NEW SPACE: FROM SPACE EXPLORATION TO SPACE EXPLOITATION
New Space refers to the privatisation of space activities by new, non-governmental players (such as SpaceX, Blue Origin, Virgin Galactic, Rocket Lab, Syrlinks, ClearSpace, Kineis, Orbit Fab, Exotrail) who are entering a market that was historically and until recently reserved for governments (Old Space).
New Space is calling into question the principles established by the major space treaties, which mostly regulate outer space exploration activities (e.g., military, scientific or commercial activities). Today, these treaties set in a different era (Old Space) appear to be outdated when it comes to regulating the space exploitation activities that are at the heart of New Space.
In France, a Senate information report published on 1 June 2023 calls for the introduction of an appropriate legal framework and outlines its main features. The next Space Summit, to be held in Seville in November 2023, could provide an opportunity to formulate a response at EU level.
The Lexing® network members provide a snapshot of the current state of play worldwide. The following countries have contributed to this issue: Belgium, Greece, Luxembourg, South Africa.
FREDERIC FORSTER
VP of Lexing® network and Head of the Industries & IT, Telecoms and Banking Services division of
Lexing Alain Bensoussan-Avocats
Navigating the vast frontier: The imperative of a governance framework for space technologies
▪ As humanity ventures further into space exploration and exploits the potential of space technologies, the need for a comprehensive governance framework becomes increasingly evident. With an ever-growing number of countries and private entities participating in space activities, it is crucial to establish guidelines and regulations that promote responsible behaviour, ensure the sustainable use of space resources, and prevent conflicts or mishaps. In this article, we delve into the importance of a governance framework for space technologies and explore the key aspects the international community should consider.
The expanding landscape of space technologies
▪ The rapid advancement of space technologies, such as satellite systems, space tourism, and lunar missions, has transformed the space industry into a bustling arena of activity. For example, SpaceX, a private aerospace company, has launched numerous satellites for its Starlink project to provide global internet coverage. This increasing number of satellites in orbit poses challenges related to space debris and collision risks. Such challenges highlight the pressing need for a governance framework that harmonises the actions and intentions of all participants.
Ensuring safety and security
▪ Safety and security must be paramount concerns in space activities. A governance framework should outline protocols for the launch, operation, and disposal of satellites and spacecraft to minimise the risks of collisions and space debris. According to the European Space Agency, over 29,000 known space debris objects larger than 10 cm orbiting the Earth pose a significant risk to existing satellites and future missions. Furthermore, the framework should address cybersecurity threats and establish guidelines to safeguard critical space infrastructure from malicious attacks, ensuring the integrity of space-based services and systems.
Preserving space sustainability
▪ Space sustainability involves responsible and sustainable practices to prevent the overexploitation of space resources and minimise the generation of space debris. Adopting sustainable materials and practices is crucial in mitigating the environmental impact of space activities. For instance, the European Space Agency has been actively developing guidelines for designing satellites with strict de-orbiting plans to ensure their safe disposal after their operational life ends. Moreover, responsible mining of celestial bodies, such as the Moon or asteroids, should be regulated to prevent irreversible damage and preserve these resources for future generations. The governance framework should also encourage international collaboration in monitoring and mitigating space debris through initiatives like the Space Surveillance and Tracking (SST) programme.
Addressing legal and jurisdictional challenges
▪ The governance framework for space technologies should address the complex legal and jurisdictional challenges associated with space activities. Historically, international treaties and agreements have been crucial in guiding space governance. The Outer Space Treaty, signed in 1967, provides a legal framework for the peaceful use of outer space and prohibits the placement of nuclear weapons or any other weapons of mass destruction in space. Although not widely ratified, the Moon Agreement addresses issues of resource utilisation and ownership of celestial bodies. However, there are still ambiguities and gaps that need to be addressed. The governance framework should aim to harmonise and clarify international laws and treaties, establishing clear guidelines on ownership and use of space resources, jurisdiction over activities in outer space, and resolution mechanisms for disputes.
Balancing commercial interests and public goods
▪ As commercial entities increasingly participate in space activities, a governance framework must balance commercial interests and the provision of public goods. For instance, companies like Blue Origin and Virgin Galactic are at the forefront of space tourism, enabling individuals to experience space first-hand. While allowing for innovation and economic growth, the framework should ensure equitable access to space resources, promote responsible business practices, and prevent the exploitation of vulnerable populations or ecosystems. Public-private partnerships can play a vital role in achieving this balance by leveraging the expertise and resources of both sectors. The International Astronautical Federation (IAF) and the Commercial Spaceflight Federation (CSF) are actively working to foster collaboration between government agencies and private companies in pursuit of these goals.
