The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space 3031192486, 9783031192487

Table of contents :
Foreword
Preface
Acknowledgements
Recommendations
Contents
About the Author
Acronyms & Abbreviations
List of Figures
Chapter 1: The Orbital Internet and the Threat to Astronomy
Chapter 2: The Diplomacy of Science in a Time of Geopolitical Change
2.1 The Building Blocks of détente in the Global Commons
2.2 Scientific Cooperation and Consultation as Mechanisms of détente
2.3 The Role of Consultation Beyond the Cold War Era
2.4 Cooperation and Competition in Space Exploration and Astronomy
2.5 Concluding Remarks
References
Chapter 3: The Outer Space Treaty and Responsibility Under International Law
3.1 The Race for Control of the Orbital Internet
3.2 American Technology Giants and the Quest for Full Spectrum Dominance
3.3 The Impact of Interference with Science Is Borne by Science
3.4 State Responsibility for Commercial Space Activities
3.5 Due Regard, the Precautionary Approach, and the Prevention Principle
3.6 A Fundamental Right to the Stars?
3.7 Concluding Remarks
References
Chapter 4: Establishing a Governance Framework for the Orbital Internet in Outer Space
4.1 The Tragedy of the Commons
4.2 Treating LEO as a Finite Resource
4.3 A New Model of ``International Regulatory Coordination´´
4.4 Bolstering National Processes for Authorisation, Supervision, and Consultation
4.5 Recommendations for National Regulatory Reform
4.6 Concluding Remarks
References
Chapter 5: Towards Temperance Through Proportionality
5.1 Challenges to the Concept of Outer Space as a Global Commons
5.2 Proportionality and ``Abuse of Rights´´ in International Law
5.3 Good Night Dark Sky?
5.4 Corporations and Concerned Citizens Come to the Defence of Science
5.5 Reinvigorating the Diplomacy of Science in Europe
5.6 Temperance as a Balancing Act
5.7 Concluding Remarks
References
Chapter 6: A New Regulatory Framework for Mega-Constellations
References
Appendix
The Outer Space Treaty (1967)
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Othe...

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SpringerBriefs in Law Scott Millwood

The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space

SpringerBriefs in Law

SpringerBriefs present concise summaries of cutting-edge research and practical applications across a wide spectrum of fields. Featuring compact volumes of 50 to 125 pages, the series covers a range of content from professional to academic. Typical topics might include: • A timely report of state-of-the art analytical techniques • A bridge between new research results, as published in journal articles, and a contextual literature review • A snapshot of a hot or emerging topic • A presentation of core concepts that students must understand in order to make independent contributions SpringerBriefs in Law showcase emerging theory, empirical research, and practical application in Law from a global author community. SpringerBriefs are characterized by fast, global electronic dissemination, standard publishing contracts, standardized manuscript preparation and formatting guidelines, and expedited production schedules

Scott Millwood

The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space

Scott Millwood International Institute of Air and Space Law at Leiden University Leiden, Netherlands International Institute of Space Law (IISL) Paris, France

ISSN 2192-855X ISSN 2192-8568 (electronic) SpringerBriefs in Law ISBN 978-3-031-19248-7 ISBN 978-3-031-19249-4 (eBook) https://doi.org/10.1007/978-3-031-19249-4 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For my son, who lives among the stars

Foreword

This book will not be uncontroversial. And that is precisely the gift of its author, who I met when he embarked upon a sabbatical year studying the Masters of Air and Space Law at Leiden University, where I teach space law to students from all over the world. As a mid-career student, he brought his experience in the telecommunications industry, and passion for international affairs, to his analysis of outer space law. What impressed me—and something Scott only revealed to me in incremental terms—was his history of making documentary films about our relationship with nature. The storyteller who has become a space lawyer weaves a narrative in this book, of the geopolitical landscape in which a serious conflict is emerging between the space activities of commercial actors and astronomy. The launch of mega-constellations made up of tens-of-thousands of satellites into orbit has raised concerns about the extent to which States responsible for the oversight of commercial ventures in the New Space era will comply with the duty of due regard and the obligation to avoid interference with the activities of other States. Space law, as a branch of public international law, has always provided room for creative legal thinking. But the rapid expansion of commercial activities, particularly in Low Earth Orbit, is now giving rise to major challenges, sustainability issues, and geopolitical tensions that will require breakthrough solutions and disruptive thinkers. This timely book offers a new perspective on how mega-constellations might be regulated to protect astronomy. It will not only appeal to legal and astronomical experts, but all readers with an interest in outer space, for the craft of the author lies in making these disciplines accessible to all. He is convincing in his opinions, frank in his assessments, and unafraid to challenge the astronomical community to defend the public interest in science. This approach is to be welcomed. As the first book of its kind to explore the application of international law to mega-constellations, it will make an important contribution to current discourse. It offers a unique insight into the hidden factors driving the race for dominance in outer space. vii

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I cannot imagine this book having been written by anyone else, and I am sure it will break new ground in legal thought on the regulation of mega-constellations. Emeritus Professor, International Institute of Air and Space Law at Leiden University, Leiden, Netherlands International Institute of Space Law (IISL), Paris, France

Tanja Masson-Zwaan

Preface

This book seeks to contribute to public discourse by highlighting the emerging issue of interference with science, as the infrastructure for an Orbital Internet is established in Low Earth Orbit (LEO) by new commercial space-actors. It explores the intersection of space law, telecommunications, and defence, positioning its analysis within current and historic geopolitical developments, including the race for 5G, for the battle to dominate the space domain is actually a battle to shape the Internetof-Things (IoT). Casting a wide lens, it seeks to understand the forces driving the launch of mega-constellations, in order to propose legal and regulatory solutions to the interference they pose to science. It arrives at the conclusion that the establishment of a comprehensive governance framework, reflecting the principles of the Outer Space Treaty (OST), will be necessary to ensure the “global commons” does not collapse as an Orbital Internet is established. This book argues that attempts to treat the “Dark Sky” as subject to cultural heritage protections, and erect a human right to starlight, are misplaced. The challenge is not so much an environmental one, as a question of governance. It will therefore require a governance solution. In pursuit of a new framework, this book argues that the principle of State Responsibility requires greater national supervision, with an urgent need for incorporation of impact assessment processes at national regulators, in order to mitigate the interference mega-constellations pose to the space activities of others. It advocates for a new strategy of “international regulatory coordination” as the fastest means of addressing what is an urgent problem. It envisions in such regulation a renewed role for the precautionary principle and the doctrine of proportionality, for it is simply common sense that the 10,000% increase in space objects in LEO, resulting from just four mega-constellations launched by US Tech Giants, will exponentially increase the technical and geopolitical risks. This is not sustainable. This book makes pragmatic recommendations on how regulatory processes might be bolstered to ensure the common, and sometimes conflicting, interests of stakeholders can be managed. This work is by its very nature an extended essay. It does not claim to be definitive and nor should the reader understand it as such. A new “space race” is ix

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Preface

unfolding at a rapid pace, and new developments in the nature of constellations continue to be announced on a weekly basis. Instead, I invite the reader to consider the issues in the geopolitical context in which the race to dominate LEO has emerged, and draw lessons from history that might be applied to protecting the interests of science. To assist the reader, the Outer Space Treaty (1967)—a short, eloquent text reflecting the shared values of humanity in outer space—is included in the Appendix. I embarked upon the research that forms the basis of this book in 2019, shortly after photographs of SpaceX’s launch of the first tranche of Starlink satellites alerted the world to its potential impact. The book’s narrative spans the 3 years since, in which astronomers and international stakeholders grappled with the question of “what is to be done?”. It necessarily charts a course through the dramatic developments in these years, during which the Russian invasion of Ukraine in 2014 escalated into a devastating war. In the interests of its narrative arc, this book documents events in a relatively linear manner, with the most recent developments of 2022 detailed in the final chapters. As a European, I am most interested in how EU institutions, and organisations representing astronomers, should respond. I hope this book will serve leaders in this sector, by providing insight into the application of outer space law. More than anything, the challenge of mega-constellations calls for astronomers to reinvigorate the diplomacy of science, in order to influence future regulation and ensure astronomy remains a critical activity in outer space. Netherlands, Leiden

Scott Millwood

Acknowledgements

The research that forms the foundation of this book was initially undertaken at the International Institute of Air and Space Law (IIASL) at Leiden University, under the supervision of Associate Professor Tanja Masson-Zwaan, in partial fulfilment of the requirements for the degree of Master of Advanced Legal Studies in Air and Space Law, in 2020. I am most grateful to Prof. Masson-Zwaan and the staff of IIASL for their support. I extend my sincere gratitude to members of national delegations to the United Nations Committee on the Peaceful Use of Outer Space (UNCOPUOS) and the scientific community that participated in interviews or were prepared to share their views, including: Prof. Dr. Ewine van Dishoeck (IAU President, Professor of Astronomy, Leiden University), Prof. Dr. Hansjörg Dittus (then Member of the Executive Board of the German Aerospace Centre, DLR Space Research & Technology), Prof. Dr. Heino Falcke (Professor of Astroparticle Physics and Radio Astronomy Research, Institute for Mathematics, Astrophysics and Particle Physics (IMAPP), Radboud University, Nijmegen), Piero Benvenuti and Constance Walker (Chairs, IAU Working Group Dark Skies/Mega-constellations SATCON 2020), Dr. Marco Langbroek (Space Situational Awareness consultant at Leiden Observatory), Dr. Martin Millon (Space Research Institute at the École polytechnique fédérale de Lausanne (EPFL), Switzerland), Gabriel Swiney (US State Department), Joe Sandri and Jim Turner (The Balance Group), Dr. Andrew Williams (European Southern Observatory), the team at the UK Space Agency, Martijn Geers, and the many astronomers who engaged in a vibrant discourse. I am especially indebted to Prof. Michael Byers, Professor & Canada Research Chair in Global Politics and International Law at the University of British Columbia, for his feedback on an early draft and generosity in the exchange of ideas. The photograph of the launch of SpaceX’s Starlink, which alerted the world to the impact on astronomy, is provided courtesy of Dr. Marco Langbroek from Leiden Observatory (Fig. 1.1). Rafael Schmall’s photograph of the Albireo star interrupted by lines of satellites, entitled “Prison of Technology”, won the Insight Investment Astronomy Photographer of the Year 2020 Award for best photograph in the xi

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Acknowledgements

“People and Space” category (Fig. 3.1). The first image of a black hole (Fig. 3.2), a project initiated by Prof. Falcke’s institute at Radboud University in the Netherlands, is included courtesy of the organisations that collaborated on that project. I am grateful for their generosity in allowing these works to be reproduced here. I acknowledge the support I have received in scholarships from the European Space Agency (ESA) and the Netherlands’ Stichting Space Professionals Foundation (SSPF) in recent years, which allowed me a mid-career immersion in all things outer space. Finally, I extend my deep appreciation to the Executive Editor of Law, Dr. Brigitte Reschke, at Springer, who immediately recognised the contemporary legal and regulatory questions raised in this book and who, together with the Springer team, supported it through to publication. My sincere hope is that this book will contribute to public debate about the impact of mega-constellations on astronomy, and the sustainability of activities in Earth’s orbit.

Recommendations

This book recommends that nations: (1) recognise that mega-constellations in Low Earth Orbit (LEO), to support Internet services, will interfere with optical and radio frequency techniques used by astronomers to study the universe (2) recognise the geopolitical impact of the proliferation of mega-constellations in LEO, and the role that a strategically formulated diplomacy of science might play in ensuring the sustainable and peaceful use of outer space (3) urge the International Telecommunication Union (ITU) to treat spectrum in LEO and Medium Earth Orbit (MEO) as finite resources in order to ensure equitable access to all nations (4) recognise that interference with astronomy by mega-constellations drives up the cost of science and that it is science, and therefore the public, that bears the cost of this interference (5) recognise the impact on major investment in high-value Earth-based astronomical infrastructure, and equip astronomy organisations with the regulatory expertise to protect their interests (6) encourage astronomical organisations, including the International Astronomical Union (IAU), European Southern Observatory (ESO), and North American observatories, to develop regulatory strategies in order to shape the future regulation of mega-constellations (7) incorporate Impact Assessments, including environmental impact assessment, in the application process for launch and operational licences at the US Federal Communications Commission (FCC) and other agencies, adopting a model of “international regulatory coordination” (8) facilitate development of a “proportionality principle” in assessment processes, as the disproportionate scale of mega-constellations dramatically increases the risks, and consider national standards to minimise the number of satellites in mega-constellations

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(9) establish regulatory processes allowing public stakeholders to make submissions, bringing risks of interference to the attention of the regulatory authority as the application for an operating licence is assessed (10) require disclosure of whole-of-project plans for mega-constellations at the point of initial licence application, so whole-of-project impact can be assessed before launches commence

Contents

1

The Orbital Internet and the Threat to Astronomy . . . . . . . . . . . . . .

1

2

The Diplomacy of Science in a Time of Geopolitical Change . . . . . . . 2.1 The Building Blocks of détente in the Global Commons . . . . . . . . 2.2 Scientific Cooperation and Consultation as Mechanisms of détente . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Role of Consultation Beyond the Cold War Era . . . . . . . . . . . 2.4 Cooperation and Competition in Space Exploration and Astronomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 7

3

4

The Outer Space Treaty and Responsibility Under International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The Race for Control of the Orbital Internet . . . . . . . . . . . . . . . . . 3.2 American Technology Giants and the Quest for Full Spectrum Dominance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Impact of Interference with Science Is Borne by Science . . . . 3.4 State Responsibility for Commercial Space Activities . . . . . . . . . . 3.5 Due Regard, the Precautionary Approach, and the Prevention Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 A Fundamental Right to the Stars? . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Establishing a Governance Framework for the Orbital Internet in Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 The Tragedy of the Commons . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Treating LEO as a Finite Resource . . . . . . . . . . . . . . . . . . . . . . . . 4.3 A New Model of “International Regulatory Coordination” . . . . . . .

10 12 15 17 18 21 22 25 30 36 41 46 51 53 57 59 61 66

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4.4

Bolstering National Processes for Authorisation, Supervision, and Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Recommendations for National Regulatory Reform . . . . . . . . . . . . 4.6 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

6

Towards Temperance Through Proportionality . . . . . . . . . . . . . . . . 5.1 Challenges to the Concept of Outer Space as a Global Commons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Proportionality and “Abuse of Rights” in International Law . . . . . . 5.3 Good Night Dark Sky? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Corporations and Concerned Citizens Come to the Defence of Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Reinvigorating the Diplomacy of Science in Europe . . . . . . . . . . . 5.6 Temperance as a Balancing Act . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

67 70 72 74 77 81 88 92 99 110 118 121 122

A New Regulatory Framework for Mega-Constellations . . . . . . . . . . 125 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 The Outer Space Treaty (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967) . . . . . . . . . . . . . . . . . . . . . . . . 133

About the Author

Scott Millwood Scott Millwood LLM was formerly EU Regional Manager, International Relations at the German Aerospace Centre, Deutsches Zentrum für Luftund Raumfahrt (DLR). He is a telecommunications and space lawyer who has worked with industry supporting global network infrastructure in Europe and the APAC regions. As a former Chief Privacy Officer and General Counsel in telecommunications, he brings a strategic mindset to regulation of the burgeoning space sector. In recent years, he led enterprise transformation, digitalisation, network preparation for 5G and the IoT, and provided advice to government on security of space-based assets. He contributes to debate on Artificial Intelligence, megaconstellations, surveillance, cybersecurity, and regulatory reform. He holds an Advanced Masters in Air and Space Law from Leiden University, a Masters in German and EU Law from Humboldt Universität zu Berlin, and is a member of the International Institute of Space Law (IISL). He has made documentary films for public broadcasters and National Geographic Channel. Email: s.c.millwood@umail. leidenuniv.nl.

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Acronyms & Abbreviations

5G AAS ASAT BRI China DLR DoD EDRS ELT ESA ESO EU EUMETSAT EUSPA FAA FCC FOBS GDPR GEO GNSS GPS IAU ICJ IoT ISS IT ITU LEO

Fifth Generation telecommunication networks American Astronomical Society Anti-Satellite Weapon Belt and Road Initiative People’s Republic of China Deutsches Zentrum für Luft- und Raumfahrt / German Aerospace Centre US Department of Defense European Data Relay System Extremely Large Telescope European Space Agency European Southern Observatory European Union European Organisation for the Exploitation of Meteorological Satellites European Union’s Agency for the Space Programme US Federal Aviation Authority US Federal Communications Commission Fractional Orbital Bombardment System General Data Protection Regulation Geostationary Orbit Global Navigation Satellite System Global Positioning System International Astronomical Union International Court of Justice Internet-of-Things International Space Station Information Technology International Telecommunication Union Low Earth Orbit xix

xx

LSST MAD MEO NASA NATO NGSO NSA NSC OST

ROSCOSMOS Russia SALT SDG TEU TFEU UN UNCLOS UNCOPUOS UNESCO UNFCCC UNGA UNOOSA UN-SPIDER US USSR WTO WWII

Acronyms & Abbreviations

Legacy Survey of Space and Time Mutually Assured Destruction Medium Earth Orbit National Aeronautics & Space Administration North Atlantic Treaty Organisation Non-Geostationary Satellite Orbit US National Security Agency US National Space Council or, where indicated, US National Security Council Outer Space Treaty / Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967) Russian Space Agency The Russian Federation Strategic Arms Limitation Talks Sustainable Development Goals Treaty on European Union Treaty on the Functioning of the European Union United Nations United Nations Convention on the Law of the Sea United Nations Committee on the Peaceful Uses of Outer Space United Nations Educational, Scientific and Cultural Organisation United Nations Framework Convention on Climate Change United Nations General Assembly United Nations Office for Outer Space Affairs UNOOSA’s platform which facilitates the use of space-based technologies for disaster management and emergency response United States of America Union of Soviet Socialist Republics World Trade Organisation World War Two

List of Figures

Fig. 1.1

Fig. 2.1

Fig. 3.1

Fig. 3.2

Fig. 3.3

A String of Pearls (Photograph: Marco Langbroek). The image that alerted the world of the threat to astronomy. Dr. Langbroek captured the first launch of Starlink satellites on a Low Light Level CCTV camera as they rose in steady formation above the night sky over Leiden, Netherlands on 24 May 2019 at 22:55 GMT, 1 day after launch from the US . . . .. . .. . . .. . . .. . . .. . . .. . .. . . .. . . .. . . .. . .. . . .. . Starlink through telescope (Credit: CTIO, NOIRLab, NSF, AURA and DECam DELVE Survey). Time-lapse image shows the bright streaks of a Starlink satellite cluster through a telescope’s field-of-view at the Cerro Tololo Inter-American Observatory in Chile . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . Prison of Technology (Photograph: Rafael Schmall). Rafael Schmall’s photograph of the Albireo Star interrupted by vertical lines of satellites, won the Insight Investment Astronomy Photographer of the Year 2020 Award for best photograph in the “People and Space” category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supermassive black hole in Messier 87 (Credit: The Event Horizon Collaboration). The first image of a black hole was created using radio frequencies collected by the Event Horizon Telescope (EHT)—a planet-scale array of eight ground-based radio telescopes, sharing data in an international collaboration. Astronomers are concerned about interference with radio astronomy caused by frequencies emitted from megaconstellations .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . .. .. . Disturbed Dawn (Photograph: Rafael Schmall). Sunrise over the Zselic Starry Sky Park in the Zselic National Landscape Protection Area, Hungary, is interrupted by a bright train of satellites. The national park is recognised as a Dark Sky Oasis by the local DunaDráva National Park Directorate and the Hungarian Astronomical Association . .. . . .. . . . .. . . .. . . .. . . . .. . . .. . . . .. . . .. . . . .. . . .. . . . .. . . .. . . .. . .

2

6

32

48

49

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Fig. 6.1

List of Figures

Vertical interference (Photograph: Marco Langbroek). Dr. Langbroek’s image captures 39 Starlink satellites from SpaceX’s fifth launch as the constellation streaks vertically through the night sky over Leiden, Netherlands, during a 20-minute period . . . . . . . . . . 127

Chapter 1

The Orbital Internet and the Threat to Astronomy

When SpaceX, the private rocket company founded by Elon Musk, launched the first batch of Starlink orbiters in May 2019, many astronomers were surprised to see the satellites were extremely bright. The first 60 satellites launched into Low Earth Orbit (LEO) would form part of a greater constellation to provide broadband services to terrestrial users.1 As the line of satellites snaked across the night sky it was visible to the naked eye, despite the incessant glow of European cities (Fig. 1.1).2 Scientists became concerned that such constellations may wreak havoc on scientific research and transform our view of the stars.3 Six months later, Musk announced that he was using Twitter via a Starlink Internet connection, as his company proceeded to request authorisation from the United States’ (US) Federal Communications Commission (FCC) to operate 30,000 satellites on top of the 12,000 already approved.4 This constellation alone will contain twenty-times as many satellites as were then in orbit.5

Mosher, D (2019) “Elon Musk just revealed new details about Starlink, a plan to surround Earth with 12,000 high-speed internet satellites. Here’s how it might work” Business Insider, 16. May 2019: https://www.businessinsider.de/spacex-starlink-satellite-internet-how-it-works-2019-5 (Accessed 31.07.2020. Link no longer accessible). 2 Langbroek, M (2019) Dr. Marco Langbroek’s blog: http://www.marcolangbroek.nl. 3 Hall, S (2019) “As SpaceX Launches 60 Starlink Satellites, Scientists See Threat to ‘Astronomy Itself’” The New York Times, 11 November 2019: https://www.nytimes.com/2019/11/11/science/ spacex-starlink-satellites.html (Accessed 15.08.2022). 4 Musk, E (2019), posted on Twitter 8:03 AM, 22 October 2019: https://twitter.com/elonmusk/ status/1186523464712146944 (Accessed 15.08.2022). 5 The European Space Agency (ESA) tracks operational satellites and space debris—at the beginning of 2019 there were approximately 2300 operational satellites in orbit, when the author commenced this book. This figure has been maintained here for the purposes of the narrative, with the most recent data as at 15 February 2022, cited in the concluding Chap. 6. See: http://www. esa.int/Safety_Security/Space_Debris/Space_debris_by_the_numbers and https://www.n2yo.com 1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4_1

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The Orbital Internet and the Threat to Astronomy

Fig. 1.1 A String of Pearls (Photograph: Marco Langbroek). The image that alerted the world of the threat to astronomy. Dr. Langbroek captured the first launch of Starlink satellites on a Low Light Level CCTV camera as they rose in steady formation above the night sky over Leiden, Netherlands on 24 May 2019 at 22:55 GMT, 1 day after launch from the US

Nor is the innovative US-based company alone in its vision of an Orbital Internet. In the competitive world of global technology infrastructure, Amazon and Facebook—now rebranded Meta Platforms Inc—are expected to follow suit.6 Airbus and OneWeb teamed under a joint-venture called OneWeb Satellites, initially proposing the launch of 2000 satellites, which dramatically increased to 48,000 in 2020.7 US pioneers in satellite services, Iridium Communications, Globalstar and Orbcomm, currently operate constellations of several hundred satellites in LEO. The European Space Agency (ESA) and Airbus have established a Public-Private-Partnership to create the SpaceDataHighway, which will utilise laser communications to

and for the UNOOSA official Index of Registered Objects Launched into Outer Space see: https:// www.unoosa.org/oosa/osoindex/search-ng.jspx (Accessed 15.08.2022). 6 IAU Statement on Satellite Constellations, 17 December 2019: https://www.iau.org/news/ announcements/detail/ann19035/ (Accessed 15.08.2022). 7 See Airbus announcements: https://www.airbus.com/space/telecommunications-satellites/ oneweb-satellites-connection-for-people-all-over-the-globe.html (Accessed 15.08.2022) and: https://www.oneweb.world/media-center/oneweb-seeks-to-increase-satellite-constellation-up-to-4 8000-satellites-bringing-maximum-flexibility-to-meet-future-growth-and-demand (Accessed 31.07.2020 Link no longer accessible).

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The Orbital Internet and the Threat to Astronomy

3

provide high bandwidth capability.8 Copernicus, the European Earth observation programme, will be its first customer.9 The US Department of Defense (DoD) announced it will partner with Microsoft to leapfrog the need for terrestrial control rooms with a solution supporting the download of data directly from satellites into the Cloud.10 The European Commission will pursue a space-based global connectivity system, supporting inter-governmental communication and high-speed consumer Internet. China has been granted spectrum to support a new broadband constellation compromising some 10,000 satellites, and Rwanda has applied to the International Telecommunication Union (ITU) for spectrum in support of an astounding 327,000 satellites.11 This proliferation of space-based connectivity has been accompanied by much discussion about the impact on astronomy. Commercial operators alone plan to launch hundreds-of-thousands of satellites into LEO, representing more than a hundred-fold increase on objects currently in orbit.12 The massive scale of these constellations, each consisting of tens-of-thousands of small satellites operating in concert to provide global coverage, earned them the moniker “mega-constellations”.13 This explosion of technology creates a heightened risk of interference with Earth-based scientific activities that use optical and radio frequency techniques to study the universe. This book examines these developments in the context of the Outer Space Treaty 1967 (OST), which provides all States with freedom of scientific investigation, exploration and use of outer space, while balancing this with obligations to avoid interference with the space activities of other States. Identifying the need to develop comprehensive governance frameworks for managing interference under Article IX OST—which gives rise to an obligation to consult, but stops short of mitigation or

8

European Data Relay System (EDRS), see: http://www.securecommunications-airbusds.com/ products-solutions/services-solutions/satcom-solutions/edrs-spacedatahighway/ (Accessed 15.08.2022). 9 ibid. 10 Keane, T (2019) “Analyzing data from space – the ultimate intelligent edge scenario”, Microsoft Blog, 17 September 2019, Tom Keane - Corporate Vice President, Azure Global: https://blogs. microsoft.com/blog/2019/09/17/analyzing-data-from-space-the-ultimate-intelligent-edge-scenario/ (Accessed 15.08.2022). 11 See: https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/32322 and Space in Africa (2021) “Rwanda has submitted ITU filing for 27 orbital shells of 327,320 satellites” 14 October 2021: https://africanews.space/rwanda-has-submitted-itu-filing-for-27-orbital-shells-of327320-satellites/ (Both accessed 15.08.2022). 12 These figures are based upon the approximate satellite numbers currently proposed by SpaceX, OneWeb, Amazon and Meta Platforms Inc (Facebook), and other major constellations, including China’s, combined, c.f. approximately 2300 operational satellites in orbit, as tracked by ESA in 2019: https://www.n2yo.com. 13 Although the prefix “mega” signifies millions, as in Megawatts, the term “mega-constellations” has entered into general use among regulators including the UK’s Ofcom and the US’s FCC, space agencies and the media, as an indicator of the large scale of these constellations. The term is used in this book with common usage in mind.

4

1 The Orbital Internet and the Threat to Astronomy

prevention—this book draws upon interviews with some of Europe’s leading astronomers, to highlight the need for more than a technical solution. In this way, this qualitative research underlines the extent to which we are now facing the predictable exploitation of a global commons, in which participants have “free” access, but do not bear responsibility for the negative impacts of their activities. This book proposes collective action outside the processes of United Nation (UN) institutions, through “international regulatory coordination”. Assembling domestic regulatory officials from just a handful of key jurisdictions that are currently licensing mega-constellations, would allow for the establishment of a governance framework. This book advocates for a strategy that does not require negotiation of international treaties or guidelines, but focuses on the regulatory processes of the agencies responsible for “authorisation and supervision” of activities in outer space at a national level, which at this early stage is primarily the US FCC and the British regulator OfCom. The introduction of comprehensive “impact assessments” into licensing processes, would allow the impact on astronomy to be considered, in order to ensure the sustainable balance of science and advanced telecommunications. This book seeks to contribute to our understanding of the intersection of space law, telecommunications, and defence, by positioning its analysis within the historical context of the Cold War period, when a policy of détente embraced by both Super Powers—engagement, cooperation, and consultation—shaped the principles of international law reflected in the OST. Since then, a new world order is emerging, with old rivalries replaced by that between the US and a rising China. The future of Russia’s long-standing partnership with the West in outer space has entered a dangerous period of uncertainty following its invasion of Ukraine. Today, the battle to dominate the space domain is actually a battle to shape the Internet-of-Things (IoT) with its reliance on a new generation of 5G telecommunications infrastructure. By casting a wide lens across the contemporary landscape, this book seeks to illuminate the geopolitics behind the mega-constellations, so that we might better appreciate how interference with science should be addressed. Perhaps more than ever before, core principles of international cooperation and consultation defined by the OST are under threat, as terrestrial rivalries are projected into outer space.

Chapter 2

The Diplomacy of Science in a Time of Geopolitical Change

On 24 May 2019, Dr. Marco Langbroek, Space Situational Awareness consultant at Leiden Observatory, filmed the first batch of Starlink satellites rising like a string of pearls in the evening sky (Fig. 1.1).1 The vision was so inexplicable that emergency services were inundated with reports of UFOs.2 If the bright, reflected light of the constellation inspired awe among the general public, it aroused horror in equal measure among scientists.3 The long line of 60 satellites launched by SpaceX interrupted optical astronomy across the globe, its luminosity saturating telescopic exposures documenting the heavens and disrupting data sets.4 Astronomical equipment looking deep into the universe typically use long exposure, in which shutters are held open for several minutes in order to detect the most distant glimmer of a star. Similarly, astronomers searching for Nano-planets make use of extremely sensitive optical equipment in order to detect the faint shadow of a planet as it passes in front of its sun. The Starlink satellites, with their 90-minute orbits, streaked across the results of astronomical array, requiring correction of data sets or removal of observations altogether (Fig. 2.1). The International Astronomical Union (IAU), a science and technology organisation collectively representing the interests of astronomy,5 estimated that up to 30% of the 30-second images that wide-field surveys undertake

1

Langbroek, M (2019) Dr. Marco Langbroek’s blog: http://www.marcolangbroek.nl (Accessed 15.08.2022). 2 ibid. 3 Hall, S (2019) “As SpaceX Launches 60 Starlink Satellites, Scientists See Threat to ‘Astronomy Itself’” The New York Times, 11 November 2019: https://www.nytimes.com/2019/11/11/science/ spacex-starlink-satellites.html (Accessed 15.08.2022). 4 ibid. 5 IAU represents the world’s largest observatories, including the world’s infrastructure managed by Vera C. Rubin Observatory, U. Michigan, CAHA, and ESO. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4_2

5

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Fig. 2.1 Starlink through telescope (Credit: CTIO, NOIRLab, NSF, AURA and DECam DELVE Survey). Time-lapse image shows the bright streaks of a Starlink satellite cluster through a telescope’s field-of-view at the Cerro Tololo Inter-American Observatory in Chile

during twilight hours when celestial bodies are most visible, were affected.6 There had been no consultation with astronomers about the potential impact of SpaceX’s activities prior to launch.7 For a particular generation of star gazers it brought to mind another event that heralded the beginning of the early space race. When the Soviets launched the first satellite, Sputnik I, into Earth’s orbit on 4 October 1957, it not only represented a technological break-through, but positioned the Union of Soviet Socialist Republics (USSR) as the leading actor in space. It was clear that evening the US lagged significantly behind its Cold War nemesis, triggering what became known as the “Sputnik Shock”.8 This led to the establishment of the National Aeronautics and Space Administration (NASA) by President Dwight D. Eisenhower and the introduction of security policies to close the gap in missile technology. It subsequently fueled the determination of the administrations of President John F. Kennedy, and

6 IAU Statement “Understanding the impact of constellations of satellites on astronomy”, 12 February 2020: https://www.iau.org/news/pressreleases/detail/iau2001/ (Accessed 15.08.2022). 7 ibid. 8 Baranyi (2019), p. 19.

2.1

The Building Blocks of détente in the Global Commons

7

his successor President Lyndon B. Johnson, to put a man on the Moon before the decade was out.9 These famous events highlight the manner in which peaceful activities in outer space have always been bound to the geopolitics of competing power on Earth. Since that time our activities in space have grown exponentially, such that the entire infrastructure of the modern world, from banking to navigation, from defence to the World Wide Web, is dependent upon satellites in orbit. In this context, the risk of interference between privately operated mega-constellations and the activities of other spacefaring nations not only poses a risk to astronomy and the sustainable development of outer space, but to peaceful relations on Earth.10 It is for this reason that any discussion of the Outer Space Treaty (OST) must be firmly grounded in the Cold War politics that gave birth to it, and the post-Cold War order, in which a second space race is emerging.

2.1

The Building Blocks of détente in the Global Commons

Perhaps no other person has been as influential in shaping the future of space policy as US President Eisenhower. The wartime General elected to the presidency, an office in which he served from 1953 to 1961, was instrumental in establishing a dual defence strategy of deterrence and cooperation.11 Eisenhower’s strategy promised massive retaliation against the USSR, establishing the principle of “Mutually Assured Destruction” (MAD) which would define the nuclear age.12 His “New Look” approach to the recently founded North Atlantic Treaty Organisation (NATO) brought a more aggressive assertion, as the alliance deployed nuclear weapons across Europe.13 In the uncertain times following Joseph Stalin’s death on 5 March 1953, the President, who had taken office just 6 weeks before, described the moment as a “chance for peace”.14 In a public address he identified five principles his administration would endeavour to bring to foreign policy during his time in office: First: No people on earth can be held, as a people, to be an enemy, for all humanity shares the common hunger for peace and fellowship and justice. Second: No nation’s security and well-being can be lastingly achieved in isolation but only in effective cooperation with fellow-nations. Third: Every nation’s right to a form of government and an economic system of its own choosing is inalienable.

9

Berkman et al. (2011), pp. 17, 19. Aganaba Jeanty (2016), p. 1; Beamer-Downie (2013), p. 255. 11 Sayle (2019), p. 28; Baranyi (2019), p. 19. 12 Sayle (2019), p. 42; Baranyi (2019), p. 18. 13 ibid. 14 Speech to the American Society of Newsbook Editors on 16 April 1953, referenced in Berkman (2011), p. 19. 10

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Fourth: Any nation’s attempt to dictate to other nations their form of government is indefensible. And fifth: A nation’s hope of lasting peace cannot be firmly based upon any race in armaments but rather upon just relations and honest understanding with all other nations.15 Almost 80 years later, these principles continue to resonate. Notwithstanding the contradictions late in Eisenhower’s presidency,16 we recognise in this speech, the core values that were established in the treaties that came to fruition in the decade to follow: principles of disarmament, cooperation, confidence-building measures, and a shared commitment to pursuing activities for peaceful purposes in international spaces. This was more than rhetoric, for the development of space relations might have been very different, had Eisenhower not called off the US Army Ballistic Missile Agency’s launch of its Jupiter-C rocket the year before Sputnik.17 Instead of the pursuit of a weaponised outer space, he chose science. Confronted with possible escalation, he chose engagement. Following the launch of Sputnik, Eisenhower reached out to the Soviet Union to invite it and other nations with interests in Antarctic research to commence secret negotiations to create a global commons “forever to be used exclusively for peaceful purposes (and for) the interests of science and the progress of all mankind.”18 The culmination of those efforts, the Antarctic Treaty, and the treaties to establish outer space, the High Seas, and the Deep Sea Bed as global commons, became indispensable to the world of science. But they also created the security framework for the mutual assurance of nuclear rivals. The Convention on the High Seas (1958), Antarctic Treaty (1959), Partial Test Ban Treaty (1963), Outer Space Treaty (1967), and Nuclear Non-Proliferation Treaty (1968), became the building blocks of détente, a policy of easing strained relations through communications between NATO allies and the Soviet Union.19 It became an enduring one, taken up by the US administrations of Eisenhower, Kennedy, Johnson, Nixon, Ford and Carter, as well as the Soviet leadership under Kruschchev and Brezhner, who adopted the Russian synonym, “razryadka”.20 This de-escalation was critical to the avoidance of the weaponisation of space, for the US and USSR had previously conducted high altitude nuclear tests, culminating

15

ibid. I do not gloss over the US interventions in conflicts in South-East Asia, including the Vietnam War and the secret war in Laos, or other consequential missteps. But these contradictions are in and of themselves emblematic of the idealism of American Exceptionalism that co-existed with direct and covert war. See: Ambrose (1984). 17 Baranyi (2019), p. 16. 18 ibid. 19 The French term was adopted as an embodiment of defence and security policy after the Belgian Foreign Minister, Count Pierre Harmel, called upon NATO to adopt a dual purpose, a balancing of deterrence with avenues for cooperation between adversaries in order to ease tensions in Europe: Baranyi (2019), p. 19. 20 Baranyi (2019), p. 21; Berkman (2011), pp. 17, 19. 16

2.1

The Building Blocks of détente in the Global Commons

9

in the Cuban Missile Crisis.21 Détente offered an opportunity for retreat without the optics of defeat. It shaped the spirit of consultation in forums later established between the Super Powers such as the Strategic Arms Limitation Talks (SALT) which led to the Anti-Ballistic Missile Treaty and the Strategic Arms Reduction Treaties, a policy only abandoned when President Ronald Reagan came to office.22 Similarly, Eisenhower proposed an Open Skies to allow the US and USSR to undertake periodic surveillance in the sovereign airspace of the other, in order to be satisfied that neither party was preparing for nuclear war.23 Although rejected by Soviet President Nikita Kurschchev in 1955, it found its moment a generation later. President George H. Bush and President Mikhail Gorbachev initiated a version of Open Skies as a confidence-building measure between NATO and the Warsaw Pact countries, shortly before the fall of the Berlin Wall heralded the peaceful end of the Cold War.24 The central achievement of the OST was therefore not a lonely one. The dual purpose of détente—disarmament coupled with cooperation—is reflected in the OST’s prohibition of the placement of nuclear weapons and other weapons of mass destruction in outer space, and its recognition that all States, regardless of stage of development, should be free to pursue activities in outer space for peaceful purposes. Article I of the OST establishes the general principle that outer space shall be “free for exploration and use by all States” in accordance with international law, while elevating the important role of science: “there shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.” This is the legal basis upon which all States pursue scientific endeavour in outer space today. The specific emphasis on cooperation is one we see throughout the treaty’s provisions, extending the principle established in the earlier frameworks governing Antarctica and the High Seas.25 Like the regulation of those internationally shared spaces, in which sovereignty is absent or set aside, the drafters of the Outer Space Treaties envisioned that the principle of cooperation would regulate access, use and exploration of space.26 From the very beginning of outer space law, cooperation was treated as a governance model, paving the way for science to

21

Hobe et al. (2009), p. 172. Sayle (2019). 23 ibid. 24 ibid. 25 Hobe (2009), pp. 25, 174. 26 Reference to the collective United Nations Outer Space Treaties in this book includes the Outer Space Treaty (1967) and three further treaties which elaborate on its provisions: the Rescue Agreement (1968), the Liability Convention (1972), and the Registration Convention (1975). For ease, I do not include the Moon Agreement (1979) in this formulation, which is not recognised by all major spacefaring nations. For the treaties see: https://www.unoosa.org/oosa/en/ourwork/ spacelaw/treaties.html 22

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become a “tool of diplomacy”, aiming to focus allies and adversaries on their common interests.27

2.2

Scientific Cooperation and Consultation as Mechanisms of détente

Perhaps what is most fascinating about the Cold War period is the extent to which the US and USSR continued to cooperate in space even as they came dangerously close to nuclear war on Earth. In parallel to proxy wars in South-East Asia, the US and USSR established bilateral agreements on space cooperation as early as 1972, which led to joint missions, including the Apollo-Soyuz Test Project, involving 20 h of in-orbit cooperation between NASA and the Russian space agency, ROSCOSMOS, to test the docking of their respective spacecrafts.28 Nothing could stand in starker contrast to the disastrous ground wars pursued in Vietnam and Laos, than the famous handshake in space between Russian cosmonaut Aleksey Leonov and US astronaut Tom Stafford, at the successful completion of their joint mission.29 We see throughout the drafting of the OST, cooperation treated not as an obligation, but a general principle for activities in outer space.30 Its premise was not only that space powers would work together, but that they might extend their capabilities to other States, who could not participate except through international collaboration. This principle is reflected in the call to scientific collaboration (Article I), the prohibition on claims of national sovereignty (Article II), the application of international law in order to promote international cooperation and understanding (Article III), the treatment of astronauts as “envoys of mankind” and the commitment to render all possible assistance to their rescue in the event of accident or distress (Article V), the return of space objects to their launching States (Article VIII), the obligation to avoid interference with the space activities of other States and the harmful contamination of celestial bodies and the Earth (Article IX), and the promotion of international cooperation in extending the opportunity to observe launches and keep the Secretary General of the United Nations (UN), the public and the scientific community, informed of activities in outer space (Article XI). Most importantly, Article IX establishes the principle that “in the exploration and use of outer space, including the Moon and other celestial bodies, State Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and

27

Sayle (2019), p. 151. Byers (2019), pp. 32–47, 36. 29 ibid. 30 Hobe et al. (2009), p. 174. 28

2.2

Scientific Cooperation and Consultation as Mechanisms of détente

11

shall conduct all their activities in outer space . . . with due regard to the corresponding interests of all other State Parties to the Treaty.”31 Since 1967 this principle has been further elaborated upon in the UN General Assembly (UNGA) Declaration of 1996, which emphasised the need for international cooperation to be grounded in “fair, equitable and mutually acceptable contractual terms”.32 Perhaps a harbinger of the New Space era to come, the Declaration clarified that the principle of cooperation applies in the very broadest sense: between nations, governmental and non-governmental, commercial and non-commercial, global, regional, bilateral and multilateral.33 The freedom of exploration, use and scientific investigation granted by Article I, is balanced here with its corresponding and limiting obligation: to have “due regard” to the interests and rights of other States. This derivation from international public air law, first adopted in the Chicago Convention, is both a safety and security consideration.34 It implies a duty of care, an obligation to consider the risks a State’s own activities might pose to the activities of others, and the avoidance of interference.35 But the principle of due regard also positions itself as a legal mechanism to resolve the potentially conflicting rights that are concurrently exercised by different States.36 A duty of cooperation is implicit in order to “strike the most appropriate balance between the divergent rights and obligations at stake”.37 The International Tribunal for the Law of the Sea (ITLOS) further developed the principle of due regard in an 2011 Advisory Opinion, treating it as an obligation to undertake “due diligence”.38 This variable concept requires an assessment of the risks involved in the activity, in the context of what is considered sufficiently diligent at the time, taking into account scientific and technological knowledge.39 The Advisory Opinion suggests that the threshold of measures adopted in a due diligence relating to activities permitted under international law, increases with the risks associated with that activity. The extent to which measures should be adopted to support a due diligence is necessarily a question of domestic law, however ITLOS suggested that “all necessary and appropriate measures to secure effective compliance” with a State’s obligations under international law, should be adopted.40 31

Author’s emphasis. The UNGA 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 (1996). 33 Hobe et al. (2009), p. 174. 34 Convention on International Civil Aviation (1947) (Chicago Convention). 35 Hobe et al. (2009), p. 175. 36 Forteau (2019), pp. 25–42. 37 ibid 25. 38 The UN Convention on the Law of the Seas (LOSC) Articles 56(2) and 58(3) contain obligations of “due regard”. 39 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion (2011) ITLOS Case No. 17 at 117. 40 ibid 117–120. 32

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Similarly, international jurists consider that the principle of “due regard” contains a higher threshold than “reasonable regard”—the latter principle being used in the Geneva Convention on the High Seas (1958)—following the International Court of Justice’s (ICJ) recognition that the reference to “due regard” in Article 101(3) of the UN Charter is a “paramount condition”.41 This landmark decision established the “necessity of securing the highest standards of efficiency, competence, and integrity” in the exercise of due regard for the interests of other States.42 In this manner, to have due regard to the interests of others in the exercise of freedoms in both air space and on the seas, is consistent with respect for the equality and sovereignty of States that we find in international law.43 It is therefore paramount that regulatory authorities ensure due diligence processes are adopted, and followed, prior to granting operating and launch licences to their nationals. The absence of due diligence in supervisory functions may amount to a failure to exercise due regard as required by Article IX OST, especially where it leads to the very harm the treaty seeks to avoid. We will examine this in further detail in Chap. 3 of this book. Most importantly, the principle of “due regard for the corresponding interests” of other States in Article IX, recognises that such regard must be exercised in consultation, if States are to harmoniously exercise their right to freedom of use, exploration and scientific investigation in outer space.44 It effectively bridges the obligations of Article IX with State Responsibility under Article VI OST, which we might conveniently describe as: a State’s responsibility to have due regard to the corresponding interests of other States. Like so many elements of the OST, due regard was shaped not only by the drafting of principles for other international spaces, but the events of the early 1960s in which it became clear that mistakes and miscalculation might lead to nuclear war.45 In this way, the reciprocal nature of “due regard” has at its heart, the facilitation of dialogue.46

2.3

The Role of Consultation Beyond the Cold War Era

Consultation was critical to détente. During the Cold War, the potential for interference between the space-based activities of the US and the USSR was pragmatically dealt with through consultation, allowing potential issues to be addressed within the

41

Application for Review of Judgment No. 333 of the UN Administrative Tribunal, Advisory Opinion (1987) ICJ Rep 18, p. 61 at 79. 42 ibid 66–67, 88. 43 Forteau (2019), pp. 25–42. 44 An entire paper might be devoted to the subject of “due regard” in Article IX OST, drawing upon international case law in public air law and the law of the sea. For further reading see: Hamamoto (2019), p. 7; Fife (2019), p. 43. 45 Sayle (2019), p. 151. 46 On the implicit reciprocity in “due regard” see: Prezas (2019), p. 97.

