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date: 29 January 2023

Legal Issues Related to Satellite Orbitsfree

Legal Issues Related to Satellite Orbitsfree

  • P.J. BlountP.J. BlountSchool of Law, University of Mississippi

Summary

Orbits are unique geophysical features that are best understood as natural resources that are exploitable by humans for a variety of space activities. As with any human activity, the exploitation of these resources results in a variety of legal questions that are driven by their physical features and their uniqueness and scarcity. The law of orbits, or orbital law, is the framework of governance mechanisms that regulate the use of orbits from the perspective of their exploitation as natural resources. This legal framework seeks to govern the allocation of these resources among potential users, the coordination mechanisms among users to avoid conflict, and the protection of orbital resources from detrimental activities.

Subjects

  • Space Law

Introduction

Much of what is understood as being in space is connected directly to exploitation of orbits around the Earth. While science fiction paints space as spacecraft moving with ease to explore faraway planets, the reality is that the vast majority of human objects launched into space have never made it past Earth orbit. In this respect, it is notable that the exploitation of orbits is the immediate cause of what is known as the Space Age. In 1944, A German V-2 rocket flew to an altitude of 175 km (Britannica, n.d.) well past the Kármán line, which is often used as the demarcation of the beginning of space, as well as numerous other measures of the beginning of space (Gangale, 2017; McDowell, 2018). Despite this, it is not the 1944 V-2 launch that marks what is commonly understood as the Space Age, but rather the launch of Sputnik I by the Soviet Union in 1957—the significant difference, of course, being that Sputnik I marked the beginning of orbital spaceflight. Indeed, it is fair to say that to some extent to be in space is most often understood as being in orbit rather than simply having crossed a threshold of altitude. Orbits, thus, are a unique feature that are central to human use and exploitation of outer space.

Orbits are unique geophysical features that are best understood as natural resources that are exploitable by humans for a variety of space activities. As with any human activity, the exploitation of these resources results in a variety of legal questions that are driven by their physical features and their uniqueness and scarcity. The law of orbits, or orbital law, as presented herein is the framework of governance mechanisms that regulate the use of orbits from the perspective of their exploitation as natural resources. This analysis will investigate how this legal framework seeks to govern the allocation of these resources among potential users, the coordination mechanisms among users to avoid conflict, and the protection of orbital resources from detrimental activities.

This article will discuss each of these legal functions in turn. For the purposes of this analysis, these will be treated as discrete legal functions, but in reality these are overlapping elements of the legal framework governing space activities. However, before turning to its discussion of allocation, coordination, and protection, this article will first reflect on the nature of the status of orbits and their specific context, from a legal perspective, as a resource. At the outset it is important to note that this article will analyze international approaches rather than the various domestic approaches to orbital usage. This scoping is intended to draw focus onto the issue of orbits as resources and the unique way in which these resources are managed in the global commons of space.

Orbits as Resources

Interestingly, orbits are rarely addressed in the body of international space law. The word orbit only appears ten times across the five space treaties: twice in the Outer Space Treaty (addressed here), four times in the Registration Convention (addressed in the Coordination section below), and four times in the Moon Agreement (referring to orbits around celestial bodies and outside the scope of this article). The Outer Space Treaty (OST) only mentions the word orbit twice both times in relation to the placement in orbit of weapons of mass destruction, once in the preamble and once in the substantive text. In this context, the OST bans the “place[ment] in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction” (OST Article IV). This article contains the only direct textual prohibition on a potential use of an orbit. Nowhere else does the international space law regime directly limit a state’s ability to use an orbit for a particular purpose. An interesting result of this clause though, is that subsequent practice under Article IV has helped to indirectly characterize the importance of the orbit to the application of space law: namely, that being in orbit becomes prima facie evidence of the applicability of space law. This indirect impact can be seen in the legal status of fractional orbital bombardment systems (FOBS). FOBS are nuclear delivery systems that enter into an orbital trajectory but are deorbited onto their target before completing an Earth orbit. When first developed by the Soviet Union, it was argued that since such weapons did not complete a full orbit, they could not be considered to be “place[d] in orbit around the earth.” Surprisingly, the United States agreed with this legal assessment (Garthoff, 1980, p. 38; the debate over FOBS has reignited recently after China tested a system that might be considered a FOBS; see Wright, 2021). This state practice indicates that for the purposes of being legally “in space,” a suborbital or partial orbital trajectory will not suffice; thus, an orbital trajectory then is central to the understanding of the applicability of space law. This is, of course, not to say that suborbital flights do not count as space activities, but they seemingly fall short of being placed in space for the purposes of the application of space law.