Fostering international cooperation
▪ Space exploration and technologies have historically been areas of international cooperation, transcending geopolitical boundaries. A governance framework should foster and strengthen international collaboration in space activities, sharing knowledge, data, and resources for the benefit of all humankind. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) is an essential forum for global coordination in space governance. Additionally, creating international organisations or forums dedicated to space governance, such as the proposed International Space Traffic Management (ISTM), can promote transparency, cooperation, and the peaceful use of outer space.
Conclusion
▪ As space technologies evolve and become more accessible, a governance framework for space activities becomes imperative. Such a framework should address safety, sustainability, legal challenges, and balancing commercial interests and public goods. With a robust governance framework, humanity can harness the immense potential of space technologies while minimising risks and maximising the benefits for present and future generations.
NATHAN-ROSS ADAMS
south-africa@lexing.network
In recent years, the advent of micro-satellites and mega-constellations has revolutionized the space industry, unlocking unprecedented opportunities for communication, Earth observation, and scientific research. Micro-satellites, also known as CubeSats, are small and lightweight satellites that can be deployed in large numbers, while mega-constellations consist of hundreds or even thousands of interconnected satellites working together to provide global coverage. The current situation in Ukraine, where internet connectivity has been provided by Starlink, is an example of the benefits of such technologies.
One of the key legal aspects of micro-satellites and mega-constellations revolves around regulatory frameworks. Traditionally, space activities have been governed by international treaties such as the Outer Space Treaty of 1967 (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967) and the Liability Convention of 1972 (Convention on the international liability for damage caused by space objects, 29 march 1972). However, the rise of private companies launching micro-satellites and mega-constellations has highlighted the need for updated regulations. Governments and international organizations are now grappling with the task of developing new rules and guidelines that balance the promotion of innovation and commercial activities with the preservation of space sustainability and the prevention of space debris.
Space debris mitigation and management constitute another critical legal issue associated with these satellite technologies. The deployment of large constellations raises concerns about space debris generation and its potential impact on operational satellites and space infrastructure. Collisions between satellites or with existing debris can have severe consequences, including the creation of additional debris and the disruption of critical services. As a result, legal frameworks must address issues related to debris mitigation measures, end-of-life disposal strategies, and liability allocation in case of damage caused by space debris.
Spectrum management is yet another area where legal aspects come into play regarding micro-satellites and mega-constellations. The radio frequency spectrum is a limited resource, and the growing number of satellites in orbit requires efficient and fair allocation. International organizations such as the International Telecommunication Union (ITU) are responsible for coordinating the allocation of spectrum frequencies to avoid interference and ensure equitable access. Legal frameworks need to address the challenges posed by the coordination and management of spectrum resources to accommodate the increasing number of satellites and the diverse services they provide.
The issue of national sovereignty and jurisdiction in space activities also arises with the proliferation of micro-satellites and mega-constellations. The deployment and operation of these satellites involve crossing national boundaries and © LEXING – 2023 JTIT internationale – Lexing Insights n°37/2023 11
traversing the outer space domain, giving rise to questions of legal jurisdiction and the enforcement of laws. Governments must grapple with issues such as satellite licensing, data protection, intellectual property rights, and privacy concerns associated with satellite-based surveillance and communication systems.
Furthermore, the ethical implications of micro-satellites and mega-constellations pose a challenge for legal frameworks. These technologies enable a wide range of applications, including remote sensing, monitoring of natural resources, and tracking of human activities. As satellites capture vast amounts of data, questions arise regarding the protection of individual privacy, data ownership, and the responsible use of information. Legal systems must address these ethical concerns to ensure that the deployment and utilization of micro-satellites and mega-constellations do not infringe upon fundamental rights and freedoms.
In conclusion, the emergence of micro-satellites and mega-constellations brings both exciting opportunities and complex legal challenges. The development of regulatory frameworks, space debris management, spectrum allocation, jurisdictional issues, and ethical considerations are just a few of the legal aspects that must be carefully addressed. Collaboration between governments, international organizations, and private entities is crucial to establish a comprehensive and harmonized legal framework that fosters innovation while safeguarding the long-term sustainability and responsible use of outer space. By proactively addressing these legal issues, we can ensure that the potential benefits of micro-satellites and mega-constellations are realized while mitigating potential risks and creating a framework for a peaceful and equitable future in space exploration and exploitation.
ALEXANDRE CASSART
belgium@lexing.network
This high-level analysis describes the legal framework of space traffic management (STM) in the European Union, based on the European Commission’s EU “Approach for Space Traffic Management” (European Commission, An EU Approach for Space Traffic Management, February 15, 2022). The aim of this document is to describe a concrete EU approach on STM for safe, sustainable, and secure use of space, as well as to express the EU’s commitment to the peaceful use of outer space.