2.3

The Role of Consultation Beyond the Cold War Era

13

relationship. Such consultations were viewed as confidence building measures by both powers. This is reflected in the mechanism established in Article IX OST, which requires States to “undertake appropriate international consultations before proceeding with any such activity or experiment” where it has reason to believe that those activities might cause “potentially harmful interference with the activities of other State Parties.” While there is a measure of good faith implicit in such drafting, the obligations of Article IX necessarily contemplate State Responsibility and the obligation to supervise space activities under Article VI OST. Consideration of the risk of interference at the point of authorisation of launch is an essential requirement, there being little ambiguity in the precautionary obligation to conduct consultations “before proceeding”.47 Both space powers recognised that the most likely interference between spacebased activities was electromagnetic: interference between the radio frequencies allocated to satellite communications with Earth.48 To this end they harnessed the framework of an existing UN organisation, the International Telecommunication Union (ITU), to manage the allocation of slots in Geostationary Orbit (GEO) and create mechanisms for resolution of interference.49 So perhaps it is unsurprising that just as the principle of cooperation was seen as a means of regulating access, the obligation to consult incorporated in Article IX OST was treated as a mechanism to avoid and resolve conflict.50 With this long-established relationship in space, the US and today’s Russian Federation have been able to manage issues of interference between them for half-acentury. The US solicited the partnership with Russia in the International Space Station (ISS) precisely because it sought cooperation after the Cold War, just as it had during. It wished to see Russian technology and expertise in space harnessed to their mutual interests, while ensuring neither fell into the hands of its adversaries.51 The US paid most of the costs of ISS, while treating Russia as a full partner.52 It procured space flights to ISS from Russia’s Soyuz, in order to keep that programme alive, allowing it a monopoly on long-duration space flight following the retirement of NASA’s Space Shuttle programme.53 Both powers continued to make broad use of “soft-law”—non-binding measures such as guidelines and recommendations— under the international framework and consensus-based decision-making of the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS), against a backdrop of rivalry in terrestrial spheres.

47

Article IX OST. Byers (2019), pp. 32–47, 35. 49 ibid. 50 ibid. 51 ibid. 52 ibid. 53 ibid, noting that the US administration fostered SpaceX as a successor supplier of transport to ISS, with the intention of establishing competition with Soyuz. 48

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The US-Russian partnership survived developments during the post-Cold War period until very recently. Following the Russian annexation of Crimea in March 2014 and despite interference by Russian interests in elections in Western democracies, cooperation withstood those conflicts.54 Although we have seen the establishment of military Space Forces by the US, France, Italy and others in recent years, both the US and Russia maintain their commitment to cooperation in outer space, in areas such as space traffic management, space debris, responses to space weather interference, and the International Asteroid Warning Network.55 In this context, the obligation to avoid interference with the space activities of other States and to consult where such interference is foreseen under Article IX OST, made a great deal of sense. It is what the field of international relations refers to as a relationship of “complex interdependence” that assists in the maintenance of peace during crises.56 A multiplicity of issues, relationships and interdependencies support the resilience of the relationship between two States, even as that relationship breaks down in other areas.57 With intercontinental ballistic missiles pointing at each other during the Cold War, the Super Powers demonstrated a capacity to maintain peace, while continuing to communicate on space-related matters.58 It is a mechanism best suited to behemoths in the traditional duopoly of outer space. However, activities in space have evolved dramatically during the last decade. The emergence of China as a geopolitical power with an ambitious space programme, has not been welcomed by either of the traditional powers. China’s test of an anti-satellite (ASAT) weapon that created significant debris in LEO in 2007, was met with a determination at UNCOPUOS to see space debris mitigation guidelines adopted in the UN General Assembly during the same year.59 The US and Russia historically tested such weapons themselves, something noted by both China and India, when they followed suit.60 The US excluded China from the ISS and prohibited NASA from cooperating with China in space, while Russia refused to sell China technology behind its RD-180 rocket engines.61 Under US President Donald Trump’s administration, an aggressive trade war erupted with China, resulting in tit-for-tat measures, reduced communication and cooperation, and future plans for a space station in lunar orbit, the Lunar Gateway, seemingly destined to exclude China.62 Both the US and Russia 54

Byers (2019), p. 35. Byers (2019), p. 36. 56 Byers (2019), p. 40. 57 Byers (2017), pp. 375–402. 58 ibid. 59 The UN Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space were adopted by the UN General Assembly in resolution 62/217 on 22 December 2007. The path towards these guidelines was paved by the Inter-Agency Space Debris Coordination Committee (IADC), a working group established in 1987. See: https://ntrs.nasa.gov/api/citations/20150003 818/downloads/20150003818.pdf (Accessed 15.08.2022). 60 Mendis and Wang (2019), p. 36. 61 Byers (2019), p. 41. 62 Mendis and Wang (2019), p. 36. 55

2.4

Cooperation and Competition in Space Exploration and Astronomy

15

appear intent on slowing the rise of China as a space power. As very different leaders have taken up office in China and the US in recent times, it appears likely the space race of the new Millennium might draw less upon cooperation than other nationalist instincts. For the very first time in the history of outer space activities, Russia’s wholesale invasion of Ukraine on 23 March 2022, has led to the EU and US suspending cooperation with the increasingly isolated State.63

2.4

Cooperation and Competition in Space Exploration and Astronomy

Astronomy, like other areas of science, remains a competition. It is a competition conducted within the context of geopolitical rivalry, a competition for global power and influence. The technologies that enable civilisation to peer into the Cosmos, divining its secrets, tackling the great philosophical questions of how the universe was created and life began, symbolise the level of advancement of those societies. Telescopes, as much as rockets, represent an opportunity to showcase technological prowess, something analogous to military power. Witness the modern “telescopic race” set in motion by the European Space Agency’s (ESA) establishment of the European Southern Observatory’s (ESO) infrastructure in Chile.64 The Extremely Large Telescope (ELT), as it is known, will commence operations in the current decade. As the world’s most powerful lens into the universe, it reinforces the leading role that Europe plays in science. Like the breakthroughs in particle physics led by European scientists in the twentieth century, beginning with the discovery of the electron in 1890 and culminating in the first observation of the Higgs Bison particle,65 other nations fear they may never recover from Europe’s domination of this field.66 The US has responded by initiating two new projects, the Thirty Meter Telescope (TMT) to be built upon the plateau of Mauna Kea in Hawaii, and the Giant Magellan Telescope at the Vera C. Rubin Observatory in Chile, which will scan and document the entire night sky every three nights as part of the Legacy Survey of Space and

63

See ESA’s announcement of the suspension of cooperation with Russia on the ExoMars Mission, 17 March 2022: https://www.esa.int/Newsroom/Press_Releases/ExoMars_suspended (Accessed 15.08.2022) and discussion generally on the unprecedented US and EU steps following the further invasion of Ukraine in March 2022: Holden, K (2022) “The Ukraine War Is Remaking Global Space Cooperation” The Diplomat, 14 July 2022: https://thediplomat.com/2022/07/the-ukrainewar-is-remaking-global-space-cooperation/ (Accessed 15.08.2022). 64 See the European Southern Observatory website: https://www.eso.org. 65 The Bison Particle, though theorised since the 1960s, was discovered by the Large Hadron Collider between 2011 and 2013. See: Farmelo (2019), p. 235. 66 Overbye, D (2020) “American Astronomy’s Future Goes on Trial in Washington” The New York Times, 13 March, 2020: https://www.nytimes.com/2020/03/13/science/telescopes-decadal-surveyhawaii.html (Accessed 15.08.2022).

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Time (LSST).67 The case for funding both projects has been openly prosecuted before Congress on the basis that dominion over the skies cannot be ceded to Europe.68 There are further fears that the ELT might cannibalise discoveries made by the US’s recently launched James Webb telescope and its Vera Rubin observatories, rendering these smaller lenses “location scouts” for the more powerful European technology, handing Europeans the opportunity to exploit NASA discoveries by examining them in far greater detail.69 It is a healthy reminder that US rivalry is not confined to its adversaries. China’s ambition in outer space, particularly on the lunar surface, has also sparked the US’s competitive impulse. China is planning a scientific research station at the lunar south pole, and has staked its interest in the far side of the Moon, where telescopes might look deep into the universe in a zone protected from Earth’s electromagnetic interference. China’s BeiDou satellite navigation system, an infrastructure project which has taken 30 years to build, will free its management of location data from the US GPS and offer Chinese allies a rival system.70 Then US Vice President Mike Pence positioned US concerns about China’s investment in space science as a real geopolitical concern, telling the National Space Council (NSC), of which he was Chair in 2019: Make no mistake about it: we’re in a space race today, just as we were in the 1960s, and the stakes are even higher. Last December, China became the first nation to land on the far side of the Moon and revealed their ambition to seize the lunar strategic high ground and become the world’s preeminent spacefaring nation.71

It seems likely that Pence’s description of China’s ambition to “seize the lunar strategic high ground” was a reference to the “Peaks of Eternal Light”—montagnes de l’eternelle lumiére. This highland region at the lunar south pole benefits from permanent sunlight by virtue of the small tilt of the Moon’s spin axis to the ecliptic, offering future scientific bases and human habitats the possibility of a constant energy source.72 Despite the prohibition of a claim of sovereignty over the lunar surface set out in Article I OST, the establishment of a scientific base in a uniquely finite region of the Moon is widely seen as a burgeoning property law and geopolitical issue.73 The obligation to avoid interference with the space activities of other

67 The issues associated with the construction of these telescopes in Hawaii are discussed in Chap. 3. See Witze (2020) 68 Overbye, D (2020) “American Astronomy’s Future Goes on Trial in Washington” The New York Times, 13 March 2020: https://www.nytimes.com/2020/03/13/science/telescopes-decadal-surveyhawaii.html (Accessed 15.08.2022). 69 ibid. 70 “China’s home-grown satnav system will soon be fully functional” The Economist, 18 July 2020: https://www.economist.com/china/2020/07/18/chinas-home-grown-satnav-system-will-soon-befully-functional (Accessed 15.08.2022). 71 Hickman (2019), pp. 178–190, 180. 72 ibid. 73 ibid.

2.5

Concluding Remarks

17

States under Article IX OST is not only a shield, but a strategic sword, potentially allowing for the effective occupation of a geographical location to the exclusion of others on the basis of preventing interference. Arguably, the rise of China has reinforced the benefits of US and Russian cooperation to both partners.74 Although the US remained deeply suspicious of Russia, continuing to impose wide-ranging sanctions and raise concerns about interference in US elections and its intentions in Ukraine during the last decade, it long considered Russia an “essential partner” for its Artemis exploration programme and the Lunar Gateway.75 It remains to be seen whether Russia has any way back into those pioneering projects as it continues to wage war on Ukraine. Exclusion would likely come at a high price however, pushing Russia closer to China.

2.5

Concluding Remarks

We begin our analysis of the impact of mega-constellations on science in this historical context, because astronomy cannot be separated from these pre- and post-Cold War developments. The race to put the first man on the Moon was as much a demonstration of military advantage, as a scientific and engineering feat. Achievements in outer space enhance the international prestige of States as symbols of economic and technological capability.76 The “second space race” as it is increasingly described, will not be between the Super Powers of the Cold War, but between the US and China to scientifically explore and economically develop the lunar surface.77 While the Moon may be the chief object of their rivalry, occupation of LEO in order to enhance military and defence surveillance will have the most significant consequences in the short-term. Such competition inevitably leads to conflict. The empty engagement, the absence of dialogue with China on security and space matters, is likely to exacerbate.78 When nations can no longer resolve their differences within bilateral relationships, they look to other means of assertion. It is within this landscape that the adequacy of the Outer Space Treaties will now be tested. How will a legal framework that requires States to consult when the potential for interference arises, stand up to the growing risk of interference between the activities of commercial operators of mega-constellations in LEO with the space activities of other States? Does the “democratisation of access to space”—allowing more nations as well as commercial ventures to participate—actually risk the loss of

74

Mutual self-interest was enhanced by restricting Chinese involvement, drawing the US and Russia closer together as they looked forward to a new phase of development in their respective sectors. It remains to be seen how the Russian invasion of Ukraine will impact these alignments. 75 Byers (2019). 76 Hickman (2019), p. 180. 77 Hilborne (2013), pp. 121–127. 78 Holslag (2019), p. 137. And see Holslag (2021)

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cooperation as a governance model? As we embark upon this analysis, it is worthwhile considering what the reaction of space powers like the US might be, if the company launching over 40,000 satellites into LEO were not SpaceX or OneWeb, not Amazon or Facebook, but Huawei? What might the international response be, if it were a commercial Chinese company occupying LEO on this scale, causing disruption to well established players in both telecommunications and astronomy, rather than American Tech Giants?

References Aganaba Jeanty, T. (2016). Space sustainability and the freedom of outer space. Astropolitics, 14(1), 1–19. https://doi.org/10.1080/14777622.2016.1148463 Ambrose, S. (1984). Eisenhower: The President (1952–1969). Simon & Schuster. Baranyi, T. (2019). The evolution of NATO against a European geopolitical background. In T. Baranyi & P. Stepper (Eds.), NATO in the 21st century: A Central European Perspective (p. 19). Antall Jozsef Knowledge Centre supported by NATO’s Public Diplomacy Division. Beamer-Downie, D. (2013). Considering the unthinkable – A review and discussion of current international law and suggestions regarding how we deal with a catastrophic incident in space. Acta Astronautica, 92, 255–262. https://doi.org/10.1016/j.actaastro.2012.11.003 Berkman, P., et al. (2011). President Eisenhower, the Antarctic Treaty, and the origin of international spaces. In P. Berkman, M. Lang, & D. Walton (Eds.), Science diplomacy – Antarctica, science, and the governance of international spaces (Vol. 17, p. 19). Smithsonian Institute. https://doi.org/10.5479/si.9781935623069.17 Byers, M. (2017). Crises and international cooperation: An Arctic case study. International Relations, 31(4), 375–402. https://doi.org/10.1177/0047117817735680 Byers, M. (2019). Cold, dark, and dangerous: International cooperation in the arctic and space. Polar Record, 55, 32–47. https://doi.org/10.1017/S0032247419000160 Farmelo, G. (2019). The Universe speaks in numbers. Faber & Faber. Fife, R. (2019). Obligations of ‘due regard’ in the exclusive economic zone: Their context, purpose and state practice. The International Journal of Marine and Coastal Law, 34, 43–55. https://doi. org/10.1163/15718085-12341047 Forteau, M. (2019). The legal nature and content of ‘due regard’ obligations in recent international case law. The International Journal of Marine and Coastal Law, 34, 25–42. https://doi.org/10. 1163/15718085-23341040 Hamamoto, S. (2019). The genesis of the ‘due regard’ obligations in the UN Convention on the Law of the Sea. The International Journal of Marine and Coastal Law, 34, 7–24. https://doi.org/10. 1163/15718085-23341039 Hickman, J. (2019). International relations and the second space race between the United States and China. Astropolitics, 17(3), 178–190. https://doi.org/10.1080/14777622.2019.1672507 Hilborne, M. (2013). China’s rise in space and US policy responses: A collision course? Space Policy, 29(2013), 121–127. https://doi.org/10.1016/j.spacepol.2013.03.005 Hobe, S., Schmidt-Tedd, B., & Schrogl, K. (2009). Cologne commentary on space law, Vol. 1 Outer Space Treaty. Carl Heymanns Verlag. Holslag, J. (2019). China, NATO, and the Pitfall of empty engagement. The Washington Quarterly, 42(3), 137–150. https://doi.org/10.1080/0163660X.2019.1664850 Holslag, J. (2021). Self-betrayal: How the west failed to respond to China’s rise. The International Spectator, 56(3), 138–158. https://doi.org/10.1080/03932729.2021.1911129

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Mendis, P., & Wang, J. (2019). Unveiling China’s grand plan: How America is waging a futile war with other means. Harvard International Review, XL(3), 36. Prezas, I. (2019). Foreign military activities in the exclusive economic zone: Remarks on the applicability and scope of the reciprocal ‘due regard’ duties of coastal and third States. The International Journal of Marine and Coastal Law, 34, 97–116. https://doi.org/10.1163/ 15718085-12341044 Sayle, T. (2019). Enduring alliance: A history of NATO and the postwar global order. Cornell University Press. Witze, A. (2020). How the fight over a Hawaii mega-telescope could change astronomy. Nature, 577, 457–458. https://doi.org/10.1038/d41586-020-00076-7

Chapter 3

The Outer Space Treaty and Responsibility Under International Law

Every generation of cellular phone network has brought significant advancement in the speed of telecommunication services and with it, cultural change. Perhaps the best measure of each successive generation of technology is not its technical bandwidth, but what it has enabled and how it has changed our lives. The first generation of mobile phone infrastructure repositioned the consumer as the focus of connectivity, liberating us from the physical constraints of fixed-lines in the workplace and home. The second generation, 2G, introduced SMS texting, changing the way we have conversations. The speed and capacity of 3G supported the emergence of the Smart Phone, the exchange of news and photos, online banking, navigational maps, and social media. The bandwidth of 4G allowed for giant cultural leaps with the streaming of movies, video calls and a multitude of Apps supporting everything from stock-market trading to dating. Now we stand on the cusp of the introduction of 5G, which will increase broadband speeds a hundred-fold.1 If successive generations of connectivity rendered the world of the previous one obsolete, 5G promises this on a whole new scale. The hundred-fold increase in bandwidth effectively means the same unit of 5G will support 100 more devices than the equivalent unit of 4G. This monumental increase in connectivity will usher in a technological revolution, establishing the foundation for the Internet-of-Things (IoT). It will support autonomous vehicles, flying taxis in our city airspace, parcel delivery by drones, online health care, virtual and augmented reality, and the “tactile Internet” whereby surgery might be undertaken by remote Avatars.2 Astronomy and science will also benefit from advances in Nano and CubeSat technologies, which are increasingly finding applications in space exploration, and will likely play a

1 2

Graff (2020). Hendricks (2019).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4_3

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leading role in confirmation of life beyond Earth.3 Our communities will give rise to “Smart Cities” in which everything is so interconnected that our Smart Phone will be elevated to the status of an operational control center carried in our pockets— infinitely more powerful than what Houston was to the Apollo missions. It is estimated that this leap in capacity will see data traffic rise 10,000-fold over the next 5–10 years,4 but the dramatic change in work practices rendered by the global COVID-19 pandemic is likely to bring those forecasts forward.

3.1

The Race for Control of the Orbital Internet

The digital revolution requires significant new telecommunications infrastructure, because 5G cannot simply piggy-back on existing 3G and 4G networks. The technology operates on a different radio frequency, has the advantage of virtually no latency, but drops off quickly with distance. This necessitates the roll-out of new wireless base stations at a far greater density than previous generations, in order to overcome the frequency’s shorter reach. Early investment by the Chinese telecommunication company Huawei placed it at the forefront of 5G and well ahead of its global competitors.5 The Nordic-based publicly-listed companies, Nokia and Ericsson, are the next two leading manufacturers of 5G technology, providing the European Union (EU) with two trusted network providers headquartered in EU Member States.6 Given the battle for the Internet has long been a geopolitical one, it is surprising that no US company developed the capability required to build 5G networks. Nor did a US administration establish the policy framework to facilitate one. Even 5 years ago, US Army Brigadier-General John Adams warned Congress: “our complete dependence on China and other countries for telecommunications equipment presents potentially catastrophic battlefield vulnerabilities.”7 Global supply-chains for telecommunications infrastructure inevitably lead to China, and even US military supply-chains have become dependent upon their supply.8 These concerns became the focus of attention during President Donald Trump’s first year in office. In 2017 he appointed the Chinese expert and former Defense Attaché from the US Embassy in Beijing, Brigadier-General Rob Spalding, to the US National Security Council 3

For applications of cube-sats to space exploration see: Levchenko et al. (2018), p. 185; Budianu et al. (2014), pp. 14–19; Kohout (2017), pp. 2239–2244, and on the role of cube-sats in studying recent breakthroughs in the search for life, see: O’Callaghan J (2020) “The Search for Life on Venus Could Start With This Private Company” The New York Times, 15 September 2020: https://www. nytimes.com/2020/09/15/science/venus-life-rocketlab.html (Accessed 15.08.2022). 4 ibid. 5 Graff (2020). 6 ibid. 7 ibid. 8 ibid.

3.1

The Race for Control of the Orbital Internet

23

(NSC), tasking the Council with developing a “China Strategy”.9 Spalding reiterated the view of Adams, telling the NSC that “China has achieved a dominant position in the manufacture and operation of network infrastructure. We are losing.”10 An increasingly anxious US administration, recognising an enormous strategic gap, embarked on a campaign to pressure its allies and partners who had procured, or intended to procure, 5G infrastructure from Huawei.11 US Secretary of State, Mike Pompeo, lobbied US allies to refrain from engaging Huawei in their network builds, with limited results.12 The ubiquitous nature of today’s telecommunications supplychain, to which Huawei provides around 40% of all equipment, makes it inordinately difficult to circumvent.13 Further, many European commentators were unconvinced by the motivation, speculating that US concerns had more to do with the rising threat to its technological dominance, than with national security. For all the focus on the risk of nuclear war between the Super Powers of last century, it must not be forgotten that within his first 2 years in office, President Eisenhower’s most senior advisers from the National Security Agency (NSA), the Joint Chiefs of Staff of the Department of Defense (DoD), and the US State Department were unanimous in urging him, on no less than five occasions, to launch a nuclear attack on Communist China.14 Fifty years later, the communist model of Chairman Mao Zedong is barely recognisable, but the trust deficit lingers. The remarkable resurrection of the Chinese Empire from a century of humiliation at the hands of British, French and Japanese colonists, has only been possible by embracing a Chinese model of globalisation.15 But there should be no doubt that Chinese Tech Giants like WeChat, Tencent and Alibaba are today as powerful as Facebook, Apple and Amazon. Huawei is another of its success stories. A private commercial Chinese corporation founded by Ren Zhengfei in the 1980s, who continues to hold 1% of its shares, the other 99% are held by the employees of Huawei in a hybrid socialist employee-ownership model

9

ibid. Graff (2020). 11 Woo, S and O’Keefe, K (2018) “Washington Asks Allies to Drop Huawei” The Wall Street Journal, 23 November 2018: https://www.wsj.com/articles/washington-asks-allies-to-drophuawei-1542965105 (Accessed 15.08.2022): Cherney M and Strumpf D (2018) “Taking Cue From the US, Australia Bans Huawei From 5G Network” The Wall Street Journal, 23 August 2018: https://www.wsj.com/articles/australia-bans-chinas-huawei-from-5g-network-rollout-1534 992631 (Accessed 15.08.2022); Sabbagh D (2020) “Boris Johnson forced to reduce Huawei’s role in UK’s 5G networks” 22 May 2020: https://www.theguardian.com/technology/2020/may/22/ boris-johnson-forced-to-reduce-huaweis-role-in-uks-5g-networks (Accessed 15.08.2022). 12 The alliance known as the Five Eyes is made up of: US, United Kingdom (UK), Australia, Canada and New Zealand. 13 Graff (2020). 14 Ambrose (1984), p. 229. 15 The Belt & Road Initiative (BRI) is discussed in further detail in Sect. 2.3 of this book. For contemporary Chinese intellectual views on China’s transformation, from within China, see: Cheek et al. (2020). 10

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operating within a global market.16 In spite of this, the US proclaimed China’s 5G capability a Trojan Horse for Chinese government surveillance, a potential access point to global networks in future conflicts.17 That there was no evidence of this only reinforced the analogy among US lawmakers: the soldiers did not leap out of the Trojan Horse until they were within the gates of Rome.18 Huawei hit back, reminding the world that it was the NSA’s Prism Program, that allowed US intelligence agencies to access social media networks in a global surveillance scheme on an unprecedented scale during the Obama administration.19 Perhaps it is for this very reason that US agencies have a genuine sense of what might be possible. The US has pursued a strategy of exclusion against Huawei, much as it has against China in the space sector.20 It has applied maximum diplomatic pressure in the context of broader trade wars. The US Commerce Department announced a new ban on global silicon chip manufacturers which make use of US technology, from supplying semiconductors to Huawei.21 On 1 December 2018, Meng Wanzhou, the daughter of Huawei’s founder and the company’s Chief Financial Officer, was arrested and charged with violating sanctions against Iran, for allegedly providing the US nemesis with telecommunications equipment. She was en route to meet the recently elected President of Mexico, Andrés Obrador, about supporting the transformation of Mexico’s network to 5G.22 Orchestrated propaganda from both sides followed. Then President Trump slated home responsibility for the 2020 Corona Virus pandemic to China.23 The same accusation was leveled at America by the Chinese.24 Perhaps it is little wonder that the virus and 5G rivalries were quickly conflated, with a myriad of online stories purporting that 5G is the cause of the

16

Graff (2020). ibid. 18 Graff (2020) in his comprehensive exposé on the US Federal Agency response to Huawei, offers insight into the campaign to exclude it from supporting the 5G infrastructure of its allies. For the extent to which the Trojan Horse analogy was promulgated by political leaders in the media see: Bursztynsky J (2019) “Huawei expansion in Western nations may be ‘a Trojan horse,’ warns a top GOP senator” CNBC, 28 June 2019: https://www.cnbc.com/2019/06/28/huawei-expansion-inwestern-nations-may-be-a-trojan-horse-warns-a-top-gop-senate-leader.html (Accessed 15.08.2022). 19 The Prism programme revealed by whistle-blower, Edward Snowden. See: Snowden (2019). 20 Holslag (2019), pp. 137–150; Hickman (2019), p. 180; Hilborne (2013), pp. 121–127; Holslag (2021). 21 Strumpf (2020) “Huawei’s 5G Dominance Threatened by U.S. Policy on Chips”, The Wall Street Journal, 21 June 2020: https://www.wsj.com/articles/huawei-struggles-to-escape-u-s-grasp-onchips-11592740800 (Accessed 15.08.2022). 22 Graff (2020). 23 McNeil D and Jacobs A (2020) “Blaming China for the pandemic, Trump says US will leave WHO”, The New York Times, 29 May 2020: https://www.nytimes.com/2020/05/29/health/viruswho.html (Accessed 15.08.2022). 24 Li J (2020) “A conspiracy theory linking the US army to the coronavirus now has official Chinese endorsement” Quartz Magazine, 13 March 2020: https://qz.com/1817736/china-fuels-coronavirusconspiracy-theory-blaming-us-army/ (Accessed 15.08.2022). 17

3.2

American Technology Giants and the Quest for Full Spectrum Dominance

25

pandemic’s spread, or that the “China Virus” was simply a cover in order to allow the rapid rollout of 5G.25 That such anti-Chinese and anti-technology conspiracy theories gained traction in mainstream media across the world, reveals the extent to which disinformation about Huawei, China, 5G and the Corona virus, has proved effective.26 For these reasons, the US administration actively encouraged the nation’s startups to develop ways of delivering broadband capability from outer space. President Trump made a public statement from the White House, committing the US to the “5G War” in early 2019: “We cannot allow any other country to outcompete the United States in this powerful industry of the future. We are leading by so much in so many different industries of that type, and we just can’t let that happen. The race to 5G is a race America must win, and it’s a race, frankly, that our great companies are now involved in.”27

3.2

American Technology Giants and the Quest for Full Spectrum Dominance

Without access to domestically produced 5G infrastructure, America’s leading Telcos, Verizon, AT&T, T-com and others, have introduced 5G bases provided by Nokia and Ericsson.28 Space start-ups, including SpaceX and OneWeb, have been actively encouraged to develop alternative networks to provide global coverage. The US Senate Committee for Commerce, Science and Transportation heard, in testimony from industry and military stakeholders at its Hearing on Investing in America’s Broadband Infrastructure in 2019, that the US needed to take aggressive steps to develop its spectrum policy, because “a predictable, flexible supply of spectrum for broadband use . . . is a foundational element of the connected society”.29 In 2018, the Federal Communications Commission (FCC) approved SpaceX’s proposal to construct an orbital network to provide broadband services directly to consumers from Low Earth Orbit (LEO). This mega-constellation consists not of CubeSats, but a type of satellite SpaceX calls “Tintins” with a more sophisticated and expensive design that makes them (at least in theory) capable of manoeuvre.30

Satariano A and Alba D (2020) “Burning cell towers, out of baseless fears they spread the virus”, The New York Times, 10 April 2020: www.nytimes.com/2020/04/10/technology/coronavirus-5guk.html (Accessed 15.08.2022). 26 ibid. 27 Graff (2020). 28 Graff (2020). 29 Hendricks (2019). 30 ibid. The author writes “at least in theory” because there have been several near-misses with other satellites in orbit, when SpaceX failed to manoeuvre the Starlink satellites that were headed for 25

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The initial application by SpaceX for its Starlink mega-constellation proposed the launch of 11,000 satellites, of which two-thirds would operate in low-LEO at 340 km altitude in the V-band (40–75 GHz), a third in high-LEO with an orbit of 1200 km, while utilising the Ka- (26–40 GHz) and Ku-band ranges (12–18 GHz).31 Since then the numbers have grown exponentially, with the FCC approving further launch licence applications of up to 40,000 satellites, and amendments to altitudes and spectrum.32 SpaceX’s relationship with the US administration is enhanced by its development of innovative rocket technology, which NASA has harnessed to free itself from dependence on Russia’s Soyuz, opening up a lower-cost American avenue to space. It has become increasingly clear that SpaceX has positioned itself not only as supplier-of-choice to NASA, but that Musk’s own ambitions for Mars are being adopted as US policy. SpaceX has championed Starlink as crucial to the financing of its space programme, creating a dependence between its role as a critical supplier to NASA and its commercial Internet plans.33 Further, Government subsidies and contracts valued at US $3 billion have benefited SpaceX’s development of Starship rockets to fly astronauts to the Moon.34 Director-General of the Russian space agency, ROSCOSMOS, Dmitry Rogozin, suggested (without a hint of irony) that the US was misusing State Aid in granting contracts to SpaceX, undercutting the price of Soyuz flights to the International Space Station (ISS): “Instead of honest competition on the market for space launches, they are lobbying for sanctions against us and use price dumping with impunity”.35

collision. See: UNOOSA: https://www.unoosa.org/oosa/en/oosadoc/data/documents/2021/aac.105/ aac.1051262_0.html (Accessed 15.08.2022) and Kwan R and Henley J (2021) “China berates US after ‘close encounters’ with Elon Musk satellites” The Guardian, 28 December 2021: https://www. theguardian.com/science/2021/dec/28/china-complains-to-un-after-space-station-is-forced-tomove-to-avoid-starlink-satellites (Accessed 15.08.2022). 31 Akyildiz and Kak (2019), p. 136. 32 ibid. 33 In early 2020 Musk publicly disclosed that a spin-off of Starlink (via IPO to list the company on the NY Stock Exchange) will be required in order to pursue SpaceX’s Mars Colony: see Scheetz M (2020) “There could be a new Musk stock for investors to bet on: SpaceX’s Starlink” CNBC, 16 February 2020: https://www.cnbc.com/2020/02/06/spacex-starlink-may-ipo-a-new-elon-muskstock-for-investors.html (Accessed 15.08.2022). 34 Lalljee J (2021) “Elon Musk is speaking out against government subsidies. Here’s a list of the billions of dollars his businesses have received” 15 December 2021: https://www.businessinsider. com/elon-musk-list-government-subsidies-tesla-billions-spacex-solarcity-2021-12 (Accessed 15.08.2022). 35 Rogozin’s comments were first made on Twitter and subsequently reported in The Moscow Times: Kardashov (2020). Little sympathy was to be found in an international space community that long recognised the monopolistic pricing of Soyuz flights and recalled Rogozin’s suggestion, that without Russian support the US might be left with a trampoline to reach the ISS: Graff (2020).

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American Technology Giants and the Quest for Full Spectrum Dominance

27

Competitors for orbital broadband services became concerned SpaceX’s favoured-status might be providing it with an advantage at the FCC.36 OneWeb Satellites was established as a Joint Venture between Airbus Defence & Space (Airbus DS) and OneWeb, to build a mega-constellation of 50,000 satellites in LEO.37 OneWeb sought approval from the FCC for initial batches of satellites and staggered further applications over several years, a strategy also employed by SpaceX to play down the magnitude and minimise opposition. It enlisted Hillary Clinton’s 2016 Vice-Presidential pick, Senator Tim Kaine, to lobby the FCC on its behalf. Kaine, who represents the US State where OneWeb has its North American headquarters, wrote to the FCC on 4 December 2019, to enquire why OneWeb’s application for an increase in its licences from 720 to 1980 satellites, 18 months earlier, had not been approved.38 Perhaps high-profile support was also sought because the writing was on the wall for OneWeb: on 28 March 2020 it filed for Chapter 11 bankruptcy in the US, leaving the fate of its satellites already in orbit uncertain.39 In an extraordinary development, a month later it announced that despite its bankrupt status, it had applied to the FCC for licences for a further 48,000 satellites. 40 In July 2020, the Financial Times revealed that a consortium, including the British government and Indian Telco, Bharti Enterprises, was the leading bidder to acquire OneWeb.41 The UK has pinned its hopes on OneWeb offering technological independence from EU systems following Brexit.42 The move was encouraged by a US that sees strategic benefit in its Five Eye allies developing alternative technological solutions, rather than replicating existing systems. Efforts to save OneWeb were as much an attempt to ensure it did not fall into Chinese hands. The new US Space Force’s Vice Commander, Lt. Gen. David Thompson, commented: “(We are) not just focused on OneWeb but on all of the commercial space companies that face bankruptcy and face those concerns. We want to see what we can do in terms of

Caleb H (2020) “OneWeb, U.S. senator, urge FCC to act on 2018 request for 1,260 more satellites”, 27 January 2020, Space News: https://spacenews.com/oneweb-senator-urge-fcc-to-acton-2018-request-for-1260-more-satellites/ (Accessed 15.08.2022). 37 See https://www.oneweb.world. 38 Caleb H (2020) “OneWeb, U.S. senator, urge FCC to act on 2018 request for 1,260 more satellites”, 27 January 2020, Space News: https://spacenews.com/oneweb-senator-urge-fcc-to-acton-2018-request-for-1260-more-satellites/ (Accessed 15.08.2022). 39 “OneWeb collapses after SoftBank funding talks fall through” Financial Times, 28 March 2020: https://www.ft.com/content/8695c459-effd-4b54-8d96-69d8e614f6b4 (Accessed 15.08.2022). 40 https://www.oneweb.world/media-center/oneweb-seeks-to-increase-satellite-constellation-up-to48000-satellites-bringing-maximum-flexibility-to-meet-future-growth-and-demand (Accessed 30.07.2020 Link no longer accessible). 41 “UK to enter satellite race after winning bid for OneWeb” Financial Times, 3 July 2020: https:// www.ft.com/content/01e4d379-ac2d-4ca3-9724-b0a982d1fa4f (Accessed 15.08.2022) and “UKBharti bid for OneWeb gets green light from US court” Financial Times, 3 July 2020: https:// www.ft.com/content/fbb3e996-f2bd-4d12-89eb-d7413ba5f737 (Accessed 15.08.2022). 42 ibid. 36

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securing the capabilities we need for national security, number one, and ensuring that our adversaries don’t have the opportunity to acquire those capabilities”.43 OneWeb CEO, Adrian Steckel, similarly tied the bankrupt company’s requirements for a further 48,000 satellites closely to US geopolitics: “we have always believed that LEO satellites must be part of converged broadband network strategies to enable forward-thinking governments . . . to create more pathways to 5G and connect to the IoT future everywhere on Earth.”44 While there has long been an “Orbital Internet” supported by telecommunication satellites in Geostationary Orbit (GEO), the disruptive strategy pursued by New Space companies seeks to provide global broadband coverage from LEO. This offers an opportunity for these start-ups, because LEO is not treated as a scarce resource to which equitable access is provided by the International Telecommunication Union (ITU), while GEO slot allocation is. For this reason many incumbent Telcos oppose SpaceX and OneWeb plans, arguing that neither company is a licensed telecommunications company and their business-models represent significant risk.45 In this competitive landscape, spectrum is becoming a limiting factor in the design of the mega-constellations that will follow Starlink and OneWeb, with battles ensuing between new-entrants and those who have already received licence approval from the FCC.46 The earlier generation of operators, like Orbcomm and Iridium, objected to the granting of licences to Swarm Technologies and the “wasting of spectrum” by the now bankrupt LightSquared.47 It seems likely the race for 5G will propel the space race forward, with global technology giants, including Amazon and Meta, feeling compelled to participate. In mid-2018 a company called PointView Tech lodged an application with the FCC for an experimental satellite which would offer ten times faster broadband than Starlink.48 It was subsequently revealed the applicant was controlled by Facebook, as holding company for its Athena project, which will create a further megaconstellation in LEO. Unlike SpaceX and OneWeb, Athena aims to make use of high-frequency millimeter-wave E-band radio signals, which potentially offer faster data rates commensurate with 5G.49 On 30 July 2020, the FCC approved the first of 3236 licences for Amazon’s Kuiper constellation, an enormous $10 billion project, which will offer huge advantage over competitors given Amazon dominance of Cloud services and capacity to deliver streaming-service content from Amazon

Erwin S (2020) “Space Force Vice Commander: China can’t be allowed to buy bankrupt US space companies” Space News, 12 May 2020: https://spacenews.com/space-force-vicecommander-china-cant-be-allowed-to-buy-bankrupt-u-s-space-companies/ (Accessed 15.08.2022). 44 See OneWeb website: https://www.oneweb.world/media-center/oneweb-seeks-to-increase-satel lite-constellation-up-to-48000-satellites-bringing-maximum-flexibility-to-meet-future-growth-anddemand (Accessed 30.07.2020 Link no longer accessible). 45 Harris (2019), pp. 40, 41. 46 ibid. 47 id 42. 48 Graff (2020). 49 Harris (2018). 43

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American Technology Giants and the Quest for Full Spectrum Dominance

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Prime.50 Opposition from the telecommunications sector was dismissed by the FCC on the basis that Kuiper will “advance the public interest”.51 In order to provide global coverage, Athena and Kuiper will likely launch thousands of satellites into LEO as well, albeit Amazon’s initial plans appear to be on a scale ten-times smaller than Starlink and OneWeb.52 Further constellations are proposed in the aviation sector, to support traffic management and airspace services.53 The magnitude of this is startling. At the beginning of 2019 the European Space Agency (ESA) was tracking 2300 functioning satellites in space, excluding space debris.54 The combination of proposals currently approved by the FCC and other regulators will increase this by at least 10,000%. This enormous leap from 2000 to over 200,000 satellites in orbit is largely driven by the mega-constellation projects of US Tech Giants.55 While LEO has attracted the majority of new operators, others are staking their claim in Medium Earth Orbit (MEO). The US’s Viasat received approval from the FCC on 23 April 2020, to launch a constellation of 20 satellites licensed in the Netherlands, using the Ka- and V-band frequencies at an altitude of 8200 km.56 We have little visibility of how China or Russia might follow suit. But history tells us they will, for the battle for influence in the space domain will require nations to either match a first-mover’s capability or be left behind. Technological parity, if not superiority, is the aspiration of all Super Powers.57 As China embarks upon an unprecedented national renewal, expanding its sphere of influence, tensions with the US continue to rise. European States are concerned that if a policy of Mosher D (2020) “Amazon just won a huge FCC approval to launch 3,236 Kuiper internet satellites — a $10 billion project that’d compete with SpaceX’s emerging Starlink network” Business Insider, 1 August 2020: https://www.businessinsider.nl/amazon-kuiper-fcc-authorisa tion-satellite-internet-10-billion-dollar-investement-2020-7 (Accessed 15.08.2022). 51 ibid. 52 Ferreira, B (2020) “Amazon Satellites Add to Astronomers’ Worries About the Night Sky” The New York Times, 10 August 2020: https://www.nytimes.com/2020/08/10/science/amazon-projectkuiper.html (Accessed 15.08.2022). 53 De Selding, PB (2016) “Boeing proposes big satellite constellations in V- and C-Bands” Space News, 23 June 2016: https://spacenews.com/boeing-proposes-big-satellite-constellations-in-v-andc-bands/ (Accessed 15.08.2022). 54 See ESA’s tracking platform: https://www.n2yo.com/ and summary of space debris maintained by ESA/ESOC, which estimates there were approximately 2300 functioning satellites in orbit, before Starlink and OneWeb launches were initiated, and about 22,300 debris objects, plus millions of fragmented space debris: See http://www.esa.int/Safety_Security/Space_Debris/Space_debris_ by_the_numbers (Accessed 15.08.2022). 55 The figure of 200,000 satellites is based upon the likelihood that all four mega-constellations currently planned (Starlink, OneWeb, Athena, and Kuiper) will seek to license approximately 50,000 satellites each in order to provide low-latency global coverage from LEO. However, Amazon Kuiper is currently licensed to launch 3,236 satellites, potentially putting it in a much lower risk-category than Starlink or OneWeb, assuming Amazon is not intending to match their scale. As we shall discuss in Chap. 5, risks associated with satellite constellations are best mitigated through minimisation of the number of satellites in LEO. 56 See https://www.viasat.com/viasat-1-launch (Accessed 15.08.2022). 57 Sayle (2019), pp. 37–38. 50

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isolation is maintained against Huawei and other Chinese companies, the world might see the emergence of parallel Internets, one controlled by US interests and the other Chinese.58 Such a development would have geopolitical ramifications, forcing nations to choose a side. China is now the second largest economy in the world and its banks provide more global investment finance than the World Bank.59 The flagship project introduced by President Xi Jinping, the Belt and Road Initiative (BRI), seeks to establish an “engine of global connectivity”,60 as it renews the ancient silk routes of Central Asia as part of China’s trade and supply-chain.61 A dependence in China’s favour is being established, and it experiences little pushback from the beneficiaries of BRI in the international institutions in which it exerts influence. President Xi presented BRI to Europeans in 2014 as the establishment of an international “community based on common responsibility”.62 Echoing the recognition of outer space as a “province of all mankind”, even the language of BRI appears intended to lubricate Chinese-lead expansion in outer space. At the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) a grouping of over 135 State members of the United Nations (UN), the G77+China, demonstrates the extent to which the beneficiaries of BRI are prepared to align their interests with China and speak as one for “developing nations”. China’s strategic activities in LEO support and compliment these terrestrial lines. This is causing enormous anxiety on the other side of the Pacific, and it is perhaps this very anxiety now fueling the US’s renewed determination to dominate the next space era.