Orbits are unique physical features that result from the gravitational pull of a body relative to the velocity of an object placed in an orbit. Though orbits are possible around most large celestial bodies, herein the concern is specifically with orbits around the Earth as these are most exploitable for human activities. A basic explanation is that orbits are in a constant freefall relative to the surface of the Earth. That is, the object is on a forward trajectory parallel to the surface of the Earth, but at the same time the object is being pulled toward the surface of the Earth due to gravity. As the object falls though, the Earth’s surface curves away due to the velocity of the object (Wright et al., 2005, p. 20). Velocity is a critical component for defining and orbit because the “required speed depends on the satellite’s altitude because of the Earth-satellite geometry and because the rate at which the satellite falls toward the Earth depends on the strength of gravity at its altitude” (Wright et al., 2005, p. 20). In addition to velocity and altitude, orbits are also defined by a number of factors such as the shape of the orbit (circular or elliptical), inclination (the angle of the orbit with respect to the equatorial plane), and the orbital period (the time it takes the object to travel around the circumference of the Earth) (see generally Wright et al., 2005, pp. 19–28). The technical specifications of orbits are beyond the scope of this entry, and this section will instead describe the features of orbits that lend themselves to management as resources.

For an object to be placed in orbit has been accelerated enough to leave the atmosphere of the Earth and then accelerated to an orbital velocity. This is the key difference between the V-2 launch in 1944 and Sputnik I launch in 1957. The Sputnik I launch was able to accelerate a satellite to a velocity that it maintained an orbit rather than falling back to the surface of the Earth, whereas the V-2 was unable to accelerate to an orbital velocity. The velocity of the object moves it fast enough that the pull of the Earth’s gravity does not over power its forward momentum. The object instead circles the Earth on a continuous trajectory at which point the object can be properly called a satellite. The International Telecommunication Union (ITU) Radio Regulations, for instance, define an orbit as “[t]he path, relative to a specified frame of reference, described by the centre of mass of a satellite or other object in space subjected primarily to natural forces, mainly the force of gravity” (International Telecommunication Union, 2020, hereafter “Radio Regulations,” Sec. 1.184). There are an infinite number of possible orbits, but different orbital characteristics are better for varying applications (see generally Wright et al., 2005, pp. 29–48). It also follows that some orbital parameters, such as the geostationary orbit (GSO), have unique characteristics making them especially valuable. This also means that some areas of orbital space around the Earth are more valuable and thus more used and potentially congested.

Indeed, GSO helps to illustrate the idea that orbits are resources from a legal perspective. GSO is a circular orbit around the Earth’s Equator at an altitude of 35,786 km, which results in an orbital period of 1 day (Wright et al., 2005, p. 43). Due to the features of the GSO, the satellite maintains a static position relative to the Earth’s surface, meaning that a stationary antennae on the surface of the Earth can be used to receive or send information from or to the satellite. These satellites also, due to their altitude, have a large footprint over the surface of the Earth for their electromagnetic transmissions, roughly a third of the Earth’s surface, over which they can send to and receive from. This means that a constellation of three satellites can provide global telecommunication coverage (excepting the polar regions). GSO, then, is a particularly valuable orbit to applications such as direct broadcasting and telecommunications more generally. At the same time, this orbit, due to its distance from the surface of the Earth does not have strong value for remote sensing applications, outside of a few select applications, such as meteorology, that generally need satellites in closer proximity to the Earth. Due to the unique features of GSO, it is clearly treated as a resource from a legal standpoint. The ITU provides the mechanisms and processes for managing this orbit, more on which will be discussed below. The ITU’s authority to promulgate these rules for GSO is based on the texts of the ITU Constitution and the ITU Convention. The Constitution specifically states that “[i]n using frequency bands for radio services, Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources” (Constitution of the ITU, Article 44; International Telecommunication Union, 2018). Interestingly, this characterization of the GSO is confirmed by a core document contesting the authority of the ITU, the Bogota Declaration. This document was a declaration adopted by a meeting of equatorial states in 1976 and characterizes GSO as a “scarce natural resource” (Declaration of the First Meeting of Equatorial Countries, 1976, Section 1). It argues that this resource is not part of outer space, however, and is directly connected to the subjacent equatorial territory over which territorial states exercise sovereignty. Colombia went so far as to codify this in its Constitution (Republic of Colombia, 1991, Article 101). Though the Bogota Declaration was largely rejected by the rest of the international community, it helps make clear the nature of GSO as a resource.

