January 26th 2023 | Pranav Kaginele
Edited by Yashas Mallikarjun
INTRODUCTION
Russia’s invasion of Ukraine in the spring prompted an overwhelming international response that not only blindsided Vladimir Putin, but the rest of the world as well. One key factor that presented a paradigm shift from the international response to previous conflicts was the intervention by private actors, more specifically, large transnational corporations [1]. Microsoft suspended sales in Russia and provided support against cyberattacks. Verizon waived calling, texting, and data charges for customers in affected areas. Hilton donated one million free hotel room nights for people fleeing the war. However, the most interesting contribution to the Ukrainian cause was announced on Elon Musk’s Twitter. SpaceX would utilize an emerging form of internet infrastructure to counter Russia’s cyberattacks on Ukrainian internet: large satellite “mega-constellations” in Lower Earth Orbit (LEO) [2]. The invasion of Ukraine thrust SpaceX’s mega-constellation, known as Starlink, into the international spotlight. However, this new technology has prompted a fresh set of legal challenges that necessitate a closer analysis of existing regulations and frameworks in place that govern the private usage of LEO.
Starlink was first launched in 2019, with the first 60 of what would eventually become thousands of satellites entering orbit [3]. However, it isn’t the only mega-constellation project in the works. Currently, there are four major mega-constellation plans from four corporations: Starlink from SpaceX, Project Kuiper from Amazon, OneWeb, and Telesat [4]. Between them, several dozens of thousands of small mini satellites are planned to be sent up to fly in formation in LEO.
This paper will examine the dangers of an unregulated commercial mega-constellation sector and argue that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, also known as The Outer Space Treaty, is insufficient. I will further argue that unregulated constellations potentially constitute a violation of international space law. In an age of private actors who can operationalize against a country at a time of war, it should be unsurprising that one can launch thousands of satellites into orbit to provide global broadband. New legal frameworks are necessary to deal with this rapidly modernizing condition, and I argue that expanding the non-appropriation principle of the Outer Space Treaty to account for private appropriation of outer space, accompanied by more centralized enforcement through the International Telecommunications Union is the best way to do so.
I. CURRENT LEGAL STANDARDS IN SPACE LAW
As of the current day, robust legal standards govern the use of outer space for state activity. Five treaties, the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement form modern space law [5]. However, since the adoption of the Moon Agreement in 1979 (largely considered a failure due to only 18 countries ratifying it, none of which have completed a mission to the Moon [6]), no international conventions or amendments have been passed regarding the use of outer space.
This presents an obvious issue – international space law that hasn’t been changed since 1979 is woefully inadequate to address modern private space activities. The rapid growth of commercial activity in outer space as we see today only began in the early 2000s. By 2019, the space economy’s revenue reached $424 billion, and the private industry made up two-thirds of it [7]. Application of these by-gone treaties to modern space activities by private companies is ambiguous at best.
II. IMPLICATIONS OF LAX SPACE REGULATION
Ambiguity in international space law creates a gap in regulation for mega-constellations, opening the door to collision risks. As of 2021, Starlink satellites were involved in 50 percent of the total close encounters between two spacecraft, averaging 1,600 every week [8]. As of that study, only 1,700 Starlink satellites were in orbit. There is a planned total of 12,000 satellites that will be present in the final constellation. Its competitor, OneWeb, has planned to put 48,000 satellites in its constellation. Once finished, the probability of a collision occurring within the OneWeb constellation is 5 percent, and Starlink has been calculated to have a 45.8 percent chance of collision [9]. Additionally, this study doesn’t factor in the proposed constellations by other major players nor the rapid increase in private space activity. Collisions present significant threats not only for the two satellites involved but also all other satellites in the area, which would be at risk to get hit by debris spawned by the original collision. Even with debris avoidance and tracking systems, the exact positioning of the debris could have a mile or more of error. Alternatively, even if correctly detected, a company may decide that the cost of engaging an avoidance maneuver is worth more than the the cost of replacing the satellite. Companies are inherently profit driven and not accounting for this will have serious consequences.
Perhaps even more serious than accidental collisions, constellations create an increased chance of a malicious actor hacking a satellite to cause harm [10]. Satellites in constellations must stay in formation and have the capability to perform debris avoidance measures. This means that often, companies, including SpaceX, equip these satellites with thrusters that enable them to perform these measures. These thrusters can be taken over by a rogue actor, or even a state government, to speed up or change the orbit of a singular satellite to create a collision. These attacks may be highly desirable since they are virtually untraceable and can have crippling effects on a rival country’s internet, defense, or even nuclear infrastructure. While this scenario sounds apocalyptic, there is history of satellites being hacked [11]. In 1998, the ROSAT X-Ray satellite was hacked and fried. In 1999 hackers held the U.K.’s SkyNet Satellites for ransom. In 2008, Chinese hackers took control of two NASA satellites. Another attack was launched by Chinese state-backed hackers in 2018 against satellite and defense contractors. The risk presented by private satellite constellations is significantly more dire for three reasons. First, because these satellites did not have thrusters, the hackers were limited in what kind of damage they could inflict. Second, the connection of a singular satellite within a constellation to the larger network of satellites in that constellation broadens the attack surface for hackers, making hacking significantly easier [12]. Third, and most worryingly, there are dangerously few regulations for cybersecurity in outer space. No international oversight agency exists for space assets. The Federal Communications Commission in the United States does not require any demonstration of how a company plans to secure satellites and has no requirements for companies to share any kind of information about cybersecurity.