3.3

The Impact of Interference with Science Is Borne by Science

Professor Ewine van Dishoeck of Leiden Observatory and, until recently, Chair of the International Astronomical Union (IAU), is fond of invoking the story of Antoine de Saint Expuéry’s Le Petit Prince to highlight the role of narrative in her field: “if you want to do astronomy, don’t drum up people to collect components and don’t assign them tasks and work, but rather teach them to long for the endless

58

Graff (2020). Mendis and Wang (2019), p. 36. 60 Deng (2018), p. 30. 61 The Belt & Road Initiative (BRI) links China to Russia, Europe and the Middle East, while establishing a new “maritime silk road” linking China with the Persian Gulf, Mediterranean, Indian Ocean, and Pacific regions. Since its announcement in 2015 it has expanded to include an Arctic-European passage, adding weight to China’s argument for a role in future Arctic governance, while notably providing an enormous depth of investment in Africa. See Mendis and Wang (2019) and Deng (2018). 62 Since then the language has evolved, with Chinese foreign officials describing it as a “community of common destiny for humankind”: Deng (2018), p. 36. 59

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immensity of the universe.”63 In this way Prof. van Dishoeck describes the mission of the IAU as that of promoting and safeguarding astronomy through international collaboration.64 During the past 3 years the emphasis has weighed heavily on the “safeguarding” aspect, as the potential impact of mega-constellations dawned upon the scientific community. In the weeks after Dr. Marco Langbroek’s video of the Starlink satellites streaking across the night sky went viral (Figs. 1.1 and 2.1), various observatories across the world realised that mega-constellations, of which Starlink was only the beginning, were poised to create optical and radio interference on an unimaginable scale (Fig. 3.1). The risk to science was suddenly magnified by the disproportionate amount of space objects inherent to these constellations. The IAU was compelled to act. A few weeks after SpaceX’s initial launch it issued a statement: The International Astronomical Union is concerned about these satellite constellations. The organisation, in general, embraces the principle of a dark and radio-quiet sky as not only essential to advancing our understanding of the Universe of which we are a part, but also as a resource for all humanity . . . We do not yet understand the impact of thousands of these visible satellites scattered across the night sky.65

In the months following, Prof. van Dishoeck, initiated three specific actions.66 First, the IAU would seek detailed information from its member observatories on the impact of the mega-constellations on science. Secondly, it would take up the issue at the following UNCOPUOS in 2020. And finally, it initiated consultation directly with SpaceX. This overture was significant given Article IX of the Outer Space Treaty (OST) provides that the obligation to consult falls to the State if it has reason to believe that activities undertaken by its nationals in outer space, may “cause potentially harmful interference with activities of other State Parties.” Accordingly, the US should have initiated consultation with other nations prior to approval of SpaceX licences.67 But national governments might also have requested consultation with the US Government in accordance with Article IX.68 This presents a dilemma in 63 van Dishoeck (2019), p. 523. The original translated text from Le Petit Prince by Antoine de Saint Exupéry reads: “If you want to build a ship, don’t drum up people to collect wood and don’t assign them tasks and work, but rather teach them to long for the endless immensity of the sea.” 64 id 524. 65 IAU Statement on Satellite Constellations, 17 December 2019, https://www.iau.org/news/ announcements/detail/ann19035/ (Accessed 15.08.2022). 66 IAU Statement “Understanding the impact of constellations of satellites on astronomy”, 12 February 2020: https://www.iau.org/news/pressreleases/detail/iau2001/ (Accessed 15.08.2022). 67 ibid. 68 For example, the Netherlands would be required to object to the US government on interference with astronomy at Leiden Observatory under the terms of OST; Germany might object to the US in relation to interference experienced by the Max Planck Institute; some complexity emerges in relation to astronomical programmes operated by the European Union, as the EU itself is not a State party to OST. Similarly, the State parties which have established the European Southern Observatory (ESO) with facilities in Chile and Europe, cannot request consultation under the terms of OST itself. With ESO headquarters in Germany, it would likely fall to the German government to request consultations with the US administration on ESO’s behalf.

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Fig. 3.1 Prison of Technology (Photograph: Rafael Schmall). Rafael Schmall’s photograph of the Albireo Star interrupted by vertical lines of satellites, won the Insight Investment Astronomy Photographer of the Year 2020 Award for best photograph in the “People and Space” category

a new era of space activity by private actors, for the principle of consultation in the OST was best suited to the duopoly of the Cold War. The US failure to initiate consultation, or of States to request it, left the IAU in the uncomfortable position of requesting consultation directly with SpaceX itself. This short-cut of the consultation process in Article IX OST raises an interesting question as to how the IAU might have grappled with the terms of the treaty, if SpaceX had refused to consult? Under Article IX, a State Party which has reason to believe that the activities of another State Party might cause potentially harmful interference, may “request consultation concerning the activity” of the supervising State. However, there is no obligation for a commercial space actor to accept such a request. Instead the obligation and the failure to comply with its responsibility, fall to the US government. It is unsurprising then, that a scientific community groping for tools to protect its interests, found the principle of State Responsibility under OST falling short. It urged “appropriate agencies to devise a regulatory framework to mitigate or eliminate the detrimental impacts on scientific exploration as soon as practical”.69 The IAU undertook a post facto assessment of the impact of the megaconstellations in collaboration with its member observatories under the auspices of two of its working groups, the Commission B7 for the Protection of Existing and 69

ibid.

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The Impact of Interference with Science Is Borne by Science

33

Potential Observatory Sites and the Working Group Dark and Quiet Sky Protection.70 The B7 Commission drew upon expert evidence and modelling from the European Space Agency (ESA), European Southern Observatory (ESO), Vera Rubin Observatory, the University of Michigan, and Calar Alto Observatory (Centro Astronómico Hispano-Alemán) in southern Spain.71 Ahead of the UNCOPUOS Scientific & Technical Subcommittee (STSC) meeting in Vienna in early 2020, it released a more detailed statement, making public its concerns in two categories of interference: optical and radio frequency. In relation to interference with optical astronomy, which was being impacted by the reflection of light by Starlink satellites (Figs. 1.1 and 2.1), it stated: The prominent trains of satellites, (the) “strings of pearls”, . . . are significant immediately after launch and during the orbit-raising phase when they are considerably brighter than they are at their operational altitude and orientation . . . Apart from their naked-eye visibility, it is estimated that the trails of the constellation satellites will be bright enough to saturate modern detectors on large telescopes. Wide-field scientific astronomical observations will therefore be severely affected.72

The preliminary assessments derived from simulations conducted by the observatories, highlighted the following key impacts to optical astronomy: 1. between 1500 and several thousand satellites would be visible above the horizon at any given time, based upon 25,000 satellites in orbit; 2. wide-field scientific astronomical observations will be the most severely affected, with the trails of the constellation satellites bright enough to saturate large telescopes, such as Vera Rubin Observatory; 3. up to 30% of the 30-second images that fast wide-field surveys undertake during twilight hours when celestial bodies are most visible, will be affected;73 4. the appearance of the pristine night sky, particularly when observed from dark sites, will be altered, because the satellites of mega-constellations appear to be significantly brighter than existing orbiting man-made objects; 5. the mitigation steps required, to remove the large number of trails from data sets, could create significant and complicated overheads to the scheduling and operation of astronomical observations.74 Following release of the IAU statement, Dr. Manfred Gaida, astronomer and researcher at DLR Space Administration, Germany’s equivalent of NASA, noted radio astronomy’s extremely sensitive receivers will also be disrupted by communication signals from mega-constellations. He cited the example of the 100-metre radio telescope in Effelsberg, Germany, for which “a mobile telephone on the Moon would be the third-strongest source of radiation, after the Sun and the remnants of

70

ibid. ibid. 72 ibid. 73 ibid. 74 ibid. 71

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the Cassiopeia A supernova.”75 The IAU statement focused predominantly on optical wavelength impacts, while emphasising that interference with radio and sub-millimeter wavelength ranges is also anticipated: The IAU considers the consequences of satellite constellations worrisome. They will have a negative impact on the progress of ground-based astronomy, radio, optical and infrared, and will require diverting human and financial resources from basic research to studying and implementing mitigating measures.76

The implication is that the impact of mega-constellations will require adaptation by the astronomical community. In theory it can mitigate the saturation of its observations by accurately predicting the orbits of the Starlink and OneWeb constellations and halting observations during their passage.77 Data processing could then be used to “clean” the resulting images of any streaks of reflected light.78 Algorithms might automatise the work. But the scale of mega-constellations severely undermines such mitigation. Perhaps there is no better metaphor for just how the burden of adaptation is falling to science, than the near-miss between ESA’s Aeolus wind-mapping satellite and one of Starlink’s satellites in 2019.79 Technically Starlink satellites are supposed to detect and automatically move out of the way of other space objects, but the function failed and the satellite appeared on an imminent collision course with Aeolus. SpaceX did not respond to urgent and repeated contact from ESA’s Operations Centre, such that ESA had to manoeuvre Aeolus first in order to avoid a collision.80 Had the satellites collided, an important science satellite would have been destroyed, and an inordinate amount of space debris added to LEO, further threatening space activities including the ISS. SpaceX claimed it had not seen the messages from ESA Operations.81 In any case, adaptation has its limitations. Professor Felix Huber, Director of DLR Space Operations and Astronaut Training, notes the electric propulsion system used by satellites like Starlink, respond more slowly than chemical engines, so the capacity for rapid evasive action is limited.82 Further, efforts to camouflage Starlink

Interview with Dr. Gaida: Space Daily Writers (2020) “Strings of pearls in the night sky – the Starlink satellite project” Space Daily, 18 May 2020: https://www.spacedaily.com/reports/Strings_ of_pearls_in_the_night_sky___the_Starlink_satellite_project_999.html (Accessed 15.08.2022). 76 IAU Statement, 12 February 2020. 77 Interview with Dr. Millon by the author on 15 January 2020. 78 ibid. 79 O’Callaghan J (2020) “The Search for Life on Venus Could Start With This Private Company” New York Times, 15 September 2020: https://www.nytimes.com/2020/09/15/science/venus-liferocketlab.html (Accessed 15.08.2022). 80 Witze (2019), p. 268. 81 ibid. 82 Interview with Dr. Gaida: Space Daily Writers (2020) “Strings of pearls in the night sky – the Starlink satellite project” Space Daily, 18 May 2020: https://www.spacedaily.com/reports/Strings_ of_pearls_in_the_night_sky___the_Starlink_satellite_project_999.html (Accessed 15.08.2022). 75

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The Impact of Interference with Science Is Borne by Science

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satellites, he suggests, do little to mitigate the issue of reflection of light: “If they are dark, they heat up more due to solar radiation. That heat then needs to be re-radiated. The solar panels will always reflect light to a greater or lesser extent, depending on the angle.”83 In response to astronomy’s concerns, SpaceX has taken belated steps to explore technical solutions that may mitigate some interference, developing what it has branded its “DarkSat” solution.84 Worryingly, allowing just one corporation to control the narrative of this interference has resulted in public perceptions that the issue has been addressed and, as some media proclaimed, the “Night Sky has been saved”.85 It should not be lost on any observer, that SpaceX has cast itself as the “saviour” of the Night Sky from interference, in a media strategy spinning this to its advantage. In any case, alterations in the design of satellites cannot overcome interference with data sets. Dr. Martin Millon of the Space Research Institute at the Ecole polytechnique federale de Lausanne (EPFL) in Switzerland, a centre for astronomy that plays an important role in the Clean Skies project,86 makes the point that even with mitigation steps to correct data, key scientific information is lost: We already remove saturated pixels (from our observations) due to cosmic rays, and we have a method to remove satellite tracks from images. If observations of stars are affected by a satellite track, the exposure is lost. But you can never recover the signal that was behind the saturated pixels.87

This raises an important issue of where the burden of interference falls. Astronomy has long been required to adapt to developments of the twentieth century. Light pollution emanating from modern cities has been the single most significant source of interference with science, requiring relocation of much infrastructure from Europe to the southern hemisphere, with all of the sovereign risk this entails.88 Professor Hansjörg Dittus, Member of the Executive Board of the German Aerospace Centre, DLR, who leads the organisation’s space research and technology institutes, views the issue of interference as one in which rapid growth in activity in LEO creates exponential risk of collision and interference with astronomy:

83

ibid. Witze (2020). 85 Hall S (2020) “SpaceX Plans Sunshades to Save Night Skies From Starlink Satellites” The New York Times, 6 May 2020: https://www.nytimes.com/2020/05/06/science/spacex-starlinkastronomy.html (Accessed 15.08.2022). 86 For information on the EU’s Clean Sky project see: https://www.cleansky.eu (Accessed 15.08.2022). 87 Interview with Dr. Millon by the author on 15 January 2020. 88 See European Southern Observatory (ESO) website: https://www.eso.org/public/ (Accessed 15.08.2022). On sovereign risk see discussion of recent Chilean elections: Dorfmann A (2021) “I lived through the darkness of the Pinochet era. Is Chile heading back there?” The Guardian, 10 December 2021: https://www.theguardian.com/commentisfree/2021/dec/10/pinochet-chile-chileans-polls-19december-presidential (Accessed 15.08.2022) and the EU relationship with Chile: https://ec.europa. eu/commission/presscorner/detail/en/speech_19_3991 (Accessed 15.08.2022). 84

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This is a problem that science has always faced. We had to find solutions, like establishing the European Southern Observatory (ESO) in the southern hemisphere, to overcome the issue of light pollution in Europe. Earth itself is increasingly an object of interference. I have seen the extent to which electro-magnetic fields generated by electricity infrastructure, interfere with geo-physical techniques that use Earth’s natural magnetosphere for scientific purposes. There may be impacts on detecting Near Earth Objects (NEOs) or asteroids in a crowded LEO, where our NEO detection technologies rely on sunlight. The more complexity we introduce to the environment we are operating in, the greater the challenge to address the risks. The biggest question is, who bears this risk and who pays for it if things go wrong?89

Although DLR does not conduct astronomy directly, something which falls within the domain of the Max Planck Institute in Germany,90 it develops a large amount of the hardware and sensors for satellites and space missions, which support the infrastructure of astronomy.91 DLR represents Germany at ESA, the meteorology agency EUMETSAT, ESO which operates the Extremely Large Telescope (ELT), and in international forums of UNCOPUOS and UN-SPIDER, all of which support applications vulnerable to interference.92 From this perspective Prof. Dittus argues that the increasing pollution of LEO from mega-constellations, will have a negative impact on the costs of science: What concerns me is that science is always having to adapt to the impact of commercial activities. The need to correct data sets for interference from mega-constellations or relocate astronomy infrastructure altogether, will drive up the cost of science or disable important observations. And this means that science is bearing the cost of this interference. I am concerned about how States will supervise and take responsibility for these rapidly growing commercial space activities.93

3.4

State Responsibility for Commercial Space Activities

The OST is perhaps best understood through the prism of rights and obligations afforded State Parties. As discussed, Article I establishes a general freedom of exploration and use of outer space including an emphasis on scientific investigation, however these rights are limited by a range of other provisions under the OST. Article III acknowledges that State Parties must carry on their activities in outer space in accordance with international law, introducing important principles of customary international law that inform the express principle of State Responsibility provided for in Article VI.94 The drafting history of this part of the OST is 89

Interview conducted by the author with Prof. Dittus on 15 January 2020. https://www.mpia.de/en (Accessed 15.08.2022). 91 See: http://www.dlr.de (Accessed 15.08.2022). 92 ibid. 93 Interview conducted by the author with Prof. Dittus on 15 January 2020. 94 Although as one of the leading authors of the treaty, Manfred Lachs, wrote, this does not necessarily mean that international law applies in toto. See: Hobe et al. (2009), p. 67. 90

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State Responsibility for Commercial Space Activities

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illuminating, for it, like so much of the OST, was comprehensively shaped by the competing doctrines of capitalism and communism during the Cold War. In early iterations, the USSR proposed that “all activities . . . shall be carried out solely and exclusively by States”,95 vigorously opposing the US free-market approach in this new global commons. However, the US was already contemplating the future role of commercial actors, most immediately in the provision of telecommunication services. A compromise was required between two systems, for the USSR was adamant that space activities should only be conducted by States cognisant of their international responsibilities.96 For this reason, Article VI makes clear that States bear “international responsibility for national activities in outer space . . . whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions (of the OST)”. This is the only reference in OST to commercial activities in outer space. It is an important acknowledgement that the freedom of exploration and use was intended to extend to private actors, but its formulation reinforces that such rights are derived directly from State Parties to the Treaty. There is no direct derogation of rights to commercial actors flowing from the OST, such that Article VI is best understood as a prohibition on non-State activities in outer space, except where two conditions are met: first, the State assumes responsibility for the activities undertaken by its nationals, and secondly, the State authorises the activity and continues to supervise it during the life of the activity.97 Where those elements are satisfied, Article VI renders national governments responsible for the activities of non-State actors in the use and exploration of outer space.98 It is for this reason that States recognise that legal responsibility for any contravention of the OST by its nationals, including of Article IX, fall solely to them under international law.99 This is not to suggest that non-government activities manifest as acts of State acta jure gestionis, as non-government entities remain subjects of private law rather than parties directly subject to the obligations of treaties, however the outcome is effectively the same: the State assumes responsibility for the activities of its nationals in outer space under international law. This provides significant incentive for governments to make provision for the regulation of commercial space activities under national legislation, and for the insurance and liability of private actors, in order to mitigate the risk of a breach of the OST. The participation of commercial entities therefore complicates 95 UN Doc A/AC-105/C.2/L.1 (06 June 1962) paragraph 7: cited in CC p. 105, See original doc: A/AC.105/L.02 (1962) Item 7: “all activities pertaining to the exploration and use of outer space shall be carried out solely and exclusively by States” http://www.unoosa.org/pdf/limited/l/AC105_ L002E.pdf (Accessed 15.08.2022). 96 Hobe et al. (2009), p. 106. 97 Hobe et al. (2009). 98 Hobe et al. (2009), p. 181, para. 48. 99 Importantly, a breach of Article IX OST by a commercial actor like SpaceX would amount to a breach of the US government’s obligation to supervise national space activities under Article VI OST.

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the relationship between States at international law, where a breach of the OST by a non-State actor may amount to a breach of that State’s international obligation to supervise its space activities.100 Further, limitations are imposed on the exercise of jurisdiction in international spaces.101 The International Court of Justice (ICJ) held in the Lotus Case, concerning Turkey’s legal right to exercise jurisdiction over a French vessel on the global commons of the High Seas, that there are limits to the exercise of jurisdiction outside of a State’s territory: “the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense, jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory, except by virtue of a permissive rule derived from international custom or from a convention.”102 There is potential here for the mounting of a new argument against constellations that seek to deliver terrestrial 5G bandwidth to the territory of another State. A State must not exercise its power in any form in the territory of another. Yet this is exactly how US companies justify their plans, arguing that their satellite constellations will deliver Internet access to the most remote and rural areas on Earth, as well as sensitive areas like the Arctic.103 Each customer will require a dedicated satellite dish in order to receive services, by-passing local network infrastructure. But the consent of States into whose jurisdictions they hope to deliver telecommunication services, was not sought prior to FCC approval of Starlink licences. SpaceX still does not have licences to provide services in countries where it has been accepting pre-orders of Starlink services, prompting India and Pakistan to issue demands that SpaceX desist from selling its services in their respective territories without valid licences in early 2022.104 Article I establishes freedom of access and use of outer space, but it is not a permissive rule allowing activity in the sovereign territory of other nations from orbit. All States are entitled to control and regulate telecommunication networks and services in their jurisdictions, and under international treaties no transmitting station may be established or operated without a licence by, or on behalf of, the government of the country to which the station in question is

100

Under Article VI OST Permanent Court of International Justice, France v. Turkey (1927) (“Lotus Case”). The ICJ decision noted: “international law governs relations between independent States. The rules of law binding upon States . . . emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims”. 102 Quoted in Hobe et al. (2009), p. 45. 103 https://www.oneweb.world/media-center/oneweb-seeks-to-increase-satellite-constellation-upto-48000-satellites-bringing-maximum-flexibility-to-meet-future-growth-and-demand (Accessed 30.07.2020 Link no longer accessible). 104 Rainbow J (2022) “Pakistan is next to halt Starlink preorders” Space News, 19 January 2022: https://spacenews.com/pakistan-is-next-to-halt-starlink-preorders/ (Accessed 15.08.2022). 101

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State Responsibility for Commercial Space Activities

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subject.105 Further, under the ITU Constitution any State may “stop” or “cut-off” radio frequencies and telecommunications entering their territory, known as “jamming”, which “appear dangerous to the security of the State or contrary to its laws, to public order or to decency” in accordance with their own national laws.106 The magnitude of this issue is highlighted by reversing the players once more: would any US government welcome the delivery of telecommunication services into its territory by Huawei using 40,000 LEO-based satellites, attempting to by-pass the regulatory functions of the FCC? This question is best answered in legal terms: the US Communications Act (1934) prohibits the delivery of services without a telecommunications licence for communications to the US.107 Given space objects are subject to the jurisdiction and control of the authorising State under Article VIII OST, SpaceX is clearly attempting to provide broadband services from the US jurisdiction to customers in non-US jurisdictions. A comprehensive analysis of jurisdiction and the exercise of power in the sovereign territory of another State is beyond the scope of this book, however as we will discuss in Chap. 4, supervision of the impact of space activities arguably requires comprehensive due diligence, including consideration of whether there are better options. The environmental impact of Starlink appears greater than current means of delivering 5G services, given the requirement of an individual satellite dish for every customer. If, as seems entirely possible, States may block the provision of services from such constellations, whether through denial of operating licences or jamming of signals, does the world stand to inherit a crowded LEO without any corresponding benefit? Do the risks outweigh the benefits in this context? If there are other technological solutions that do not require the blanketing of LEO with satellites, and are more secure, why have those options not been pursued?108 If traditional telecommunications companies can provide 5G services to their respective territories from GEO and MEO, why permit the establishment of mega-constellations in LEO where the risks from space-debris and the perception of threats to sovereignty, represent greater risk to the space activities of other nations and current world order? These are the questions a robust impact assessment process undertaken during the launch and operational licence application process, ought to ask. However, in recent times the FCC has sought to reduce red-tape in the authorisation process, by streamlining licence applications and exempting commercial Non-Geostationary-Satellite-

105

ITU Radio Regulations, No. 18.1 (2015). Article 34 ITU Constitution. 107 47 USC §301(d), (f) and discussed in Federal Communications Commission (FCC) Fact Sheet, 27 March 2018, “Streamlining Licensing Procedures for Small Satellites”, IB Docket No. 18-86. 108 As DLR’s Prof. Huber notes, the scale of Starlink is a commercial choice in order to address latency issues, rather than to provide global coverage: “For global network coverage, SpaceX would need a couple of thousand satellites – far fewer than 12,000. It requires this enormous quantity in order to increase the available bandwidth. That said, there are other concepts that make do with significantly fewer satellites.” See: Staff Writers (2020) “Strings of pearls in the night sky – the Starlink satellite project” Space Daily, 18 May 2020: https://www.spacedaily.com/reports/Strings_ of_pearls_in_the_night_sky___the_Starlink_satellite_project_999.html (Accessed 15.08.2022). 106

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Orbit (NGSO) satellites from the Commission’s general processing round procedures.109 This process treats LEO as a lower risk category of orbit, because of the propensity of objects in the lower altitudes of LEO to burn-up in the atmosphere within reasonable time-frames, providing for a “natural” end-of-life.110 It is questionable however, whether LEO should be treated as a low-risk orbit at all and, as we will discuss in Chap. 5, the environmental impact of satellites burning-up in the atmosphere is only beginning to be understood. LEO is the only orbit in which human life is directly at risk—on the ISS and the recently established Chinese Space Station, Tiangong—and the massive increase in objects and activities in this domain in-and-of itself multiplies the risk of collision, the creation of space debris, and the probability of a Kessler event.111 Identified by NASA scientist Donald Kessler, it predicts that once a critical mass of space debris is reached, collisions will exponentially occur, creating more space debris in a chain reaction. Increasingly LEO is where the greatest risk of interference between activities is likely to occur, enhancing the opportunity for mistakes, miscalculations and misunderstandings between rival nations. US resistance to new regulation was on display at the United Nations in Vienna on 13 April 2018, when the US representative to the Legal Subcommittee (LSC) of UNCOPUOS acknowledged the major expansion in commercial launch capabilities, spearheaded by companies based in his country: “a US-based company now operates the most powerful rocket in the world,” the Head of the US Delegation, Gabriel Swiney, told the Subcommittee, acknowledging the advances in rocket technology and the pioneering of reusable launch stages, made by SpaceX.112 Citing the ultimate responsibility that all States bear for national space activities under Article VI OST, Swiney said the US did not see the need for new laws specifically directed at private enterprise, as all players—public and private—must comply with the international treaties relating to outer space.113 If this statement raised eyebrows among delegates, it was possibly because it followed two recent events involving US companies in which supervision fell short: SpaceX’s launch of a Tesla sportscar into outer space, and Swarm Technologies’ launch of its SpaceBees without valid authorisation.114 The launch of a car into outer space possibly failed to comply with the decontamination requirements of the Committee on Space Research (COSPAR) and the UN Space Debris Mitigation Guidelines, while the launch of a swarm of tiny SpaceBee satellites by an American company was done entirely

Federal Communications Commission (FCC) Fact Sheet, 27 March 2018, “Streamlining Licensing Procedures for Small Satellites”, IB Docket No. 18-86, p. 14. 110 ibid. 111 See ESA’s explanation of the Kessler Effect and how to manage the risk: http://www.esa.int/ Enabling_Support/Space_Engineering_Technology/The_Kessler_Effect_and_how_to_stop_it (Accessed 15.08.2022). 112 Swiney (2018), p. 6. 113 ibid. 114 Fernholz (2018). 109

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Due Regard, the Precautionary Approach, and the Prevention Principle

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without authorisation, and in fact after its application for licences had been rejected.115 It reinforced the question of the level of compliance the international community can expect from New Space companies. Under Article VI OST, no State can wash its hands of responsibility for the space activities of its nationals. International law makes clear that a State that causes damage to another is liable and has an obligation to provide reparations for that damage.116

3.5

Due Regard, the Precautionary Approach, and the Prevention Principle

The obligation of State Parties to have “due regard to the corresponding interests of all other State Parties” is in essence both an articulation of, and a mechanism for, precaution.117 This duty of care has a long lineage, essential to the effective governance of any global commons. It can be traced from the conduct permitted in the domain under the Roman law of res communes omnium—what is common to everyone—regulating the air, running water, the sea, and the seashore as a necessary means of access.118 By virtue of its physical properties and essential nature to all humankind, this domain could not be subjected to individual acquisition. The elements of the hydrosphere were not considered property at all. A commons is not a domain in which all have property rights, but is devoid of the qualities of property altogether.119 In these spaces, freedom of use can only be governed by having due regard to the interests of others, who are simultaneously enjoying their own freedoms.120 We see in these ancient laws the necessary preservation of life— for if farmers diverted a river to irrigate only their own crops, or fishermen were denied access to the sea, survival of other members of the community would be threatened. We observe the modern manifestation of this “due regard” in international law, where it provides the foundation for navigation and traffic management in airspace (where sovereignty is maintained)121 as well as in global commons, such as outer space, Antarctica, and the High Seas (where sovereignty is excluded or set aside). In all of these global commons safety and survival remain paramount.122 As

115

Millwood (2018). International Law Commission’s “Responsibility of States for Internationally Wrongful Acts” ILC 2001: https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Accessed 15.08.2022). 117 Article IX OST. 118 Capurso (2019). 119 ibid. 120 Hardin (1968), p. 1243; Hardin (1998), pp. 682–683, Hardin (1999). 121 Hobe et al. (2009), p. 175. 122 Article 87 United Nations Convention on the Law of the Sea (UNCLOS) 1982. 116

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NASA Administrator during the Trump administration, Jim Bridenstine, publicly recounted of his military service: during flight pilots radio “due regard, due regard” to other aircraft within the same airspace.123 This custom highlights the extent to which “due regard” is a warning as much as an obligation: a call to exercise due care in a shared domain, having regard to the interests and safety of others. Further, the framing of Article III OST provides for the importation of precautionary principles from other branches of international law, including environmental law.124 It is important to recognise that environmental legal regimes are primarily concerned with protecting people and property from damage arising out of environmental harm. This is consistent with international law that seeks to protect States from transboundary harm. Legal frameworks are necessarily focused upon human interests and rarely seek to protect the interests of nature per se.125 The history of compensatory practice, focused upon personal and property damage, economic loss, restorative damages and preventative measures, has given further shape to a “polluter-pays principle”, in which the human experience of damage is central, and the allocation of the burden of risk remains its goal.126 There is no generally accepted concept of precaution in international law however.127 An entire book might be devoted to the linguistics that surround it, with decades-long debate about whether precaution is a principle or an approach.128 It is almost certainly both: a principle that must be applied through processes that consider the potential consequences of an activity. For our purposes, the precautionary principle is helpful when the scientific impacts of an activity are not yet known. It has its roots in the consolidation of the Vorsorgeprinzip in German law in the postWWII period: to proceed with caution into the unknown,129 to avoid causing adverse impacts in situations of scientific uncertainty, and to accept the cost of averting uncertain dangers.130 It likely owes something to the ethics of medicine—primo non nocere, to do no harm131—but the principle has been largely shaped by a century of legal philosophy among the upheaval of war. During the Weimar Republic and beyond, German legal philosophers including Otto von Gierke, Carl Schmitt

123

Moon Dialogue Webinar, 9 July 2020: https://spacepolicyonline.com/events/planetaryprotection-and-lunar-activities-swf-july-9-2020-virtual-200-pm-et/. 124 Hobe et al. (2009), p. 69. 125 Fischer (2019), pp. 369–370; Fischer et al. (2019), pp. 165–178; Forteau (2019), pp. 25–42. 126 See: Weiss (2006). 127 ibid. 128 ibid. 129 For history of the Vorsogeprinzip and how it has shaped German environmental policy, see the German Ministry of the Environment website: https://www.umweltbundesamt.de/en/precautionaryprinciple (Accessed 15.08.2022). 130 Weiss defines “Precaution” as the willingness to accept costs to avert uncertain dangers: Weiss (2006). 131 Ochoa and Sills (2013).

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and Hans Kelsen, viewed the world as more than a biological organism, but as a legal and political one.132 The horror of Hiroshima and Nagasaki weighs heavily on the German psyche, and influenced jurisprudence in this area. Germany is one of the few jurisdictions in the world to have developed a concept of the law of catastrophe, Katastrophenrecht.133 Its purpose is disaster prevention and response, and it is infused with principles of precaution and protection of civil society. Laws of this type developed as Germany adopted a nuclear energy programme in the 1970s, and the level of risk society was prepared to accept was the subject of fierce public debate. A new school of legal thought recognised the role of catastrophe in instigating dramatic social change, and demonstrated a willingness to do so following nuclear disasters in Chernobyl and Fukushima. Concepts such as the precautionary and prevention principles, polluter-pays, and sustainability, emerging out of environmental politics, were consolidated in the laws of Germany by such historic events.134 The modern German Constitution incorporates the Vorsorgeprinzip as a fundamental and inalienable principle, recognising the duty of the State to preserve the “natural foundations of life” for future generations.135 German jurist, Professor Michael Kloepfer, describes this as a constitutional commitment to sustainable development to meets the needs of the present, without depriving future generations of the ability to meet theirs.136 For these many cultural reasons, German legislation in the fields of air pollution, water and waste, chemical use, genetic-engineering, nature conservation and climate protection, require the exercise of caution in the face of unknown scientific risks. At the European level, the precautionary principle was adopted in Article 191 of the Treaty on the Functioning of the European Union (TFEU) among the principles underpinning EU environmental policy. Like many principles in the TFEU it is not defined, but this has not prevented a range of case law and international agencies from making the attempt. The European Commission treats the precautionary principle as a means of decision-making, grounded in science, where there is uncertainty: “The implementation of an approach based on the precautionary principle should start with a scientific evaluation, as complete as possible, and

132 See Otto von Gierke’s Organismustheorie (Organism Theory), Carl Schmitt’s Nomus der Erde (The Nomos of the Earth in the International Law of Jus Publicum) and Hans Kelsen’s extension of von Gierke’s work in Reine Rechtslehre (1934), Mohr Siebeck Tübingen, 2008 Auflage, Deutschland. 133 Kloepfer (2008). 134 Radkau (2011). 135 Artikel 20a des Grundgesetzes: “Der Staat schützt auch in Verantwortung für die künftigen Generationen die natürlichen Lebensgrundlagen und die Tiere im Rahmen der verfassungsmäßigen Ordnung durch die Gesetzgebung und nach Maßgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.” 136 “Entwicklung, welche die Bedürfnisse der gegenwärtigen Generationen erfüllt ohne künftige Generationen der Fähigkeit zu berauben, ihre Bedürfnisse zu befriedigen”; Kloepfer (2006).

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where possible, identifying at each stage the degree of scientific uncertainty”.137 To this the UNESCO World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) proposes an ethical element: “When human activities may lead to morally unacceptable harm that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that harm.”138 It goes on to define “morally unacceptable harm” as that which threatens human life or health, is effectively irreversible, inequitable to future generations, or is imposed without consideration of the human rights of those affected.139 An argument may be mounted that mega-constellations fall in this category. The probability of harm and the likely irreversibility of the activity within human life spans, leaves many questions open, not least because of the high rate of bankruptcy among operators,140 and new research suggesting Starlink satellites will have an ozone-depleting impact in the upper atmosphere.141 The hazard it poses to human life on the ISS and the Chinese space station, its exponential contribution to space debris, and the interference with all astronomical activity on Earth, reinforce that the risks of harm are real. Precaution is a question of governance. It is about managing risk in the face of the unknown, what risk-managers might describe as the “known-unknowns”. For this reason, we see principles of precaution throughout the OST: to have due regard to the corresponding interests of others; to ensure space is used for peaceful purposes; to ensure the exploration and use of outer space benefits all people irrespective of the degree of their economic or scientific development; and to ensure that neither Earth, nor space, is contaminated in a way that poses danger to life or compromises our search for life beyond our planet. The OST has at its heart a concept of precaution, precisely because space was viewed as a global commons at the time of its drafting, and the exploration and use of outer space is, by its very nature, a venture into the unknown. The development of associated frameworks, such as the UN Space Debris Mitigation Guidelines and the Safety Framework for Nuclear Power Source Applications in Outer Space, all embrace the concept of due regard, safety and risk mitigation. Further international conventions, especially in the area of climate change, recommend comprehensive consultation and impact assessments are undertaken where an activity is “likely to cause a significant adverse transboundary impact”.142 It is clear the precautionary principle seen most broadly, seeks to avoid adverse impact. It is implicit in State Responsibility and the obligation upon State Parties to the OST, to authorise and supervise on an ongoing basis, and to have due regard to

137

See https://eur-lex.europa.eu/legal-content/EN/TXT/ (Accessed 15.08.2022). See https://unesdoc.unesco.org/ark:/48223/pf0000139578 (Accessed 15.08.2022). 139 For discussion of the role of morality as the basis for law and policy in outer space see: Schwartz (2000), p. 69; Monserrat (2000), pp. 22, 25. 140 Iridium, like OneWeb, was subject to Chapter 11 bankruptcy in the US: Mellow (2004). 141 Boley and Byers (2021). 142 Bowman and Boyle (2002), p. 5. 138

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the interests of others when undertaking an assessment of those activities. There is clearly an argument to be made that the US has failed to comply with its international obligations under Articles VI and IX OST, given its authorisation of megaconstellations without comprehensive assessment of the impacts.143 It failed to have due regard to the interests of other States, failed to undertake any impact assessment whatsoever (including environmental impact assessment), and failed to initiate consultation with those States in which interference with astronomy should have been foreseen, prior to authorisation. Article 12 of the International Law Commission’s draft statement on the Law of State Responsibility (2001), an authoritative reflection of customary international law, states that “there is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”144 It is my view that it would have been entirely consistent with the principles of due regard and precaution at international law, for the IAU to have called for a moratorium on the further authorisation and launch of mega-constellations once the initial Starlink launch indicated a likelihood of adverse interference with optical astronomy. The point at which it issued a statement acknowledging that “we do not yet understand the impact of thousands of these visible satellites scattered across the night sky” was the moment that a time-limited moratorium of perhaps 12 months, might have allowed sufficient time for US agencies to comply with their legal obligation to undertake assessments, and engage in consultation. The benefit of a moratorium is that it allows the scientific analysis of the risks to be fully investigated—the most fundamental attribute of proceeding with precaution— while focusing stakeholders on the seriousness of the question. When then German Chancellor, Dr. Angela Merkel, imposed a moratorium on the use of atomic energy in Germany following the 2011 nuclear accident in Fukushima, she cited the need for precaution, safety and reconsideration of the risks German society was prepared to accept.145 It offered political cover as well, allowing for a dramatic change in her government’s energy policy and the rapid retirement of nuclear energy in favour of renewables and (as would later haunt Germany) Russian gas. Today, German policy treats the precaution principle as twofold: first, it entails risk management. Secondly, it provides for the protection of scarce resources.146 So too, as mega-constellations are established in orbit, an irreversible change will be underway with intergenerational, environmental, and geopolitical impacts. This further reinforces the nature of the precautionary principle, as one that seeks to preserve resources for future generations.

143

Nooteboom (2019) argues that Environmental Impact Assessment processes are also integral to liberal democracy. 144 “Responsibility of States for Internationally Wrongful Acts” ILC 2001: https://legal.un.org/ilc/ texts/instruments/english/draft_articles/9_6_2001.pdf (Accessed 15.08.2022). 145 See https://www.bundesregierung.de/breg-de/suche/moratorium-616608. 146 See https://www.umweltbundesamt.de/en/precautionary-principle (Accessed 15.08.2022).

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A moratorium, combined with political pressure on the FCC to revisit its authorisation of both Starlink and OneWeb, might have created an opportunity for a further regulatory stage. Once risks are established with certainty and mitigation costs are fully understood, we evolve from questions of precaution to ones of prevention. Mitigation steps can be weighed against the potential benefits of the project. When the risks of an activity cannot be addressed within acceptable risk categories, there is an opportunity to assess whether this “residual risk” is acceptable to the public at large.147 In this manner, operators of mega-constellations have the opportunity to make the case for a “social licence” or face the reality that their activities are not commensurate with the interests of other stakeholders or public appetite to bear the risk. It is the prevention principle—also enshrined in TFEU—which might then be brought into play to ensure the adoption of hazard prevention measures.148 Although US authorities are naturally not subject to TFEU obligations, it might have lent weight to the argument that EU Member States should formally object to US approval of these mega-constellations, given the significant adverse transboundary impact on European infrastructure. Transatlantic differences in approach to precaution require some explaining because the implications are far-reaching. The precautionary principle is elaborately integrated into EU regulatory processes in order to avert potential harm, whereas US lawmakers historically favour intervention only when evidence of harm is firmly established.149 For this reason, scientific organisations might have utilised a moratorium period in order to gather sufficient evidence in order to directly mount an argument for prevention to US authorities. The failure to do so has had significant ramifications: the FCC authorised Starlink without undertaking any impact assessment whatsoever, on the basis that the potential for negative impact had not been sufficiently demonstrated.150 Which begs the question: why did the astronomical community fail to pursue these opportunities to protect astronomy from interference by mega-constellations?

3.6

A Fundamental Right to the Stars?