The ITU Constitution language is not limited to the GSO as it applies to “any associated orbits,” including those outside of GSO. While orbits are theoretically infinite, the number of useful orbits is finite and use of any one orbit reduces the usability of other orbits that may intersect of have close approaches to the occupied orbit. For this reason, the orbital environment has been characterized as a “common pool resource” (Morin & Richard, 2021, p. 568). This is a type of resource that is both non-excludable (i.e., users do not have the right to exclude other users) and rivalrous (i.e., the consumption or use of the resource prevents others from using the resource) (Morin & Richard, 2021, pp. 568–69). This is embodied by the ongoing trend of increased space operations from a variety of operators, which directly increases potential for conflict among operators and proliferation of space debris as more orbits become occupied. Of note in this regard is that the rise of very large constellations, sometimes referred to as “mega-constellations,” has the potential to make usable orbits increasingly scarce. Space is already commonly referred to as “competitive, congested, and contested” in military speak (see, e.g., United Kingdom Ministry of Defense, 2022, p. 9). This rhetoric further underscores the nature of orbits as resources to be managed.

Allocation

If, for the purposes of regulation, orbits are understood to be resources, then how those resources are allocated among users is of the utmost importance. Here, the idea of allocation is used to mean how resources are divided among potential users of those resources. This does not necessarily mean that there is a centralized actor engaged in the act of allocating, but rather that within a system there is some framework that governs the extent to which users can access and use resources. This is particularly important in outer space as space is considered under international law to be a global commons, that is, an area that exists outside the territory of a state and is in principle accessible by all states (Blount, 2017, p. 99; but see Hertzfeld et al., 2015). Global commons—namely the high seas, deep sea bed, Antarctica, and outer space—have their resources managed through international law, and each commons exists under a different regime and different resources are managed within a given regime in different ways based on the particularities of a given resource. For example, in space orbital resources based on their attributes as a common pool resource should be regulated differently than lunar water or solar energy, which have different attributes. The word “should” is used in the previous sentence, because, as will be seen, under international space law resource allocation is not formally addressed, and systems of management and allocation are still emerging. It should also be noted as a point of distinction that in the context of space the term “space resources” is most often used to refer to resources that are mined or exploited on celestial bodies such as minerals or water. This is, of course, a misnomer as space is home to a wide variety of resources, and herein orbital resources are distinguished as a unique type of resource.

There are two primary legal regimes that govern the allocation of orbital resources: the international space law regime and the international telecommunication law regime. Each will be addressed in turn. For clarification, while it could be asserted that all international law that touches on outer space or space activities could fall under the heading of international space law, herein the term is explicitly used to refer primarily to the treaty regime that deals directly with outer space and includes the Outer Space Treaty (OST), the Rescue and Return Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement (see generally Lyall, 2021).

International Space Law

The international space law regime finds its genesis in legal principles that were adopted in the early 1960s and were eventually hardened into law in the 1967 OST, and it is within the OST that the allocation regime for resources in the space domain is articulated. It is important to note that this regime was adopted at the advent of the space age and there was a great deal of uncertainty at the time about the potential future uses of outer space. As a result, the regime is—Article IV notwithstanding—fairly permissive in scope with a great deal of focus on establishing broad principles that can guide states in their space activities in such a way as to reduce the potential for conflicts between and among state actors. The allocation regime that emerges in this context is highly generalized and all resources found in space are treated the same as there is no distinction of specific resources, which is not without its limitations. This regime is based on two primary principles found in the OST: non-appropriation and free access.

The non-appropriation principle can be found in Article II OST, which states that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” While there is heated discourse over what Article II means in terms of the exploitation of tangible resources on celestial bodies (see, e.g., de Man, 2016), it is significantly less controversial when applied to orbital resources. This is because the most important effect of Article II is that it establishes outer space as a global commons in a legal sense, meaning simply that outer space exists outside the territorial borders of states. Thus, while states may be able to claim jurisdiction over objects, individuals, and activities in space this jurisdiction is not “territorial” in scope (see generally Blount, 2007; von der Dunk, 2015). As a global commons, resources in outer space will be managed based on international law principles established by states. As already noted, there are no general rules governing the use of resources in global commons, rather states establish regimes in an ad hoc manner based on the particular global commons and the particular resource in question. These rules will be addressed in the section on Coordination.