It is important to discuss what exactly the impact of a collision would do. Whether it is an accidental collision between two satellites, or a hacker taking over thrusters and using a satellite as a kinetic weapon, the ramifications are dire. Any debris generated by a collision can spawn thousands of pieces of debris. An increase of debris in orbit creates an effect known as the Kessler Syndrome, which occurs when space debris increases at an exponential rate due to debris colliding with itself repeatedly, generating even more debris [13]. This will hinder the overall usability of Lower Earth Orbit; an arena where increasingly important satellites are being positioned. Even more seriously, this poses serious threats to nuclear early-warning satellites. These satellites are critical to maintaining the nuclear balance since they allow countries to detect and track missile launches. Given the capability of a satellite within a constellation to be used as a kinetic ASAT (anti-satellite weapon), a hacker could hijack one and fly it into the path of an early warning satellite. Debris generated by an accidental collision could also crash into one of these satellites. It would be incredibly difficult for a country to discern whether their satellite simply went dark due to a glitch or whether they were under attack. This raises risks of nuclear miscalculation, a terrifying possibility that becomes very real in a world of unregulated megaconstellations.
The agreement that most closely attempts to deal with this problem is the Convention on International Liability for Damage Caused by Space Objects adopted by the United Nations in 1971, also known as the Liability Convention [14]. While the convention includes numerous guidelines on liability for a state’s space objects, it brushes aside all other objects as the responsibility of the state to regulate. This presents an issue as handing over almost all regulation of a country’s private space sector to that country is not only inconsistent with international law, but also presents practical challenges for regulation. Firstly, the Outer Space Treaty aims to treat space as a global commons [15]. The core principles of the treaty, including that the aim of space exploration and use ought to be for the benefits of all people, that space should be free for exploration and use by all states, and that it ought to be used exclusively for peaceful purposes all indicate this. However, this ‘commons principle’ is undermined by the fact that the only regulatory mechanism this treaty contains for private entities is one clause stating that, “states shall be responsible for national space activities whether carried out by governmental or non-governmental entities.” Additionally, this clause is very ambiguous on whether this means private space activity, which didn’t really exist at the time of the treaty’s adoption. Either way, it also doesn’t provide guidelines on how states should regulate their private companies, just that they are responsible. More importantly, unregulated private mega constellations have the potential to constitute a violation of the non-appropriation principle of the Outer Space Treaty.
The non-appropriation principle of the Outer Space Treaty states that “outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. The problem is that Article II of the treaty, which establishes this principle, does not expound on what “appropriation” constitutes outside of saying it can come by exclusive “use”, “occupation”, or “any other means”. Takaya et al. argue that a mega constellation violates this principle because the space in LEO is physically occupied for the economic benefit of the company, preventing any other entity from accessing that space. Johnson further expands on this, arguing that what differentiates satellite constellations from normal satellites places in orbit are that constellations occupy orbit in overwhelmingly large orbital planes that effectively place a company as the ‘sole owner and user” of that particular orbit, preventing any other actor to place spacecraft in that region. Johnson also observes that these constellations are placed into orbit without international coordination or permission, and that the responsibility of the state is to make sure that the companies are in compliance with international law, which, if the previously given analysis of appropriation is correct, is obviously not occurring.
III. NORMATIVE RECOMMENDATIONS
This leads into the second issue which is that the Liability Convention and the Outer Space Treaty overestimate the willingness of nations with large private space industries to regulate their private companies to follow international law. If the appropriation of outer space through mega constellations were to be prevented, these companies, and therefore the country, stand to lose potentially hundreds of billions of dollars of revenue. What the Liability Convention and the Outer Space Treaty don’t include is any sort of enforcement mechanism to ensure that states follow through. Several possible routes exist to achieve this. First, it should be clarified that the non-appropriation principle of the Outer Space Treaty definitively extends to private actors. While the argument can be made that it already does by extending responsibility to the states for any spacecraft launched in their territory, this ignores multinational companies who could possibly launch from different countries, and it leaves open room for argument that it doesn’t extend to private actors which shouldn’t exist. This must also be accompanied by greater centralized regulation over LEO. The best way to achieve this is through the International Telecommunications Union (ITU). The ITU already regulates satellites in geosynchronous orbit (GSO) through allocation of orbital slots, essentially giving states licenses for the temporary use over an area of orbit. This will avoid violation of the non-appropriation principle by preventing exclusive use and occupation (the removal of permanence makes the use of the orbit non-exclusive), and also avoid profit incentives of individual states to look the other way in terms of regulation. Additionally, there must be measures put into place to resolve concerns about cybersecurity. The ITU also has the capability to do this, by mandating certain cybersecurity measures be put into place before granting an orbital slot, or through facilitating info-sharing between companies putting megaconstellations into orbit.
Although international space law has been made more complex through the introduction of private actors as dominant players, routes do exist to ensure that treaties are followed. It must be made a priority to do so as otherwise, the exponential growth seen in the mega constellation sector will at best make LEO unusable, and at worst risk nuclear miscalculation.
Pranav Kaginele is a freshman at Johns Hopkins University planning to major in International Studies and Economics.
Sources:
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