Faced with the loss of the dark sky across Europe, as the glow of modern cities increasingly undermined optical and radio astronomy, the European Commission made the decision to establish its Extremely Large Telescope (ELT) project in the 147

As is the case with nuclear energy plants, see: Fischer et al. (2019), pp. 165–178. https://www.europarl.europa.eu/RegData/etudes/IDAN/2015/573876/EPRS_IDA(2015)573 876_EN.pdf (Accessed 15.08.2022). 149 Wiener and Rogers (2002), pp. 317–349, and by way of example, the less risk-adverse American approach goes some way towards explaining why the military’s experimental chemical insecticide commonly known as DDT (dichloro-diphenyl-trichloroethane) could be considered “safe” for widespread domestic use by US regulators, before its devastating consequences for human health were comprehensively understood. See Carson (1962). 150 This is revisited in Chap. 5. 148

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southern hemisphere.151 Having staked their competitive advantage on science, European stakeholders are now facing the rapidly evolving problem of interference caused by US commercial actors. Dr. Gaida, an astronomer and researcher at the German Aerospace Centre DLR, notes that based upon current numbers, Starlink’s constellation alone will dramatically alter our view of the universe: “the entire sky has an area of approximately 42,000 square degrees, so that, statistically speaking, there will be a Starlink satellite in every square degree. One square degree equates to the space that four full Moons, arranged as a square, would take up in the sky” (Fig. 2.1).152 The IAU highlighted its concern with this fundamental alteration of our view of the heavens: “A great deal of attention is being given to the protection of the uncontaminated view of the night sky from dark places, which should be considered a non-renounceable world human heritage.”153 Similarly, Professor Heino Falcke, who came to prominence when his team at Radboud University, Nijmegen in the Netherlands constructed the first image of a black hole (Fig. 3.2), sees our view of the heavens as a fundamental right: The night sky is a cultural and natural heritage of the entire humankind and no single country has the right to significantly pollute the night sky of any other country without its consent. A clear sky is a resource that enables and inspires fundamental science as well as tourism and which has a cultural value of its own. If constellations like Starlink threaten to spoil that clear view of the sky, and inhibit ground-based astronomy or astro-inspired tourism, this would be a serious infringement on the sovereignty of individual countries . . . Given that most countries that still feature clear skies are also in developing regions, one could even talk of space-based colonialism.154

It is understandable that that such claims arise from a deep sense of cultural connection with the heavens.155 However, the OST does not consider outer space the heritage of humankind, but rather the “province of all mankind”, which is a very different concept at law. The claim that the astronomical sky is the heritage of humankind by many astronomers, stems from a misplaced reliance on the United Nations Educational, Scientific and Cultural Organisation (UNESCO) mandate to recognise and maintain a register of important World Heritage. UNESCO assesses places of Outstanding Universal Value (OUV) in accordance with its Guidelines for the implementation of the World Heritage Convention, which it recommends State Parties preserve. One such category of World Heritage is Astronomical Heritage, which it describes as places “relating to the practice of astronomy and to social uses

151

https://www.eso.org/sci/facilities/eelt/ (Accessed 15.08.2022). Interview with Dr. Gaida: Staff Writers (2020) “Strings of pearls in the night sky – the Starlink satellite project” Space Daily, 18 May 2020: https://www.spacedaily.com/reports/Strings_of_ pearls_in_the_night_sky___the_Starlink_satellite_project_999.html (Accessed 15.08.2022). 153 IAU Statement on Satellite Constellations, 17 December 2019, https://www.iau.org/news/ announcements/detail/ann19035/ (Accessed 15.08.2022). 154 Interview with Prof. Heino Falcke by the author on 7 January 2020. 155 It is questionable whether mega-constellation interference with the view of the night sky is a question of sovereignty or that consent of the international community is required in relation to activities in outer space. 152

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Fig. 3.2 Supermassive black hole in Messier 87 (Credit: The Event Horizon Collaboration). The first image of a black hole was created using radio frequencies collected by the Event Horizon Telescope (EHT)—a planet-scale array of eight ground-based radio telescopes, sharing data in an international collaboration. Astronomers are concerned about interference with radio astronomy caused by frequencies emitted from mega-constellations

and representations of astronomy . . . in the form of the tangible remains of monuments, sites and landscapes with a link to the skies that constitute a well-defined physical property. It can also involve movable objects such as instruments and archives, intangible knowledge—including indigenous knowledge still preserved in the world today—and natural environments that support human interest in astronomy, for example through the cultural use of their horizons or dark night skies.” 156 This concept is consistent with other forms of World Heritage, in that it is geographical and terrestrial in scope. A claim to a certain kind of horizon or the maintenance of the dark sky, seems to demand some form of sovereignty over the view of the night sky, in order to defend it from encroachment. These are property rights and the nature of UNESCO recognition of World Heritage sites is that it does not seek to impose obligations on the property of sovereign nations, but rather to promote the preservation of natural and cultural history. It remains open to States to establish domestic forms of “Dark Sky Oases” under national laws of course, as Hungary and others have (Fig. 3.3), but there is no basis for this under the international treaties. UNESCO cooperates with IAU to implement the “Astronomy and World Heritage Initiative” through its Commission C4 on World Heritage and Astronomy.157 However, although UNESCO may consider the relationship between place and unique views of the

156

https://www3.astronomicalheritage.net/index.php/about/what-is-astronomical-heritage (Accessed 15.08.2022). 157 See this language in the IAC WG Dark Skies website: https://www.iau.org/science/scientific_ bodies/working_groups/286/ (Accessed 15.08.2022).

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Fig. 3.3 Disturbed Dawn (Photograph: Rafael Schmall). Sunrise over the Zselic Starry Sky Park in the Zselic National Landscape Protection Area, Hungary, is interrupted by a bright train of satellites. The national park is recognised as a Dark Sky Oasis by the local Duna-Dráva National Park Directorate and the Hungarian Astronomical Association

night sky in its assessments, it has so far refrained from any attempt to treat the dark sky as a domain subject to World Heritage protection in its own right.158 In recent times, UNESCO felt it necessary to make it publicly clear that IAU’s claim to protection of the night sky as World Heritage is not supported by law.159 Despite this, astronomers, and the organisations that represent them, continue to rely upon this concept in the public debate about mega-constellations. IAU claimed there are “no internationally agreed rules or guidelines on the brightness of orbiting man-made objects” and called for such rules to be established. Given it has had some success in addressing terrestrial luminosity, primarily through lobbying local governments to adopt public lighting systems that minimise interference with astronomy, it is somewhat understandable that this argument was put. However, outer space is governed by an altogether different framework to local government, one in

UNESCO recognises that it faces a dilemma in seeking to protect the “Dark Sky” in isolation from terrestrial places, for the night sky is an abstract concept that defies definition in World Heritage listing terms https://www3.astronomicalheritage.net/images/astronomicalheritage.net/ documents/ts2/TS2-02-Windows.pdf (Accessed 15.08.2022). 159 UNESCO made clear that the application of World Heritage concepts to the night sky is not an option: https://whc.unesco.org/en/astronomy/#statement (Accessed 15.08.2022). 158

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which the question of “interference” under the OST is the critical test.160 Requests to amend the treaty are fraught. The consensus decision-making process of UNCOPUOS allows any State Party a veto of any proposal, creating resistance from traditional space powers to the imposition of governance that might curtail their interests. Similarly, powerful States leverage the tendency of the international community to adopt norms for which they advocate.161 Any strategy to introduce new issues for discussion at UNCOPUOS therefore inevitably requires support from spacefaring nations, and is likely to fail if it strays from the principles of the OST. Despite this, the IAU remained committed to putting a proposal to the UNCOPUOS Scientific and Technical Subcommittee (STSC) in 2021: The IAU is pursuing the possibility of approving (via UNOOSA) an international agreement that limits the brightness of any LEO satellite: the relevant proposal is being prepared and will be finalised in a webinar organised by UNOOSA and Spain, on suggestion by the IAU, next October. The proposal will be presented to the STSC of UNCOPUOS next February and hopefully to UNCOPUOS in June 2021 for approval.162

This was reminiscent of the approach taken 20 years earlier by then IAU President, Robert Kraft, and General Secretary, Johannes Andersen, who recognised even then that interference from telecommunication satellites, space debris, and highly luminous objects in orbit, presented a “growing danger to observational cosmology” and that the “solution to these problems lies in the political domain”.163 At its 2001 Symposium, the IAU called for a revision of the OST in order to address the concerns of astronomers with such optimism, that President Kraft referred to it as the “impending revision of the UN Space Treaties”.164 The proposal failed then and it is difficult to fathom that proposed amendments to the OST are any likelier to succeed today. Whether the current executive of IAU is aware of this history, and prepared to absorb its lessons, remains an open question.

160 In any case, how would a standard of luminosity be applied to a space object? Take for example a flare event, caused by a satellite that is not luminous, but at a particular point in its orbit reflects sunlight in an overwhelming flash, which renders astronomical observations at that point useless: https://www.youtube.com/watch?v=rHL8yFNztjU (Accessed 15.08.2022) Would such an object fail the test? Too many technical questions of measurements and standards for luminosity of objects in orbit are exposed, and the scientific community does not appear to appreciate the legal complexity or the enormous international efforts that would be required to draft standards that were acceptable to the international community, have them adopted and ensure compliance. 161 For example, the US and Russia collaborated to pursue space debris guidelines outside of the UNCOPUOS forum, following China’s ASAT test, resulting in a UN resolution of the General Assembly. 162 Interview by the author with Piero Benvenuti and Constance Walker, IAU Working Group Dark Skies/Mega-constellations/SATCOM 2020 per Email 27 July 2020. This statement by Benvenuti and Walker requires correction for the benefit of the reader: The United Nations Office for Outer Space Affairs (UNOOSA) is merely the Secretariat of UNCOPUOS and plays no role in the outcome of proposals put to the UN Committee by Member States, which must be adopted by consensus. 163 IAU (2001) Symposium No. 196: Preserving the Astronomical Sky (Ed. Cohen, R & Sullivan, W), The Astronomical Society of the Pacific, pp. 7–8. 164 id 9.

3.7

Concluding Remarks

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The IAU seems intent upon erecting a new category of human rights—a “fundamental right to starlight”. The organisation set itself on this ill-conceived path in 1997, when the IAU General Assembly passed a resolution calling for the night sky to be recognised as “the heritage of all mankind, which should therefore be preserved untouched” and subject to “no less protection than has been given to the World Heritage Sites on Earth.”165 This resolution, in direct conflict with the freedoms of access and use of outer space granted to all nations under Article I OST, emerged as a response to the “Star of Tolerance” controversy in the preceding year, in which UNESCO itself had proposed celebrating its 50th anniversary by launching two large tethered balloons into LEO, in order to beam benevolent messages to festivities on Earth.166 That project would have caused interference with astronomy and was especially panned given it was developed by a UN institution. The astronomical community’s misinterpretation of UNESCO’s mandate arose during that time and has been reinforced in every IAU statement since.167 The more compelling development in contemporary human rights law actually positions access to the Internet as a paramount condition in order to benefit from the rights to freedom of expression, freedom to gather, freedom of personality, and freedom to work.168 International law is increasingly recognising that in today’s hyperconnected world, hurdles to Internet access impact all human rights, a narrative that benefits the operators of mega-constellations. The irony perhaps is that scientists, who rely heavily on data in their own field, appear inclined to pursue a rightsbased argument without grounding in that other “science”: legal jurisprudence. This risks undermining astronomy’s own interests.169

3.7

Concluding Remarks

The astronomical community benefits from the freedom of use, exploration, and scientific investigation in outer space, a freedom necessarily predicated on the absence of sovereignty. That it appears nonetheless intent upon advocating for heritage protection rights generally reserved for property, and projecting human rights onto the stars, is confusing. When the IAU regularly cites the impact of megaconstellations on nocturnal species, rather than on the value of billions of Euros of public investment in astronomy— something not mentioned in any official IAU 165

ibid. Browne M (1995) “Astronomers Oppose Bright 2-Balloon Satellite” New York Times, 12 September 1995: https://www.nytimes.com/1995/09/12/science/astronomers-oppose-bright-2balloon-satellite.html (Accessed 15.08.2022). 167 IAU Statement “Understanding the impact of constellations of satellites on astronomy”, 12 February 2020: https://www.iau.org/news/pressreleases/detail/iau2001/ (Accessed 15.08.2022). 168 UN Declaration of Human Rights 1948: https://www.un.org/en/udhrbook/pdf/udhr_booklet_ en_web.pdf (Accessed 15.08.2022). 169 IAU Resolution 2009-B5. 166

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statement—it risks creating the impression it has fallen prey to ideology.170 A community of scientists, in which data is demonstrative and theory must be proved, has latched on to emotive arguments that have no basis in law. Ill-conceived arguments are being combined with a strategy of acquiescence, as the IAU attempts to salvage some commitment to technical mitigation from the commercial sector. Technical solutions cannot address what is not a technical problem, but a political one. SpaceX’s belated engagement with astronomy suits its interests at this point, but will the next mega-constellation arising out of the US, China, Russia or India, be prepared to do the same? Little wonder that a palpable sense of defeat has manifested itself among the astronomical community, as the IAU resists taking a position on anything resembling politics. It seems very likely that fear—of SpaceX retaliation, US retribution, the erection of hurdles to scientist’s own ambitions, or being subjected to a tweet from two proficient users of such public humiliation171—was the main reason for restraint. Astronomers would do well to recall that this is not the first time they have had to do battle with competing interests or proved vulnerable to capture by national authority.172 Galileo was renounced as a heretic in the seventeenth century, because science represented a threat to the political power of the Church. Resistance to governance is to be expected, it is part-and-parcel of commercial exploitation of the commons.173 But we are living in a time in which memories are short, the lessons of history regularly abandoned. A perusal of the agenda and resolutions emerging from successive IAU Symposia and General Assembly meetings over the last five decades, reveals a consistent failure to develop a coherent strategy to ensure the protection of astronomical interests from the incursions of future commercial projects.174 There has been little change in approach; alarm has not been translated into successful outcomes.175 The organisation appears more comfortable drafting

170 IAU Statement on Satellite Constellations, 17 December 2019, stated that it sees “the principle of a dark and radio-quiet sky as not only essential to advancing our understanding of the Universe of which we are a part, but also as a resource for all humanity and for the protection of nocturnal wildlife.” https://www.iau.org/news/announcements/detail/ann19035/ (Accessed 15.08.2022). 171 SpaceX CEO Elon Musk is a prolific tweeter, as then President Donald Trump also was Mr. Musk’s influence grew substantially when he acquired Twitter in October 2022. 172 Science was also held hostage under twentieth century regimes in Nazi Germany, the Soviet Union, and during the McCarthy era in the US, when scientists like Robert Oppenheimer were ostracised. President Eisenhower directly harnessed the diplomacy of science to his geopolitical Cold War strategic goals—no less ideological perhaps, albeit more palatable. See: Krauss L (2020) “The Ideological Corruption of Science” The Wall Street Journal, 12 July 2020: https://www.wsj. com/articles/the-ideological-corruption-of-science-11594572501 (Accessed: 15.08.2022). 173 Laver (1986), p. 372. 174 The agenda of IAU assemblies in 1976, 2001 and 2020 reveal the agenda itself has not changed: each of these years listed understanding adverse impacts of light pollution and interference with radio astronomy, enhancing international cooperation at UNCOPUOS, and engaging in public outreach, as the topics for discussion. See Andersen (2001), pp. 10–22. 175 As early as 1976, the IAU General Assembly passed a resolution noting “with alarm the increasing levels of interference with astronomical observations”. In 2001 then IAU General

References

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statements of concern, rather than taking actions that might be perceived as provocative by other stakeholders. The failure to appreciate the OST as a governing constitutional framework, under which rights may be defended and compliance with obligations sought, appears to lie at the heart of these failings. Too often astronomers cite the “heritage of all mankind”—a principle not found in the OST—in isolation, as some kind of definitive defence against all other interests.176 There appears little appreciation of the fact that commercial operators also rely upon Article I OST as the legal basis for their activities in outer space. What happens when scientists are selective about the basis of their claims? Lessons must be drawn from decades of climate science activism and the polarising public debate that transpired. Ideologised science—whether it is antagonistic or deferential to government—does not lead to good scientific or public outcomes.177 Authority and trust in science are undermined. If it is not to be relegated to a secondary activity in outer space, forever adapting itself to interference from new entrants, it is vital there is recognition that accurate legal, as well as scientific and technical information, is required. It ought to be of some embarrassment that, over successive decades, the IAU has prosecuted claims for a judicial expansion of the concept of World Heritage to apply to our vision of the night sky, and human (and animal) rights to starlight, while sidelining the core principles of international law. Years of misinformation and poorly conceived strategy must be undone. Now is the moment to correct course. There is much at stake.

References Akyildiz, I., & Kak, A. (2019). The Internet of Space Things/CubeSats: A ubiquitous cyberphysical system for the connected world. Computer Networks, 150, 134–149. https://doi.org/ 10.1016/j.comnet.2018.12.017 Ambrose, S. (1984). Eisenhower: The President (1952–1969). Simon & Schuster. Andersen, J. (2001). History strategy and status of IAU actions. Symposium - International Astronomical Union 19610-22. https://doi.org/10.1017/S0074180900163788

Secretary Anderson called for a new strategy to tackle the “exploding developments in space”. This contributed to the establishment of UNISPACE, to facilitate dialogue between scientists and UNCOPUOS, but little improvement in outcomes for science. See: IAU (2001) Symposium No. 196: Preserving the Astronomical Sky (Ed. Cohen, R & Sullivan, W), The Astronomical Society of the Pacific, pp. 7–8. 176 The IAU has unwittingly promoted a concept of res communis humanitatis (Heritage of Mankind) that is found in the Moon Agreement and UNESCO’s World Heritage, in contrast with the accepted concept of res extra commercicum (Province of all Mankind) that is the principle used in the OST. 177 Krauss, L (2020) “The Ideological Corruption of Science” The Wall Street Journal, 12 July 2020: https://www.wsj.com/articles/the-ideological-corruption-of-science-11594572501 (Accessed 15.08.2022).

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Boley, A., & Byers, M. (2021). Satellite mega-constellations create risks in Low Earth Orbit, the atmosphere and on Earth. Scientific Reports, 11, 10642. https://doi.org/10.1038/s41598-02189909-7 Bowman, M., & Boyle, A. (2002). Environmental damage in international and comparative law: Problems of definition and valuation. Oxford University Press. Budianu, A., et al. (2014). Swarm-to-Earth communication in OLFAR. Acta Astronautica, 107, 14–19. https://doi.org/10.1016/j.actaastro.2014.10.041 Capurso, A. (2019). The non-appropriation principle: A Roman interpretation. International Astronautical Congress, IAC-18.E7.1.12x47849, 1–5 October 2018. Carson, R. (1962). Silent Spring. First Mariner Books. Cheek, T., et al. (2020). Voices from the Chinese century: Public intellectual debate from contemporary China. Columbia University Press. Deng, Y. (2018). How China’s Belt and Road is reordering Asia. Harvard International Review, XXXIX(4), 30. Fernholz, T. (2018). The US Government said no. Swarm Technologies launched its satellites anyway. Quartz, 20 March 2018. Retrieved on August 15, 2022, from https://qz.com/1230354/ swarm-technologies-how-the-silicon-valley-start-up-launched-satellites-without-governmentpermission/ Fischer, T. (2019). Editorial: Evolution, revolution, climate change and current EIA. Impact Assessment and Project Appraisal, 37(5), 369–370. https://doi.org/10.1080/14615517.2019. 1641778 Fischer, T., et al. (2019). Reflecting on the preparation of guidelines for strategic environmental assessment (SEA) of nuclear power programmes. Impact Assessment and Project Appraisal, 37(2), 165–178. https://doi.org/10.1080/14615517.2018.1560667 Forteau, M. (2019). The legal nature and content of ‘Due Regard’ obligations in recent international case law. The International Journal of Marine and Coastal Law, 34, 25–42. https://doi.org/10. 1163/15718085-23341040 Graff, G. (2020). Inside the Feds’ battle against Huawei. Wired Magazine, 16 January 2020. Retrieved on August 15, 2022, from https://www.wired.com/story/us-feds-battle-againsthuawei/ Hardin, G. (1968). The tragedy of the commons. Science, 162(3859), 1243. Hardin, G. (1998). Extensions of “The Tragedy of the Commons”. Science, 280(5364), 682–683. https://doi.org/10.1126/science.280.5364.682 Hardin, G. (1999). Letter to the Editor, published as “The Tragedy of the Commons Revisited”. Environment: Science and Policy for Sustainable Development, 41(2), 4–45. Harris, M. (2018). Tech giants race to build Orbital Internet. Spectrum Magazine, June 2018. https:// doi.org/10.1109/MSPEC.2018.8362213 Harris, M. (2019). Full spectrum dominance. MIT Technology Review, 122(4), 40. Hendricks, B. (2019). Testimony of Nokia Corporation, Head of Technology Policy and Public Affairs for the Americas Region, Brian M. Hendricks, before the US Senate Committee for Commerce, Science and Transportation, Hearing on Investing in America’s Broadband Infrastructure, 6 December 2019. Hickman, J. (2019). Research viewpoint: International relations and the second space race between the United States and China. Astropolitics, 17(3), 178–190. https://doi.org/10.1080/14777622. 2019.1672507 Hilborne, M. (2013). China’s rise in space and US policy responses: A collision course? Space Policy, 29(2), 121–127. S026596461300026X. https://doi.org/10.1016/j.spacepol.2013.03.005 Hobe, S., Schmidt-Tedd, B., & Schrogl, K. (2009). Cologne commentary on space law (Outer Space Treaty) (Vol. 1). Carl Heymanns Verlag. Holslag, J. (2019). China, NATO, and the pitfall of empty engagement. The Washington Quarterly, 42(3), 137–150. https://doi.org/10.1080/0163660X.2019.1664850 Holslag, J. (2021). Self-betrayal: How the west failed to respond to China’s rise. The International Spectator, 56(3), 138–158. https://doi.org/10.1080/03932729.2021.1911129

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Kardashov, A. (2020). Russia Space Chief spars with Elon Musk over launch pricing. Moskva News Agency, 11 April 2020. Kloepfer, M. (2006). Umweltgerechtigkeit: Environmental Justice in der deutschen Rechtsordnung. Duncker & Humblot. Kloepfer, M. (Ed.). (2008). Katastrophenrecht: Grundlagen und Perspektiven. Nomos Verlagsgesellschaft. Kohout, T., et al. (2017). Feasibility of asteroid exploration using CubeSats – ASPECT case study. Advances in Space Research, 62, 2239–2244. https://doi.org/10.1016/j.asr.2017.07.036 Laver, M. (1986). Public, private and common in outer space: res extra commercium or res communis humanitatis beyond the high frontier? Political Studies, XXXIV, 359–373. https:// doi.org/10.1111/j.1467-9248.1986.tb01601.x Levchenko, I., et al. (2018). Explore space using swarms of tiny satellites. Nature, 562, 185. https:// doi.org/10.1038/d41586-018-06957-2 Mellow, C. (2004). The rise and fall of iridium. Air & Space Magazine, September 2004. Retrieved on August 15, 2022, from https://www.airspacemag.com/space/the-rise-and-fall-and-rise-ofiridium-5615034/ Mendis, P., & Wang, J. (2019). Unveiling China’s Grand Plan: How America is waging a futile war with other means. Harvard International Review, XL(3), 36. Millwood, S. (2018). ‘A Very Famous Payload’: The launch of a Car into Orbit around the Sun offers an opportunity to reconsider the International Framework for the prevention of harmful contamination of outer space. Air and Space Law, 43(6), 521–542. https://doi.org/10.54648/ aila2018035 Monserrat, F. (2000). Why and how to define “Global Public Interest”. In 43rd Proceedings on the Law of Outer Space 22. Nooteboom, S. (2019). Environmental assessment as an institution of liberal democracy. Impact Assessment and Project Appraisal, 38, 109–112. https://doi.org/10.1080/14615517.2019. 1665947 Ochoa, R., & Sills, R. (2013). Haschek and Rousseaux’s handbook of toxicologic pathology, 3rd ed. Chapter 4: https://doi.org/10.1016/C2010-1-67850-9. Radkau, J. (2011). Die Ära der Ökologie: eine Weltgeschichte. CH Beck. Sayle, T. (2019). Enduring alliance: A history of NATO and the postwar global order. Cornell University Press. Schwartz, J. (2000). Fairness as a moral grounding for Space Policy. In C. Cockell (Ed.), The meaning of liberty beyond earth (p. 69). Springer. Snowden, E. (2019). Permanent record. Metropolitan Press. Swiney, G. (2018). Statement by Gabriel Swiney, US Representative to the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS), 9 April 2018, Agenda Item #4 General Exchange of Views. van Dishoeck, E. (2019). Astronomy and the IAU in the next century. Under One Sky: The IAU Centenary Symposium No. 349, 523. https://doi.org/10.1017/S1743921319000711 Weiss, C. (2006). An inconvenient deliberation: The precautionary principle’s contribution to the uncertainties surrounding climate change liability. In K. Marti et al. (Eds.), Coping with uncertainty: Modelling and policy issue. Springer. Wiener, J., & Rogers, M. (2002). Comparing precaution in the United States and Europe. Journal of Risk Research, 5, 317–349. https://doi.org/10.1080/13669870210153684 Witze, A. (2019). SpaceX launch highlights threat of “mega-constellations”. Nature, 575, 268. https://doi.org/10.1038/d41586-019-03446-y Witze, A. (2020). SpaceX tests black satellite to reduce reflectivity. Nature, 577, 303. https://doi. org/10.1038/d41586-020-00041-4

Chapter 4

Establishing a Governance Framework for the Orbital Internet in Outer Space

What is the underlying precursor to the space race that is now well underway? This book has positioned its analysis firmly within the context of geopolitical history for a reason: it is my view that nations without reassurance of their security will militarise. In recent years we have seen a dilution of assurances from the world’s traditional Super Power as to whether it is a dependable guarantor of the security of its allies.1 The success of the post-WWII liberal order lay in two things. First, the renouncement of militarisation and the denial of a sphere of influence to both Japan and Germany. This not only provided an unprecedented sense of security in European and Asia-Pacific neighbourhoods, but benefited Germany and Japan themselves. Liberated from a militarised pathway, both countries were free to focus their national energy on economic success, with miraculous recoveries in both nations the result.2 Secondly, the US guarantee of the security of its allies created a new liberal world order with America at its heart, such that regional powers were less inclined to invest in their own militaries, which suited all parties.3 Three-quarters of a century of relative peace was sustained in this way. In recent years the US has shifted dramatically away from multilateralism, challenging the mandates of the global institutions it shaped, in favour of a policy of America First. Nationalism has predictably led to withdrawal from the world, but it is fair to recognise that even under previous US administrations, enthusiasm for the role of the world’s police force was waning.4 The abandonment of the Iran Nuclear deal, climate change conventions, and Open Skies under President Donald Trump— all multilateral treaties whose underlining purpose is assurance—together with a 1

Kagan (2018). id. 43. 3 ibid. 4 Arguably the hesitation and subsequent equivocation President Obama showed for international intervention in Syria, during that country’s crisis, marked a significant turning point in US foreign policy. See Kagan (2018), p. 143. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4_4

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volatile rhetoric on US commitment to NATO, reinforced perceptions of an America in retreat from the international responsibilities it once carried as the quid pro quo of American Exceptionalism.5 This has undermined perceptions of the reliability of the US as a security guarantor. Well before the Trump administration, Europe was preparing for a future in which the best guarantee of its security lay in independence, reflected in its pursuit of European space-based infrastructure with its own navigational system, GNSS or Galileo, and Earth Observation, Copernicus. These two EU projects represent the risk that flows from competition between allies, for although the US has historically encouraged economic competition among North America, Western Europe and Japan, it avoided military competition through the provision of its own guarantee.6 When we talk about a growing arms race in space, we must be prepared to acknowledge that it stems, at least in part, from the combined forces of a US in retreat, matched by Chinese expansion. These developments stand in stark contrast to the generosity of US foreign policy immediately after the war. Then Secretary of State, James Byrnes, framed US policy in these terms in 1946, when he said “freedom from militarisation gives them (the Germans) the opportunity to apply their great energies and abilities to the works of peace”.7 The same might be said of the domain of outer space—the central principle that outer space be used for peaceful purposes in Article I of the Outer Space Treaty (OST), requires that nations refrain from militarisation if space activities are to truly benefit all humanity. Some commentators distinguish pursuit of weaponisation from militarisation, characterising space as one in which the latter has been pursued in order to deny the former.8 An arms race in space will alter this dynamic, perhaps irreversibly, potentially leading to the weaponisation of a militarised domain. In this chapter, recommendations are made that spacefaring nations and the astronomical community might pursue, in order to ensure that mega-constellations do not permanently undermine the interests of science. The previous chapter made the case for a moratorium on the launch of mega-constellations, in order to buy astronomers time to formulate a coherent strategy. It is unfortunately too late for that now. The recommendations explored in five categories in this chapter represent medium-term aspirations that might nonetheless be embraced. Their derivations from the fundamental principles of the OST—State Responsibility, cooperation, consultation, and a duty to avoid interference by having due regard for the space activities of other States—are an attempt to reinvigorate the treaty’s founding principles. For if the OST is to continue to serve as the framework for peaceful activities in outer space during a renewed era of activity, it must become a functional

5

This shift is combined with an unease among Western allies about whether the US remains committed to come to their aid under the “all-for-one, one-for-all” principle of Article 5 of the NATO Treaty. As NATO welcomed its newest State to the Alliance in 2018, President Trump publicly asked: “would we really risk World War III for Montenegro?”: Guardian Staff (2018). 6 ibid. 7 Kagan (2018), p. 43. 8 Byers (2019), pp. 32–47; Byers (2017), pp. 375–402.

4.1

The Tragedy of the Commons

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means of governance in which the interests of a complex community of stakeholders can be managed.

4.1

The Tragedy of the Commons

The “Tragedy of the Commons” was coined by Garrett Hardin in a book of the same name in 1968.9 In it he examined the nature of stakeholder behaviour in domains of the common, from shared agricultural and hunting lands, to the air, the oceans, national parks, and controversially at the time, population. Adopting the metaphor of a pasture in which each herdsman tries to support as many cattle as possible from its resources, he highlighted the manner in which the individual herdsman profits from the commons at the expense of communal interests. Each herdsman is compelled by self-interest to increase his share of the cattle grazing the commons, while the negative effects of over-grazing of a finite resource are shared by all. Appeals to the herdsman’s good conscience go unheeded, because if he does not seize the opportunity to exploit the resources of the commons, he reasons that somebody else will. Hardin concludes that “freedom in a commons brings ruin to all”.10 The same “economically rational behaviour” can be extrapolated from the pasture to outer space. Each operator of a mega-constellation recognises the finite resource of orbital domains and knows well enough, that if it does not seize the opportunity to occupy a specific orbit now, its competitors will. Similarly, at the level of nations, if US actors were not first-movers in establishing mega-constellations in Low Earth Orbit (LEO), it might be Chinese, or Russian, or Indian interests that do, furthering their geopolitical ambitions, while denying the US the opportunity it currently has. Appeals to conscience go unheeded here too, for guilt is a useless framework for regulation. Responsibility alone does not lead to corporations or nations subverting their self-interest in the name of the common good. The commons is prone to pollution exactly because stakeholders “rationally” dump their waste into the shared domain in order to minimise individual cost, sharing the burden among all. “Responsibility” says Hardin, “is a verbal counterfeit for a substantial quid pro quo. It is an attempt to get something for nothing.”11 The inevitable tragedy of the commons can only be averted through the intervention and mediation of administrative law.12 Legal regulation transforms responsibility into obligation, keeping the custodians of the commons honest. But if law fails to mediate the interests of various stakeholders who would exploit the domain for their own purposes, the legal status of the common itself is inevitably abandoned.

9

Hardin (1968), p. 1243. Hardin notes the influence of the Oxford lecture by William Forster Lloyd in 1833, who proposed a similar analogy. 10 id 1244. 11 id 1246. 12 ibid.

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Hardin highlights this trajectory in the common lands that were once the hunting, fishing and agricultural domains of all, which incrementally gave way to private property interests as competition for resources expanded between the agricultural and industrial revolutions.13 The warning to stakeholders in outer space could not be starker: if free-riders are permitted, if no one “cleans up the mess”, then inevitably the concept of the commons itself will give way to private interests. Individual responsibility is primarily motivated by aligning benefit and cost in capitalist systems. Given the US prefers this over intervention by the State, it is possible that US withdrawal of its recognition of space as a global commons is intended to pave the way for such private property rights. Exploitation of the commons without responsibility is very likely to lead to international conflict. As the mega-constellations planned by SpaceX, OneWeb, Amazon and Meta are rolled-out during the coming decade, the extent to which those benefits flow to American technology giants will become apparent.14 The costs of these activities—in increased space debris, interference with astronomy, degradation of the atmosphere, and inevitably collision—will be slated home to the international community. This is a profound advantage allowed the US as firstmover in its comprehensive occupation of LEO, supported by its singular technological and military advantage, and a policy of “full spectrum dominance”.15 American dominance in this orbit will likely render the “freedom of use by all States . . . on a basis of equality” meaningless, if that equality is only found in sharing the burden of costs.16 The freedoms granted in Article I OST permit the use of an economic resource, without holding those exploiting it liable to the general community for the costs associated with its over-use. This is not sustainable. The framework of OST must be harnessed to develop a system of governance for the use, exploration and scientific investigation of outer space. This does not require changes to the OST or the development of new “soft law” guidelines. Nor does it necessarily call for alternative frameworks, like the Artemis Accords, when intended to dilute compliance with international law. What it requires instead is a “fleshing out”, an expansion of the governance principles already established in the OST and intended to limit freedom, so that compliance and non-compliance are treated as critical elements of State Responsibility. Soft law, devoid of enforcement mechanisms, is not the answer. What is feasible is the development of regulatory governance frameworks at a national level, that are aligned by coordination at the international level. The opportunity to avert the collapse of the commons in outer space is perhaps more optimistic than Hardin’s prediction, for in this case leadership

13

ibid. There is perhaps a parallel in the manner in which the global community continues to grapple with the fact that the Tech Giants operate everywhere, but pay tax nowhere. It is another example of exploitation of the commons by these players, who benefit from getting “something for nothing”. 15 https://archive.defense.gov/news/newsarticle.aspx (Last accessed 03.08.2020. Link no longer accessible). 16 Article I OST. 14

4.2

Treating LEO as a Finite Resource

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from just a few spacefaring nations would likely solve the problem and lead to international consensus.17 As made clear in Chap. 2 of this book, principles of cooperation and coordination are woven throughout the OST,18 but they will come under increasing pressure in a domain that is viewed as “congested, contested, and competitive”.19 Like other sectors in which corporations and nations compete for control of scarce resources in various types of commons—telecommunications, mining, shipping, aviation and fishing—governance is the only way to ensure equitable access and mitigate conflict.

4.2

Treating LEO as a Finite Resource

There is a conceptual meeting point for astronomers and international lawyers here: the sustainability of outer space according to the laws of physics is increasingly dependent upon the law of nations.20 The law of physics tells us that LEO cannot sustain an infinite number of satellites, before the whole “freedom” collapses. Science calls such a collapse the Kessler Effect—whereby a tipping point of space debris in orbit results in collisions and a catastrophic domino-effect21—but the jurist sees in this collapse of the commons, a failure of governance. If we return to the parable of the pasture, we recognise that resources are finite and without limitations placed upon each herder, they will exploit its resources until collapse. In the absence of governance, the nations of the world would overfish, overmine and dump all of their waste into the seas, because to distribute the burden among all stakeholders in the commons is economically “rational”, no matter how irrational we might consider such behaviour. Similarly, the seemingly insurmountable hurdles to address climate change are somewhat easier to appreciate if we recognise that it is less a battle against entrenched commercial interests, than the tragedy of the commons in motion. For the central question is always how the burden of costs is to be shared. This is why sustainability of activities in LEO now relies entirely upon the sustainability of the legal regime. Astronomy has been caught in a decades-long cycle of adapting itself to interference. If the astronomer were a scientist studying Hardin’s pasture, we would see her adapting herself to the constant increase in herders and cattle, by moving her 17 Agreement between US, UK, EU, Russia, China and India would likely lead to international consensus, because other nations would see it as in their interests to refrain from establishing megaconstellations in LEO as long as the major players are prepared to. 18 Mentioned in Articles I, III, V OST. 19 The phrase used by Ambassador Gregory Schulte, Deputy Assistant Secretary for the US Department of Defense. 20 Martinez (2019), p. 1. 21 Interview with Dr. Gaida by European Space Agency (ESA): http://www.esa.int/Enabling_ Support/Space_Engineering_Technology/The_Kessler_Effect_and_how_to_stop_it (Accessed 15.08.2022).

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instruments incrementally away from the threat of hooves, until she finds herself confined to the furthest corner. She is witnessing the commons being put under greater pressure, its resources successively depleted each year, but she is not yet calling for this to stop. But soon the hooves of the cattle will inevitably interfere with her activities to such an extent that her work will become impossible. She has not yet recognised that the only way in which she can both protect her own interests in the pasture, and prevent the commons itself from collapsing, is by recognising that the pasture has finite resources and access to them must be the subject of a new governance framework. There must be rules. There cannot be free-riders. Those who benefit from the commons, must take responsibility. And there must be serious consequences for non-compliance. An effective governance model must provide the mechanisms for pricing-in compliance, by ensuring that space actors perceive the cost of non-compliance as part of their transactional costs.22 Then NASA Administrator, Jim Bridenstine, acknowledged the threat of the freerider in outer space, when he addressed the US House of Representatives on 27 March 2019—only a few hours after India’s test of an anti-satellite (ASAT) weapon: Debris ends up being there for a long time. If we wreck space, we’re not getting it back. And it’s also important to note that creating debris fields intentionally is wrong . . . because some people like to test anti-satellite capabilities intentionally and create orbital debris fields that we today are still dealing with. And those same countries come to us for space situational awareness because of the debris field that they themselves created . . . And that’s being provided by the American taxpayer, not just to them, but to the entire world for free. The entire world (has to) step up and say, “If you’re going to do this, you’re going to pay a consequence”. And right now, the consequence is not being paid.23

Clearly the Administrator’s comments were directed at China as much as India, both countries having tested ASAT weapons in outer space during the last decade.24 But his invocation of a shared and limited orbital resource was grounded in the premise of a global commons. Bridenstine’s statement is just as applicable to megaconstellations, for it is now apparent that American companies plan to occupy LEO on an enormous scale, exactly because that access is free. As Hardin noted several decades after he first published his original treatise, “my principal concern is with the system of the unmanaged commons, which is governed by the implicit directive “Help yourself!” When resources are scarce (with respect to needs), the unmanaged commons inevitably results in ruin for the entity that adheres to it.”25 This is why it is this book’s thesis that the burden of risk and the cost of interference with astronomy will be borne by the global community, unless there is a significant change in the nature of the governance of LEO. It is also why the 22

On transactional cost theory see Williamson (1996). Prepared Testimony of NASA Administrator Jim Bridenstine to the US House of Representatives, 27 March 2019, C-Span. 24 A further Russian ASAT test followed on 15 November 2021: https://www.armscontrol.org/ act/2021-12/news/russian-asat-test-creates-massive-debris (Accessed 15.08.2022). 25 Hardin (1999), Letter to the Editor, p. 4. 23

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pursuit of environmental or rights-based arguments to protect the “pasture” are likely to prove ineffective. We are not grappling with a technical or environmental problem here, but a social and political one. The pasture’s resources are depleted by the human tendency to over-exploit. The solution may have technical, environmental or social aspects, but it is governance that has the real potential to unite them. Creating a framework of responsibility must ensure there is a direct correlation between use and consequences—or to adopt the language of Articles I and VI OST, between freedom of use and responsibility. The issue is clearly a resource management problem, and it must be treated as one. There must be a policy of “mutual coercion, mutually agreed upon” in order to overcome the tendency both to “help yourself” to the commons, or to rationalise that “if I do not exploit the commons, somebody else will”.26 This requires coordinated action. The International Telecommunication Union (ITU), a specialised agency of the United Nations (UN), is responsible for the allocation of radio frequencies to support satellite-based activities. The ITU plays a coordinating role in outer space, with responsibility for the registration of allocated frequencies, and the prevention of harmful interference between them.27 The Constitution and Convention of the International Telecommunication Union (ITU Constitution) and the Radio Regulations that compliment them, are international treaties to which all nations are parties. Consistent with the principle of State Responsibility under the OST, the ITU allocates access to spectrum to State Parties, which are in turn responsible for the authorisation and supervision of access to that spectrum by their national entities.28 In the US, the Federal Communications Commission (FCC) is the responsible agency, from whom operators such as SpaceX, OneWeb and recently Amazon, have been granted licences for their mega-constellations. Two key concepts of the ITU Constitution are relevant to our analysis: the efficiency principle, and the assurance of equitable access to radio frequencies by all countries: Article 44(1) of the ITU Constitution states: Member States shall endeavor to limit the number of frequencies and the spectrum used to the minimum essential to provide in a satisfactory manner the necessary services. To that end, they shall endeavour to apply the latest technical advances as soon as possible.29

Article 44(2) states: In 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 and that they 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

26

Hardin (1998), pp. 682–683. Constitution and Convention of the International Telecommunication Union, Art. 44 (ITU Constitution) 1992. 28 Tronchetti (2009), p. 131. 29 Constitution and Convention of the International Telecommunication Union, Art. 44 (ITU Constitution) 1992. 27

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the special needs of the developing countries and the geographical situation of particular countries.30

In this manner the ITU recognised Geostationary Orbit (GEO) as a finite resource to which all States should be allowed access, because of its important strategic role in telecommunications and broadcasting. The attributes of GEO are well known—its synchronous orbit matching the Earth’s rotation allows for a satellite in that orbit to appear stationary over the Equator, and provides such broad coverage that just three satellites in GEO can provide almost complete global services.31 Contrast this with the 30,000–50,000 satellites that will be launched to create similar international coverage by each of the mega-constellations, and it is apparent that the efficiency principle of Article 44(1) of the ITU Constitution is abrogated. While a black-letter lawyer might argue that the ITU Constitution expressly calls for a minimum of frequencies and spectrum used, but not a minimum number of satellites, the more substantive argument is that mega-constellations require a multiplicity of frequency use by virtue of the fact that each component satellite must utilise spectrum even if within the same band. This is consistent with the technical view that each satellite of the constellation is making use of spectrum and is a potential source of interference, which Article 44(1) attempts to mitigate. The effectiveness of radio communications is not just a question of physics, but of geography: if two different radio transmissions make use of the same frequency band in the same geographical area, they may interfere with each other and cause deterioration of both signals.32 It is for this reason the international community should endeavour to treat all orbits as limited natural resources. Article 44(2) provides the framework without requiring amendment of the ITU Constitution itself. While it specifically identifies GEO in order to provide assurance that this orbit is a finite resource by virtue of its specific geographic attributes,33 this gave way to the tendency to treat GEO as the only orbit that should be treated as a limited natural resource. As a race to dominate LEO now ensues, more universal acknowledgement of the exhaustible qualities of all orbits is required. In this regard, Professor Falcke of the Astroparticle Physics and Radio Astronomy Research Institute at Radboud University, Netherlands, is accurate in his fear of a possible “colonisation” of LEO, for first-movers, as the first-come first-served a posteriori nature of LEO and Medium Earth Orbit (MEO), clearly benefit leading space nations like the US over all others.34 If predictions of a space race in this domain are realised during the coming decade, and China, India and Russia, feel compelled to compete for power in LEO, it is unlikely other nations, especially developing ones, will ever have access to this orbit. First movers like SpaceX and OneWeb benefit from a posteriori because their interests are fully

30

ibid. ibid. 32 id 167. 33 ibid, noting this was specifically required in the drafting because of a scientific view that GEO is actually inexhaustible. 34 Interview with Prof. Heino Falcke by the author on 7 January 2020. 31

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protected against the harmful activities of nations who arrive later. This was indeed US strategy in advocating and prolonging a first-come, first-served system for GEO over several decades, until the amendment of the ITU Constitution at the behest of developing nations.35 Since then reform of the Radio Regulations has been adopted to address the problem of “paper satellites”—satellites approved to operate, but not launched, serving to “block” the use of an orbital slot and its associated spectrum— requiring allocated slots be used within 7 years of being granted. Seven years is a very long time in the technology sector however. Arguably, the recent application by OneWeb for an additional 48,000 licences during its bankruptcy, was a classic paper satellite given those applications were not sought for the purpose of operating a satellite constellation, but to increase the value of the project during bankruptcy proceedings. That application ought to have been opposed, not only on the basis that it did not comply with Article 44(2) ITU Constitution, but that it was not permitted under Article I OST, given OneWeb’s application does not seek the freedom of access and use of outer space to either its own benefit or that of humankind, but was solely intended to increase the sale price of an entity in insolvency to the benefit of its creditors. In this way, familiar questions over equitable access to space, are returning to the fore. These classic arguments apply just as well as they did a generation ago: at the 1971 World Administrative Radio Conference the principle of equitable access was first adopted by resolution of ITU Member States. It recognised that “orbit/spectrum resources are limited . . . and should be most effectively and economically used . . . (so that regulation) should not create an obstacle to the establishment of space systems by other States.”36 The same case should now be made for the establishment of a comprehensive regulatory regime to govern access and use of spectrum in LEO, where management of interference is more complex than in any other orbit. It is far simpler to manage interference emanating from satellites in GEO which, for all intents and purposes, remain stationary in the sky, and in far smaller numbers. The position is predictable and more easily removed from data-sets collected in broad sweeps of the heavens. Such an exercise will be far more complicated for astronomers when hundreds-of-thousands of satellites are streaking across LEO every 90 min.