The non-appropriation principle is complemented by the free access principle found in Article I OST. This article states that “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law.” This clause allocates the use of space to all states. The word “use” is important as it implies that states do have a right to exploit the resources found in space. Thus resources, as constituent parts of space, are allocated among all states through their free access. The following clause notes that this access should be on a basis of “equality.” Equality here does not imply equal distribution, but rather refers to the idea of nondiscrimination—that is, that all states have an equal right to access these resources. Article I also states that the use of space “shall be carried out for the benefit and in the interests of all countries,” which does place some burden on the states to ensure that uses of space create “benefits” for all, but this falls short of a formal benefit sharing regime wherein benefits derived by an actor are reallocated to all states. This was confirmed by United Nations General Assembly Resolution 51/122, which confirms that “States are free to determine all aspects of their participation in international cooperation” (United Nations General Assembly, 1996).

In short this system adopts an equality to access and use of space (and its resources), which instills the non-excludability discussed above. Of course, due to technological inequality, this system is effectively a first-come, first-served system, and in general and in the orbital context specifically, this means that most resources in space are rivalrous. In contrast, the 1979 Moon Agreement attempted to adjust this for resources on celestial bodies by declaring them the “common heritage of mankind,” which would require some sort of distributive allocation from the exploitation of resources (United Nations Office for Outer Space Affairs, 1984, Article 11). Even if this agreement had been widely adopted (it currently has fewer than 20 ratifications including none of the major space powers), it would not have affected orbital resources.

International Telecommunications Law

Orbital resources are also managed through the international telecommunications law and specifically through the auspices of the International Telecommunication Union (ITU) (see generally Lyall & Larsen, 2013, Chapter 8). It is important to note that the ITU’s competence is not directly over the orbits themselves. Rather, it has competence over electronic communication through frequency usage. specifically for radiocommunication, in the electromagnetic spectrum in order to prevent harmful interference among users at the international level. To this end, the ITU allocates spectrum for certain uses and establishes policies for coordinating among competing users including space services, thus, this coordination function extends to orbits (Radio Regulations, Chapters II–III; see generally Masson-Zwaan, 2015). Specifically, the ITU shall “effect allocation of bands of the radio-frequency spectrum, the allotment of radio frequencies and the registration of radio-frequency assignments and, for space services, of any associated orbital position in the geostationary-satellite orbit or of any associated characteristics of satellites in other orbits, in order to avoid harmful interference between radio stations of different countries” (ITU Constitution, Article 1).

This function can most clearly be seen in the ITU’s role in GSO. As the exact physical parameters of GEO both create significant value in its exploitation and are not replicated by other orbits, there is a particular need to avoid interference among users of the orbit. Due to the significant investment and lead time in developing GSO satellites, users need sound information on what frequencies will be open and interference free when planning their systems (Roberts, 2000, p. 1124). The ITU’s role has been to divide GEO into orbital slots that each have a specific range of available frequencies for downlink and uplink (see Radio Regulations, Appendix 30B). These slots are organized in such a way that harmful interference is avoided among adjacent users (Copiz, 2002, p. 212; Radio Regulations, Appendix 30B). This function becomes more complicated outside of the GSO. There is still a distinct need to avoid interference, but the myriad number of orbits that operators can choose from is not conducive to the assignment of frequencies to “orbital slots.” This is why the ITU Constitution refers to “any associated characteristics of satellites in other orbits,” which gives a wider birth for setting up parameters to avoid harmful interference (see also Radio Regulations, Article 9).

Originally, the ITU system for coordinating users in the GSO was built solely on efficiency of use. In other words, the system adopted a first-come, first-served allocation system. As noted in the above discussion of the Bogota Declaration some potential users and in particular developing nations were displeased with this system. These states contended that this system favored technologically advanced users by enabling them to fully exploit GSO to the detriment of less developed nations’ potential future uses. This dispute led to a major reworking of the rules regarding GSO, which sought to add more equity into the system (Copiz, 2002, p. 215). This change shifted the allocation system to one built on both equity and efficiency, and the ITU Constitution requires that radio frequencies and associated orbits “must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries” (ITU Constitution, Article 44). Under this system, some GSO slots are still used on a first-come, first-served basis, but every state is guaranteed a slot that would be useful to that state at such time that they have the technology to exploit the orbit spectrum resource. Therefore, some orbital slots are “planned” or “allocated” to certain states or regions (Copiz, 2002, p. 215; Morozova & Vasyanin, 2019, p. 19; Radio Regulations, Chapter II; Roberts, 2000, p. 1128) This system maintains efficient usage by allowing usage in the present, but also maintains equitable usage for all states by planning some slots for the future. This system mitigates against the efficiency system, through which all available orbital slots could be filled and occupied barring future users from access.