STM covers a wide array of elements, which are interconnected, namely Space Sustainability, as recently elaborated in the 2023 European Council’s conclusions on “Fair and sustainable use of space”(Council of the European Union, Draft Council conclusions on Fair and sustainable use of space, May 5, 2023), Space Situational Awareness (SSA) activities, such as Space Surveillance and Tracking (SST), which helps with the mapping and positioning of active and inactive space objects in space, the congestion of orbits, orbital debris mitigation and remediation, the entire life cycle of space operations and the re-entry phase of spacecraft into the airspace (both controlled and uncontrolled).
The EU STM approach attempts to create a regulatory framework, comprising non-binding measures such as industry standards and guidelines, and binding obligations, such as legislation at the EU level. The development of a toolbox based on identified STM standards and guidelines will serve to ensure that risks related to space traffic, especially interference and collision avoidance, are identified and mitigated.
The drafting of legal requirements for STM is envisaged as a lengthy process with different steps. First, a legal proposal shall mandate all satellite operators to register with a collision avoidance service and establish communication mechanisms and contacts for managing conjunction events with other service providers to ensure timely responses and coordinated collision avoidance manoeuvres. Then, a legislative proposal at the EU level covering STM rules could create a level playing field and avoid fragmented national legislation on STM. Such legislation could be limited to the establishment of essential legal requirements, taking into account existing EU legislation on air traffic management.
To conclude, the resilience of EU and Member States’ space infrastructure depends on creating a robust legal environment for STM, covering the STM civil and defence requirements for the EU, enhancing EU operation capabilities to support STM and fostering STM regulatory aspects.
GEORGE A. BALLAS
&
NIKOLAOS PAPADOPOULOS
&
YVONNE VASTAROUHAS
greece@lexing.network
International context
▪ The forum for the development of international space law is the United Nations Committee on the Peaceful Uses of Outer Space.
▪ A basic set of rules and principles regulating the activities of states in the exploration and use of outer space are provided by international treaties.
▪ Additionally, other non – binding instruments such as resolutions of the UN General Assembly, state practices and customary international law are to be included in the international legal framework.
Luxembourg ratified a certain number of treaties:
– the Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (OST), including the Moon and Other Celestial Bodies, 1967), and
– the Liability Convention (Convention on International Liability for Damage Caused by Space Objects, 1972.).
▪ It is anticipated that Luxembourg will also become a party to the Rescue Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space, 1968.).
▪ In consistency with the national law voted on 10 December 2020, Luxembourg accessed on 27 January 2021 the Registration Convention (Convention on Registration of Objects Launched into Outer Space, 1974.).
National Space Law: a clear legal framework for both space activities authorization and supervision of space activities
▪ The current legal framework for space activities at national level is composed of:
– the Law of 15 December 2020 on Space Activities (It does not apply to missions involving the exploration and use of space resources falling under the Law of 20 July 2017 on the Exploration and Use of Space Resources, except for what concerns the registration of launched space objects and tax related provisions.);
– the Law of 20 July 2017 on the Exploration and Use of Space Resources;
– the Law of 1991 on Electronic Media as modified (It remains in effect and will serve as a legal basis for the frequency’s allocation.).
▪ This legal framework aims at allowing the growth and diversification of activities carried out by space players, especially from the private industry, in Luxembourg.
▪ Since most missions have been for scientific purposes, it has not been an issue until now that international space treaties remain untested regarding the determination of the right’s owner on resources found in outer space i.e. minerals, gases and water.
▪ Nevertheless for the viability of commercial space mining projects, a level of efficient rules ensuring certainty on the rights of extraction, consumption and commercialization of the resources was needed for future stakeholders of this sector.
▪ The legal framework clarifies Luxembourg’s national position on the status of the resources that can be extracted from those celestial bodies in space in general but does not intend of paving the way for any national appropriation of outer space. For each mission, these space activities – private space exploration missions and utilization of space resources – along the registration (National Registry of Space Objects includes all objects for which Luxembourg assumes registration obligation under the Convention on Registration of Objects Launched into Outer Space.) of space objects into outer space are under the authorization and supervision of the Ministry of the Economy.
▪ Operators, investors, and entrepreneurs manage the risks related to space activities and state liability in a safe and attractive environment. The National registry of space objects created on 01.01.2021 is public and updated on 10.02.2022. A specific submission form is to be used for companies to register all future submissions for satellite registration.
▪ To allow operators of space objects to benefit from tax credit, the legal framework includes the tax exemption of insurance contracts covering the space objects registered by Luxembourg and an adaptation of the rules regarding the tax credit for investments.
EMMANUELLE RAGOT
luxembourg@lexing.network