35

id 167. The current drafting of Article 44 of the ITU Constitution was adopted in 1992. See Final Acts of the World Administrative Radio Conference for Space Telecommunications, ITU Res. No. Spa 2-1 (1971) and discussed id 174. 36

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A New Model of “International Regulatory Coordination”

There is a compelling case for national governance models, with international coordination. This model of governance seeks to apply national law to challenges that have transnational consequences, and is increasingly treated as an emerging form of international administrative law.37 It calls for international regulatory cooperation, assembling domestic regulatory officials from key jurisdictions, in order to address issues of concern in a global commons in a coordinated manner.38 It does not seek new treaties or international “soft law” guidelines, but is rather more pragmatic in recognising which key players have the capacity to make change happen. Such an approach has led to greater progress in addressing climate change, the financial regulation following the global financial crisis of 2008/2009, international crime, pandemics such as HIV/AIDS and COVID-19, and atmospheric pollution.39 Applying such a model to the regulation of mega-constellations, it recognises that coordination of national regulation between just a handful of major players—the US, China, Japan, India, Russia, and the EU—could mitigate the exploitation of the “free” resource of access to LEO. It would likely be followed by others. Diane Howard, Chief Counsel for Space Commerce at the US Department of Commerce, and Executive Secretary of the International Institute of Space Law (IISL), has suggested national space laws and regulations implemented on a country-by-country basis, may contribute to the development of international law.40 Where common elements emerge and are adopted by each national regulator, evolving as the “common standard” across multiple nations’ domestic space regulation, these common elements may, in time, be distilled into general principles of customary international law.41 This model of “international regulatory coordination” therefore has the great advantage of developing within the context of the existing international legal order and its treaties. How can the establishment of a regulatory regime for access to LEO be positioned in order to convince the US that it is in its interests to support a regulatory governance model like this? History offers us a guide. As discussed in Chaps. 1 and 2, US diplomacy was instrumental in establishing recognition of the Antarctic, High Seas and Deep Sea Bed, as global commons under international law. It recognised that if either the US or USSR were to establish nuclear weapons in outer space, in Antarctica or other domains, its adversary would be compelled to follow suit. Like two duopolistic powers seeing the benefit of cartel arrangements, they recognised that competing for dominance in global commons would lead to destruction of the 37

Dunoff (2015), pp. 267–300. ibid. 39 id 269. 40 Howard (2013) and discussed in Martinez (2019), pp. 1–6, 5, noting that Howard published her book before taking up this role with the US Department of Commerce. 41 Kalshoven and Zegveld (2011). 38

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commons and quite possibly their own. The MAD-principle ought to be harnessed once more, to convince a less multilaterally inclined US, that it is in its national interests to pursue a governance framework that limits the activities of all in LEO. There is a parallel to be found in the abandoned US-Russian Treaty to limit intermediate-range missiles, the Strategic Arms Reduction Treaty (START), which is said to have collapsed because both countries recognised the impotence of the arrangement without China within its ambit.42 That negotiations with China failed to result in its inclusion as a party to the arrangements, is said to be the real reason both the US and Russia walked away from it. 43 We see in these events reinforcement of Hardin’s pasture—without coordinated efforts by all, governance of access and use of the commons cannot be achieved, and stakeholders will revert to unlimited exploitation. A paradigm shift is therefore required, a new embrace of the historic virtues of multilateral diplomacy. The founding principles of the OST—cooperation, coordination, and the common good—offer an opportunity to counter the characterisation of space as “congested, contested, and competitive”.44

4.4

Bolstering National Processes for Authorisation, Supervision, and Consultation

The key to governing the commons is to bolster current satellite operating licensing processes, subjecting the risk of interference to analysis and mitigation. This ought to be treated as a critical aspect of responsibility for authorisation and supervision under Article VI OST. In recent years we have seen a proliferation of risk-based analysis adopted in all aspects of administrative and public law, where an activity is “likely to cause a significant adverse transboundary impact”.45 The European transport sector has conducted “Territorial Impact Assessments” (TIA) of all proposed transport infrastructure since 1999.46 “Social Impact Assessments” (SIA) are increasingly being adopted in processes to approve public and private infrastructure, resulting in much improved outcomes.47 “Economic Impact Assessment” is adopted in assessment of major projects, particularly supported by development agencies, where there might be more than one option under consideration and development goals are an important criteria.48 A range of large-scale industrial, energy and mining projects are subjected to Environmental Impact Assessments (EIA) in order to ensure

42

Kadomtsev (2020). ibid. 44 The oft-repeated phrase used by Ambassador Gregory Schulte, Deputy Assistant Secretary for the US Department of Defense. 45 Bowman and Boyle (2002), p. 5. 46 Gavanas et al. (2018), pp. 294–307. 47 Egre and Senecal (2003), pp. 215–224, and more recently: Parsons (2020). 48 Williams (2019). 43

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compliance with national and international sustainability obligations.49 The latter is now such a developed regulatory process that there are sub-categories of Strategic Environmental Assessment (SEA) adapted for the nuclear sector,50 Health Impact Assessment (HIA),51 and of increasing relevance to both the space and energy sectors, the adoption of Solar Photovoltaic Impact Assessment.52 In bolstering the regulation of outer space activities, parallels with environmental law and the adoption of processes from that administrative legal sphere, ought to be approached with some caution. Outer space is not treated as an “environment” in which the environment itself is to be “protected” from pollution or the negative consequences of human activities.53 It is treated under the OST as a domain in which all have freedom of use, exploration and scientific investigation, with the overarching obligation found in the avoidance of interference. As we have discussed, the principle is not to have due regard for the environment per se, but for the activities of other nations. For this reason—and because environmental law is susceptible to polarising identity politics—arguments to recognise outer space as the subject of environmental law ought to be given careful consideration.54 That said, the intersection of national environmental obligations with those relating to authorisation and supervision of space activities, offers a real opportunity to ensure environmental impact assessments are incorporated into space regulation.55 In any case, the concept of interference in Article IX OST is broad and allows for far greater consideration of impacts than just environmental ones, under which interference with optical and radio astronomy would not otherwise fall. Given successful reform will be completely dependent upon political goodwill, this book recommends that the concept of “Impact Assessment” is embraced, with the purpose of assessing what “risk of harm” might arise from a proposed constellation. This would allow broad consideration of the potential interference with the existing space activities of other States, its impact on existing infrastructure, scarce resources and sustainability, the risk to human life and health, its irreversibility, and whether it is equitable to future generations. The telecommunications industry is supportive of such moves in order to address what it sees as “ill-defined laws and processes” that undermine business certainty.56 The 2019 US Senate Committee Hearing on Investment in America’s Broadband 49

Weaver (2008), pp. 91–98. Fischer et al. (2019), pp. 165–178. 51 Joao et al. (2011), pp. 170–180. 52 Da Silva (2020), pp. 3–15. 53 Gupta (2016), pp. 20–43. The author recognises the OST has a narrow exception to this, in providing that “adverse changes in the environment of the Earth” must be avoided by States, and that States should adopt measures to avoid “harmful contamination” of celestial bodies. See Article IX OST. 54 For discussion of Environmental Impact Assessment (EIA) see: Fischer (2019); Nooteboom (2019), pp. 369–370. 55 This is discussed in some depth in Sect. 5.4 of Chap. 5. 56 Hendricks (2019). 50

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Infrastructure, heard testimony from industry figures, calling for the US government to regulate in order to create a “predictable, flexible supply of spectrum”.57 If the US administration and FCC could be convinced to incorporate a comprehensive “participatory consultative process” into its operating licence processes, it would be a giant leap forward. The International Astronomical Union (IAU) first called for the introduction of impact assessments in 1976, but appears to have withered in its efforts to garner support for such regulatory reform since.58 There is precedent however, for the FCC already conducts cost-benefit analyses and risk assessments in other fields falling under its mandate, including telecommunications, competition law, data protection and privacy, such that the incorporation of risk assessment into licensing procedures for constellations would represent a logical step.59 Of all the rule-making bodies in the world, the FCC has substantial flexibility under its process known as “notice and comment” rule-making.60 This allows the FCC to give public notice that it is considering the adoption of new rules on a specific subject and seek public input into the drafting of them. The development of such rules follows either Congress enactment of legislation that falls within the FCC’s mandate, for which the agency has responsibility for implementation, or a third-party may initiate a proceeding without Congress involvement, by filing “a petition seeking a new law or change in existing rules”.61 The American Astronomical Society (AAS), perhaps best positioned to lead such an initiative, has unfortunately dismissed overtures to pursue this in favour of proposing new treaties on luminosity of satellites at the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS).62 If the US were to introduce a framework for impact assessment into operating licence processes, ensuring compliance by its partners through its proposed Artemis Accords, it is very likely that the international community would follow suit. This opportunity exists precisely because the US is currently the only space power plowing ahead with the launch of mega-constellations into LEO. For this reason, the IAU ought to focus the bulk of its lobbying efforts on US legislators and

57

ibid. IAU (2001). 59 The US FCC regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and US territories. An independent US government agency overseen by Congress, the FCC is the federal agency responsible for implementing and enforcing US communications law and regulations. See: https://www.fcc.gov/ about/overview (Accessed 15.08.2022). Commercial, as well as government, space actors have also become accustomed to compliance with the Committee on Space Research (COSPAR) Guidelines for space missions, which also adopt risk-based probability analysis. 60 See https://www.fcc.gov/about-fcc/rulemaking-process (Accessed 15.08.2022). 61 See https://www.fcc.gov/proceedings-actions (Accessed 15.08.2022). 62 As a member of the IAU Working Group on Dark Skies/Mega-constellations, SATCOM 2020, the author proposed the pursuit of a regulatory strategy which was rejected by the Working Group in favour of pursuing proposals in relation to luminosity at UNCOPUOS. 58

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harnessing the FCC’s processes to propose a change in rules, rather than on UNESCO, ITU, or UNCOPUOS.63 Further avenues are open in respect of the US Secretary of Transport, under which the Federal Aviation Authority (FAA) sits, which was compelled by Congress to introduce rules prioritising safety over commerce when the two conflict, necessarily requiring a weighing up of risks.64 The FAA already conducts environmental impact assessments as part of its assessment process for launch licences, a distinct process from the operating licences granted by the FCC. We have seen in the global impact of EU Data Protection laws in recent years, that it is possible to establish a “gold standard” for risk-based regulatory compliance, which is exported to the world via partnership and supply-chain agreements.65 The success of the EU’s General Data Protection Regulation (GDPR) in effectively becoming treated as international law, by virtue of replication by all other nations that wish to do business in the EU, offers a model for the development of a regulatory framework for outer space.66 The Artemis Accords would have greater potency if they were to support the establishment of internationally accepted practices in this manner. A reckoning is also required, for the astronomical community has itself pursued major infrastructure projects without appropriate impact assessment. The construction of the Thirty Meter Telescope (TMT) on sensitive indigenous land in Hawaii, without consultation or consideration of the interference with cultural stakeholders in that land, has given American astronomy a hard lesson in the value of the “social licence”.67 A mea culpa moment might transform its own failings into more positive outcomes, were it to advocate for the very processes that would prevent astronomy, as well as the operators of mega-constellations, from proceeding with projects without consultation.

4.5

Recommendations for National Regulatory Reform

This book recommends national regulators introduce the following reforms at the point of authorisation and supervision of launch and operating licences for megaconstellations in LEO:

63

I recognise that reform via these institutions remains important, but it requires a longer-term view, for which there is insufficient time given the licensing and launch of mega-constellations continues unabated. 64 Basu and Kurlekar (2016), pp. 44–70, 49. 65 EU General Data Protection Regulation (GDPR) 2016. 66 GDPR has succeeded where previous Directives failed, because serious consequences flow from non-compliance—up to €20 million penalties or 2% of global revenue, whichever is the greater. For discussion see: Rhoen (2017), pp. 603–617 and Macenaite (2017), pp. 506–540. 67 Witze (2020), p. 577.

4.5

Recommendations for National Regulatory Reform

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4.5.1 Incorporate Impact Assessments into the application process for both launch and operating licences, ensuring a complimentary process. Launch licences should be dependent upon approval of operating licences for the full constellation, so that no object is launched into outer space without authorisation that contemplates its ultimate function. Comprehensive environmental impact assessment, including end-of-life impact on the ozone-layer and stratosphere, should be adopted; 4.5.2 Impact Assessment processes should ask “what is the risk of harm?” that might arise from the mega-constellation. Such processes should allow for cost-benefit, risk-based analysis, with the ability to direct applicants to undertake consultations with impacted stakeholders where interference is possible, prior to proceeding in the process, in compliance with Article VI and IX OST, and the precautionary principle.68 Cost-benefit analysis offers the opportunity to compare real economic modeling and place a value on both the proposed constellation and on its negative impact, including placing a “cost value” on space debris and interference.69 For this reason, astronomical organisations and observatories ought to transparently disclose the value of their astronomical infrastructure assets, so that the public has a real sense of what the economic impact of interference with those assets may be;70 4.5.3 Assessment of a broad range of interference, including radio frequency and light, and powers to direct applicants to adopt mitigation measures, including reducing emissivity of satellites, reducing the number of satellites in constellations, requiring applicants to consider alternatives to the proposed technical solution, ensuring all satellites have functionality to support manoeuvrability and end-of-life, and where appropriate, establishing exclusion zones around astronomy facilities and future antenna locations; 4.5.4 Adoption of public submission processes into the authorisation process, so that stakeholders (like the IAU and other commercial operators) may provide considered submissions of the impact of the proposal on astronomy, science and other activities; 4.5.5 Require applicants disclose whole-of-project plans for their satellite constellations at the point of initial licence application, in order that a comprehensive analysis can be undertaken by the regulatory agency and stakeholders of the full plan. Applications for future changes, increases in the number of satellites,

68

Jenkins (1999), pp. 87–96. Adilov et al. (2015), pp. 81–98. 70 Attempts were made to model the value of the combined astronomy infrastructure of EU bodies— EUMETSAT and ESO—for this book. This proved impossible as neither organisation accounts for its infrastructure or investment in the way that a corporation is required to, and neither budgets nor asset values are accessible on their websites. Historically perhaps such organisations have been circumspect about the disclosure of budgets spent on astronomy, in order to avoid horrifying the public. This position should be reversed. If we understand the value of an investment in terms of tax-payer money, it can be defended from interference by new entrants, on the basis of defending “shareholder value”. Greater transparency is required in the astronomical community. 69

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changes in bandwidths or orbits, should trigger an additional impact assessment and public submission process.

4.6

Concluding Remarks

The history of the Antarctic Treaty was examined in Chaps. 1 and 2 in order to illuminate the manner in which a domain in which there were conflicting and diverging national interests, could have resulted in it becoming a serious theatre of conflict following WWII.71 That the international community was able to set aside those interests and recognise the southern continent as an international space, not only diffused tensions and ensured it would not become a military domain, but has brought enormous benefit to science and all humankind. Its example, and the subsequent efforts to address and close the hole in the ozone layer, are a timely reminder that coordinated international efforts bring out the very best in the global community. The key to those successes, averting the classic “tragedy of the commons”, was governance. This requires thoughtful, strategic engagement with China. The history of détente during the Cold War, reminds us that cooperation, coordination and consultation between rival Super Powers, were important mechanisms for governance of outer space. The regulatory reform outlined above is critical to management of a domain in which there is now a multiplicity of players, but so too is a recognition that the precautionary principle practised in the field of security and defence, seeks to avoid misunderstandings and miscalculations. As the US embarks upon implementation of its policy of “full spectrum dominance”, supported by the establishment of megaconstellations in LEO, real security risks will arise. Perhaps what China fears most is not US invasion, but that it will be prevented from achieving its wider goals as a nation.72 In attempting to reshape world order to suit its interests, China is also seeking recognition as a Super Power and acceptance of its influence by the international community.73 For this reason, China sees its exclusion from the International Space Station (ISS), the future Lunar Gateway, and the supply of 5G technology by its companies, as obstacles put in its path by the US, ones that must be overcome. China’s ambition to create an “engine of global connectivity”74 through its Belt and Road Initiative (BRI), offers the opportunity to do just that. The global reach of those relationships and dependencies, offer strategic alignment between its terrestrial goals and those in LEO.75 The initiative has offered the opportunity to strengthen 71

Tronchetti (2009). Reunification with Taiwan, reintegration of Hong Kong, and international recognition of its sovereignty in the South China Seas, are clearly on China’s agenda. See Kagan (2018), p. 117. 73 Mendis and Wang (2019), p. 36. 74 id 33. 75 Deng (2018), p. 30. 72

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Concluding Remarks

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China’s grip on Taiwan and Hong Kong, bolster Pakistan and the establishment of Chinese naval bases spanning from Sri Lanka to the Horn of Africa and the South China Sea, raising fears of a Chinese “string of pearls” spanning the Indian Ocean.76 China has achieved this within the optics of international governance, aligning its strategy with the UN Development Programme, adopting the UN Sustainable Development Goals (SDGs), and extracting the support of client States in international organisations, such as the UN Convention on the Law of the Sea (UNCLOS), as the price of billions in loans and infrastructure investment.77 In the first year of the global Covid-19 pandemic, vaccine diplomacy strengthened its hand, in many cases reinforcing the failures of governance in Western alliances to combat new threats, and their declining capacity to project power far from home.78 President Xi Jinping has leveraged significant value in expanding Chinese international participation, striking a tone of cooperation on everything from climate change to the provision of medical equipment during the Coronavirus epidemic.79 This expansion of China’s role in the world came as the Trump administration withdrew, rejecting multilateralism in favour of America First.80 This is not to suggest that BRI is anything but an opportunistic pursuit of China’s interests, but in this it is perhaps not so very different from American Exceptionalism’s attempts to model the world in its own image last century. NATO calls for “more engagement in the Asia-Pacific” might be best achieved through engagement with China, rather than as an adversary “interfering” in China’s neighbourhood.81 Defeat and withdrawal from Afghanistan, and the return of war to NATO’s eastern European borders, underline how poorly equipped it is, to pursue anything other than dialogue. President Xi’s proposal for the establishment of an international “community based upon common responsibility” ought to be taken at its word: as an opportunity for engagement, through which China might be both influenced and held to account.82

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ibid. ibid. 78 Ni and Davidson (2021). 79 On response to Covid-19 see: Reuters Staff (2020) and more generally: Deng (2018), p. 30. 80 Under the Trump administration the world witnessed US withdrawal from the Paris Agreement on Climate Change, withdrawal from the Iranian nuclear deal, the North American Free Trade Agreement (NAFTA), and from the confidence-building arms treaty, Open Skies. See: https://www. armscontrol.org/act/2020-12/news/us-completes-open-skies-treaty-withdrawal (Accessed 15.08.2022). 81 See https://www.nato.int/cps/en/natohq/176155.htm (Accessed 15.08.2022). 82 Deng (2018), p. 30. 77

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References Adilov, N., et al. (2015). An economic analysis of Earth orbit pollution. Environmental and Resource Economics, 60, 81–98. https://doi.org/10.1007/s10640-013-9758-4 Basu, A., & Kurlekar, A. (2016). Highway to the danger zone: United States legislative framework regulating the commercial space sector. Astropolitics, 14(1), 44–70. https://doi.org/10.1080/ 14777622.2016.1149382 Bowman, M., & Boyle, A. (2002). Environmental damage in international and comparative law: Problems of definition and valuation. Oxford University Press. Byers, M. (2017). Crises and international relations: An Arctic case study. International Relations, 31(3), 375–402. https://doi.org/10.1177/0047117817735680 Byers, M. (2019). Cold, dark, and dangerous: International cooperation in the arctic and space. Polar Record, 55, 32–47. https://doi.org/10.1017/S0032247419000160 Da Silva, G., et al. (2020). A multicriteria proposal for large-scale solar photovoltaic impact assessment. Impact Assessment and Project Appraisal, 38(1), 3–15. https://doi.org/10.1080/ 14615517.2019.1604938 Deng, Y. (2018). How China’s belt and road is reordering Asia. Harvard International Review, XXXIX(4), 30. Dunoff, J. (2015). Mapping a hidden world of international regulatory cooperation. Law & Contemporary Problems, 78(4), 267–300. Egre, D., & Senecal, P. (2003). Social impact assessments of large dams throughout the world: Lessons learned over two decades. Impact Assessment and Project Appraisal, 21(3), 215–224. https://doi.org/10.3152/147154603781766310 Fischer, T. (2019). Editorial: Evolution, revolution, climate change and current EIA. Impact Assessment and Project Appraisal, 37(5), 369–370. https://doi.org/10.1080/14615517.2019. 1641778 Fischer, T., et al. (2019). Reflecting on the preparation of guidelines for strategic environmental assessment (SEA) of nuclear power programmes. Impact Assessment and Project Appraisal, 37(2), 165–178. https://doi.org/10.1080/14615517.2018.1560667 Gavanas, N., et al. (2018). The Territorial Impact Assessment of transport: The case of the Egnatia motorway system in the cohesion potential of Southeast Europe. Impact Assessment and Project Appraisal, 36(4), 294–307. https://doi.org/10.1080/14615517.2018.1445181 Guardian Staff. (2018, July 19). ‘Very aggressive’: Trump suggests Montenegro could cause World War Three. The Guardian. Retrieved August 15, 2022, from https://www.theguardian.com/usnews/2018/jul/19/very-aggressive-trump-suggestsmontenegro-could-cause-world-war-three Gupta, V. (2016). Critique of the international law on protection of the outer space environment. Astropolitics, 14(1), 20–43. https://doi.org/10.1080/14777622.2016.1148462 Hardin, G. (1968). The tragedy of the commons. Science, 162(3859), 1243. Hardin, G. (1998). Extensions of “The Tragedy of the Commons”. Science, 280(5364), 682–683. https://doi.org/10.1126/science.280.5364.682 Hardin, G. (1999). Letter to the Editor, published as “The Tragedy of the Commons Revisited.”. Environment: Science and Policy for Sustainable Development, 41(2), 4–45. Hendricks, B. (2019). Testimony of Nokia Corporation, Head of Technology Policy and Public Affairs for the Americas Region, Brian M. Hendricks, before the US Senate Committee for Commerce, Science and Transportation, Hearing on Investing in America’s Broadband Infrastructure, 6 December 2019. Howard, D. (2013). Distilling general principles of international space law. In Paper presented at Colloquium of the IISL IAC-13 E7.5. IAU. (2001). In R. Cohen & W. Sullivan (Eds.), Symposium No. 196: Preserving the astronomical sky (pp. 7–9). The Astronomical Society of the Pacific. Jenkins, G. (1999). Evaluation of stakeholder impacts in cost-benefit analysis. Impact Assessment and Project Appraisal, 17(2), 87–96. https://doi.org/10.3152/147154699781767927

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Joao, E., et al. (2011). Emphasising enhancement in all forms of impact assessment. Impact Assessment and Project Appraisal, 29(3), 170–180. https://doi.org/10.3152/ 146155111X12959673796326 Kadomtsev, A. (2020). The end of START – global consequences. Modern Diplomacy, 28 July, 2020. https://moderndiplomacy.eu/2020/07/28/the-end-of-start-global-consequences/ (Accessed 30.08.2022). Kagan, R. (2018). The Jungle Grows Back: America and our imperilled world. Pub. Alfred Knopf. Kalshoven, F., & Zegveld, L. (2011). Constraints on the Waging of War: An introduction to international humanitarian law. Cambridge University Press together with International Committee of the Red Cross (ICRC). Macenaite, M. (2017). The “Riskification” of European data protection law through a two-fold shift. European Journal of Risk Regulation, 8(3), 506–540. https://doi.org/10.1017/err.2017.40 Martinez, L. (2019). Legal regime sustainability in outer space: Theory and practice. Global Sustainability, 2(e26), 1–6. https://doi.org/10.1017/sus.2019.21 Mendis, P., & Wang, J. (2019). Unveiling China’s Grand Plan: How America is waging a futile war with other means. Harvard International Review, XL No. 3, 36. Ni, V., & Davidson, H. (2021, December 8). ‘More cautious’ China shifts Africa approach from debt to vaccine diplomacy. The Guardian. Retrieved August 15, 2022, from https://www. theguardian.com/world/2021/dec/08/more-cautious-china-shifts-africa-approach-from-debt-tovaccine-diplomacy Nooteboom, S. (2019). Environmental assessment as an institution of liberal democracy. Impact Assessment and Project Appraisal, 37(5), 369–370. https://doi.org/10.1080/14615517.2019. 1641778 Parsons, R. (2020). Forces for change in social impact assessment. Impact Assessment and Project Appraisal, 38(4), 278–286. https://doi.org/10.1080/14615517.2019.1692585 Reuters Staff. (2020, June 7). China to strengthen global cooperation in COVID-19 vaccine trials. Reuters. Retrieved August 15, 2022, from https://www.reuters.com/article/ushealthcoronavirus-china/china-to-strengthen-global-cooperation-in-covid-19-vaccine-trialsidUSKBN23E02Z Rhoen, M. (2017). Rear view mirror crystal ball: Predictions for the future of data protection law based on the history of environmental protection law. Computer Law & Security Review, 33(5), 603–617. S0267364917301668. https://doi.org/10.1016/j.clsr.2017.05.010 Tronchetti, F. (2009). The exploitation of natural resources of the Moon and other celestial bodies: A proposal for a legal regime. Brill, Nijhoff. Weaver, A. (2008). Contributing to sustainability as an environmental impact assessment practitioner. Impact Assessment and Project Appraisal, 26(2), 91–98. https://doi.org/10.3152/ 146155108X316423 Williams, G. (2019). Future potential of economic impact assessment. Impact Assessment and Project Appraisal. https://doi.org/10.1080/14615517.2019.1684097 Williamson, O. (1996). The mechanisms of governance. Oxford University Press. Witze, A. (2020). How the fight over a Hawaii mega-telescope could change astronomy. Nature, 577, 457–458. https://doi.org/10.1038/d41586-020-00076-7

Chapter 5

Towards Temperance Through Proportionality

In his seminal essay, Garrett Hardin posed an elusive challenge to jurists: “Prohibition is easy to legislate . . . but how do we legislate temperance?”1 This is perhaps the central question I have grappled with in this book. Temperance necessarily requires a balancing of the freedom of use of outer space, with responsibility for its consequences. History, international law, global relations, security studies, the rights and obligations of States under the Outer Space Treaties, principles of air and sea law, economic theory, telecommunications regulation, and impact assessment in a range of sectors, offer us clues. All of these fields emphasise temperance in ways best suited to their discipline—as precaution, due regard, safety, efficiency, equity of access, risk assessment, cost-benefit analysis, burden-sharing, disarmament, and cooperation—but it is possible to unite them all within a doctrine of proportionality. Jurisprudence, with its comprehensive understanding of the principle of proportionality in international law, has much to offer the scientific community in this regard.2 It offers a vocabulary for what space engineers and scientists, like DLR’s Professor Hansjörg Dittus, have long recognised: “the more complexity we introduce to the environment we are operating in, the greater the challenge to address the risks”.3 As an accountability mechanism, proportionality allows for a weighing-up of costs versus benefits.4 It facilitates the adoption of a range of tools to support the assessment and allocation of risk, as this book has advocated.5 It is consistent with 1

Hardin (1968), p. 1246. Crawford (2012) in Wolfrum (2012), p. 533. Crawford notes that the principle of “proportionality” is to be found in human rights law, the use of force and proportionate response, delineation of maritime boundaries in the law of the sea, and the World Trade Organisation’s rules of fair trade. Data protection laws, such as the EU General Data Protection Regulation (GDPR) also introduced principles of proportionality for mitigating risk to data subjects. 3 Interview with Prof. Dittus by the author on 15 January 2020. 4 Cottier et al. (2017). 5 On the effectiveness of this see: Demetzou (2019), p. 105342. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4_5

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the highest threshold of “efficiency, competence, and integrity” required of States in the exercise of due regard.6 And, in what is likely to appeal to scientists, proportionality offers a means of measurement: to what extent should fundamental freedoms like those in Article I of the Outer Space Treaty (OST) be limited? As concern about the authorisation of mega-constellations has grown during recent years, the scale of the impact has become clear. Commercial operators plan to launch hundreds-of-thousands of satellites into Low Earth Orbit (LEO), representing a hundred-fold, or 10,000%, increase on the number of satellites previously in orbit. The mega-constellations of SpaceX, OneWeb, Iridium, GlobalStar, Amazon’s Project Kuiper, and Meta’s Athena are just the beginning. History tells us that other nations will follow suit. Estimates have been revised on a monthly basis since the beginning of 2020 and are likely to far exceed the 200,000 satellites that US-based commercial companies plan to launch into LEO during this decade. China recently lodged an application with the International Telecommunication Union (ITU) for its first mega-constellation.7 In early 2022, the European Commission announced that it too would establish a new constellation for the provision of broadband services in orbit, citing the need for digital sovereignty and independence from both British and American infrastructure.8 The Commission plans to use existing infrastructure and launch just 100 new satellites in Medium Earth Orbit (MEO) and LEO, highlighting the real problem with Starlink and OneWeb is their scale. As discussed in this chapter, necessity and proportionality are fundamental principles of international law. The Commission’s plans to deliver orbital broadband services to all of Europe and parts of Africa, by launching just 100 new satellites, is far more sustainable and proportional than those of the commercial megaconstellations. They, in comparison, have been licensed to launch tens-of-thousands of satellites each. It is the disproportionate nature of their combined activities that dramatically increases the risk to human life and space assets, and represents an unprecedented, exponential risk of interference with space missions and scientific activities that study the universe. Temperance in international relations has also suffered. When the US blames China for all crises, from Covid-19 to trade wars, it undermines efforts to engage China in the real challenges the world faces. It undermines trust in authority, creating an audience that can no longer distinguish between real Western grievances with China and those that serve only to excite populism. Former President Donald Trump’s administration dispensed with fidelity to science long before the Corona epidemic. Unsubstantiated claims, unsupported by data, have negatively impacted efforts in every field of global endeavour. Although President Joe Biden has taken 6 Application for Review of Judgment No. 333 of the UN Administrative Tribunal, Advisory Opinion (1987) ICJ Rep 18, 61, 66–67, 88. 7 Press L (2020) “A New Chinese Broadband Satellite Constellation” CircleID 2 October 2020: https://circleid.com/posts/20201002-a-new-chinese-broadband-satellite-constellation/ (Accessed 15.08.2020). 8 See the European Commission announcement: https://ec.europa.eu/defence-industry-space/workbuild-eu-space-based-global-secure-connectivity-system-start-2022-2021-11-10-1_en (Accessed 15.08.2022).

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steps to rehabilitate the US reputation, misinformation remains an enormous challenge. But nor is it accurate to slate all responsibility for a declining America home to recent administrations, however extraordinary. Historians will no doubt reflect upon the role misrepresentations in the justification of war following 11 September 2001 played in the fracturing of alliances since. In the decades that followed, global cooperation on denuclearisation, climate change, prevention of pandemics and burden-sharing, has given way to nationalism and unilateralism, misinformation has become weaponised. Trust on a global scale is the lonely victim. President Biden’s election and return to multilateralism as he assumed office in 2021 may have been cautiously welcomed by the international community, however a dramatic change in US policy towards China has not been seen. US trade sanctions imposed on China under the Trump administration have continued, rather than brought within the framework of the World Trade Organisation (WTO). Chinese telecoms operating in the US have had their telecommunication licences revoked.9 And the longstanding dispute over the detention of Huawei Chief Financial Officer, and daughter of Huawei’s founder, Meng Wanzhou, in Canada pending extradition to the US, was resolved pragmatically with all the optics of a prisoner-swap.10 Nonetheless, the change of tone at the White House will be a relief to many, with geopolitical challenges expressed in more sensible terms. President Biden has reframed US-China rivalries as a competition between governance systems, calling upon liberal nations to unite in opposition to autocracy.11 Ahead of the G7 meeting in June 2021, President Biden indicated his intention to deal with China as the leader of the world’s democracies rather than solely an American president.12 In the closing weeks of 2021 he convened a Summit for Democracy, inviting leaders from 100 nations to consider their systems a “defence against authoritarianism”,13 as Reuters staff (2021) “US bans China Telecom over national security concerns” The Guardian 27 October 2021: https://www.theguardian.com/us-news/2021/oct/27/us-bans-china-telecomfrom-operating-over-national-security-concerns (Accessed 15.08.2022). 10 Reuters staff (2021) “Huawei CFO leaves Canada after US agreement on fraud charges, detained Canadians head home” Reuters 24 September 2021: https://www.reuters.com/technology/huaweicfo-meng-appear-court-expected-reach-agreement-with-us-source-2021-09-24/ (Accessed 15.08.2022). 11 Borger J (2021) “China the spectre at the feast as Biden aims to rally democracies on Europe trip” The Guardian 9 June 2021: https://www.theguardian.com/us-news/2021/jun/09/joe-biden-chinag7-xi-jinping-democracies (Accessed 15.08.2022). Wright J (2021) “Joe Biden Worries That China Might Win“ The Atlantic 9 June 2021: https:// www.theatlantic.com/international/archive/2021/06/joe-biden-foreign-policy/619130/ (Accessed 15.08.2022). 12 Davis B and Lubold G (2021) “Biden, China’s Xi Hold Talks Over Human Rights, Trade, Climate” The Wall Street Journal 11 February 2021: https://www.wsj.com/articles/biden-tolaunch-a-pentagon-review-of-china-strategy-11612979574 Accessed 15.08.2022). Thomas K and Restuccia A (2021) “Biden Seeks Allies’ Support in Confronting Putin, China” The Wall Street Journal 9 June 2021: https://www.wsj.com/articles/biden-heads-to-europe-torestore-alliances-and-counter-autocracys-rise-11623231001 (Accessed 15.08.2022). 13 See US State Department announcement: https://www.state.gov/summit-for-democracy/ (Accessed 15.08.2022). 9

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Russia mobilised hundreds-of-thousands of troops on the Ukrainian border. President Biden emphasised the EU-US working groups, initiated by his administration, and pursuit of technological solutions to prevent the spread of disinformation, but refrained from acknowledging that the platforms on which it proliferates are primarily those of American Tech Giants. Nonetheless, there are nuanced shifts in US engagement with the world. With the US Federal Trade Authority (FTA) recently clearing the way for the breaking up of technology monopolies, there is growing expectation that the market power of the Tech Giants must be neutered. But if there is a genuine political desire to introduce new regulation, there remains a wilful blindness to the first-mover advantage being afforded the same companies in LEO. A future governance framework can only be established if first-movers are prepared to temporarily put aside self-interest in order to allow global interests to be comprehensively considered. This necessarily requires the US government to take the lead, and, like President Eisenhower did in establishing the Antarctic Treaty and OST, be prepared to sacrifice current advantage, in order to secure agreement with its adversaries. Given the key driver is geopolitical, a disarmament lens might be brought to the problem. It seems likely China and Russia might entertain a framework for governance of activities in LEO, simply because US satellites now represent the great majority of all satellites in orbit, dwarfing their own capacity.14 But there are significant hurdles to overcome. We can only talk about how principles of proportionality and sustainability might work within a new governance framework, if we can agree on some common concepts in relation to outer space. However, it is these very concepts that are increasingly contested. In this chapter we examine some of the opportunities and obstacles that efforts to establish a new governance framework will face. What is the capacity of LEO? How can proportionality be measured? Can we agree on the characterisation of the domain of outer space under international law? Will convergence result in the Orbital Internet being treated as an extension of cyberspace? What rights and obligations should apply in this domain, over and above those established in the Outer Space Treaties? With new risks to Earth’s ozone layer associated with end-oflife processes of satellites recently emerging, do we fully understand what the environmental and intergenerational impact of these mega-constellations will be at-scale? And why do astronomers, in the face of a deficit of supporting law, continue to claim a right to a “dark and quiet sky”, while refraining from utilising existing objection mechanisms available at national regulators? We embark upon a discussion here of the hurdles that must be overcome if global governance is to offer solutions in the decade ahead, in which principles of proportionality and sustainability will come to the fore.

14

See the concluding Chap. 6 of this book for details of the current numbers of satellites in orbit according to the UNOOSA Index of Objects in Outer Space: https://www.unoosa.org/oosa/ osoindex/search-ng.jspx# (Accessed 15.08.2022).

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Challenges to the Concept of Outer Space as a Global Commons

On 6 April 2020 President Trump issued an Executive Order (EO), “Encouraging International Support for the Recovery and Use of Space Resources”.15 Ostensibly intended to clarify the long-standing US position that resource utilisation in outer space is consistent with the OST, it expressly rejected the concept of a global commons: “Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.”16 Many European commentators felt this express rejection represented something new in US policy and asked, if outer space is not a global commons, then what is it? Gabriel Swiney, an international lawyer for the US Department of State with responsibility for space law and the US Head of Delegation to the Legal Subcommittee (LSC) of the United Nations (UN) Committee on the Peaceful Uses of Outer Space (UNCOPUOS), played down the implications: “It has been long-standing US policy that outer space is not a “global commons”,” Swiney says. “There is no hidden agenda here, we simply consider the term “global commons” unhelpful. It is not found in the Outer Space Treaty and it means different things to different people. For some it invokes the feudal commons, where grazing by farmers was permitted without ownership. But this is confusing, because in this English context there was not an absence of property rights: the sovereign could exercise property rights in what was Crown land. As we know in outer space, claims of sovereignty are not permitted.”17 Those who oppose the concept of a global commons in outer space often point to the fact that the OST does not contain a reference to the term. However, the treaty arguably defines the necessary attributes of a global commons: the absence of national sovereignty, combined with freedom of use and access. Some commentators see the association between global commons and the fraught concept of the “common heritage of mankind” in the Moon Agreement, as the real reason behind the US position.18 While President Trump’s EO made clear that the US thoroughly rejects any attempt to breathe new life into that agreement—a treaty no major space power including US, Russia, and China supports—it is becoming increasingly clear the US does not wish to see parallels drawn with the governance frameworks regulating access to the Deep Sea Bed or the High Seas. Those two domains, long regarded as global commons, provide a freedom of access expressed in similar terms: “open to all States”. US policy describes space as a unique domain, for which new concepts will be required, but it has not yet seeded discussion in UNCOPUOS as to just what type of domain it is prepared to recognise. 15

https://www.federalregister.gov/documents/2020/04/10/2020-07800/encouraging-internationalsupport-for-the-recovery-and-use-of-space-resources (Accessed 15.08.2022). 16 https://www.federalregister.gov/d/2020-07800 (Accessed 15.08.2022). 17 Interview with Gabriel Swiney conducted by the author March – June 2021. 18 Goehring (2021). The Moon Agreement is the short name for the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979).