The ITU has begun to create processes for coordination in other orbits beyond GSO. This is a problem that is very different in scope, because no other orbit is as unique as GEO and therefore the division into orbital slots with associated frequencies is not as straightforward as in GEO. This means that at the moment orbital resources outside GEO are allocated in a first-come, first-served basis, and this has indeed led to a rush by users to attempt to reserve large swaths of spectrum and orbits as can be seen in the steep rise of filings for very large constellations at the ITU (Foust, 2021). With the rise of very large constellations, the ITU will need to address this process to continue to ensure that there is equitable uses of these resources. This presents a number of difficulties. For instance, if these constellations continue to vie for orbital space through the ITU mechanisms, then will the ITU be able to maintain not just efficient use of the spectrum, but also equitable use of the spectrum? Though the ITU’s competency is over electro-magnetic frequency it is likely to become a battle ground for entities looking to control parts of orbital space.

Coordination

The previous section discussed the idea of allocation and identified that for the most part orbital resources are allocated within both the international space law framework and the International telecommunication law framework on a first-come, first-served basis (the equity principles for some GSO slots notwithstanding). This system should not be interpreted to indicate that users are accessing these orbits in a state of anarchy and free-for-all. Indeed, both legal frameworks implement processes for coordination of users in order to avoid harmful interference among those users. This is vitally important due to the high costs associated with developing, deploying, and operating space assets. This section will give an overview of those processes and how they function. Again, it will split the analysis between the two systems of international space law and international telecommunication law.

International Space Law

The coordination system under international space law is one of both informal and formal information sharing with the goal of preventing harmful interference among users of space. Like the allocation framework discussed previously, this is a generalized system that is not specific to orbital resources, but rather applies to all space activities whether they are in orbit or not.

The starting point for understanding this system is Article IX OST. This article requires states to act with “due regard” to the “corresponding interests” of other states. In furtherance of this goal, the article gives states the right to request “consultations” with other states if they think that they may cause or be the victim of “harmful interference.” Though harmful interference is not defined, it can be understood to mean interference between or among space actors that harms the activities of one or more of them. Importantly, this is different from harmful interference under the international telecommunication law framework, which is discussed below. It is also important to note that though the OST applies to states, these states are responsible for the activities of their non-governmental actors, so these provisions are intended to apply across the gamut of potential space activities (OST Article VI; see also Johnson, 2018).

Under this system, states are intended to exchange information and coordinate directly with each other to avoid potential issues in the space environment. To this end, the OST includes a number of clauses that request states to share information about their activities with other states or the international community in general (OST Articles V, and VIII–XII; see also Blount, 2021, p. 4). Many of these requirements are on a best-efforts basis in that they are usually formulated using language that softens the obligation, such as “to the greatest extent feasible and practicable” in Article XI. This informal system of coordination might be argued to be based on ideals of enlightened self-interest, through which states “self-manage” in order to maintain the ongoing usefulness of the resource environment (Morin & Richard, 2021, pp. 571–572).

Though the framework for coordination found in the OST is informal in structure, a more formalized system was adopted by the Registration Convention of 1974 (United Nations General Assembly, 1976; see generally Pečujlić, 2020). This convention expands on the idea of a national registry of space objects found in Article VIII OST (an information sharing provision) and establishes an international registry under the auspices of the United Nations. States have an obligation to, “as soon as practicable,” provide information to the Secretary-General information about space objects that they have launched into space (Registration Convention, Article IV). This information includes information on the launching states, a designator for the craft, date of launch, territory of launch, and general functions of the object (Registration Convention, Article IV). More interesting for the present analysis it also requires that “basic orbital parameters” be provided including nodal period, inclination, apogee, and perigee (Registration Convention, Article IV). This is the only reference in the body of international space law to specifics of the orbital characteristics of a spacecraft. Though there have been critiques of this regime along the lines of noncompliance by states, it does provide a formalized system for sharing information on spacecraft in orbit, which is critical for coordinating activities. One of the core issues with the system is that if orbital parameters of the object change state “may” but are not required to update the registry. Another issue, is that there seems to be significant lag time between launch and registration for some actors. As a result, the United Nations register provides important information to space actors, but can only be considered as an incomplete source of information for coordination purposes.

In light of the coordination efforts found in the space law regime, there has been an increasing emphasis in the space community on the idea of space traffic management (STM). STM is the set of legal and technical measures used to manage operators in the orbital environment (Blount, 2021; International Academy of Astronautics, 2006). Though the ad hoc coordination system, based on the mechanisms discussed above, that is currently in place is indeed a form of STM, usually the term is used to refer to a more robust, future system with more definite contours. Such a system could come in a number of forms. For instance, it could be a highly formalized system through a central international organization or it could be the result of domestic systems working through an international agreement. Regardless of the form, the goal of STM is to ensure the safety and security of on-orbit operations through a system that can deconflict operations and avoid orbital collisions. As orbital usage increases such a system will become more critical, but it is unclear what form it might take under current geopolitical conditions.

