to deploy mega constellations of satellites by private companies (Starlink – 12,000, OneWeb – 6,372, Samsung – 4,600, Amazon – 3,236, Telesat – 298), it turns out that space is becoming less and less available, and at the same time, there are fewer opportunities for everyone to use it. Approximately 80% of all these space objects are located within low Earth orbits, which are the easiest and cheapest to reach.
Formally, everything is happening within the framework of internationally recognized norms, because according to Article 1 of the 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 is open for exploration and use by all states without discrimination on the basis of equality and in accordance with international law, with free access to all areas of the celestial bodies. And the solution that worked during the development of new lands — the division of common property into a certain number of private plots — will not work here, because Article 2 of the same Treaty stipulates that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by means of the claim of sovereignty, use or occupation, or by any other means. However, there is an international norm that makes it possible to realize freedom as a recognized necessity and to agree on the rules for the use of outer space. This is the provision of Article 9 of the Outer Space Treaty, which obliges to explore and use outer space with due regard for the relevant interests of all other states parties to the Treaty and to hold consultations in the event of potentially harmful interference with such activities. In this context, given the plans to deploy constellations of satellites that will provide low-orbit Internet, part 2 of Art. 44 of the Constitution of the International Telecommunication Union, which stipulates that radio frequencies and any associated orbits, including geostationary orbits, are limited natural resources and must be used rationally, efficiently and economically in accordance with the provisions of the Radio Regulations so that countries or groups of countries may have equal access to these orbits and frequencies, taking into account the special needs of developing countries and the geographical location of some of them. Thus, the usual understanding that the International Telecommunication Union deals only with the geostationary orbit is no longer complete and correct. At the same time, the rapid growth in the number of space objects in orbits with limited spatial characteristics raises a number of other issues that need to be negotiated and rules established.
Registration and authorization procedure
One of the key elements of managing the movement of space objects is their observation. Almost every space power has its own national tracking systems, the most powerful of which are those of the United States, China, the Russian Federation, and the European Union. At the same time, the Convention on Registration of Objects Launched into Outer Space introduced an international transparency and confidence-building mechanism, the registry of space objects, which is updated by notifications from states about the launches of spacecraft that have been entered into their national registries. The state of registration may be one of the states determined by the criteria for carrying out or organizing a launch, providing facilities or territory for it. More than one international space law tournament has been based on tasks such as: “determine which country is the state of registration of a space object if the launch was carried out from the territory of state A, the launch vehicle belongs to a company registered in state B, which actually operates in state C, and the spacecraft itself belongs to a company registered under the laws of state D, which actually carries out economic activities in state D”. However, if a small satellite is launched not in a constellation, but together with other large satellites, the question sometimes arises whether it is a separate satellite at all, because, in fact, the definition of small satellites (mini – 100 kg, nano < 10 kg, pico < 1 kg, femto < 0.1 kg) is still not defined in legal documents, as well as there is no clear understanding of whether constellations of jointly launched satellites are one space object or separate.
The second issue concerns internal authorization procedures, which are designed, in particular, to check the availability of safety equipment, maneuverability, and financial guarantees of the space facility operator in case of damage to third parties. Small satellites are already available not only for production by large companies to deploy constellations, but also for universities, research laboratories and even schools, and due to their small size, they may not “fit” technical means for maneuvering (for example, Ukraine’s PolyITAN did not have an engine for de-orbit after completion of its operation), and internal authorization procedures may either not define requirements for such facilities or contain lenient requirements. These issues are currently being discussed and proposals are being developed at international forums. For example, at the UN conference on space law and policy, a working group put forward a proposal to enshrine in the national legislation of space powers the need to allow companies launching satellite constellations to have a cumulative insurance policy, under which the operator could purchase one insurance policy and continue to add its satellites to it, rather than purchase separate policies for each satellite in the constellation.
Kessler syndrome researchers point to an exponential increase in the number of space debris fragments, the rate of which depends on such criteria as the size of the object and its orbit. While the trend toward miniaturization of satellites in this system is quite encouraging, the creation of satellite constellations of hundreds and thousands of units in approximately the same low Earth orbits still threatens to fulfill the scenario predicted by Donald Kessler, especially given the lack of a market for orbital services for debris removal, as well as the “lenient legislation” of some spacefaring nations as to minimizing and eliminating producing debris.
In this situation, there is a vivid illustration of the tragedy of the commons on a space scale, when the successful implementation of several projects to deploy constellations of small satellites can so increase the risk of damage during the launch of payloads by new entities (developing countries, universities, small businesses, etc.) that it will essentially block this possibility or, at the very least, demotivate them by pre-occupying the “most tasty” sites. In economic theory, the problem of improper allocation of resources, the essence of which is to impose on third parties the costs associated with the harmful effects of economic activity, is called “spillover costs.” The correction of these costs is known to us from the environmental principle of “polluter pays,” which is embodied in national legislation in the form of environmental taxes and other financial mechanisms. All this is also relevant for the development of a model of space traffic rules, which, as a complex problem, should be solved through a wide range of mechanisms designed to ensure open universal surveillance of all objects in near-Earth space, stimulate the most environmentally friendly technologies for the production and management of space objects, ensure the avoidance of physical, radio and other types of interference with the exploration and use of outer space by any entities of space activity, and create systems for orbital service and space debris removal.
Some steps in this direction have already been taken. For example, in 2017, the Inter-Agency Space Debris Coordination Committee adopted the Regulations on Large Constellations of Satellites in Low Earth Orbit, which provides recommendations for determining a sufficient altitude difference between parts of a constellation and their various groupings to avoid collisions in the plane of the trajectory, automatic passivation systems, sufficient reserves for maneuvering and de-orbit, and tracking systems from the Earth. In addition, in 2018, the UN Committee on the Peaceful Uses of Outer Space adopted the Guidelines for the Long-term Sustainability of Outer Space Activities, which contain requirements for the safe design of space objects, consideration of the impact of space weather, protection against radio frequency interference, and minimization of space debris. However, the relevant documents are not legally binding, but contain general rules that can only be implemented as states interpret and implement them into national legal mechanisms.
For example, the United States adopted the Space Policy Directive-3 (June 2018), which reflects a new approach to space situational awareness (SSA) and space traffic management (STM), namely: the Department of Commerce is expected to build a state-of-the-art cloud architecture for an open space traffic tracking system based on the Department of Defense data by 2024, but at the same time widely use information obtained through international cooperation and public-private partnerships. A number of European countries have introduced strict rules to minimize space debris and economic and legal measures to stimulate the development of environmentally friendly space technologies, as well as a system for tracking near-Earth space and a number of measures under the Clean Space initiative. It is noteworthy that the new laws of such countries as the UAE and India contain provisions to address the problem of space traffic complications and minimize space debris.
It should be noted that globally, the situation remains critical, as there is no awareness and internal conviction of the need to limit the freedom of use of outer space by some entities to ensure access for others. And there is no external coercion through binding international norms implemented in the national legislation of all states in the form of environmental taxes, financial mechanisms to stimulate the creation of environmentally friendly technologies. Unfortunately there are no internationally accepred technical standards for minimizing space debris, norms on the mandatory exchange of information about all objects detected in outer space and an algorithm for resolving situations of avoiding collisions. Currently, we have a flexible system of a huge number of voluntary principles and best practices, and this is a new reality that can only be changed if the states with the most advanced space technologies fully realize that they are losing access to them. This, as history shows, is the starting point for building a new legal order.