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In the wake of the release of the Artemis Accords in 2020, shortly after President Trump’s EO, many suspect the US intends to pave the way for a form of private property rights that goes “beyond the fish”, to adopt the Open Sea analogy. President Barack Obama signed the Commercial Space Launch Competitiveness Act in 2015, recognising the right of US companies to assert private ownership rights over resources recovered from outer space, thoroughly rejecting the idea that space resources might represent some form of “communal property”.19 At UNCOPUOS in 2017, the US delegation expressed concern that the use of the term “global commons” by members of the international community might constrain its commercial use: “Outer space is not a global commons, not the common heritage of mankind, not res communis, nor is it a public good”20 then US Delegate, Dr. Scott Pace, told the forum. However, this formulation provided no further clarity on just what concept the US would be comfortable with. Perhaps a pathway was being laid, even at that early stage, for the release of the Artemis Accords that aim to establish a contractual framework with States that partner with the US in the return to the Moon.21 Hugo Grotius observed that all property arises from occupation,22 and it has become increasingly clear the US sees the potential for new private property rights arising out of access and use of outer space, and is prepared to pursue parallel models of engagement to support those rights. Access and use—particularly in the form of constellations operating in privileged positions in LEO—necessarily leads to occupation, allowing for the exclusion of others. It is a property right by any other name, around which the space activities of other nations must subsequently be organised. It is understandable if nations that remain several generations behind the leading space powers in the development of their own orbital interests, see parallels with res nullius rather than res communis. Occupation invites powerful nations to pursue their interests over and above others, shaping new concepts of property rights in order to secure and protect them.23 The expansion of US interests in orbit evokes a sense of the “manifest destiny” that propelled the conquest for land and dominion across North America in the nineteenth century, for the US appears intent upon reshaping the domain of outer space in the image of American capitalism. Some US commentators have compared the first-mover advantage being afforded US Tech Giants as comparable to the Louisiana Purchase, which saw the French “sell” the land that now makes up the bulk of the US interior, treating indigenous Indian lands as terra nullius.24 The imposition of new property rights, the creation of new US States and the granting of

19

See https://www.congress.gov/bill/114th-congress/house-bill/2262/text (Accessed 15.08.2022). Interview with Dr. Scott Pace, Deputy Assistant to the President & Exec. Sec’y, US Nat’l Space Council, https://perma.cc/YXG2-CEFJ (Accessed 15.08.2022). 21 See the Artemis Accords: https://www.nasa.gov/specials/artemis-accords/index.html (Accessed: 15.08.2022). 22 Mickelson (2014). 23 Mickelson (2014), p. 638. 24 Interview with Joe Sandri of The Balance Group by the author November 2021. 20

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private land-holdings, played a major role in the separation of Indian peoples from their historical territory, and the destruction of their way of life.25 The parallel with the current race to occupy the dominion of LEO is clear. Former US representative to UNCOPUOS, Dr. Pace, called for the development of “certain types of rights and obligations typically associated with exclusive use and private property” in order to encourage private sector investment in outer space.26 It is perhaps in deepening the meaning of the terms “access” and “use” in the OST that the US sees the opportunity for facilitating occupation in LEO. This stands in stark contrast with US rhetoric in the security domain however, where it has long suited American security interests to treat global commons as crucial to its special role in maintaining international stability. In its 2008 National Defense Strategy, the US Department of Defense (DoD) set out its modern role in securing the global commons for the benefit of all nations: Since World War II, the United States has acted as the primary force to maintain international security and stability, leading first the West in the Cold War confrontation with the Soviet Union and, more recently, international efforts to confront violent extremism. This has been accomplished through military, diplomatic, and economic means . . . (including) protecting the nation and our allies from attack or coercion, promoting international security to reduce conflict and foster economic growth, and securing the global commons and with them access to world markets and resources . . . The United States requires freedom of action in the global commons and strategic action to important regions of the world to meet our national security needs.27

This National Defense Strategy, adopted in the late stages of President George W. Bush’s administration, was maintained by President Obama following his election in 2008.28 The continuity of US policy was reinforced by President Obama’s invitation to President Bush’s Secretary of Defense, Robert Gates, to continue in the role in a demonstration of bi-partisanship.29 The strategy previously overseen by Secretary Gates under President Bush remained largely unchanged throughout the first term of the Obama administration. In the context of the evolving global financial crisis that played out across both administrations, further emphasis was placed upon the role of global commons as a fundamental aspect of global economic activity: For more than sixty years, the United States has secured the global commons for the benefit of all. Global prosperity is contingent on the free flow of ideas, goods, and services. . . . None of this is possible without a basic belief that goods shipped through air or by sea, or information transmitted under the ocean or through space, will arrive at their destination safely.30

25

ibid. Interview with Dr. Scott Pace, Deputy Assistant to the President & Exec. Sec’y, US Nat’l Space Council, https://perma.cc/YXG2-CEFJ (Accessed: 15.08.2022). 27 See the US National Defense Strategy 2008: https://www.hsdl.org/?abstract&did=487840 (pp. 6 and 16) (Accessed 15.08.2022) Emphasis of the author. 28 Obama (2020). 29 Obama (2020), pp. 214–216. 30 See the US National Defense Strategy 2008: https://www.hsdl.org/?abstract&did=487840 (pp. 6 and 16) (Accessed 15.08.2022) Emphasis of the author. 26

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In this manner US policy has increasingly focused upon the transmission of information or goods through air, sea, space and cyberspace. While it rejects the concept of a global commons in relation to commercial interests in outer space, it continues to invoke this concept in order to support its security and defence policy. This focus on transmission of information emerged as the US—and in turn NATO—recognised cyberspace as a military domain under its 2008 National Security Strategy. Then US Deputy Secretary of Defense, William J. Lynn, announced that cyberspace must be viewed as “a domain similar to land, sea, air and space: a domain that we depend upon and need to protect . . . Just as we need freedom of navigation of the seas, we need freedom of movement online”.31 Focus upon the concept of “domains” grew throughout the Obama administration, while references to “global commons” gradually disappeared, until the 2011 US National Defense Strategy recharacterised outer space with the now famous creed: “Space, a domain that no nation owns but on which all rely, is becoming increasingly congested, contested, and competitive.”32 During the first year of the Trump administration, the DoD increasingly adopted the term “common domains” preferred by the US State Department.33 The White House National Security Strategy 2017, referred to the necessary freedom of access and use of the “common domains” of “land and sea, the Arctic, outer space, and the digital realm”, appearing to rebrand what had long been understood as global commons under customary international law.34 This brought the DoD into alignment with the Obama administration’s recognition of cyberspace as a “domain of operations” at the NATO Summit in June 2016,35 which would pave the way for the 2019 announcement that NATO would treat outer space as a military domain. A further change in tone was adopted in the 2017 US National Defense Strategy published during the first year of the Trump presidency. Traditionally the province of the Secretary of Defense, whose opening statement sets the tone of the document, this was replaced with the foreword of President Trump himself. The document no longer contained the word “commons”, and introduced a new concept of “unfettered access” to outer space: The United States considers unfettered access to, and freedom to operate in, space to be a vital interest. Any harmful interference with, or an attack upon critical components of, our space architecture that directly affects this vital US interest will be met with a deliberate response at a time, place, manner, and domain of our choosing.36

Unfettered access—in the sense that it is unrestricted and unencumbered—is not consistent with the OST, which, as we have discussed, requires nations to have due

31

Quoted in Weitz (2009), p. 273. US National Defense Strategy 2008 https://www.hsdl.org/?view&did=10828 (Accessed 15.08.2022) p.(i). 33 Goehring (2021). 34 Quoted in Goehring (2021). 35 See https://www.nato.int/cps/en/natohq/topics_78170.htm (Accessed 15.08.2022). 36 National Security Strategy of the United States of America (2017) p.31: https://www.hsdl.org/? view&did=806478. (Accessed 15.08.2022) Emphasis of the author. 32

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regard to the space activities of other nations.37 The dilution of the concept of res communis by successive Democratic and Republican US administrations has been reinforced by opposition to the concept of global commons in other areas, most notably in US refusal to participate in the governance frameworks that international treaties established for the High Seas and Deep Sea Bed.38 John S. Goehring describes this dichotomy in US policy towards the global commons in terms of “enabling” (in the security domain) versus “constraining” (in the economic domain). Rather than abandoning the OST in order to pursue its security objectives as was contemplated by President Ronald Reagan, the competing approaches of US Departments have been pursued in parallel in order to extract the most flexible reading of the Outer Space Treaties to the benefit of US interests. Publicly the US has refrained from reframing its entire national policy in order to clarify whether it views outer space as a “global commons” versus a “global domain”, preferring to treat the contradiction between US defence and space policy as a “mistake”.39 Former White House Space Policy Director, Peter Marquez—another figure who served on the White House National Security Council (NSC) under both President George W. Bush and President Obama—maintains that President Trump’s 2020 EO rejected the term “global commons” because “the Department of Defense . . . (had) errantly described space as a global commons despite legal guidance given by the White House and the State Department.”40 Gabriel Swiney, legal counsel from the US State Department with responsibility for space, confirmed that regardless of historical differences in the vocabulary used in various US departments, the US position on space is clear: Space is space. Not interested in using Latin terms or any other. “Common domain” is the closest to something we are comfortable using, and what we do use.41

In a recent paper, Goehring provides us with insight into the tensions between American defence strategy and the diplomacy of the US State Department.42 He notes, the US appears comfortable to invoke the concept of a global commons when it facilitates its security, and to withhold such recognition in other fora, where the concept might hamper commercial activities. Goehring’s analysis offers a new lens on US policy, but security cannot always be easily severed from the concept of use of outer space. As he notes, NATO reports recognise that “it is within, through, and from the Commons that trade, communications, transportation, and security operations take place.”43 Rivals to the US and NATO are unlikely to make the academic distinction between the treatment of outer space as a global commons in relation to security, and a common domain in relation to commercial ventures. It seems more

37

Article IX OST. The US resisted becoming a party to UNCLOS: Mickelson (2014), p. 635. 39 Goehring (2021). 40 ibid. 41 Interview conducted by the author with Gabriel Swiney March – June 2021. 42 Goehring (2021). 43 ibid. 38

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likely that Russia and China will view the commercial domination of LEO as a projection of force not only into an international domain, but their own territorial sovereignty insofar that Starlink and OneWeb might purport to circumvent national controls on access to the Internet. When NASA’s Artemis Accords were released, the US delegation to UNCOPUOS described them as a “supplement and support to the existing space law framework”.44 Just how supplementary their ambition remains to be seen, but their foray into contentious issues that many States opine should be resolved within the auspices of UNCOPUOS, has not been welcomed by those who aim to rival the US in space. Participation in the US Artemis programme to establish a permanent human presence on the Moon, and further to Mars, requires partners to adopt the Accords without amendment. The Accords have to date been signed by Australia, Brazil, Canada, Italy, Japan, Luxembourg, Mexico, New Zealand, the Republic of Korea, the United Arab Emirates, the United Kingdom, the US, and the Ukraine.45 Many European stakeholders have raised concerns that the US intends to establish a supplementary legal framework, that goes beyond the OST and, over time, establish its own interpretation of the OST as customary international law. European jurists who generally treat the res communis nature of outer space as a given, are concerned that fundamental building blocks of international law are being diluted, and with it the central role of UNCOPUOS.46 It has been the long-standing view of State Parties to the treaties, that a future framework for resource utilisation must be developed by consensus. It is this consensus that the Artemis Accords pre-empt. A worst-case scenario imagines the US might increasingly consider the Outer Space Treaties superfluous to its needs, and continue to facilitate its nationals’ pursuit of dominance in LEO on the basis that its Artemis Accords arrangement complies with international law. As Professor Michael Byers from the Department of Political Science at the University of British Columbia states: The problem is, SpaceX is moving so very fast that it’s almost impossible for the Federal Communications Commission (FCC) and other departments and agencies to keep up. I think there’s merit in the argument that coordinated national regulatory action is the only shortterm solution available, though of course that can be followed, and supported, through multilateral soft-law and treaty making. As long as the spacefaring states are implementing and “progressively developing” international law, other States will likely follow. But if it’s a repeat of the Artemis Accords, all bets are off.47

Increasingly too, we see the language of cyberspace being applied to outer space by US representatives, as a concept of “freedom of access” to both domains appears to offer the greatest flexibility to US military and economic activities. As the roll-out of 5G infrastructure in support of the Internet-of-Things (IoT) gathers pace, convergence is underway on a number of levels—between infrastructure supported by

44

US Statement to UNCOPUOS 2021: https://vienna.usmission.gov/2021-copuos-lsc-u-s-nationalstatement/ (Accessed 15.08.2022). 45 ibid. 46 Goehring (2021). 47 Interview conducted by the author with Prof. Byers November 2021.

5.1

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national space agencies and private players; between military and civil purposes; between space-based and terrestrial infrastructure; and between devices. This convergence is occurring at the level of critical telecommunications infrastructure increasing the interdependence of all of our communications, security and defence, banking and finance, aviation and transport logistics, energy infrastructure, and Global Navigation Satellite Systems. Recent Anti-Satellite (ASAT) and hypersonic weapon tests by Russia, China and India, highlight the manner in which rapid technological development is heightening the risk of miscalculation and mistake. It is understandable perhaps that nations perceiving a growing gap between technology and international law, will see the attraction of unilateral, contractual means of addressing the risks.48 If the US increasingly treats outer space and cyberspace as domains through which information is transmitted, we may also see convergence between the legal concepts applicable to them. In this context there are two different levels on which we might view mega-constellations: the first is the physical orbit of LEO in which satellite constellations are treated as telecommunications infrastructure, and the second is the domain of cyberspace supported by spectrum allocations, through which information transmission occurs. If LEO itself is not yet treated as a finite resource, electromagnetic spectrum certainly is.49 Should such an exchange of legal concepts continue between these two domains, it will be interesting to see how US and NATO efforts to establish norms relating to the conduct of military exercises and war in cyberspace, will be applied to the infrastructure supporting the Internet in outer space.50 The Tallinn Manual—a NATO initiative—purported to develop such norms, but risks escalating tensions with Russia and China, which view it as the imposition of a Western-model of the rules of war. The treatment of outer space as one generalised domain, might increasingly lead to absurdities in the application of international law. As Goehring bluntly notes: “Void space, galaxies, planets, stars, moons, asteroids, different Earth orbits, Moon orbits . . . these cannot be lumped together and thought of as a single common resource.”51 It is a sentiment with which this book concurs, at least in relation to the new risks mega-constellations give rise to in LEO and the Earth’s atmosphere. Outer space contains vastly different “domains” that will require different approaches. If we are to recognise that mega-constellations must be subject to new forms of governance, it is vital that we treat the access and

It is noteworthy that both Russia and China pushed for the adoption of a Treaty on the “Prevention of an Arms Race in Outer Space” over the last decades at the UN Conference on Disarmament. The main obstacle to such a treaty was the US, reinforcing Chinese and Russian concern that the US intends to pursue military programmes in the space domain. Recent ASAT tests by Russia and China may actually be intended to bring the US to the negotiating table of a disarmament treaty: see Weitz (2009), p. 284. 49 Goehring (2021). 50 The Tallinn Manual on the International Law Applicable to Cyber Warfare is a non-binding guidance document on the rules of war in cyber-space: https://ccdcoe.org/research/tallinn-manual/ (Accessed 15.08.2022). It should be noted that the Tallinn Manual is not recognised by, and does not have the support of, either Russia or China. 51 Goehring (2021). 48

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use of orbital domains as completely different to a discussion about utilisation of resources on the Moon. In LEO it is clear that one country’s use of this orbit subtracts from what is available to others. In this context, perhaps it makes little difference whether outer space is treated as a “global commons”, or a “common domain”, or any other version. Those labels do not alter the fact that in the absence of comprehensive governance, there will be domination and exploitation of LEO under the auspices of international law. This raises the question of whether the oft neglected prohibition on the abuse of rights, has a role to play here.

5.2

Proportionality and “Abuse of Rights” in International Law

If we adopt Hardin’s metaphor of a pasture in which each herdsman tries to support as many cattle as possible from its resources, while the negative effects of overgrazing are shared by all, might we begin to model the carrying capacity of LEO? How many satellites can this orbital range sustain, before individual activities lead to a breakdown in its total capacity? How many satellite constellations should be allowed to individual States, before it becomes unfair to other States who are not yet in the same position to utilise LEO? At which point should we consider LEO full? These are technical questions, deserving of technical calculation. They require us to treat LEO as a finite resource, and contemplate the capacity of the whole. For our purposes, the carrying capacity of LEO may be measured in several relevant ways. One model might estimate the total number of satellites LEO can sustain in orbit without deleterious impact on the activities of others. Another, the availability of spectrum frequencies required to support those activities, before those frequencies interfere with each other. The direct cost of interference to astronomy is also capable of calculation in terms of the numbers of lost observations, and the economic loss that flows from it.52 Given astronomy, and science in general, are activities in the which the public has a stake, qualitative and quantitative measures might be harnessed to calculate the social value derived from astronomy, and the negative value flowing from interference. A form of Net Public Benefit might be estimated. Measuring the capacity of LEO deserves its own investigation that is beyond the scope of this legal and

52

Interview with Dr. Andrew Williams, External Relations Officer in the Executive Office of the Director General, at ESO by exchange of Emails May – June 2021 says: “To evaluate the losses on an observation, the number of satellite trails crossing the field of view during the exposure time is counted, considering the brightness and apparent angular velocity of each satellite. Those too faint to be detected are dropped, those detected destroy a 5 arc-second wide trail on the observation, and those saturating the detector destroy the whole observation. In a worst case scenario, ESO may consider introducing scheduling based on simulation results, to avoid pointing to high density areas of satellites. For many types of observations, it might be cheaper and more efficient just to repeat a failed observation.”

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Proportionality and “Abuse of Rights” in International Law

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regulatory discussion, however if we recognise that LEO is a finite resource, then it ought to be possible to model its capacity, and test whether proposed megaconstellations are proportionate to the domain they will operate in. Most importantly, measuring the capacity of LEO lends support to the harnessing of principles of international law to the cause of astronomy. It might encourage national regulators to incorporate processes to support assessments of proportionality, necessity, and public benefit, when licence applications are considered. Proportionality is a straightforward concept: an action is proportionate when it is of an appropriate size, amount or degree in comparison with something else.53 Is an activity proportionate to the capacity of the domain in which it is undertaken? At international law the principle of proportionality allows an assessment of the balance between an objective, the means used to achieve it, and the consequences of those actions.54 It is an equitable principle, a weighing up of means and ends, in order to minimise the intrusion necessary.55 In its most literal form, we might ask: does the end, justify the means? And is it necessary? The Max Planck Encyclopedia of Public International Law notes that the principle of “proportionality” is customary international law, to be found in the fields of human rights, the use of force and proportionate response, delineation of maritime boundaries in the law of the sea, and the World Trade Organisation’s (WTO) rules of fair trade.56 To this we might add a new generation of data protection laws, requiring a proportionate use of personal data, weighed up against the risks to data subjects.57 The principle is relevant to an era in which challenges, from pandemics to climate change, are global. In contemplating the Earth, its atmosphere, and its orbital domains, as one cohesive biosphere bound together by gravity, we recognise that in the context of “the whole” the actions of one nation have transboundary implications. As Prof. Byers notes: Proportionality is central to both the jus ad bellum of self-defence and the jus in bello of the law of armed conflict and international humanitarian law. If States can put so much reliance on proportionality in the laws of war, there is no reason why they can't do so regarding the peaceful use of LEO.

The doctrine of abuse of rights is a somewhat under-utilised element of State Responsibility under international law. In his essay “Abuse of rights: an old principle, a new age”, Prof. Byers draws upon the jurisprudence of Lauterpacht to argue the principle suits situations in which a State exercises an international right in an anti-social manner giving rise to an unjust injury: In many cases the use of a right degenerates into a socially reprehensible abuse of right, not because of the sinister intention of the person exercising the right, but owing to the fact that,

53

The New Oxford American Dictionary (2005), Oxford University Press: https://www. oxfordlearnersdictionaries.com/definition/american_english/. 54 Crawford (2012); Cottier et al. (2017). 55 Cottier et al. (2017). 56 Crawford (2012), p. 533. 57 EU General Data Protection Regulation.

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as the result of social changes unaccompanied by corresponding developments in the law, an assertion of a right grounded in the existing law becomes mischievous and intolerable.58

This may be applied to the issue of mega-constellations in LEO. The freedom of States to access and use outer space for peaceful purposes, is limited by the rights and interests of other States. As we have examined in Sect. 3.5, this right must be exercised in compliance with the obligation to avoid interference with the space activities of others, and have due regard to their interests. Further, the obligations of State Responsibility extend beyond the impact on individual States, because it is clear that the Outer Space Treaties invoke obligations that are owed to the international community as a whole.59 It follows that the race to dominate LEO is giving rise to the kind of absurd, intolerable outcomes contemplated in Prof. Byers’s essay. Ahead of the 4 November 2021 deadline for submissions to the FCC on future broadband services, four further US companies lodged applications for constellations to provide broadband services in LEO: Astra Space, Hughes Network Systems, Inmarsat and Telesat.60 The largest of these from Astra Space, proposes the deployment of 13,620 satellites providing it with global coverage.61 Inmarsat is establishing a multi-orbit constellation, Orchestra, operating across Geostationary Orbit (GEO), MEO and LEO, in order to compete with OneWeb in providing services to maritime, aviation, government and commercial customers.62 Shortly after this round of FCC spectrum applications, ViaSat announced the $US7.3 billion acquisition of Inmarsat, representing what is likely the beginning of consolidation in the Orbital Internet market.63 The dwindling opportunity to establish a presence in LEO is not lost on commercial operators, with Chris Kemp, CEO of Astra Space, telling the market: “Spectrum is incredibly hard to get. It’s incredibly valuable. In the not-too-distant future, the demand for spectrum access will significantly outstrip supply. This view of spectrum is what motivated us to file the V-band spectrum application to prepare Astra for its next stage of growth.”64 Nor are the implications lost on the leaders of other nations. The Chinese Government announced on 29 April 2021, that its StateOwned Assets Supervision and Administration Commission (SASAC) would

58

Byers (2001), p. 405, 412. Byers (2001) citing Draft Articles on State Responsibility article 48(1). 60 Foust J (2021) “Astra files FCC application for 13,600 satellite constellation” Space News 5 November 2021: https://spacenews.com/astra-files-fcc-application-for-13600-satellite-constella tion/ (Accessed 15.08.2022). 61 ibid. 62 Rainbow J (2021) “Inmarsat unveils multi-orbit orchestra constellation” Space News 29 July 2021: https://spacenews.com/inmarsat-unveils-multi-orbit-orchestra-constellation/ (Accessed 15.08.2022). 63 Rainbow J (2021) “Viasat buying Inmarsat in $7.3 billion deal” Space News 8 November 2021: https://spacenews.com/viasat-buying-inmarsat-in-7-3-billion-deal/ (Accessed 15.08.2022). 64 Foust J (2021) “Astra says focus is on launch as it files application for satellite constellation” Space News 12 November 2021: https://spacenews.com/astra-says-focus-is-on-launch-as-it-filesapplication-for-satellite-constellation/ (Accessed 15.08.2022). 59

5.2

Proportionality and “Abuse of Rights” in International Law

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establish the China Satellite Network Group, with International Telecommunication Union (ITU) filings for the launch of a 13,000-satellite constellation in LEO, to support its investment in Belt and Road Initiative (BRI) countries and rural China.65 In 2020 the Federal German spectrum regulator, announced the first of several assignments of spectrum to SpaceX to support the delivery of Starlink broadband services to Germany.66 Similarly during 2021, the German regulator supported the registration of Kepler Communications’ Aether constellation with the ITU, made up of 114,582 satellites in 1152 different orbits between 200 and 1000 km in altitude.67 In August 2021, Rwanda lodged applications with ITU for spectrum supporting new constellations made up of 330,000 satellites in LEO,68 inviting speculation as to whether it represents a genuine initiative of a nation that has long advocated for satellite-based broadband to support African development,69 or is simply a clever way of bringing the current inequities in a first-come first-served allocation of spectrum in LEO into sharp focus. It is possibly both. This underlines the role that legal principles grounded in abuse of rights might play. The plethora of new applications will further deplete a finite resource, and exclude other nations from exercising their own freedom of access and use. It is imperative that the first-mover advantage being afforded US Tech Giants is assessed in terms of equitable access to space. There are 110 State Parties to the OST and a further 89 have signed it,70 but only two of them have currently authorised megaconstellations on a scale that promises to exclude other nations from participating in LEO in the immediate future. It is not without some irony that this comes at a time in which the power of US corporations is being questioned. But the same Tech Giants are simultaneously being allowed a free-pass to establish their infrastructure in LEO, which will almost certainly mirror current monopolies on Earth. It is becoming increasingly difficult to establish checks on this power. In recent decades some people have become so incredibly rich that their private space programmes surpass nation States in both GDP and budget. But the codependence between these Jones A (2021) “China establishes company to build satellite broadband mega-constellation” Space News 26 May 2021: https://spacenews.com/china-establishes-company-to-build-satellitebroadband-megaconstellation/ (Accessed 15.08.2022). 66 See the German Federal Telecommunications Agency announcement: https://www. bundesnetzagentur.de/SharedDocs/Pressemitteilungen/EN/2020/20201218_Starlink.html (Accessed 15.08.2022). 67 Foust J (2021) “Satellite operators criticize extreme mega-constellation filings” Space News 14 December 2021: https://spacenews.com/satellite-operators-criticize-extrememegaconstellation-filings/ (Accessed 15.08.2022). 68 See: https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/32322 and Space in Africa (2021) “Rwanda has submitted ITU filing for 27 orbital shells of 327,320 satellites” 14 October 2021: https://africanews.space/rwanda-has-submitted-itu-filing-for-27-orbital-shells-of327320-satellites/ (Both accessed 15.08.2022). 69 Paul Kagame, President of Rwanda, was co-Chair of the ITU Commission that first looked at emerging issues in mega-constellations for delivery of broadband in 2012. 70 See https://www.unoosa.org/res/oosadoc/data/documents/2021/aac_105c_22021crp/aac_10 5c_22021crp_10_0_html/AC105_C2_2021_CRP10E.pdf (Accessed 15.08.2022). 65

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technology companies and US government is the real reason the roll-out of this infrastructure is being facilitated. As discussed in Chap. 3, the race towards 5G and the Internet-of-Things (IoT), is considered integral to US space strategy and national security. The Deputy Chief of Space Operations for Operations, Cyber, and Nuclear, with the US Space Force, Lt. Gen. Saltzman, recently said: “The big thing going on, is the explosion of commercial space, the dramatic increase of commercial space, the technology that is being deployed. I think we are going to be able to leverage commercial capabilities to accomplish a subset of our (defense) missions.”71 The doctrine of abuse of rights offers the opportunity to apply the brakes to these developments, by adding weight to the pursuit of governance solutions. Such an argument might prove more persuasive in the fora of ITU rather than UNCOPUOS, allowing a sharp focus on the allocation of spectrum for constellations in LEO, which is the real moment at which exclusion of others occurs. As the Rwandan application for over 300,000 satellites makes abundantly clear, the allocation of such rights will dramatically subtract from the ability of other nations to exercise their own rights in LEO, propelling us into the territory of “abuse of rights”. It reinforces calls for ITU to urgently reassess the treatment of LEO as a finite resource. The international community has confronted this issue before, in adapting the ITU framework for the allocation of GEO slots, in which principles of equity and fairness, and the interests of developing nations, were aligned with the principles of the OST. The question then becomes less about the limitations of current international law, and more pragmatically focused on what is to be done about it?

5.3

Good Night Dark Sky?

A new governance framework to regulate mega-constellations can only be achieved if different stakeholders and interest groups can be aligned in order to drive change. Since the issue became starkly apparent in 2019, alignment has proved elusive in the astronomical community however. Over the last 3 years, the International Astronomical Union (IAU) and a range of stakeholders have issued statements of concern. Working Groups for the protection of the Dark Skies were formed. Acres of technical analysis, reports, news stories and scientific papers have been generated. The IAU, which had been put on notice two decades before that threats to the future of astronomy were brewing, remained unprepared when those threats actually eventuated.72 Today there is no shortage of statements from scientific working groups, recognising the problem. But there is a dearth of realistic solutions. The 71

See Mitchell Aerospace Podcast with General Saltzman at 17min30: https:// mitchellaerospacepower.org/event/spacepower-forum-lt-gen-b-chance-saltzman/ (Accessed 15.08.2022). 72 See statement from previous IAU President Kraft in ITU report forecasting the advent of satellitebased broadband networks published in 2012: https://www.itu.int/ITU-D/treg/broadband/ITU-BBReports_RegulationBroadbandSatellite.pdf (Accessed 15.08.2022).

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Good Night Dark Sky?

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trajectory of unsustainable activity in LEO has not been altered. Had the IAU called for a moratorium on the further launch of mega-constellations after the first bright images of Starlink satellites began interrupting optical astronomical activities in 2019, as many hoped, it might have secured sufficient time in order to develop a cohesive position on behalf of the 12,122 astronomers and 85 national Member States it represents.73 Instead, its insistence that a “new international agreement” was being prepared for UNCOPUOS 2021, to which it expected the nations of the world to sign up, led the community of astronomers astray. It mirrored the same mistake under the IAU’s then President Kraft 20 years earlier. At the UNCOPUOS Scientific and Technical Subcommittee (STSC) 2021 meeting, the IAU presented a statement and Conference Room Paper together with State Parties Chile, Ethiopia, Jordan, Slovakia, and Spain, calling for “the protection of the dark and quiet skies of major professional observatories from anthropogenic interference.”74 Like IAU’s public statements of the previous year, the Conference Room Paper contained a curious mix of references to human rights, environmental protection, heritage concepts, telecommunications regulation and municipal law, but contained little analysis of the nature of “interference” by constellations within the legal framework of the OST. Instead it repeated the false assertion (which UNESCO had publicly corrected the year before) that a dark night sky amounts to world heritage,75 and made further rights-based arguments, calling for new Artificial Light at Night (ALAN) measures “in order to protect the right of any citizen to enjoy the vision of the starry sky.” The statement went beyond the impact of constellations on astronomy, raising issues such as the impact of artificial light on safety at night, inefficient use of electric power, and harm to human health and the environment.76 It made recommendations, including the establishment of “Dark Sky Oases” around observatories, which would fail to mitigate interference with astronomy from the reflected light of mega-constellations in any event, given their orbital range is at least 300 km above the Earth (see Fig. 3.3). The IAU’s submission was an emotional plea, embracing the passionate views many astronomers understandably hold, but was not aligned with the reality of international law. A short, pointed submission to UNCOPUOS, concretely rooted in the OST, might have proved more effective. Despite its attempts to cover all issues, it did nothing to illuminate the actual questions of outer space law, that UNCOPUOS actually does have a mandate to consider. The IAU’s Conference Room Paper did not clearly state that interference with the scientific research of 73

See https://www.iau.org/administration/about/ (Accessed 15.08.2022). Statement delivered by Piero Benvenuti on behalf of IAU 21 April 2021. https://www.unoosa.org/documents/pdf/copuos/stsc/2021/statements/2021-04-21-AM-Item1303-IAUE.pdf (Accessed 15.08.2022). 75 Conference Room Paper (CRP) A/AC.105/C.1/2021/CRP.17 p.1: “The pristine spectacle of the starry night sky has been inspirational to humankind since prehistoric times and this world cultural heritage should be zealously protected.” https://www.unoosa.org/oosa/oosadoc/data/docu ments/2021/aac.105c.12021crp/aac.105c.12021crp.17_0.html (Accessed 15.08.2022). 76 id paragraph 7. 74

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astronomical observatories is prohibited by the OST, and that State Parties would be in breach of their obligations at international law if they failed to exercise due regard for the activities of others, and prevent it. This surely would have focused the international community on the legal issue at hand. Instead the IAU’s position became mired in concepts of light pollution, something regulated by municipal councils rather than the UN. It called for measures for “transparent stewardship of the night sky”,77 “protection of the bio-environment”, minimisation of “negative impacts on the pristine night sky”,78 the maintenance of “natural night sky integrity” and the “development of shared space domain decision intelligence”.79 The incomprehensibility of such terms, and lack of cohesion in terminology, made for a confusing statement. As the US Delegation to UNCOPUOS is fond of pointing out, none of these “concepts” are to be found in the OST. No wonder then, that many State delegations diplomatically questioned whether such measures fall within the mandate of UNCOPUOS.80 Other delegations expressed the view that measures relating to allocation of spectrum and radio frequency interference, are clearly the domain of ITU.81 Representatives of a major space power’s delegation to UNCOPUOS expressed a preparedness to engage on the issue of interference, but described the IAU’s position as “not a good starting point.”82 The IAU executive—which told its members that it expected UNCOPUOS 2021 to approve an “international agreement that limits the brightness of any LEO satellite”—appeared naïve when the topic received a mixed reception.83 The issue was acknowledged, but further discussion was deferred until UNCOPUOS 2022. 77

id paragraph 23. id paragraph 24. 79 id paragraph 28. 80 Final Report of the 58th session (A/AC.105/1240) UNCOPUOS STSC April 2021: https://www. unoosa.org/oosa/oosadoc/data/documents/2021/aac.105/aac.1051240_0.html And see Statement of Canada which expressed the view that the issue ought to be treated as a regulatory one: https://www. unoosa.org/documents/pdf/copuos/stsc/2021/statements/2021-04-26-PM-Item13-04-CanadaE.pdf (Both accessed 15.08.2022). 81 See Section XI Future Role and Working Method of the Committee, Item 45: “The view was expressed that the topic of dark and quiet skies was a matter for ITU.” UNCOPUOS Report Final Report of the 58th session (A/AC.105/1240) UNCOPUOS STSC April 2021: https://www.unoosa. org/oosa/oosadoc/data/documents/2021/aac.105/aac.1051240_0.html and https://www.unoosa.org/ res/oosadoc/data/documents/2021/aac_105c_1l/aac_105c_1l_386add_7_0_html/AC105_C1_L3 86EAdd07E.pdf Acknowledged also in Statement delivered by Piero Benvenuti on behalf of IAU 21 April 2021 https://www.unoosa.org/documents/pdf/copuos/stsc/2021/statements/2021-04-21AM-Item13-03-IAUE.pdf (All accessed 15.08.2022). 82 This delegate is cited anonymously at their request and in accordance with the working methods of UNCOPUOS. UNCOPUOS Minutes record discussion during the STSC and LSC meetings without attribution, except for formal delegation statements. This encourages the open exchange of views. Similarly, delegates who are prepared to provide comment to journalists in the aisles of the meeting, generally ask that publications do not attribute those frank discussions to named individuals. On the working methods of UNCOPUOS see Schrogl (2014). 83 Communication with the author from Piero Benvenuti and Constance Walker, IAU Working Group Dark Skies / Mega-constellations / SATCOM 2020 per Email received: 27 July 2020. 78

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Good Night Dark Sky?

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The disconnect was further reinforced, when the IAU successfully lobbied to have a stand-alone agenda item included in the topics for discussion at UNCOPUOS STSC 2022, but only four nations, none of whom are major space powers or launchers of mega-constellations, made statements on the topic.84 As an international organisation in a privileged position with observer status at UNCOPUOS, the IAU has the potential for enormous influence. It does not have dedicated staff however, relying instead on the voluntary and well-meaning efforts of astronomers who balance these commitments with university professorships and major research projects. In many cases they are reliant on research funding from the very governments that are authorising the launch of mega-constellations. Allegiances are conflicted and it is difficult for senior members of the sector to speak, with clear, independent voices. Joe Sandri, a telecommunications attorney in Washington DC and founding member of The Balance Group, recognises that scientifically-focused organisations must now develop the expertise to engage in regulatory processes in order to defend their interests: Most astronomy organisations do not have a legal or regulatory team that understand how these things work. This function is so fundamental, it needs to be etched in stone. These organisations need to appoint legal and regulatory experts in order to protect their interests. They know their way of life, their profession, is under attack, but don’t appreciate the benefits of harnessing regulatory processes for objection. So, it’s hard for them. But this is a large-scale issue. These are massive networks. The implications of anything going wrong, have not been seriously studied. Regulatory processes are the tool that has worked in the past, when there is an imminent hazard.85

A passive and deferential position has set in among European stakeholders, however. The European Southern Observatory (ESO), perhaps the most influential of the European observatories given its broad EU membership and international infrastructure, confirmed in the wake of UNCOPUOS 2021, that it would continue to defer to guidance of the IAU executive and support its strategy.86 The outgoing Chair of IAU, Professor van Dishoeck, a brilliant and highly-awarded astronomer, was barely visible during critical early debates about how the profession should respond. Among the most articulate and passionate of astronomers, had she chosen to step in front of the cameras and explain how deeply serious the issue of megaconstellations is, she might have attracted the attention of national leaders and decision-makers. A delegation descending upon Washington to raise IAU concerns directly with the US State Department and the FCC, may have proved effective. Advocacy was required. But inexplicably the IAU opposed calls for a moratorium on

84 See statements made to UNCOPUOS under Agenda Item #18 Dark & Quiet Skies, by Algeria, Australia, Austria, and South Africa, on 15 February 2022: https://www.unoosa.org/oosa/en/ ourwork/copuos/stsc/2022/statements.html (Accessed 15.08.2022). 85 Interview conducted by the author November 2021. Joe Sandri is founder and CEO of telecommunications, technology and environmental services provider, Thought Delivery Systems, Inc., and President of the National Spectrum Management Association. 86 Interview conducted by the author by exchange of Emails with Dr. Andrew Williams, May – June 2021.

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the launch of mega-constellations from the outset, accepting the benefit of megaconstellations at face value, despite its negative impact on the very science the Union has a mandate to protect. Further, it refrained from treating the lack of progress at UNCOPUOS 2021 as a moment to reconsider its approach: The IAU has not changed its position about a moratorium. The reason being that such an action has to be eventually taken at national level and, while it may work for some of the foreseen constellations, it would most certainly not work with some others. Therefore, the IAU prefers to pursue a global action at the UN-level. Moreover, the IAU considers that the worldwide availability of network connection is a valuable service to be provided to society, particularly in difficult situations as we have experienced with the Covid-19 pandemic.87

Few international lawyers—or even casual observers of the fora they operate in— would recommend pursuing action at the UN-level when mechanisms are available at a national one. UNCOPUOS is a forum that moves slowly and would likely require more than a decade to pave the way for a new international treaty. It was noted with disappointment by several delegations at UNCOPUOS 2021, that the STSC had failed to establish a Working Group on the Long-Term Sustainability of outer space, which had been recommended in 2019, because agreement had not yet been reached between countries on the Working Group’s terms of reference, bureau, work plan or election of a Chair.88 The pathway IAU has chosen to pursue in this forum is fraught with delay. The existing “soft” obligations under the UN Space Debris Mitigation Guidelines89 took over 20 years to be adopted by the international community, and have not halted approval of mega-constellations, or prevented recent ASAT weapon tests by Russia, China and India.90 There simply isn’t sufficient time, for the IAU’s proposed guidelines on luminosity to lead to meaningful change.91 There is little appetite for new agreements among space powers today, and it will suffice if the UN Office for Outer Space Affairs (UNOOSA) can advocate for the continuing value of the Outer Space Treaties, in order to keep the global community within the existing tent. In recent decades State Parties have preferred non-binding “soft law” measures to address issues such as space debris and sustainability, an

87

Statement from IAU representatives Piero Benvenuti and Constance Walker, IAU Working Group Dark Skies / Mega-constellations / SATCOM 2020 per Email received: 27 July 2020. 88 Acknowledged in US Statement: https://www.unoosa.org/documents/pdf/copuos/stsc/2021/ statements/2021-04-20-PM-Item12-05-USAE.pdf (Accessed 15.08.2022). 89 UN Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space were adopted by the UN General Assembly in resolution 62/217 on 22 December 2007. 90 During UN COPUOS STSC 2022 meeting the US Delegation criticised the “reckless” testing of ASAT weapons in LEO, which it submitted contravened the UN Space Debris Mitigation Guidelines: US Statement STSC 2022: https://www.unoosa.org/documents/pdf/copuos/stsc/2022/ statements/4_USA_ver.1_7_Feb_PM.pdf (Accessed 15.08.2022). 91 The path towards the UN Space Debris Mitigation Guidelines was paved by the Inter-Agency Space Debris Coordination Committee (IADC), a working group established in 1987. See: https:// ntrs.nasa.gov/api/citations/20150003818/downloads/20150003818.pdf (Accessed 15.08.2022).

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approach also favoured in attempts to establish a governance framework to address climate change.92 As UNCOPUOS convened in February 2022, the IAU, together with Spain, Chile, Slovakia, ESO, and the Square Kilometre Array Observatory, called for nations to support the adoption of a set of “voluntary best practice guidelines for Low Earth Orbit satellite constellations” which may indicate that calls for an amendment of the OST or establishment of a new treaty by the astronomical community have finally been dropped.93 However, the IAU’s continuing focus on luminosity seems likely to be rejected by nations that do not see this as falling within UNCOPUOS’s mandate.94 Its proposed restrictions on luminosity of satellites would be breached by Earth’s natural satellite, the Moon itself, throughout the lunar cycle.95 In the absence of a preparedness to engage at national regulatory levels, it is difficult to imagine the roll-out of mega-constellations will be halted. It should not be forgotten that only a generation ago US President Reagan considered abandoning the outer space treaties altogether, in pursuit of the US Strategic Defence Initiative (SDI), colloquially known as the “Star Wars” project. This system would have seen the establishment of a multi-layered Ballistic Missile Defence (BMD) harnessing both ground and space-based weapons to attack incoming Intercontinental Ballistic Missiles (ICBM). The American technology had developed on the basis that the best point of attack was prior to re-entry of ballistic missiles into Earth’s atmosphere. It would therefore have represented the placement of weapons of mass destruction in outer space, something prohibited by Article IV OST. Then British Prime Minister Margaret Thatcher claimed she privately dissuaded Reagan of that path, which would not have complied with OST or the 1972 Anti-Ballistic Missile (ABM) disarmament treaty between the US and USSR.96 But Thatcher saw the benefit of reinforcing deterrence, describing herself as “a believer in a slightly qualified version of the doctrine known as MAD – mutually assured destruction”.97 She wrote that she was persuaded of the benefit of the British government publicly supporting the American Star Wars plan, despite clear issues 92

Conference of the Parties (COP) under the auspices of the United Nations Framework Convention on Climate Change (UNFCCC): https://unfccc.int/process/bodies/supreme-bodies/conference-ofthe-parties-cop (Accessed 15.08.2022). 93 See statements by ESO and UNOOSA: https://www.eso.org/public/announcements/ann22001/ https://www.unoosa.org/res/oosadoc/data/documents/2022/aac_105c_1l/aac_105c_1l_396_0_ html/AC105_C1_L396E.pdf (Both accessed 15.08.2022). 94 The IAU Conference Room Paper advocates for guidelines “guaranteeing that all satellites appear fainter than 7.0 Vmag + 2.5 × log10 (SatAltitude / 550 km) with a minimum value corresponding to maximum brightness of visual magnitude (Vmag) 7 during all flight phases, which makes them undetectable to the unaided eye”: paragraph 25 of Conference Room Paper (CRP) A/AC.105/C.1/2021/CRP.17 https://www.unoosa.org/res/oosadoc/data/documents/2021/ aac_105c_12021crp/aac_105c_12021crp_17_0_html/AC105_C1_2021_CRP17E.pdf (Accessed 15.08.2022). 95 Kyba et al. (2017), pp. 1–31. The authors of this article highlight the lack of standard measures of luminosity. 96 Thatcher (1993), pp. 464–465. 97 ibid.

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under international law, as she could foresee that the threat of the US walking away from the disarmament obligations in the OST, “about which the Soviets and Mr. Gorbachev were already so alarmed, . . . (would) prove central to the West’s victory in the Cold War.”98 In the gamesmanship of international relations, it is often more powerful to leverage existing treaties than advocate for new ones. It is for these many reasons this book does not endorse a quest for new treaties or renegotiation of existing rights and obligations under the OST, or even “soft” UN guidelines, but proposes the pursuit of “international regulatory coordination”. Such a strategy offers the opportunity to de-escalate tensions by ensuring the deployment of mega-constellations does not become conflated with existing security tensions between the US, Russia and China. As we explored in Chap. 4, such a model harnesses the mechanisms available under systems of national governance, with international coordination between the leading actors, that might seek to establish a “level playing-field” arrangement, under which those States would agree to refrain from further launches until the impact could be thoroughly assessed. It would simply involve bringing the regulatory agencies of major space nations together with a mandate to seek alignment on process. All might agree to incorporate impact assessment into their licensing processes. Most importantly, it would re-establish a dialogue between traditional and emerging space powers, that might mitigate rising tensions.99 At present, only two UN State Parties—the US and United Kingdom—have authorised the launch of mega-constellations. No State approached either of those countries’ UN delegations with a proposal for a moratorium on further launches of mega-constellations however.100 The failure of States to initiate consultations with the key supervising States in accordance with the rights and obligations of Article VI of OST, has deprived the astronomical community of the easiest diplomatic route to address the issue. Perhaps astronomers under-estimated just how welcome, a request for consultation might be received from a UN member. I put the question to senior representatives of the British and American delegations whose regulators have authorised the launch of mega-constellations, as to whether they had received any formal approach from the IAU or UN members during the previous 3 years, calling for a moratorium or halt to further launches? The response of one: Not to my knowledge. I wish they would. Right now we're dangerously close to a race to the bottom.101

Is a general failure of communication between astronomical stakeholders and national delegations to UNCOPUOS to blame? It is a bitter irony that the IAU executive assumed that a moratorium could not succeed, while national delegates of

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id p. 463. On the failure of engagement between the US, NATO and China, see Holslag (2019). 100 The author confirmed this with the US and UK delegations to UNCOPUOS in December 2021. 101 Communication with the author by member of a UNCOPUOS delegation, who agreed for the quote to be used without direct attribution. 99

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key launching States signaled an openness to it. Nor should direct engagement between astronomers and SpaceX representatives be considered a substitute for consultation between States. Article VI does not require SpaceX to consult with those its activities interfere with, it requires the US government to engage at a bilateral level. Many European scientific working groups have perceived SpaceX’s preparedness to address some technical issues in satellite design, as “an expression of goodwill by the industry”.102 This is naïve to the cut-throat strategies of the corporate world. SpaceX has only engaged because it is in its corporate interests, and to its advantage. Notably, none of the mitigation strategies pursued by SpaceX to minimise interference, has yet proved effective in achieving recommended brightness levels.103 It is clear to industry observers that the private company is pursuing a regulatory strategy of engagement with astronomy in order to mitigate the risk of its mega-constellation plans being derailed. In keeping the door open to scientists, it has successfully navigated the stakeholders most negatively impacted, who might have otherwise opposed its commercial plans.