Though a full analysis of dispute settlement in international space law is beyond the scope of this entry, it will be briefly addressed. Dispute resolution in this system is split between the consultation provisions found in Article IX OST and liability provisions found in Article VII OST and the 1972 Convention on International Liability for Damage Caused by Space Objects (hereafter “Liability Convention,” United Nations Office for Outer Space Affairs, 1972). Article IX consultations represent a non-formalized process that attempts to have states resolve potential disputes before they occur, but does not make resolution a requirement. The Liability framework, on the other hand, adopts a post facto resolution process through a fault-based regime for damage caused “by a space object” to another space object in the space environment (Liability Convention, Article III). It also adopts a formalized process through a claims commission for resolving these disputes (Liability Convention, Articles XIV–XX).

International Telecommunication Law

International telecommunication law is also concerned with the prevention of harmful interference in the orbital environment, but harmful interference in this regime is specifically defined as “interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with Radio Regulations” (Radio Regulations, Sec. 1.169; Morozova & Vasyanin, 2019, p. 18). This framework is explicitly concerned with interference among users of radiofrequency spectrum and as a result its concern with orbits is only to the extent that orbital usage impacts interference of operators on the electromagnetic spectrum. To this end, the ITU has established a set of processes for coordination among operators in this environment. It is a misnomer to say that the ITU manages these frequencies and orbital slots. The ITU creates a formal process through which states can coordinate their activities so as to avoid harmful interference.

Without delving into the complexities of this process (for a detailed description, see Morozova & Vasyanin, 2019), the basic approach of the ITU is to create a framework through which states can publish and make known their intent to use a particular orbit and frequency (Radio Regulations, Article 9). Through a publication process, states are put on notice of planned space systems and able to coordinate to avoid interference accordingly (Copiz, 2002, p. 215). After advanced publication and coordination these plans get entered into the Master Frequency Register, giving the operators a claim to priority over others that use the same frequency (Radio Regulations, Articles 8–9). States then have a set amount of time to “bring into operation” the satellite or satellites they have planned (Radio Regulations, Article 9). If they have not done so in the allotted amount of time, the entry will be removed and the frequency-orbit resource will be freed for others to use (Radio Regulations, Article 9). An important aspect of this process is that it allows operators to plan well in advance through the ability to reserve spectrum before the development of the satellite.

The dispute settlement procedure within this system reveals why it can only be considered a system of coordination. The ITU has no mandatory dispute settlement procedure and lacks any enforcement power. It does have the ability to act as a mediator among the parties, but it lacks an ability to affirmatively resolve the particular dispute (see Oberst, 2015; Venkatasubramanian, 2015).

Protection and Management

The above discussion details how orbital resources are allocated among users and the processes that are used to coordinate to avoid interference between and among users. These frameworks, though, are quite permissive, which raises the question of how these resources are protected from damage. Most operators will be more limited by domestic authorization of their activities than they will by the international law applicable to the orbital environment. Indeed, more than one commentator has asserted that the orbital environment has echoes of Hardin’s famous “tragedy of the commons” in which actors seeking to maximize their own interests in using a common pool resource tend to degrade that resource to the detriment of all actors (Hardin, 1968; Jah & ten Eyck, 2016; Morin & Richard, 2021, p. 569). This is most evident in the problem of space debris. This section will discuss these issues and then discuss legal efforts geared towards the protection and preservation of orbital resources.

Space debris is a growing problem in Earth orbit, in particular in low Earth orbit and in GSO where there are concentrations of human activity. Space debris can be understood as non-operational human made objects in orbit (United Nations Office for Outer Space Affairs, 2010, p. 1). The nature of orbits is such that when a satellite ceases to function or breaks apart, it (or its pieces) do not “fall” out of orbit like a plane from the sky. Rather they keep orbiting the Earth at orbital velocity until such time as the orbit decays. If these objects collide with other objects the combined force can be quite destructive. As more actors have begun to use space the orbital debris problem has increased over time and fears of the Kessler syndrome have increased. The Kessler syndrome is the theory that as orbital debris increases it will begin to collide and grow exponentially, thereby rendering parts of the orbital environment unusable (Kessler & Cour-Palais, 1978).

Orbital debris was not fully contemplated by the space treaty regime. Article IX OST does refer to “harmful contamination,” but it is far from clear as to whether space debris fits within this content of this term. As a result, most of the legal advances meant to deal with these issues have been developed in more recent history. Though highly interconnected and overlapping, these will be addressed through the categorization of debris mitigation guidelines, sustainability guidelines, and space traffic management.

