Mind the Gap: Is there enough space in Space?

Space is a communal and finite resource. Without careful planning and concerted international efforts, we risk damaging its environment – perhaps for good. There remains plenty for us to do by way of regulation to guarantee fair and safe access to low earth orbit (LEO) for all. Until then, we should be more mindful of that gap.

The problem of LEO congestion

Elon Musk raised eyebrows for commenting that there was room for "tens of billions" of spacecraft in Earth’s orbit, comparing the number of satellites in LEO to cars on earth. However, such a comparison is inappropriate: satellites travel at great speeds (approximately 4,700 km/h) along orbital paths with various intersecting points, they need to maintain significant gaps between them to operate safely and avoid collisions.

Recent announcements about plans for more launches (OneWeb’s founder plans to launch 100,000 satellites, while the EU has plans for its own satellite internet system) alongside the scheduled launch of thousands of new small satellites (the US's Federal Communications Commission received requests for 38,000 new satellites in November 2021 alone) means this is becoming a more pressing issue. Is space big enough to host all the current, or anticipated, constellations?

You may remember our previous post about space debris; similar discussions regarding sustainable space practices are once again underway. As LEO becomes more congested there is a greater likelihood of a collision, which itself would create more space debris and likely result in further collisions. Given the current rush to occupy the finite LEO environment, how can we guarantee fair and safe access to space for all, not just the first movers?

The need for regulation 

Space entrepreneurship promises unimaginable benefits, including the potential to deliver the “infrastructure of tomorrow” via the deployment of LEO satellite constellations. For example, OneWeb’s growing constellation is expected to support fibre-like connectivity to the most remote areas on Earth. However, these benefits are at risk if space is left insufficiently regulated – as costs will increase and certain orbits could become entirely inhospitable.

Various solutions have been put forward. Some are technological, such as actively removing defunct space objects (through nets and harpoons) and extending the operational lifespan of satellites through on-orbit servicing.  Some have also argued for traffic management systems (analogous to air traffic control) to track and manage satellites in orbit.

Beyond technological solutions, what is certainly needed is joined-up international efforts to upgrade the current regulatory regime governing the launch and operation of LEO satellites.

Regulatory action

As we noted previously, an obvious candidate is the current regime on international legal liability flowing from space activities, which is governed mainly by the 1972 Liability Convention. As a treaty, however, the focus is on States and not directly on private operators. Legal discussions at the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) have just concluded for this year, and options to address space sustainability were once again discussed. 

It remains to be seen how States continue to govern space activities in future – whether through more binding treaties (which may be unlikely) or through non-binding agreements and guidelines. Another solution perhaps lies at the national level, through improved national space laws and the frameworks governing access to spectrum (for example, the UK has recently opened a consultation on how best to address the regulatory challenges of LEO constellations and access to spectrum, which we have commented on in a previous post).  

An effective dispute resolution mechanism would help protect and enforce parties’ rights and responsibilities. As set out in a previous post, arbitration could be a sensible way of resolving such disputes should they arise. Some movements in this direction have already occurred. For example, in 2011 the Permanent Court of Arbitration published its Optional Rules for Arbitrating Disputes Relating to Outer Space. It remains to be seen whether rules such as these might form the basis of dispute resolution mechanisms going forward.

New and creative regulatory models to address the issue of space debris could also be investigated: current proposals include a launch tax to support a space “custodial staff” fund, or a monthly rent charge on non-operational satellites to incentivise their deorbiting.