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Corporations and Concerned Citizens Come to the Defence of Science

In late 2021 new scientific research emerged suggesting Starlink will have a deleterious environmental impact on the Earth’s upper atmosphere, releasing ozonedepleting chemicals that will exacerbate climate change.104 On 26 October 2021, satellite operator Viasat, and a group of concerned US citizens making up The Balance Group,105 made an application to the US Court of Appeals for the District of Columbia Circuit, which has jurisdiction over the review of FCC decisions, objecting to the granting of licences to SpaceX’s Starlink on the grounds that the FCC had not undertaken an environmental impact assessment. The application describes The Balance Group as “a membership organization that represents. . . astronomers and other scientists concerned about light pollution and other environmental impacts of satellite constellations”. Oral arguments were heard on 4 December 2021, with ViaSat and the Balance Group submitting: If there were ever an agency action calling out for review under the National Environmental Policy Act (“NEPA”), this is it. Indeed, the Commission itself recognises that NEPA requires at least an environmental assessment (“EA”) if an authorisation “ may have a significant environmental impact,” a standard that is easily met on this record. Yet the

102

Piero Benvenuti and Constance Walker, IAU Working Group Dark Skies/Mega-constellations/ SATCOM 2020 Statement per Email received: 27 July 2020. 103 Submission to the US FCC from The Balance Group and Viasat, dated 8 February 2022: SAT-LOA-20200526-00055; Call sign S3069. 104 Boley and Byers (2021). 105 https://www.thebalancegroup.net.

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Commission inexplicably concluded that an environmental assessment was unnecessary here because the Commission was uncertain as to the environmental impacts of its authorisation. That conclusion rests on legal error and arbitrary decision-making.106

The application for review of FCC’s decision-making process, grounded its argument in national legislation requiring an environmental assessment under the US National Environmental Policy Act (NEPA). It relied upon, among other familiar arguments such as interference with the space activities of ViaSat and negative impact on astronomy, scientific research by Dr. Aaron Boley and Prof. Michael Byers of the University of British Colombia. This new scientific evidence suggests chemicals contained in Starlight satellites may have a deleterious effect on the ozone layer.107 Boley and Byers’s research demonstrates that individual Starlink satellites, primarily made from aluminum, release a harmful compound aluminum oxide, or alumina, as they re-enter and burn up in the stratosphere. At scale, this potentially risks having a significant negative impact on the ozone layer. The total mass of the Starlink constellation is expected to be over 3000 tonnes, which is greater than the total mass of all current satellites and debris in LEO.108 The Starlink constellation is made up of small satellites with low additional functionality, in and of themselves, requiring regular replacement cycles in order to upgrade their technology every 5 years. Deorbiting Starlink satellites and allowing them to burn-up in the atmosphere, is an end-of-life process SpaceX adopted by design. This means roughly 10% of the total Starlink constellation will be burning up in the atmosphere at any one time in the constellation’s operational life. Each individual Starlink satellite has a dry mass of about 260 kg—much larger than most commentators realise—that will take 6 months to burn-up as each deorbits.109 Boley and Byers’s modelling predicts this will lead to Starlink becoming the dominant source of alumina in the upper atmosphere, depleting ozone and having repercussions for climate change.110 As other companies pursuing mega-constellations adopt the same “use-anddiscard” model as SpaceX, the scale of constant burn-up of individual satellites could significantly impact ozone levels. The risk of collision during deorbit also increases dramatically.111 The Balance Group’s application to the Court of Appeal called for the FCC to be required to initiate an environmental impact assessment to establish whether this scientific modeling could be substantiated by further studies, arguing that thorough assessment is critical because if the burn-up of deorbiting satellites at-scale results in stratospheric heating, it would “pose a global threat”.112

106

ViaSat and the Balance Group submission to the Federal Court of Appeal: https://cdn. arstechnica.net/wp-content/uploads/2021/10/viasat.pdf p.16 (Accessed 15.08.2022). 107 Boley and Byers (2021). 108 ibid. 109 ibid. 110 ibid. 111 ibid. 112 ViaSat and the Balance Group submission to the Federal Court of Appeal: https://cdn. arstechnica.net/wp-content/uploads/2021/10/viasat.pdf (Accessed 15.08.2022).

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In making such submissions, the Group is seeking to apply principles of due regard and the precautionary principle to national US regulatory processes. The application is most convincing in eliciting that the FCC is compelled to undertake an Environmental Impact Assessment (EIA) where it is assessing a project that “may have a significant environmental impact”. They do not argue that mega-constellations should be prohibited, or that progress in the race to establish 5G infrastructure should be abandoned. Rather, they present scientific evidence suggesting a real possibility of negative environmental impact, and argue such impact need not be fully understood prior to initiating an EIA, for that would defeat its very purpose: The Commission (FCC) implicitly recognized that there was at least some risk of significant environmental impact. It acknowledged that deorbiting satellites will “affect the chemicals entering the atmosphere” . . . and that it needed to “continue monitoring” both orbital debris and light pollution. Yet the Commission concluded that there was still no need for an environmental assessment because Environmental Appellants had not established with certainty the precise extent of environmental harm.113

As discussed in Chap. 3, an application of the precautionary principle requires regulatory agencies consider the impact, where a risk of harm exists. The International Court of Justice (ICJ) considers the adoption of a due diligence process a “paramount condition” in satisfying this obligation. The consequences of failing to assess the potential impact on ozone in the atmosphere appears high, for if depletion of ozone levels is confirmed, it would undermine the substantial international efforts since the 1990s in phasing out chemicals, including chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs), under the Montreal Protocol on Substances That Deplete the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer (The Montreal Protocol).114 The impact of human-produced chemicals on ozone layers in the atmosphere was discovered in the 1970s. Over the entirety of Earth’s atmosphere, the ozone layer averages 300 Dobson Units—a measure taken of ozone levels in a column of Earth’s atmosphere—which is about 3 mm. In lay terms, NASA describes ozone as a chemical made up of three oxygen atoms in the stratosphere, which absorb harmful ultraviolet radiation from the Sun, protecting all organic life on Earth.115 Depletion has a damaging impact on human life, increasing skin cancer, disrupting agriculture leading to crop failure, and has negative effects on marine ecosystems.116 Chief Scientist for Earth Science at NASA’s Goddard Space Flight Centre, Paul Newman, puts it succinctly: “If there 113

ibid. See https://ozone.unep.org/treaties/montreal-protocol-substances-deplete-ozone-layer/text HFC’s were phased out under the Kigali Amendment of 2016: https://www.state.gov/key-topicsoffice-of-environmental-quality-and-transboundary-issues/the-montreal-protocol-on-substancesthat-deplete-the-ozone-layer/ (Both accessed 15.08.2022). 115 See NASA: https://www.nasa.gov/feature/goddard/2020nasa-data-aids-ozone-hole-s-journeyto-recovery (Accessed 15.08.2022). 116 See US State Department: https://www.state.gov/key-topics-office-of-environmental-qualityand-transboundary-issues/the-montreal-protocol-on-substances-that-deplete-the-ozone-layer/ (Accessed 15.08.2022). 114

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were no ozone layer, the Sun would sterilize Earth’s surface”.117 NASA and the US Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) have played an important role in monitoring the ozone layer utilising satellites in the stratosphere: “What we call the “ozone hole” is a thinning of the ozone layer in the stratosphere above Antarctica. Chemically active forms of chlorine and bromine – derived from human-produced compounds – are released into the stratosphere during reactions on high-altitude polar clouds. The reactive chlorine and bromine then initiate ozone-destroying reactions as the Sun rises in the Antarctic at the end of winter.”118 The manner in which the international community addressed, and created a new global regulatory framework, to address the “hole in the ozone layer” under the Montreal Protocol, is widely considered a success. It is perhaps the only international treaty ratified by every nation, demonstrating that with the combined will of States, international governance frameworks can swiftly change behaviour in a global commons. CFCs were at that point widely used in aerosol products, air-conditioners and refrigerators. They were phased out within a matter of years, and depletion of ozone was reversed, such that the hole in the ozone layer is no longer considered to be expanding, but expected to fully recover by 2100.119 Then US President Reagan described it as a “monumental achievement” arising out of the “international consensus that ozone depletion is a global problem, both in terms of its causes and its effects”.120 It was ratified by a unanimous US Senate with bipartisan support in 1988, underlining just how partisan environmental challenges have become since.121 In 2016, the Kigali Amendment to the Montreal Protocol incorporated the phase-out of hydrofluorocarbons (HFCs) under its framework, a group of chemicals that had entered into widespread use as a replacement of CFCs and HCFCs after the Montreal Protocol ban. Although HFCs are not considered ozone-depleting, but heat-producing facilitators of climate change, the same framework of the Montreal Protocol was harnessed to achieve this goal.122 Should the burn-up of Starlink satellites introduce new ozone-depleting chemicals into the

117 ibid. Our understanding of ozone-depleting events has been enhanced by space missions to Mars, which has an atmospheric ozone-layer so thin and inconsistent, that the planet’s surface is subjected to extreme UV-radiation from the Sun, rendering surface life unlikely. 118 See NASA: https://earthobservatory.nasa.gov/images/149010/substantial-antarctic-ozone-holein-2021 (Accessed 15.08.2022). 119 See NASA: https://www.nasa.gov/feature/goddard/2020nasa-data-aids-ozone-hole-s-journeyto-recovery (Accessed 15.08.2022). 120 See US State Department: https://www.state.gov/key-topics-office-of-environmental-qualityand-transboundary-issues/the-montreal-protocol-on-substances-that-deplete-the-ozone-layer/ (Accessed 15.08.2022). 121 ibid. 122 See the Montreal Protocol: https://ozone.unep.org/treaties/montreal-protocol (Accessed 15.08.2022).

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atmosphere, environmental gains in combatting threats to the ozone layer might quickly unravel. In its application to the Federal Court of Appeal, The Balance Group made the point, that the burn-up of Starlink satellites on a constant basis would now constitute “the only human-produced source of ozone-destroying compounds injected directly into the middle and upper stratosphere”. Even small amounts trapped in the stratosphere may have a cumulative effect in modifying ozone levels. The rapid recovery of the ozone layer under the Montreal Protocol, demonstrates just how sensitive the atmosphere is to change in either positive or negative directions. In October 2021, scientists recorded a surprisingly reduced ozone concentration of only 102 Dobson units over Antarctica, the 8th-lowest level since 1986 when the Montreal Protocol was agreed, and well below the 250–300 Dobson units that it once constituted before the 1970s introduction of CFCs.123 Whether there is any connection between the rapid expansion in space-based activities in LEO in recent years, and short-term increases in the hole in the ozone layer, is just the kind of question the FCC ought to be examining under an EIA, according to the Balance Group’s application: In a single decision, the Federal Communications Commission authorized Space Exploration Holdings, LLC (“SpaceX”) to deploy more satellites in the next 15 years than have been launched, total, in all of human history—and did so without even assessing the environmental impacts of that dramatic authorization . . . Under NEPA, the Commission was required at least to consider these potential environmental harms and require an environmental assessment prior to granting SpaceX’s application.124

The opportunity arose to challenge the FCC’s prior authorisation, when SpaceX made an application to alter technical aspects of its constellations, including their altitude.125 Since it was first granted approval for the operation of the Starlink constellation, the goal-posts of the technical aspects have moved regularly, with SpaceX changing its proposed orbital ranges, frequencies, and introducing laserbased communication systems in applications to amend its licences. This staggered approach suggests SpaceX has pursued a strategy of getting its satellites into orbit as quickly as possible, and pursuing changes to functionality once in situ.126 This has clearly benefited the corporation, reducing the appetite of regulators to reconsider changes from ground-principles once infrastructure is in place. However, applications to the FCC for a change in licence conditions also allow the opportunity for new objections, which ViaSat, the direct-broadcast satellite provider Dish Network,

123

See NASA: https://earthobservatory.nasa.gov/images/149010/substantial-antarctic-ozone-holein-2021 (Accessed 15.08.2022). 124 ViaSat and the Balance Group submission to the Federal Court of Appeal: https://cdn. arstechnica.net/wp-content/uploads/2021/10/viasat.pdf p.18 (Accessed 15.08.2022). 125 ibid. 126 Rainbow J (2021) “All future Starlink satellites will have laser crosslinks” Space News 26 November 2021: https://spacenews.com/all-future-starlink-satellites-will-have-laser-crosslinks/ (Accessed 15.08.2022).

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The Balance Group, and more recently Amazon, have recognised.127 On 26 May 2020, the Balance Group submitted an objection to the FCC titled “Opposition to SpaceX Application for Major Modification; and Motion for Consultation with Affected Agencies; Motion for Disclosure; Motion for Certification of Suitably Comprehensive Insurance Coverage; Motion for Certification of Indemnity and Motion to Suspend or Revoke Licences” which, as the document title suggests, attempts to hold SpaceX responsible for a range of environmental, safety, insurance and legal obligations.128 It is this opposition that became the subject of their further application to the Court of Appeal for review of the FCC decision, focusing largely on whether it should be compelled to conduct an EIA, at least into the emerging issue of ozone depletion. The FCC opposed the application to the Court of Appeal, arguing that Courts should demonstrate deference to the agency’s decision-making, except where there has been a failure to act reasonably.129 The Court of Appeal handed down its decision as this book goes to print. In a blow to the applicants the Court did not consider the substance of the parties’ submissions, refusing to recognise the legal standing of even Viasat: “Viasat operates only a single satellite that flies close to SpaceX’s constellation . . . This theory of injury is much too speculative.”130 The Court’s decision appears oblivious to the US’s historical recognition that the most likely interference between space-based activities is electromagnetic: interference between the radio frequencies allocated to satellite communications with Earth.131 That recognition, shared by the then USSR, motivated mutual efforts to establish the Outer Space Treaties and the ITU to govern the allocation of spectrum and resolve issues of interference. Instead, the Court focused upon the number of satellites in the Viasat constellation vis a vis Starlink, concluding that Viasat’s single satellite suffering interference was insufficient to grant it standing to object to the issues emanating from SpaceX’s larger mega-constellation. Viasat described the Court of Appeal’s decision as “a setback for both space safety and environmental protection . . . (if the Court had forced the FCC to address) complicated issues surrounding deployment of mega-constellations in LEO, we believe harmful impacts that otherwise may persist for decades or centuries could have been avoided.”132

Rainbow J (2021) “Amazon calls on FCC to reject SpaceX’s revised Second Generation Starlink plan” Space News 26 August 2021: https://spacenews.com/amazon-calls-on-fcc-to-reject-spacexsrevised-second-gen-starlink-plan/ (Accessed 15.08.2022). 128 See FCC report: https://fcc.report/IBFS/SAT-MOD-20200417-00037/2379877 (Accessed 15.08.2022). 129 ibid. 130 Shephardson, D (2022) “US Court upholds SpaceX satellite deployment plan” Reuters, 26 August 2022: https://www.reuters.com/lifestyle/science/us-court-upholds-spacex-satellitedeployment-plan-2022-08-26/ (Accessed 03.09.2022). 131 Byers (2019), pp. 32–47, 35. 132 Shephardson, D (2022) “US Court upholds SpaceX satellite deployment plan” Reuters, 26 August 2022: https://www.reuters.com/lifestyle/science/us-court-upholds-spacex-satellitedeployment-plan-2022-08-26/ (Accessed 03.09.2022). 127

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The merits of Viasat and The Balance Group’s application therefore remain unconsidered, with the Court pushing the issue back to the FCC. The Balance Group responded to the Court’s decision in a statement: “It is puzzling that astronomers, many of whom are Balance Group members, (and provided evidence) that their systems are being blinded by the nascent SpaceX network, did not get their concerns heard on the merits.”133 As the decision-making power reverts to the FCC, questions remain over its impartiality in relation to regulation of SpaceX however, with the Commission awarding the company US$900 million in Federal subsidies to support the provision of Starlink services to regional US areas in 2020, creating a “vested interest”.134 Notably the FCC relies on ITU processes to validate its own, arguing that all SpaceX licences were granted subject to the approval of access to spectrum by ITU.135 As discussed in Sect. 4.2 however, Article 44(1) of the ITU Constitution states that States must “endeavour to limit the number of frequencies and the spectrum used to the minimum essential to provide in a satisfactory manner the necessary services.”136 The FCC’s failure to conduct any impact assessment at all, inhibited it from considering the question of scale and compliance with this ITU requirement. The FCC’s insistence that Starlink does not have a negative impact on ozone levels is all the weaker for not having actually conducted a due diligence or environmental assessment. The Balance Group condemned the FCC process: “Turning a blind eye to these issues is not the path for understanding . . . how to ensure safe and sustainable space operations or how to secure basic environmental protections. Once fully deployed, an entirely predictable, large-scale failure may cause inestimable damage to our economy, security and environment, and it is not clear that SpaceX is fully insured or otherwise prepared to pay for those damages.”137 Other avenues may need to be pursued. If the ozone-depleting impact of Starlink satellites suggested by the Boley and Byers research is confirmed, the Montreal Protocol offers an innovative pathway—under a proven governance framework— towards regulation of chemical emissions by satellites in LEO. It would enable the regulation of small satellites and mega-constellations in this low orbital range, without undermining regulatory regimes already in place, such as the ITU’s GEO allocations. Satellites in higher orbit such as GEO are generally disposed of by propelling them upwards into the “orbital graveyard”, such that their environmental impact on Earth’s atmosphere is lower, or inconsequential (notwithstanding that it remains an unsustainable debris issue). Article 2(9)(a)(i) and Article 6 of the 133 Statement issued by The Balance Group, 26 August 2022: https://www.thebalancegroup.net/ uploads/7/0/4/2/7042138/balance_august_26_2022_statement_final.pdf (Accessed 03.09.2022). 134 https://www.cnbc.com/2020/12/07/spacex-starlink-wins-nearly-900-million-in-fcc-subsidiesauction.html (Accessed 15.08.2022). 135 Brodkin J (2021) “FCC defends Starlink approval as Viasat, Dish urge court to block SpaceX licence” Arstechnica 28 October 2021: https://arstechnica.com/tech-policy/2021/10/dont-let-viasatand-dish-block-spacex-starlink-approval-fcc-tells-court/ (Accessed 15.08.2022). 136 Constitution and Convention of the International Telecommunication Union, Art. 44 (ITU Constitution) 1992. 137 ibid.

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Montreal Protocol allow for future adjustments and additions of “ozone depleting potentials” to its lists of controlled substances.138 Proposals for adjustments may be made to the Secretariat of the Montreal Protocol 6 months before its annual meeting, at which adoption by consensus—or as a last resort with two-thirds majority support—by nations of the world is possible.139 A faster process exists under US national laws’ implementation of the Montreal Protocol. The Clean Air Act, provides for the enforcement of obligations and responsibilities falling to nations under the Protocol in order to control ozonedepleting substances emitted by US activities and protect the ozone layer.140 It requires the EPA develop and implement regulations for managing ozone-depleting substances at a national level,141 essentially mirroring the Montreal Protocol’s schedules of controlled substances. Arguably it goes further in advocating for the development of safe alternatives to all ozone-depleting substances and provides a process for the addition of substances to its provisions by way of petition of the EPA, as Administrator of the Clean Air Act.142 This offers a faster avenue to assess and add substances identified by new scientific research, and can be initiated by any person.143 The EPA has further discretion: If, in the Administrator’s judgment, any substance, practice, process, or activity may reasonably be anticipated to affect the stratosphere, especially ozone in the stratosphere, and such effect may reasonably be anticipated to endanger public health or welfare, the Administrator shall promptly promulgate regulations respecting the control of such substance, practice, process, or activity, and shall submit notice of the proposal and promulgation of such regulation to the Congress.144

We see reinforcement of the precautionary principle here once again, in the necessary threshold of “may reasonably be anticipated to affect the stratosphere” and the risk being assessed in terms of “may reasonably be anticipated to endanger public health or welfare”. The section is also significant for it not only captures risks from 138 See the Montreal Protocol: https://ozone.unep.org/treaties/montreal-protocol/articles/article-6assessment-and-review-control-measures (Accessed 15.08.2022). 139 https://ozone.unep.org/treaties/montreal-protocol/articles/article-2-control-measures (Accessed 15.08.2022). 140 See US Environmental Protection Agency: https://www.epa.gov/clean-air-act-overview (Accessed 15.08.2022). 141 https://www.epa.gov/ozone-layer-protection/ozone-protection-under-title-vi-clean-air-act (Accessed 15.08.2022). 142 Under section 612 (§7671k US Code) Safe Alternative Policies. 143 612 Safe Alternative Policies states: “Any person may petition the Administrator to add a substance to the lists . . . The Administrator shall grant or deny the petition within 90 days after receipt of any such petition. If the Administrator denies the petition, the Administrator shall publish an explanation of why the petition was denied. If the Administrator grants such petition the Administrator shall publish such revised list within 6 months thereafter. Any petition under this subsection shall include a showing by the petitioner that there are data on the substance adequate to support the petition”: https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/ USCODE-2013-title42-chap85-subchapVI-sec7671k.htm (Accessed 15.08.2022). 144 Under Section 615 (US Code §7671n) Authority of Administrator.

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substances, but any “practice, process, or activity”. The end-of-life re-entry and burn-up of Starlink satellites falls within that category. National regulatory frameworks like EPA offer an avenue for instigation of risk assessments—whether they be health, safety, or environmental—by parties concerned about the impact of megaconstellations.145 As the ViaSat and Balance Group submission to US Court of Appeal makes clear, their objective is to ensure that the process of environmental assessment is complied with. The application makes similar arguments in relation to safety standards and insurance, which have become all the more important as SpaceX confirmed reports of Starlink satellites “falling out of orbit”. In early 2022 an entire tranche of the Starlink constellation unexpectedly deorbited, burning up in the atmosphere.146 It highlights their susceptibility to uncontrolled deorbits, and the risk of collision. A further opportunity to bring these issues to the attention of the FCC arose, when SpaceX applied for authorisation of modifications of 30,000 next generation satellites, known as Gen2, proposing to alter their orbital ranges from the original proposal. The Balance Group made a formal objection to the FCC on 8 February 2022, and this time its hand was strengthened by NASA’s own comments, formally incorporated into a submission by the US agency, the National Telecommunications and Information Administration (NTIA), which highlighted the extent to which Starlink will interfere with space missions and scientific research, and increase collision risk.147 In these submissions, both The Balance Group and Viasat continue to call for an EIA, and an orbital debris mitigation plan, invoking US obligations under the UN Space Debris Mitigation Guidelines.148 Like NASA, the Administrator of the EPA is a political position, with new appointments made by each incoming President. President Biden’s nominee, Michael S. Regan was sworn in as the new head of EPA in early 2021, bringing with him a history of tackling climate change and air pollution.149 A year into his administration he has demonstrated a preparedness to address ground-level ozone emissions with a forthcoming revision of standards under the Clean Air Act, something that had not been updated in the last decade.150

145

See US EPA: https://www.epa.gov/risk (Accessed 15.08.2022). SpaceX public statement dated 8 February 2022, in which it blamed a geomagnetic storm on the unexpected and uncontrolled deorbit: https://www.spacex.com/updates/ (Accessed 15.08.2022). 147 These filings are publicly accessible on the FCC data-base: both NTIA, The Balance Group, and other operators, made formal objections on 8 February 2022: http://licensing.fcc.gov/cgi-bin/ws. exe/prod/ib/forms/reports/related_filing.hts?f_key=-471532&f_number=SATAMD2021081 800105 (Accessed 15.08.2022). 148 Jewett R for ViaSat (2022) “NASA, Amazon, Satellite Operators Take Issue with SpaceX Starlink Gen-2 in FCC Filings” Satellite Today 10 February 2022: https://www.satellitetoday. com/broadband/2022/02/10/nasa-amazon-satellite-operators-take-issue-with-spacex-starlink-gen2-in-fcc-filings/ (Accessed 15.08.2022). 149 https://www.epa.gov/newsreleases/michael-s-regan-sworn-16th-epa-administrator (Accessed 15.08.2022). 150 https://www.epa.gov/newsreleases/epa-reexamine-health-standards-harmful-soot-previousadministration-left-unchanged (Accessed 15.08.2022). 146

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Could the recent paper by Boley and Byers represent an opportunity to assess the impact of mega-constellations on the ozone layer? “Part of our strategy is to get that kind of research and information into the hands of decision-makers, into the agencies, into the Courts, and even into Congress,” says James Turner, an attorney specialised in regulation of food, drug, health, environment and product-safety in Washington DC, and a founding member of The Balance Group, which instigated the case against SpaceX. “Decision-makers rarely have the bandwidth to access, or know, all relevant information. By getting scientific research, like that on the ozone-depleting effect of end-of-life processes of Starlink satellites, before decision-makers in the EPA, the FDA and the FCC, we can embark upon a process that has to follow certain rules. If we hold those agencies to account based upon their own rules, and ensure they do not circumvent them, this process will generally generate a pretty good outcome. That is the theory behind our strategy.”151 If SpaceX plans to turn its Starlink satellites over in 5 year operational life-cycles, with the process of re-entry and burn-up taking approximately 6 months, Boley and Byers estimate that on average 2 tonnes of Starlink satellite material will be re-entering Earth’s atmosphere on a daily basis. The material does not disappear, but is deposited in the atmosphere in particle form: Depending on the atmospheric residence time of material from re-entered satellites, each mega-constellation will produce fine particulates that could greatly exceed natural forms of high-altitude atmospheric aluminum deposition.152

The potential alteration of ozone in the upper atmosphere reinforces the view that space—or at the very least the Earth’s atmosphere and upper reaches of its stratosphere—must be considered a “global commons”, or (in the language of the US State Department) a “common domain”. The deleterious effects of one operator’s disproportionate use of the common have negative consequences that must be borne by all. If the initial identification of the ozone-depleting impact of Starlink’s end-oflife model is borne out in subsequent scientific data, the FCC’s failure to conduct an EIA looks extremely reckless. Further, the FCC issued new rules for satellite operators in LEO on 29 September 2022, requiring the deorbit and burn-up of all satellites within 5 years of launch, effectively aligning its rules with Starlink’s design.153 Introduced ostensibly to address the growing problem of space debris in LEO, the new end-of-life rule might actually accelerate the release of ozonedepleting chemicals directly into Earth’s atmosphere. Once again, the FCC introduced the new rule without conducting any environmental impact assessment process. Despite much cheering within the space community, it is difficult to imagine a less considered policy. 151

Interview conducted by the author with James Turner in November 2021. Boley and Byers (2021). 153 See the FCC’s media release “FCC Adopts New ‘5-Year Rule’ For Deorbiting Satellites To Address Growing Risk Of Orbital Debris” 29 September 2022: https://www.fcc.gov/document/fccadopts-new-5-year-rule-deorbiting-satellites (Accessed 30.09.2022). 152

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These developments highlight just how quickly New Space companies like SpaceX are moving from concept to launch, and how little consideration is being given to the long-term consequences. The FCC’s sister agency, the Federal Aviation Authority (FAA), responsible for the authorisation and supervision of launch licences, routinely undertakes EIAs in relation to launch applications, as it has of SpaceX’s proposed launch of its Starship.154 The FAA’s environmental review is however confined to the impact of launch, assessing the environmental consequences of soot and debris that are discarded during any rocket launch. The agency has to regularly face down accusations that it is delaying commercial enterprise with such assessments.155 Like all disruptive technology companies during the last decade, SpaceX’s advantage lies in outpacing regulatory agencies and the capacity of legislators to introduce new regulatory processes. Dr. Josef Aschbacher, the Director-General of the European Space Agency (ESA), recently flirted with the agency taking a position on mega-constellations, emphasising the difficulty for regulators caught playing “catch up”: “You have one person owning half of the active satellites in the world. That’s quite amazing. De facto, he (SpaceX CEO Elon Musk) is making the rules. The rest of the world including Europe . . . is just not responding quick enough.” The potential for just one company to unravel decades of work in addressing the hole in the ozone layer, and the serious geopolitical ramifications this would entail, ought to be sufficient justification for a thorough review of its environmental impact. Viasat is clearly pursuing a competitive regulatory strategy, seeking to hold a new market entrant to the same rules with which incumbent satellite operators have had to comply. However, in this case commercial interests align with those of astronomy. There was a unique opportunity for astronomers to join forces in this legal process before the Court of Appeal, and in future cases, by making an application to be heard by the Court under the auspices of an Amicus Brief. This is an ancillary application by a party that has standing to be heard by a US Court as an Expert Witness on matters the Court is considering. As a more neutral role, in which a US observatory or the American Astronomical Society (AAS) would not become a party to the legal action, but present themselves as a witness in which their duty is to assist the Court with expert knowledge. That might be more palatable to astronomers, given their reluctance to directly challenge the commercial New Space companies, and is something US astronomers should consider. For a hesitant profession it could be a first step towards a more active defence of its interests, offering insight into what regulatory strategy can achieve.

Foust J (2021) “FAA delays completion of Starship environmental review” Space News 28 December 2021: https://spacenews.com/faa-delays-completion-of-starship-environmentalreview/ (Accessed 15.08.2022). 155 ibid. 154

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It is clear that we now stand on a precipice, with satellite constellations serving as pawns in a high-risk geopolitical game.156 The escalation of the war in Ukraine in 2022 has isolated Russian scientists, with space missions between Western partners and Russia being suspended for the first time in history.157 In an unprecedented intervention, SpaceX CEO Elon Musk blocked access to Starlink services by Ukrainian forces on the Crimean front-line at a crucial moment in their efforts to regain control of Ukrainian territory in October 2022. Regardless of whether Musk hoped to avert nuclear escalation or pressure the US DoD to fund the service, his intentional disruption of Ukrainian military communications to the advantage of Russia is an extraordinary development. Never before has a private individual exerted such consequential influence in war. Just how dangerous might corporate interests in outer space become, if CEOs see themselves as rivals to States? Recent Russian and Chinese weapon tests in outer space, signal their preparedness to develop first-strike capabilities on superior Western satellite systems. The Chinese 2021 ASAT test raises particular concerns, because rather than a Hypersonic or Suborbital weapon as much of the media reported, it utilised a Fractional Orbital Bombardment System (FOBS) weapon, capable of entering into orbit and remaining there until deployed towards its target. The Deputy Chief of Space Operations for Operations, Cyber, and Nuclear, United States Space Force Lt. Gen. B. Chance Saltzman, described this “forward-edge technology” as very concerning as it is capable of evading traditional anti-ballistic missile defences.158 If fitted with a nuclear warhead, it would effectively allow the deployment of nuclear weapons in outer space. Although historically both US and Soviet administrations considered FOB systems compatible with the OST, because the weapons do not enter fully into orbit, there is the sense that we are now entering a grey area. The re-emergence of FOB systems, which the Chinese reportedly combined with a hypersonic glide body, resonates with the atomic tensions of the Cold War. The OST does not prohibit such weapon-testing in space, only the deployment of weapons of mass destruction, highlighting the fact that new disarmament agreements must be contemplated. In a recent address to the Washington-based Mitchell Institute for

Erwin S (2021) “Space Force Official: satellites in orbit have become pawns in geopolitical chess games” Space News 29 November 2021: https://spacenews.com/space-force-official-satellites-inorbit-have-become-pawns-in-geopolitical-chess-games/ (Accessed 15.08.2022). 157 As discussed in Chap. 2, USSR-US cooperation in outer space continued during the Cold War, surviving multiple crises. On recent developments as a result of Russia’s escalation of its war with Ukraine, see: Overbye D (2022) “Russian Scientists Face Isolation Following Invasion of Ukraine” The New York Times 12 March 2022: https://www.nytimes.com/2022/03/12/science/physics-cernrussia.html (Accessed 15.08.2022). 158 Online interview and forum on 30 November 2021: https://mitchellaerospacepower.org/event/ spacepower-forum-lt-gen-b-chance-saltzman/ and viewable at: https://youtu.be/fgcvonch68I (Accessed 15.08.2022). 156

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Aerospace Studies, Lt. Gen. Saltzman recognised that the current contest in outer space, will require more than technological solutions to address it: I think what we’re seeing is a cycle of history. When you are behind, you look for ways to seek vulnerabilities in your competitors so that you can regain your advantage. And we’re seeing that play out . . . If it is the Wild West out there in space, it’s hard to hold people responsible for any kind of behavior, because you haven’t really defined what’s acceptable and what’s not acceptable. I don’t think we should under-estimate how important setting the framework for what responsible behavior in space looks like. Once we set that framework, we can hold other nations accountable in a broader sense, through maybe the United Nations or through other international coalitions. And I think that international peer pressure is actually pretty valuable. Once we establish those norms of behavior . . . we can hold people responsible.159

Scientists, including astronomers, ought to see themselves as critical stakeholders in the establishment of such frameworks, even where there is an emphasis on security and defence. It would be a mistake to be distracted by academic concepts of whether outer space is res communis, an international space, a global commons, or a common domain. Outer space ought to be primarily viewed as a domain in which there are common interests. A focus on interests over categorisation of the domain itself, invites stakeholders into the tent, creating alignment even where there might be divergent interests. The historical development of the Antarctic Treaty remains a model in this regard. Although then US President Eisenhower was focused primarily on his proposed framework as the first nuclear-arms agreement, it was the “common interests” in science that focused international stakeholders on a common goal. The US established an initial framework among those nations with a claim of sovereignty over Antarctica, but it was the alignment of international scientists in both the US and USSR, that assisted the Soviet Union in seeing the proposal as more than an “espionage plot”.160 In parallel to Eisenhower’s overtures, the International Council of Scientific Unions (ICSU) of which both US and USSR scientists were members, established the first International Geophysical Year (IGY) in 1957/8—a conference focused upon establishing new means of measuring aspects of Earth systems, identifying research that could be undertaken in Antarctica, and recommending the development of satellites to measure and monitor Earth’s upper atmosphere. It is recognised as one of the most important developments in the modern diplomacy of science, and credit is due because it subsequently led to the identification of global warming and climate change on Earth.161 Too little attention has been given to what the diplomacy of science means in Europe. The challenge European institutions in particular face, is to “envision a science-policy process that will operate over decades and centuries”.162 There is no European Commissioner responsible for Science.163 Nor is there for outer space, 159

ibid. Berkman (2011). 161 ibid. 162 ibid. 163 See the European Commission: https://ec.europa.eu/commission/commissioners/2019-2024_en (Accessed 15.08.2022). 160

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although the Commissioner for the Internal Market, has responsibility for defence industry and outer space programmes.164 The Executive branch of the EU is served by a Commissioner for the European Green Deal, and Commissioners for Digital Economy, Research & Innovation, and Environment, Oceans and Fisheries,165 with functions overlapping with programmes in outer space. But no European Commissioner has a mandate in respect of outward-facing science, because the European Commission itself is neutered by the resistance of Member States to the implementation of an EU foreign policy, which Article 2(4) of the Treaty on European Union (TEU) nonetheless provides for. The capacity to ensure alignment between science and international relations at the European level is therefore limited. This must be overcome, if agencies like the European Union’s Agency for the Space Programme (EUSPA), ESA and the European Southern Observatory (ESO), are to operate as cohesive stakeholders in European scientific research, space missions, and astronomy. The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), which sets out the principles, institutions and governance of a united Europe, treat scientific research and activities in outer space as shared competencies.166 Nonetheless, competition issues fall within the exclusive competence of the Commission.167 With growing concerns about the implication of importation of monopolies into the EU single market, the Commission will inevitably have to face the issue of how services like Starlink and OneWeb might undermine European economic competitiveness. A European Space Policy is provided for in Article 189 TFEU, in which the promotion of science and industrial competitiveness are contemplated.168 In December 2021, the British regulator OfCom, announced it would introduce competition analysis into spectrum licensing procedures. This is to be welcomed, but Ofcom’s focus remains on competition between operators, rather than competition between activities, so the impact on astronomy was not within the scope of its review of regulatory processes.169 Since Germany’s initial allocation of spectrum to support the delivery of Starlink broadband in Germany in 2020,170 Dr. Aschbacher, the Director-General of ESA,

164

https://ec.europa.eu/info/departments/defence-industry-and-space_en (Accessed 15.08.2022). https://ec.europa.eu/commission/commissioners/2019-2024_en#bootstrap-fieldgroup-nav-item %2D%2Dcommissioners-group%2D%2D2 (Accessed 15.08.2022). 166 Article 4(3) TEU: “In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.” 167 Article 3 TEU. 168 Article 189 TFEU states: “To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European Space Policy.” 169 See the British regulator OfCom: https://www.ofcom.org.uk/__data/assets/pdf_file/0018/22 9311/statement-ngso-licensing.pdf and for comment on relationship between this review and astronomy, see Annex. 2: https://www.ofcom.org.uk/__data/assets/pdf_file/0025/229309/ annexes-statement-ngso-licensing.pdf (Both accessed 15.08.2022). 170 See the German Federal Telecommunications Agency: https://www.bundesnetzagentur.de/ SharedDocs/Pressemitteilungen/EN/2020/20201218_Starlink.html (Accessed 15.08.2022). 165

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told the Financial Times that Europe’s readiness to support the rapid expansion of Starlink risked hindering the region’s own companies from realising the potential of commercial space. “Space will be much more restrictive (in terms of) frequencies and orbital slots,” he said. “The governments of Europe collectively should have an interest to . . . give European providers equal opportunities to play on a fair market.”171 This comes as the way is cleared for the US Federal Trade Commission (FTC), responsible for anti-trust in the US, to begin breaking up the global companies now constituted under Mark Zuckerberg’s Meta Platforms: Facebook, Instagram, and WhatsApp.172 Further, Dr. Aschbacher recognises the enabling role that regulators inevitably play, and the challenge this represents to Europe: “US regulators, as part of a national government, are interested in developing not only the economy, but also (the) dominance of certain economic sectors. This is happening . . . very, very, very, very clearly. And very strongly.”173 Michel Azibert, Deputy Chief Executive of Eutelsat, a French public company that operates 36 satellites in GEO and became a major shareholder in OneWeb during 2021, echoes those concerns. He sees the FCC positioning itself as the world’s quasi-regulator of spectrum, side-lining the international governance of the ITU: “From an economic standpoint, an over-capacity standpoint, these extreme filings do not make any sense. I do not see the ITU being extremely proactive on that. I see the (US’s) Federal Communications Commission (FCC) starting something like they are the world’s regulator on licensing spectrum in LEO and Non-Geostationary Orbit (NGSO) in general. We should not be captured by the hype and say the more constellations the better for mankind, because it’s not true. It is the contrary, in my opinion.”174 No European stakeholder is yet to draw attention to just how the competitive advantage that European institutions hold in relation to science and astronomy will be affected by mega-constellations. Horizon Europe—the successor to the Horizon2020 scientific funding programme under the auspices of the Commission—is integral to the maintenance of European advantage in this sector. Competition between European and US astronomy continues to play an important role in the development of their respective policies, as noted in Sect. 2.4 of this book. US

FT Staff writers (2021) “Elon Musk being allowed to ‘make the rules’ in space, ESA chief warns” Financial Times 5 December 2021: https://www.ft.com/content/7d561078-37c7-4902-a0 94-637b81a26241 (Accessed 15.08.2022). 172 Milmo D (2022) “Lawsuit aiming to break up Facebook group Meta can go ahead, US court rules” The Guardian 12 January 2022 https://www.theguardian.com/technology/2022/jan/12/ lawsuit-aiming-to-break-up-facebook-group-meta-can-go-ahead-us-court-rules (Accessed 15.08.2022). 173 FT Staff writers (2021) “Elon Musk being allowed to ‘make the rules’ in space, ESA chief warns“ Financial Times 5 December 2021: https://www.ft.com/content/7d561078-37c7-4902-a0 94-637b81a26241 (Accessed 15.08.2022). 174 Foust J (2021) “Satellite operators criticize extreme mega-constellation filings” Space News 14 December 2021: https://spacenews.com/satellite-operators-criticize-extreme-megaconstellationfilings/ (Accessed 15.08.2022). 171

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Congress approved the funding of the Thirty Meter Telescope (TMT), the Giant Magellan Telescope at the Vera C. Rubin Observatory in Chile,175 and the recently launched James Webb telescope, on the basis that dominion over the skies should not be ceded to Europe.176 It would be a mistake to assume that the interests of European and US astronomers are necessarily shared. The views of US astronomers during the mega-constellation debate have primarily been channeled via Connie Walker, Co-Chair of the IAU’s working groups SATCON and Dark & Quiet Skies, and a scientist at the US National Science Foundation’s (NSF) NOIRLab. US observatories have been notably hesitant towards the pursuit of regulatory objections at the FCC, even though they have legal standing to do so. Their dependency on federal government funding, and the uncomfortable fact that interference stems primarily from constellations launched by US companies, potentially puts their interests in conflict with the astronomers of other nations, when they stand in the way of more affirmative action. In recent years the EU has pursued a strategy of independence from US spacebased infrastructure, establishing the €10-billion-plus Galileo GNSS system to support independence from US GPS, and Copernicus’s Earth Observation services. There is recognition that Europe must be prepared to pursue its own security and defence independent of non-European actors. On 15 February 2022, the EU Internal Market Commissioner, Thierry Breton, announced details of the Commission’s plan to develop a quantum-based constellation to rival Starlink and OneWeb, and provide the EU with a “sovereign network” that can be utilised for civilian, government and military purposes.177 The proposed €6 billion “space-based secure connectivity“ project, now named IRIS2, is envisioned as a “multi-orbit” constellation, harnessing existing capacity in MEO and GEO, such as the GovSatCom satellites. Importantly, Commissioner Breton said the project will likely include approximately 100 new satellites in LEO, which together with the interoperability of systems already in place, will be capable of delivering broadband connectivity to the whole of Europe, Africa, and the Indo-Pacific region. Given the precautionary principle is imbedded in the functioning of the European Commission, it is expected that comprehensive due diligence and impact assessment will be undertaken. The European Commission’s low-impact plans for just 100 satellites in LEO ought to bring the question of “necessity” of the scale of US mega-constellations into

175

The issues associated with the construction of these telescopes in Hawaii are discussed in Chap. 3. 176 Overbye, D (2020) “American Astronomy’s Future Goes on Trial in Washington” The New York Times, 13 March 2020: https://www.nytimes.com/2020/03/13/science/telescopes-decadal-surveyhawaii.html (Accessed 15.08.2022). 177 See the European Commission’s Media Release of 15 February 2022: https://ec.europa.eu/ commission/presscorner/detail/en/IP_22_921. https://ec.europa.eu/info/sites/default/files/com_2022_60_1_en_act_contribution_european_ defence.pdf. And the Explanatory memorandum: https://ec.europa.eu/info/sites/default/files/proposal_regula tion_union_secure_connectivity_programmeme.pdf (All accessed 15.08.2022).