Debris mitigation guidelines are the result of international efforts to deal with the growing amount of debris. Mitigation guidelines are forward looking and are intended to mitigate future debris creation rather than address debris already in orbit. There are two important sets of debris mitigation guidelines, but it must be emphasized that neither of these constitute binding international law. They may more properly be considered analogous to nonbinding technical standards, which set a path for compliance but do not require compliance. Nevertheless, they maintain importance for our understanding of the overall regulatory environment surrounding the protection of the orbital environment. The first of these is the Debris Mitigation Guidelines adopted by the Inter-Agency Debris Coordination Committee (IADC). The IADC is a group of 13 space agencies that coordinate on space debris issues. This group first adopted guidelines in 2002 and those guidelines were most recently updated in 2021 (Inter-Agency Debris Coordination Committee, 2021). The guidelines focus on “(a) limitation of debris released during normal operations, (b) minimisation of the potential for on-orbit break-ups, (c) post-mission disposal, (d) prevention of on-orbit collisions” (Inter-Agency Debris Coordination Committee, 2021, p. 7). A set of guidelines with a similar thrust was adopted by the United Nations Committee on the Peaceful Uses of Outer Space in 2007. These guidelines lack much of the specificity found in the IADC guidelines with the idea that there is “benefit of a set of high-level qualitative guidelines, having a wider acceptance among the global space community” (United Nations Office of Outer Space Affairs, 2010, p. 2). While neither set of guidelines is binding, they have been influential and play a role as more states develop domestic regulation regarding space debris mitigation (see generally Mirmina, 2004; Mottier, 2014; Tremayne-Smith, 2011).

More recently the idea of sustainability has become a powerful concept in the space community, and the Scientific and Technical Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) set out to develop a set of long-term sustainability (LTS) guidelines. Closely aligned with the goals of the debris mitigation guidelines, the LTS guidelines directly assert that “[t]he Earth’s orbital space environment constitutes a finite resource,” and seek to establish a framework “to mitigate the risks associated with the conduct of outer space activities so that present benefits can be sustained and future opportunities realized” (United Nations Committee on the Peaceful Uses of Outer Space, 2018, 1–2). The LTS guidelines are nonbinding, but were adopted through the consensus process of UNCOPUOS (on consensus, see Marchisio, 2005). One of the specific goals of the LTS guidelines is to improve information accuracy of “orbital data” and “orbital information” (LTS B.1 and B.2). The LTS guidelines take up the mantle of the coordination system found in the OST and seek to improve it through voluntary guidelines that have a specific emphasis on orbital resources.

Conclusion

This entry has sought to understand orbits as natural resources and analyze how the law operates to allocate these resources, coordinate users of these resources to avoid interference, and protect the viability of these resources into the future. The assessment has likely left some aspects of legal issues relating to orbits untouched. Indeed, most of the body of space law applies to objects in orbit; thus, a full account of orbital law would engage with nearly every facet of space law. This entry, on the other hand, has sought to understand what makes orbital legal issues unique and draw out specific legal concerns that are most prominent in the orbital environment through the rubric of resources. If the orbital environment faces a tragedy of the commons–type problem, then understanding the nature of these resources and the current and potential future paradigms for their regulation is essential.