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sharp relief. As discussed in Chap. 4, and in Sect. 5.2, the precautionary principle and due diligence, require consideration of whether there are better options. Proportionality calls for the weighing-up of costs versus benefits: an assessment of the “relationship of means and end, seeking least intrusive measures”.178 This process of balancing competing interests is well understood as customary international law, what some public international jurists term “strict proportionality”.179 The US Tech Giants’ blanketing of LEO with tens-of-thousands of satellites might therefore be considered disproportionate and lacking in necessity, given superior quantum-based services can be delivered to all of Europe, Africa and the Pacific by less intrusive means, utilising just 100 new satellites in LEO and existing infrastructure. It seems likely the disproportionate scale of the mega-constellations is not actually required for global coverage as often claimed, but is an attempt to minimise latency and monopolise the applicable spectrum.180 Commissioner Breton described the Commission’s alternative constellation as “a game changer”.181 The Commission released an initial impact assessment conducted during the feasibility stage, including cost-benefit analysis, which highlights that a policy of European “digital sovereignty” will ensure its constellations are “designed and operated in a sustainable manner, in line with the existing standards on the protection of the space environment”.182 With the project of work aligned with the EU’s Green Deal, the Commission also made clear that energy use will be given high consideration.183 What gives some reason for optimism, is that the Commission has committed to complying with international law and standards relating to the protection of the space environment, the UN Space Debris Guidelines, national space laws such as the French LOI n° 2008-518 relative aux opérations spatiales, and EU environmental regulations, including those relating to chemical use and hazardous waste.184 An argument might be made for the exclusion of foreign operators of megaconstellations from providing services in Europe, where their constellations do not

178

Cottier et al. (2017), p. 628. ibid. 180 Staff Writers (2020) “Strings of pearls in the night sky - the Starlink satellite project” Space Daily 18 May 2020 https://www.spacedaily.com/reports/Strings_of_pearls_in_the_night_sky___ the_Starlink_satellite_project_999.html (Accessed 15.08.2022). 181 The author attended the press conference with Commissioner Breton on 15 February 2022, where Commissioner Breton said: “This is a Galileo Moment, a game-changer”. 182 See p.3 of the European Commission’s Impact Assessment of the proposal: https://ec.europa.eu/ info/sites/default/files/impact_assessment_union_secure_connectivity_programme.pdf Accessed 15.08.2022). 183 id see section 6.3 Environmental Impacts. 184 id section 6.3.1 which notes the EU’s constellation will be subject to compliance with REACH regulations and the EU Directive on Hazardous Waste. For REACH see https://echa.europa.eu/ regulations/reach/understanding-reach: Regulation (EC) No 1907/2006 Of The European Parliament And Of The Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, and Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (Accessed 15.08.2022). 179

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meet the same standards.185 If the Commission is serious about establishing a “level playing-field” for European providers, it must ensure all operators comply with these obligations. Commissioner Breton has indicated he is describing both outer space and cyberspace as “disputed areas . . . in which we (the Commission) have a duty to act.”186 Interestingly, the Commission’s initial impact assessment makes no mention of interference with astronomy. European astronomers should bring this to the Commission’s attention and secure commitments to a future assessment process that ensures the risks to astronomy are considered. There is now a real opportunity to align the interests of science with the Commission’s goal of European digital sovereignty in space-based infrastructure. There is no sign yet however, that European astronomers are prepared to pursue an agenda that diverges from their US colleagues. Even in the wake of the ineffectiveness of IAU strategy on display at UNCOPUOS in 2021 and 2022, ESO remains deferential. Dr. Andrew Williams, 187 who responded to questions on behalf of ESO Director-General, Professor Xavier Barcons, confirmed this ongoing commitment: ESO is an intergovernmental organisation and has no competence . . . on regulatory matters that pertain to its member States or other countries. Therefore, we cannot issue statements calling for a moratorium on the further launch of mega-constellations. . . . We remain committed to supporting national groups and the IAU as they raise the issue with national authorities and at the UNCOPUOS, and engage in consultation with industry.

Further, ESO like the IAU, has signaled its expectation of government funding in order to adapt its activities to interference from Starlink and other megaconstellations. In its UNCOPUOS Conference Room Paper, the IAU called for funding for further research on the nature of interference and mitigation measures it might undertake to minimise the impact on astronomy: At the forefront, these financial impacts will include increased overheads in terms of additional observing time and science losses. This includes providing specific vehicles to fund the development of software and hardware mitigations, additional telescopes, and technology developments in detectors and receivers. It also involves taking steps to evaluate, formalise and report to governments the overall impacts on science research and capital

185 The EU regulations governing chemical-use seek to restrict animal-testing to circumstances of “last resort”, containing prohibitions where thresholds of necessity are not met. This in itself might be something that Elon Musk’s group of companies find difficult to comply with, given his company Neuralink’s experiments on monkeys as a pathway to integrating micro-chip technology with human neurology is currently being investigated for claims of breaching US animal welfare regulations: Hamilton I (2022) “Animal Groups says monkeys used in experiments for Elon Musk’s Neuralink were subjected to extreme suffering” Business Insider 10 February 2022: https://www. businessinsider.com/elon-musk-neuralink-experiments-monkeys-extreme-suffering-animal-rightsgroup-2022-2 (Accessed 15.08.2022). 186 Comments made at the press conference by Commissioner Breton on 15 February 2022. 187 Dr. Andrew Williams is External Relations Officer, in the Executive Office of the Director General, ESO, response to questions put to the Director General, ESO June 2021.

5.5

Reinvigorating the Diplomacy of Science in Europe

117

investments. Additionally, financial incentives are required to encourage consultation and collaboration between the space industry, observatories, and the astronomy community.188

Why should Europeans foot the bill for the economic impact of interference stemming directly from US activities in outer space? The IAU call for governments to provide “financial incentives for industry” to engage in consultations with astronomers, demonstrates just how lost the obligations of OST, and the principles of due regard and polluter-pays, have become. Why should European taxpayers provide financial incentives to corporations like SpaceX to engage in consultations with the very stakeholders impacted by interference caused by its activities? Article IX OST already treats consultation between States as an obligation where there is interference. It should not require financial subsidy by the State. Science diplomacy offers ESO leadership the opportunity to transform this thinking. Few European intergovernmental organisations have access to as many sympathetic national delegations as ESO, and the capacity to influence outcomes. The membership of non-EU member Chile, where ESO’s observatories are located, provides a bridge to the international community. These qualities meet all of the criteria for the successful harnessing of the diplomacy of science: linking foreign policy with science and technology, building bridges into communities of experts, and offering the opportunity to transform those relationships.189 As an organisation, independent from the European Commission, but nonetheless in close dialogue, it is in a unique position to chart a course that promotes the competitive advantage of European science and astronomy, and defend those interests from the intrusion of mega-constellations. During the last decade the Commission has repeatedly called for closer cooperation between EU Member States at the level of foreign relations and external science policy, but there is little to show for it outside of diplomacy initiatives like those implemented by the European Organisation for Nuclear Research (CERN).190 Like ESO it is an intergovernmental organisation, such that learnings from that programme might offer astronomers a model. The concept of “Science Diplomacy” is perhaps more comfortably used as a catch-all phrase in the Anglo-sphere, developing out of experiences in international governance frameworks like those created under the Antarctica Treaty and the Montreal Protocol. The British Royal Society and the American Association for the Advancement of Science published a joint report in 2010, attempting to define science diplomacy in several ways:191 Science in diplomacy refers to scientific advice and science-based counsel to foreign services.

188

UNCOPUOS Conference Room Paper (CRP) A/AC.105/C.1/2021/CRP.17 paragraph 29: https://www.unoosa.org/oosa/oosadoc/data/documents/2021/aac.105c.12021crp/aac.105c.12021 crp.17_0.html (Accessed 15.08.2022). 189 Lord and Turekian (2007); Rüffin (2020). 190 Rüffin (2020), p. 1. 191 Royal Society (2010) and discussed in Rüffin (2020), p. 2.

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Diplomacy for science embraces foreign policy activities to facilitate international scientific collaboration, the exchange of researchers, and the promotion of domestic innovation. Science for diplomacy pursues collaborative scientific activities that foster interState relations. Clearly the diplomacy of science can mean different things to different actors in differing circumstances, however what is important is the manner in which it might allow for the consideration of a broader array of geopolitical factors in the formulation of scientific policy. Then European Commissioner for Research, Science and Innovation, Carlos Moeda, emphasised the potential benefits of the soft power inherent to science, in advancing the EU’s external relations in 2014.192 As tensions continue between EU Member States, among NATO members, with Russia in the theatres of Ukraine, Belarus and Syria, and the EU straddles its desire to have productive relationships with both the US and China, the diplomacy of science offers a valuable tool in striving for frameworks that stabilise relationships and support peace.

5.6

Temperance as a Balancing Act

The concept of temperance finds support in the shape of “balancing” in the field of international relations. “Balance of power,” Professor Jonathan Holslag of Vrije Universiteit in Brussels writes, “is to International Relations what checks and balances are to domestic politics: preventing tyranny and violence from becoming the only option to overcome it . . . Balancing is the prevention of domination by another State.”193 Consistent with Goehring’s analysis, Holslag considers balancing in two domains, those of economics and security, with the geopolitical power of the US and a rising China at the centre of his analysis. He makes the point—and its application to an assessment of US-Chinese relations in outer space here is timely— that the US’s inconsistency of engagement with China, has led to inconsistent balancing. The West courted China during the Cold War as a potential ally in balancing the power of the USSR, and hoped that economic engagement with China would lead to political reform.194 The US and the EU decoupled trade and commerce from discussions of human rights, on the basis that China might grow into its power, and exercise it more humanely. Instead China grew more assertive. As President Obama pivoted US security policy towards Asia—largely justified as a necessary balancing in the Pacific region—China saw an America determined to put obstacles in its path as it becomes a regional and global power.

192

Rüffin (2020), p. 2. Holslag (2021), pp. 139–140. 194 Holslag (2021), p. 141. 193

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Similarly, China perceives of a US that seeks to hinder its ambitions in outer space. The US Wolf Amendment—an amendment to Congressional approval of NASA budgets which prohibits cooperation with China on human spaceflight— combined with the exclusion of China from the International Space Station (ISS) and the future Lunar Gateway, and attempts to prevent Huawei from building Western 5G infrastructure, have not altered China’s trajectory, but propelled it into the role of rival. Former NASA Administrator, Charles Bolden Jr, told a Secure World Foundation (SWF) audience on 9 December 2021, that his concern at the time the Wolf Amendment was introduced, was that a policy of exclusion would simply encourage China to “go it alone”, positioning itself to attract US partners in space.195 This, he noted, is exactly what has occurred over the last decade. Far from neutering Chinese ambitions in outer space, China fast-tracked its programme to establish its own space station and advance Chinese human space-flight, leaving the US “on the outside looking in”. In any event, many NASA programmes desiring cooperation with Chinese scientists, found ways to circumvent restrictions, sending mixed messages to Beijing on how Washington harnesses soft power. Whether it was the Wolf Amendment, the international pressure placed on allies to abandon cooperation with Chinese telecommunications companies, or the race to balance Chinese 5G capabilities with the rapid deployment of commercial megaconstellations, these late and ill-considered attempts to counter China’s rising influence, were treated as little more than bumps in the road by China, and ones that it has overcome. Inconsistency has seen a dramatic decline in US-credibility, not only in Beijing, but among European allies.196 Grandstanding, where it is not matched by trade policies or military capabilities, poses a risk to international relations between Western allies.197 In the wake of Western defeat in Afghanistan, it increasingly renders American threats impotent. Few nations have an exemplary history enabling them to lecture the international community without risk of contradiction or hypocrisy. Even in the face of the highly concerning testing of ASAT weapons during recent years, first by India on the eve of a national election, and more recently by China and Russia, it is to the West’s peril when it forgets atmospheric nuclear weapon tests were undertaken by the US during the 1960s, and the French terrestrial tests in the Pacific continued right up until 1996. The US’s Starfish Prime atmospheric nuclear test in 1962 followed escalation in tensions with the USSR after the latter resumed nuclear tests in contravention of the moratorium that had been agreed between the two Super Powers. Like French tests, the US Starfish Prime nuclear weapon was launched from the Pacific, a region in which China considers it has special interests and has long objected to the militarised presence of other “imperial powers”. The high-altitude nuclear warhead detonated in

195

Secure World Foundation Panel discussion: 10 Years of the Wolf Amendment: Assessing Effects and Outcomes 9 December 2021: https://swfound.org/events/2021/10-years-of-the-wolf-amend ment-assessing-effects-and-outcomes (Accessed 15.08.2022). 196 Holslag (2021), p. 145. 197 Holslag (2021), p. 153.

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outer space, emitted a pulse of electrons of such magnitude that it caused the failure of six Soviet satellites in LEO.198 This electromagnetic pulse (EMP) created a brief but powerful new magnetic field, interfering with electricity and telecommunications infrastructure on Earth. It highlighted to the world that the greatest risk to satellites stems not from traditional missile impact, but an EMP attack with the capacity to disable space-based infrastructure.199 Such tests brought the USSR and US back to the negotiating table, with a renewed interest in disarmament. This led to the establishment of the first arms controls arrangements, banning nuclear tests in outer space, the atmosphere, and underwater,200 and is reflected in the subsequent nuclear-weapon prohibitions in the OST. There should be no doubt that the rapid establishment of mega-constellations in LEO will have significant implications for the balancing of power in the evolving world order. As 2021 drew to a close, China revealed, via a Statement to the UN Secretary General and UNOOSA, that it had manoeuvred the Chinese Space Station Tiagong, to avoid collision with Starlink satellites on two recent occasions.201 Citing Article V OST, an obligation to notify the Secretary General and parties to the OST, the Statement said: China hereby informs the Secretary-General of the following phenomena which constituted dangers to the life or health of astronauts aboard the China Space Station . . . Starlink satellites launched by Space Exploration Technologies Corporation (SpaceX) of the United States of America have had two close encounters with the China Space Station. For safety reasons, the China Space Station implemented preventive collision avoidance control on 1 July and 21 October 2021, respectively. In view of the foregoing, China wishes to request the Secretary-General of the United Nations to circulate the above-mentioned information to all State Parties to the Outer Space Treaty and bring to their attention that, in accordance with article VI of the Treaty, “State Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.”

In diplomatic terms, the Chinese statement was both reprimand and warning.202 It ought to underline just how dangerous technology races between adversaries can become.

198

Plait (2012). Report of the US Defense Threat Reduction Agency: https://apps.dtic.mil/dtic/tr/fulltext/u2/ a531197.pdf (Accessed 15.08.2022). 200 The Limited Test Ban Treaty (1963) https://history.state.gov/milestones/1961-1968/limited-ban (Accessed: 15.08.2022). 201 See UNOOSA: https://www.unoosa.org/oosa/en/oosadoc/data/documents/2021/aac.105/aac.10 51262_0.html (Accessed 15.08.2022). 202 Kwan R and Henley J (2021) “China berates US after ‘close encounters’ with Elon Musk satellites” The Guardian 28 December 2021: https://www.theguardian.com/science/2021/dec/28/ china-complains-to-un-after-space-station-is-forced-to-move-to-avoid-starlink-satellites (Accessed 15.08.2022). 199

5.7

5.7

Concluding Remarks

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Concluding Remarks

The West’s tendency to grandstand on human rights in China has proved unsuccessful. It is too easy for Beijing to point to a long history of interference in Chinese internal affairs and the enduring wounds of a “Century of Humiliation”, as well as the West’s own atrocities of the twentieth century. The Wolf Amendment, rooted in Congressman Wolf’s advocacy for human rights, looks more like a cloak for the exclusion of China, given consistent US cooperation with other autocratic regimes like Saudi Arabia, and Russia itself. It also risks strengthening Sino-Russian cooperation in space, and potentially hardening this bloc’s opposition to Western democracies.203 Former US Head of Delegation to UNCOPUOS, Dr. Scott Pace, says the debris-creating events of Chinese and Russian ASAT tests must be understood as intentional, because “we know they are not incompetent”.204 It seems likely those tests were conducted in orbits used by US military satellites, in order to convey a clear message.205 If the West hopes to pursue new disarmament arrangements in order to limit future ASAT tests, and address global threats such as climate change and pandemics, there must be engagement, however uncomfortable. This was clearly recognised by President Biden and President Jinping Xi, when they met at a virtual summit in Hong Kong in late 2021. The American President acknowledged China’s vital seat at the table to address global challenges, a step towards the recognition that China has long craved as an equal to the US on the world stage.206 Similarly, President Xi, referring to Biden as “my old friend”, indicated China’s preparedness to assume the mantle of responsibility: “Humanity lives in a global village and we face multiple challenges together . . . China and the US need to increase communication and cooperation.”207 Nonetheless, both China and Russia adopted a more robust opposition to NATO and the West when President Xi and President Vladimir Putin released a joint declaration on the day of the Opening Ceremony of the Winter Olympics on

203 Ni V and Roth A (2022) “Xi-Putin summit: Russia inches closer to China as ‘new cold war’ looms” The Guardian 3 February 2022: https://www.theguardian.com/world/2022/feb/03/xi-putinsummit-russia-inches-closer-china-new-cold-war-looms (Accessed 15.08.2022) and Troianovski and Myers (2021) “Putin and Xi Show United Front Amid Rising Tensions With US” The New York Times 15 December 2021: https://www.nytimes.com/2021/12/15/world/asia/chinarussia-summit-xi-putin.html (Accessed 15.08.2022). 204 Secure World Foundation Panel discussion: 10 Years of the Wolf Amendment: Assessing Effects and Outcomes 9 December 2021: https://swfound.org/events/2021/10-years-of-the-wolf-amend ment-assessing-effects-and-outcomes (Accessed 15.08.2022). 205 Weitz (2009), p. 282: Referring to the Chinese weather satellite destroyed in 2007, Weitz notes that it was likely chosen because it orbited the Earth at the same altitude of approximately 850km as many US military satellites. 206 Borger J (2021) “Biden-Xi virtual summit: leaders warn each other over future of Taiwan” The Guardian 16 November 2021: https://www.theguardian.com/us-news/2021/nov/16/xi-bidenvirtual-summit-us-china-conflict-taiwan-hong-kong (Accessed 15.08.2022). 207 ibid.

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4 February 2022 in Beijing, calling on NATO and the West to “abandon the ideologised approaches of the Cold War, (and) respect the sovereignty, security and interests of other countries.”208 Much work remains to be done, if tensions are to be de-escalated. Engagement, rather than exclusion, offers the opportunity for dialogue and cooperation. UNOOSA’s new 2030 SpaceAgenda represents one of those opportunities “to put politics and domestic talking points aside”209 and establish a vision of space as a driver for peace, and enhanced cooperation in pursuit of the 2030 Sustainable Development Agenda.210 Temperance and balance lower the temperature between adversaries, reducing the likelihood of mistake and miscalculation. They should be treated as fundamental principles of the space policy pursued by European nations, and the implications of the race to dominate spectrum in LEO ought to be a key aspect of dialogue in this forum.

References Berkman, P., et al. (2011). President Eisenhower, the Antarctic treaty, and the origin of international spaces. In P. Berkman, M. Lang, & D. Walton (Eds.), Science diplomacy – Antarctica, science, and the governance of international spaces (p. 17, 19). Smithsonian Institute. https://doi.org/10. 5479/si.9781935623069.17 Boley, A., & Byers, M. (2021). Satellite mega-constellations create risks in Low Earth Orbit, the atmosphere and on Earth. Scientific Reports, 11, 10642. https://doi.org/10.1038/s41598-02189909-7 Byers, M. (2001). Abuse of rights: an old principle, a new age. McGill Law Journal, 47, 389. Byers, M. (2019). Cold dark and dangerous: International cooperation in the arctic and space. Polar Record, 55(1), 32–47. https://doi.org/10.1017/S0032247419000160 Cottier, T., et al. (2017). The principle of proportionality in international law: Foundations and variations. The Journal of World Investment & Trade, 18(4), 628–672. https://doi.org/10.1163/ 22119000-12340054 Crawford, E. (2012). Proportionality. In R. Wolfrum (Ed.), The Max Planck Encyclopedia of Public International Law (Vol. VIII, p. 533). Oxford University Press. Demetzou, K. (2019). Data Protection Impact Assessment: A tool for accountability and the unclarified concept of ‘high risk’ in the General Data Protection Regulation. Computer Law & Security Review, 35, 105342. https://doi.org/10.1016/j.clsr.2019.105342 Goehring, J. (2021). Why isn’t outer space a global commons? Journal of National Security Law & Policy, 11, 573. https://jnslp.com/2021/06/03/why-isnt-outer-space-a-global-commons/ Hardin, G. (1968). The tragedy of the commons. Science, 162(3859), 1243. Holslag, J. (2019). China, NATO, and the pitfall of empty engagement. The Washington Quarterly, 42(3), 137–150. https://doi.org/10.1080/0163660X.2019.1664850

Ni V and Roth A (2022) “Xi and Putin urge NATO to rule out expansion as Ukraine tensions rise” The Guardian 14 February 2022: https://www.theguardian.com/world/2022/feb/04/xijinping-meets-vladimir-putin-china-russia-tensions-grow-west (Accessed 15.08.2022). 209 US Delegation statement UNCOPUOS LSC 2021: https://vienna.usmission.gov/2021-copuoslsc-u-s-national-statement/ (Accessed: 15.08.2022). 210 See UNOOSA: https://www.unoosa.org/oosa/en/outreach/events/2018/spacetrust. html (Accessed: 15.08.2022). 208

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Chapter 6

A New Regulatory Framework for Mega-Constellations

Seventy-five years ago, US President Eisenhower made an important choice: instead of a weaponised outer space, he pursued science. It is in all our interests that tensions between the West and a rising China are managed, and the lessons of the Cold War are applied to a new century. No global problem can be solved without a framework for cooperation with China. The reality of a new Super Power determined to reestablish its influence will be felt in every security domain, most notably the emerging ones: climate, global health, cyberspace and outer space. The tendency towards US unilateralism in recent years represents a significant gamble in the shifting landscape of geopolitics, the authorisation of mega-constellations without due regard for the interests of other States is just one of many reasons for concern. The adoption of impact assessments, stakeholder consultation processes and other regulatory tools to mitigate the risk mega-constellations pose to science, would be welcome initiatives. But more than ever, astronomers and the organisations that collectively represent them, must develop a new tool, one outside their traditional skill-set, but crucial to their survival: a strategically formulated diplomacy of science. Advocating for the fundamental principles of a global commons in outer space would be a good start. Focusing astronomers on the levers available to them in the Outer Space Treaty (OST) and elsewhere is critical, if a targeted and successful defence is to be mounted. That focus should be on the prohibition of interference, and the obligation of nations to ensure their regulatory agencies pay due regard to the interests of others. Those obligations offer the levers that can be pulled when a new activity, like the launch of mega-constellations, interferes with an existing one. It is heartening to see a small group of American lawyers harnessing national regulatory mechanisms in the US in opposing the Federal Communications Commission’s (FCC) authorisation of the launch of Starlink and other mega-constellations in the absence of an environmental impact assessment. As new scientific research comes to light about the chemical impact of mega-constellations in the stratosphere, it appears reckless of a national regulator to grant authorisation without comprehensive © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4_6

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assessment of the risks. As this book has emphasised, the obligation of precaution requires at a minimum, a thorough due diligence of the impact of megaconstellations prior to launch. The International Astronomical Union (IAU), in representing the interests of over 12,000 astronomers across 90 countries, must become a more disciplined organisation if it is to succeed in shaping the future of scientific endeavour in outer space. Emotional pleas invoking imaginary human rights to starlight should not be among the arguments mounted in defence of astronomy. It is past time to reassess its strategy. In the 3 years since SpaceX’s initial launch of Starlink satellites alerted astronomers to the threat to their work, the IAU’s hope of a solution emanating from the United Nations (UN) has not borne fruit. This book provides a catalogue of legal tools at astronomy’s disposal—the obligations of State Responsibility and due regard, to avoid interference with the space activities of others, to refrain from abusing rights under international law, and conduct due diligence as a matter of precaution. Astronomers must find the appetite to make use of these legal heads, and soon. According to the UN Office for Outer Space Affairs’ (UNOOSA) Index of Objects Launched into Outer Space, as of 15 February 2022 there are 8378 satellites in orbit, representing an increase of 85% in the 3 years since Starlink launches began in 2019.1 More than half of all satellites in orbit—4221 according to UNOOSA— now belong to the US, whereas Russia has 1552, China 632, and the European Union 24.2 Clearly, the ongoing launch of tranches of satellites is cementing the occupation of Low Earth Orbit (LEO) by US mega-constellations.3 Soon, there will be no turning back. The appointment of a new President of the IAU, Professor Willy Benz from the University of Bern in Switzerland, offers an opportunity to change course. It will require enormous leadership. Seldom has astronomy faced threats quite like those emerging from the proliferation of commercial activities in orbit, and megaconstellations will not be the last. As Prof. Benz assumes the mantle of the IAU, he would do well to recognise that protecting the interests of astronomy requires more drastic action than proposing new agenda items for UN meetings. Putting in place the necessary support for a regulatory affairs function within the IAU, or as an independent industry body, would establish the means to target immediate threats to astronomy. Invigorating the organisation with an appetite—and permission—to submit objections to the authorisation of mega-constellations using domestic regulatory processes, might reposition science as a central stakeholder in those national

1

UNOOSA’s Index of Objects Launched in Outer Space: https://www.unoosa.org/oosa/osoindex/ search-ng.jspx (Accessed: 15.08.2022) Note UNOOSA’s catalogue of objects in orbit differs from ESA’s calculation of functioning satellites cited in the Introduction to this book, as UNOOSA’s index includes non-functioning, but still orbiting, satellites. 2 ibid. Figures as of 15 February 2022. The EU figure of 24 does not include satellites in orbit belonging to its Member States. 3 Foust J (2021) “Astra files FCC application for 13,600 satellite constellation” Space News 5 November 2021: https://spacenews.com/astra-files-fcc-application-for-13600-satellite-constella tion/ (Accessed 15.08.2022).

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Fig. 6.1 Vertical interference (Photograph: Marco Langbroek). Dr. Langbroek’s image captures 39 Starlink satellites from SpaceX’s fifth launch as the constellation streaks vertically through the night sky over Leiden, Netherlands, during a 20-minute period

processes. Leading European observatories and international organisations, like the European Southern Observatory (ESO), should do the same. They ought to resist adapting their own activities at the expense of publicly-funded budgets, to interference from mega-constellations. That cost is correctly borne by commercial operators and must be reflected in their business-models unless science is to serve as an effective subsidiser of SpaceX, OneWeb, Amazon and Meta activities in outer space. So too, the European Commission and national science ministries of EU Member States, ought to squarely confront the issue and protect the science in which Europe has a competitive advantage. The technical interference, so clearly demonstrated in images captured by astronomers’ telescopes (Figs. 2.1 and 3.1) and stargazing photographers (Fig. 6.1), calls for an urgent regulatory solution. Embracing it as both a competition issue and a scientific one, broadens the tools at their disposal. The burden of adaptation and economic loss caused by interference, should not fall to taxpayers. The polluter-pays principle, well understood by the general public, is on their side. Lawmakers must face some hard truths about the limitations of the OST too. The physical diversity of outer space will require different governance solutions. The application of the Outer Space Treaties to the orbits of Earth, the allocation of spectrum, access and utilisation of the Moon, scientific study of planets and potential mining of asteroids, does not lend itself to a “one-size-fits-all” approach. Some commentators have proposed the establishment of an “exclusive utilisation space” in

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the near-Earth zone, based upon the Law of the Sea’s model of the Exclusive Economic Zone (EEZ).4 The proposal would create a buffer between sovereign air space and outer space, as a means of ensuring all nations have access and use of LEO. Other commentators—consistent with my view—suggest a “bottom-up” approach will need to be taken, whereby national space laws and regulation develop with coordination between States, given the unlikelihood of a “top-down” treatyapproach succeeding.5 Regardless of where the solutions ultimately lie, there must be a preparedness to treat questions in these spheres differently and pursue creative, innovative solutions. If it is to remain relevant in the New Space era, the OST must evolve into a framework for a more functional means of governance, in which the interests of a complex community of stakeholders can be managed. In order to address the impact of mega-constellations, and as we continue to understand the extent to which activities in orbit may have an environmental impact on the ozone layer, only governance has the capacity to prevent harm. Questions over whether outer space is a “global commons”, a “common domain”, or an “international space”, while fascinating to law students, are a distraction from the need for stakeholders to focus on our common interests in outer space. When those common interests are prioritised, governance opens the way for dialogue and cooperation. This book calls for the establishment of a new model of “international regulatory coordination”. In coordinating the national governance processes of the space powers that are currently considering and licensing mega-constellations—the US, UK, China, Japan, India, Russia, and the European Union—access and use of LEO might be moderated in order to mitigate the geopolitical rivalries driving the race to dominate near-Earth orbits. If these States were to agree to introduce impact assessment processes to their regulatory processes for mega-constellations, sufficient time might still be bought in order to address issues of international concern in a coordinated fashion. It might allow for more thorough assessments of what the long-term scientific impact of mega-constellations will be. This is a pragmatic proposal, not designed to exclude international parties to the OST, but as a first step towards creating a framework to address an issue of pressing concern. It is easier to pursue an arrangement involving seven nations, than to expect consensus among the 196 nations represented at the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS). The opportunity to do this exists precisely because the current US dominance of outer space—with more than half of all satellites in orbit belonging to US interests—overshadows the rest of the world. The technological deficit as it now stands, might bring Russia and China to the negotiating table. Above all, it is outcome-focused. National legal systems grant rights, but limit those rights with responsibilities. Thanks in part to the precautionary principle, the obligation of due regard in the OST, and the principle of abuse of rights, the same holds true in international law. The coordination of national regulation between just a handful of major players, would ensure that common interests are protected,

4 5

Lieu and Tronchetti (2019). Von der Dunk (2018).

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responsibilities are upheld, and mitigate the exploitation of the “free” resource of access to LEO, with all of its transnational consequences.6 History tells us this can succeed in the face of urgent hazardous activities: the processes that culminated in the Antarctic Treaty, the OST, and the Montreal Protocol, all commenced with overtures between the most powerful players. Scientific policy, developed in the context of complex geopolitics, has an important role to play in facilitating the dialogue to make this happen. In summary, this book recommends that nations urgently take the following ten steps to lay the foundations for a new regulatory framework for mega-constellations: First, recognise that mega-constellations in LEO, to support Internet services, will interfere with optical and radio frequency techniques used by astronomers to study the universe. Second, recognise the geopolitical impact of the proliferation of megaconstellations in LEO, and the role that a strategically formulated diplomacy of science might play in ensuring the sustainable and peaceful use of outer space. Third, urge the International Telecommunication Union (ITU) to treat spectrum in LEO and Medium Earth Orbit (MEO) as finite resources in order to ensure equitable access to all nations. Four, recognise that interference with astronomy by mega-constellations drives up the cost of science and that it is science that currently bears the cost of this interference. The polluter-pays principle must be incorporated into licence and insurance arrangements, shifting the burden of risk to the operator. Five, recognise the impact on major investment in high-value Earth-based astronomical infrastructure, and equip astronomy organisations with the regulatory expertise to protect their interests. Six, encourage astronomical organisations, including IAU, ESO, and North American observatories, to develop regulatory strategies in order to shape the future regulation of mega-constellations. Seven, incorporate Impact Assessments into the application process for launch and operational licences at national regulators (such as FCC and OfCom) and, in pursuit of a model of “international regulatory coordination”, work towards ensuring alignment of these due diligence processes between the national regulators of spacefaring nations that are actively pursuing mega-constellations. Environmental Impact Assessments ought to form part of this broader assessment. Eight, facilitate development of a “proportionality principle” in those assessment processes, as addressing the disproportionate scale of mega-constellations offers the best chance of mitigating risk. Questions of necessity should be incorporated, as minimising the number of satellites in these constellations is a straightforward way of preventing harm. Nine, establish regulatory processes allowing public stakeholders to make submissions, bringing risks of interference to the attention of the regulatory

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Dunoff (2015).

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authority as an application for an operating licence is assessed. This is critical if mega-constellations are to have a “social licence”. And finally, national regulators should require commercial operators disclose whole-of-project plans for mega-constellations at the point of the initial licence application, so impact can be assessed before launches commence. This is consistent with basic principles of precaution and further supports the maintenance of a commercial level-playing field. It prevents the misuse of process by Tech Giants, racing to establish their infrastructure in Earth’s orbit first, only to change the parameters of those operations once they are in situ. The disruptive Silicon Valley mantra of “move fast and break things” should not be allowed traction in Earth’s orbit. While this book has focused on the impact on major European astronomy infrastructure, we must not lose sight of the wonder that the stars invoke in all of us. Individuals, who are compelled to act in order to defend something greater than themselves, become instigators of change. Witness the recent identification of the ozone-depleting effects of Starlink satellites by Boley and Byers (2021). Witness the formal objections to the FCC and US Federal Court of Appeal, by Jim Turner and Joe Sandri, two concerned regulatory lawyers in Washington DC.7 These four individuals have already had an impact in their fields that exceeds the official representatives of astronomy in UN fora. So too, let us not lose sight of the very important role millions of amateur astronomers play around the world. The Pearl Cluster, a jewel of the southern hemisphere and an open cluster in Centaurus visible to the naked eye, derives its name from the string of 100 visible stars.8 The astro-photographer, West Australian Raymond Palmer, who founded the South Celestial Star Light Project to document celestial objects visible from the southern hemisphere, gave the constellation its popular name, believing that nomenclature allows communities to connect with the universe in ways that its catalogue name NGC3766 does not.9 Similarly, important contributions are made by students and enthusiasts who identify celestial bodies of interest, which can be further investigated by institutions. The identification of an ancient lake by a science student 16 years ago, became the landing site of NASA’s Perseverance mission, in its search for evidence of historical life on Mars. 10 This community is instrumental to maintaining the epoch-spanning custom of gazing at the heavens. The night sky offered us guidance long before satellite-based navigation: the lost art of finding our way according to the Cosmos. The glow of

7

Jim Turner, a life-long advocate for precaution in health, environment, and outer space activities, who I interviewed for this book, sadly passed away shortly before its publication. May his example live on. 1940–2022. 8 Bakich (2016). 9 ibid. 10 Chang, K (2020) “How NASA found the ideal hole on Mars to land in” New York Times, 28 July 2020: https://www.nytimes.com/2020/07/28/science/nasa-jezero-perseverance.html (Accessed 15.08.2022).

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mega-constellations is not a replacement for the stars, however awe-inspiring human achievement in this realm might be. This ought to serve as a reminder of the purpose of astronomy. We study the stars because humanity has an insatiable curiosity for the origins of life. Where are we from? What created the building blocks of life? And is there life in our universe and beyond? Those questions are by their very nature intergenerational, enduring across the millennia since humans first documented the heavens in paintings on the walls of caves.11 At a time in which the world is confronting the finite nature of all resources on this planet, embracing principles of sustainability, the “circular economy”, new “closed-loop” business models in which no waste is generated, and the existential consequences of climate change, it makes little sense to permit the robberbaron approach currently underway in the race to dominate LEO. The same wonder that astronomy’s window into the universe evokes, must now be channeled into imaginative solutions to address the problems promised by mega-constellations. But let us not posit this as a binary choice between technological progress and science. Good governance supports coexistence and cooperation in outer space. Not only are commercial space activities and science compatible, they are codependent. As the IAU has correctly emphasised: Technological progress is only made possible by parallel advances in scientific knowledge. Satellites would neither operate nor properly communicate without essential contributions from astronomy and physics. It is in everybody’s interest to preserve and support the progress of fundamental science such as astronomy, celestial mechanics, orbital dynamics and relativity.12

Instead, let us recommit ourselves to the original principles of the OST: cooperation in scientific investigation, precaution and proportionality in our activities, and equity of access to their benefits. As the New Space era sees a multiplicity of public and commercial activities in orbit, nations must, more than ever, be cognisant of their international legal obligations: to authorise and supervise all space activities of their nationals, have due regard to the interests of others, avoid potentially harmful interference with the activities of other States, and undertake international consultations before proceeding with such activity.13 This book has sought to position its analysis of space law and policy firmly in the context of geopolitics, recognising that the OST was first and foremost a treaty of disarmament and a commitment to détente. So too, it has taken a wide lens to its analysis of the mega-constellations that will form the backbone of the Orbital Internet, for history will no doubt view this Goodyer J (2019) “Cave paintings reveal ancient Europeans’ knowledge of the stars” BBC Science Focus 29 January 2019: https://www.sciencefocus.com/planet-earth/cave-paintingsreveal-ancient-europeans-knowledge-of-the-stars/ (Accessed 15.08.2022). 12 IAU Press Release 12 February 2020 “Understanding the Impact of Satellite Constellations on Astronomy”: https://www.iau.org/news/pressreleases/ (Accessed 15.08.2022). 13 See in particular Article VI (State Responsibility, Authorisation and Supervision) and Article IX (Due regard and prohibition on interference) of the Outer Space Treaty 1967 in the Appendix of this book and online: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html (Accessed 15.08.2022). 11

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as just one further race for control and influence in a contested domain. In this landscape it is clear that we must treat the question of what is launched into orbit as having comprehensive intergenerational ramifications. It is time the astronomical community recognised its role not only as steward of public investment in science, but as defender of the value of its astronomical infrastructure for those who come after us. It is the public interest, as the ultimate shareholder in outer space activities, which must now be protected.

References Bakich, M. (2016). Cor Caroli, the Pearl Cluster (NGC3766), and the Leo Triplet. In Astronomy, 26 May 2016. http://www.astronomy.com/observing/observing (Accessed 20.4.2020. Link no longer accessible). Boley, A. C., & Byers, M. (2021). Satellite mega-constellations create risks in Low Earth Orbit the atmosphere and on Earth. Scientific Reports, 11(1), 10642. https://doi.org/10.1038/s41598-02189909-7 Dunoff, J. (2015). Mapping a hidden world of international regulatory cooperation. Law & Contemporary Problems, 78(4), 267–300. Lieu, H., & Tronchetti, F. (2019). Regulating near-space activities: Using the precedent of the exclusive economic zone as a model? Ocean Development and International Law, 50(2–3), 91–116. https://doi.org/10.1080/00908320.2018.1548452 von der Dunk, F. (2018). Private property rights and the public interest in exploration of outer space. Biological Theory, 13, 142–151. https://doi.org/10.1007/s13752-017-0271-9

Appendix

The Outer Space Treaty (1967) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967) No. 8843. TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER CELESTIAL BODIES. OPENED FOR SIGNATURE AT MOSCOW, LONDON AND WASHINGTON, ON 27 JANUARY 1967 The States Parties to this Treaty, Inspired by the great prospects opening up before mankind as a result of man's entry into outer space, Recognising the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes, Believing that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development, Desiring to contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes,

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 S. Millwood, The Urgent Need for Regulation of Satellite Mega-constellations in Outer Space, SpringerBriefs in Law, https://doi.org/10.1007/978-3-031-19249-4

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Believing that such cooperation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples, Recalling resolution 1962 (XVIII), entitled “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space”, which was adopted unanimously by the United Nations General Assembly on 13 December 1963, Recalling resolution 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies, which was adopted unanimously by the United Nations General Assembly on 17 October 1963, Taking account of United Nations General Assembly resolution 110 (II) of 3 November 1947, which condemned propaganda designed or likely to provoke or encourage any threat to the peace, breach of the peace or act of aggression, and considering that the aforementioned resolution is applicable to outer space, Convinced that a Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, will further the purposes and principles of the Charter of the United Nations, Have agreed on the following: Article I The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. 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, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation. Article II 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.

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Article III States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding. Article IV States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited. Article V States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts. Article VI States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require

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authorisation and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organisation, responsibility for compliance with this Treaty shall be borne both by the international organisation and by the States Parties to the Treaty participating in such organisation. Article VII Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies. Article VIII A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return. Article IX In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and 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. States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon

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and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment. Article X In order to promote international cooperation in the exploration and use of outer space, including the Moon and other celestial bodies, in conformity with the purposes of this Treaty, the States Parties to the Treaty shall consider on a basis of equality any requests by other States Parties to the Treaty to be afforded an opportunity to observe the flight of space objects launched by those States. The nature of such an opportunity for observation and the conditions under which it could be afforded shall be determined by agreement between the States concerned. Article XI In order to promote international cooperation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the Moon and other celestial bodies, agree to inform the SecretaryGeneral of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively. Article XII All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited. Article XIII The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the exploration and use of outer space, including the Moon and other celestial bodies, whether such activities are carried on by a single State Party to the Treaty or jointly with other States, including cases where they are carried on within the framework of international intergovernmental organisations. Any practical questions arising in connexion with activities carried on by international intergovernmental organisations in the exploration and use of outer space, including the Moon and other celestial bodies, shall be resolved by the

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States Parties to the Treaty either with the appropriate international organisation or with one or more States members of that international organisation, which are Parties to this Treaty. Article XIV 1. This Treaty shall be open to all States for signature. Any State which does not sign this Treaty before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time. 2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America, which are hereby designated the Depositary Governments. 3. This Treaty shall enter into force upon the deposit of instruments of ratification by five Governments including the Governments designated as Depositary Governments under this Treaty. 4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession. 5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification of and accession to this Treaty, the date of its entry into force and other notices. 6. This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations. Article XV Any State Party to the Treaty may propose amendments to this Treaty. Amendments shall enter into force for each State Party to the Treaty accepting the amendments upon their acceptance by a majority of the States Parties to the Treaty and thereafter for each remaining State Party to the Treaty on the date of acceptance by it. Article XVI Any State Party to the Treaty may give notice of its withdrawal from the Treaty 1 year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect 1 year from the date of receipt of this notification. Article XVII This Treaty, of which the English, Russian, French, Spanish and Chinese texts are equally authentic, shall be deposited in the archives of the Depositary

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Governments. Duly certified copies of this Treaty shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States. IN WITNESS WHEREOF the undersigned, duly authorised, have signed this Treaty. DONE in triplicate, at the cities of London, Moscow and Washington DC, the 27th day of January, 1967.