References

  • Blount, P. J. (2007). Jurisdiction in outer space: Challenges of private individuals in space. Journal of Space Law, 33, 299.
  • Blount P. J. (2017). Outer space and international geography: Article II and the shape of global order. New England Law Review, 52, 95.
  • Copiz, A. (2002). Scarcity in space: The international regulation of satellites. CommLaw Conspectus: Journal of Communications Law and Technology Policy, 10, 207.
  • Declaration of the First Meeting of Equatorial Countries (1976). Bogota declaration
  • de Man, P. (2016). Exclusive use in an inclusive environment: The meaning of the non-appropriation principle for space resource exploitation. Springer.
  • Gangale, T. (2017). The non Kármán line: An urban legend of the space age. Journal of Space Law, 41(2), 151.
  • Garthoff, R. L. (1980). Banning the bomb in outer space. International Security, 5(3), 25–40.
  • Hardin, G. (1968). The tragedy of the commons. Science, 162, 1243–1248.
  • Hertzfeld, H., Weeden, B., & Johnson, C. D. (2015). How simple terms mislead us: The pitfalls of thinking about outer space as a commons. In P. J. Blount, T. Masson-Zwaan, & R. Moro-Aguilar (Eds.), Proceedings of the International Institute of Space Law 2015 (p. 533). Eleven International.
  • Inter-agency Space Debris Coordination Committee. (2021). IADC space debris mitigation guidelines.
  • International Academy of Astronautics. (2006). Cosmic study on space traffic management.
  • International Telecommunication Union (2018). Constitution of the International Telecommunication Union.
  • International Telecommunication Union. (2020). Radio regulations.
  • Jah, M. K., & ten Eyck, B. C. (2016, October 17). Special report: A tragedy of the commons. Satellite Finance.
  • Johnson, C. D. (2018). The outer space treaty. The Oxford Research Encyclopedia of Planetary Science.
  • Kessler, D. J., & Cour-Palais, B. G. (1978). Collision frequency of artificial satellites: The creation of a debris belt. Journal of Geophysical Research, 83(A6), 2637–2646.
  • Lyall, F. (2021). Space law: Overview. The Oxford Research Encyclopedia of Planetary Science.
  • Lyall, F., & Larsen, P. B. (2013). Space law: A treatise. Ashgate Publishing.
  • Marchisio, S. (2005). The evolutionary stages of the legal subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). Journal of Space Law, 31, 219.
  • Masson-Zwaan, T. (2015). Orbits and frequencies: The legal context. In M. Hofmann (Ed.), Dispute settlement in the area of space communication (pp. 59–68). Nomos.
  • McDowell, J. C. (2018). The edge of space: Revisiting the Karman line. Acta Astronautica, 151, 668–677.
  • Mirmina, S. A. (2004). The regulation of orbital debris through national measures. Air and Space Law, 29(2), 137–146.
  • Morin, J.-F., & Richard, B. (2021). Astro-environmentalism: Towards a polycentric governance of space debris. Global Policy, 12(4), 568–573.
  • Morozova, E., & Vasyanin, Y. (2019). International space law and satellite telecommunication. The Oxford Research Encyclopedia of Planetary Science.
  • Mottier, C. (2014). One giant heap for mankind: The need for national legislation or agency action to regulate private sector contributions to orbital debris. Pace Environmental Law Review, 31(3), 857–881.
  • Oberst, G. (2015). Dispute resolution before the ITU: The operator’s experience. In M. Hofmann (Ed.), Dispute settlement in the area of space communication (pp. 43–58). Nomos.
  • Pečujlić, A. N. (2020). Registration convention. The Oxford Research Encyclopedia of Planetary Science.
  • Republic of Colombia. (1991). Constitution of Colombia.
  • Roberts, L. D. (2000). A lost connection: Geostationary satellite networks and the international telecommunication union. Berkeley Technology Law Journal, 15, 1095.
  • Tremayne-Smith, R. (2011). Environmental protection and space debris issues in the context of authorisation. In F. G. von der Dunk (Ed.), National space legislation in Europe: Issues of authorisation of private space activities in the light of developments in European space cooperation (pp. 179–88). Martinus Nijhoff.
  • United Kingdom Ministry of Defense. (2022). Defence space strategy: Operationalising the space domain.
  • United Nations Committee on the Peaceful Uses of Outer Space. (2018). Guidelines for the long-term sustainability of outer space activities. Document A/AC.105/2018/CRP.20. United Nations.
  • United Nations General Assembly. (1976, September 15). Convention on the registration of objects launched into outer space. United Nations.
  • United Nations General Assembly. (1996). Resolution 51/122. Declaration on international cooperation in the exploration and use of outer space for the benefit and in the interest of all states, taking into particular account the needs of developing countries. United Nations.
  • United Nations Office for Outer Space Affairs. (1972, September 2). Convention on international liability for damage caused by space objects. United Nations.
  • United Nations Office for Outer Space Affairs. (1984, July 11). Agreement governing the activities of states on the moon and other celestial bodies. United Nations.
  • United Nations Office for Outer Space Affairs. (2010). Space debris mitigation guidelines of the committee on the peaceful uses of outer space. United Nations.
  • Venkatasubramanian, S. (2015). ITU and its dispute settlement mechanism. In M. Hofmann (Ed.), Dispute settlement in the area of space communication (pp. 23–31). Nomos.
  • von der Dunk, F. G. (2015). Effective exercise of in-space jurisdiction: The US approach and the problem it is facing. Journal of Space Law, 40, 147.
  • Wright, D., Grego, L., & Gronlund, L. (2005). The physics of space security. American Academy of Arts and Sciences.
  • Wright, T. (2021, October 22). Is China gliding toward a FOBS capability?. International Institute for Strategic Studies.