Mega-constellations: Disrupting the Space Legal Order

• Citation: Vol. 37 No. 1
• Publication year: 2022
• topic: Aeronautics,Technology,Internet, Media and Communications

Mega-Constellations: Disrupting the Space Legal Order

Steven E. Grotch

MEGA-CONSTELLATIONS: DISRUPTING THE SPACE LEGAL ORDER

Table of Contents

Introduction: Mega-Constellations of Small Satellites Disrupt the Existing Space Legal Order................................................................. 102

I. Background and Historical Perspective................................ 103

A. "Mega-Constellations" of Small Satellites in Low-Earth Orbit (MegaLEOs) in Detail............................................................. 103
B. Satellites' Historical Role in Telecommunications................... 105
C. Laws of Space......................................................................... 106
D. Where Does Airspace End and Outer Space Begin? ................ 107

II. Internet and Information Censorship..................................... 109

A. Legal Lssue Presented by Censorship ...................................... 109
B. Potential Solutions for Mitigating Censorship and Balancing Sovereignty............................................................................. 114

III. Space Debris................................................................................ 116

A. Legal Lssue Presented by Space Debris ................................... 116
B. Possible Solutions for Mitigating Space Debris....................... 120

IV. Space Traffic Management....................................................... 122

A. Legal Issue Presented by Space Traffic ................................... 122
B. Possible Solutions for Managing Space Traffic ....................... 126

V. MegaLEOs' Threat to the Non-Appropriation Principle in the Outer Space Treaty.............................................................................. 128

A. Legal Lssue Presented by Non-Appropriation .......................... 128
B. Possible Solutions to Non-Appropriation ................................ 131

Conclusion............................................................................................. 132

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Introduction: Mega-Constellations of Small Satellites Disrupt the Existing Space Legal Order

Since the first active communications satellite was put into orbit in 1962, communications satellites have become smaller, more advanced, and less expensive, enabling operators like Starlink and OneWeb to mass produce and launch thousands of small satellites into low-earth orbit.¹ So-called "mega-constellations" of small satellites in low-earth orbit (MegaLEOs) can deliver high-speed internet to areas previously unserviceable by internet providers at speeds faster than traditional, higher-orbit internet satellites.² But in order to operate in low-earth orbit, thousands of these satellites must work in concert; therefore, the proliferation of MegaLEOs in the coming years will disrupt the existing order of satellites in orbit and pose a series of significant legal implications along with it. Although the legal consequences associated with significant MegaLEO deployment have existed since the dawn of the Space Age and are not unique to MegaLEOs alone, these consequences are exacerbated in such a way that poses a unique danger to the international community and parties interested in space exploration and exploitation.³

This Comment, in Part I, discusses the history of space law, determines what MegaLEOs are, and asks whether they are in airspace or outer space, and if that has bearing over a state's ability to govern satellites overhead. Parts II-V focus on the most relevant legal challenges caused by the proliferation of MegaLEOs and their accompanying possible solutions.

The emergence of MegaLEOs has caused and will cause a multitude of challenges to the existing international legal system, including: light pollution from satellites which may impair astronomical observations from ground-based telescopes⁴ and disproportionately affect indigenous communities whose rituals

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depend on night sky observation;⁵ determining whether a different set of legal protections would be afforded to state-run and operated MegaLEOs versus privately-run and operated MegaLEOs; and the role hackers and criminal organizations may play in hacking the satellites. These challenges, while important, will not be addressed by this Comment.

Part II examines the legal implications and possible solutions of states' ability to censor internet from MegaLEOs, essentially asking whether a state can restrict the internet transmission from MegaLEOs, given their unique ability to circumvent internet censorship. Part III examines the legal implications and possible solutions of MegaLEOs causing more space debris to occur, asking if international law mandates mitigation to space pollution and holds polluters liable. Part IV examines the legal implications and possible solutions of the growing threat of collisions in low-earth orbit resulting from the proliferation of MegaLEOs, asking whether the international community needs to create new law and regulatory authorities to combat a lack of space traffic management which threatens satellites, the orbital environment, and astronauts. Part V asks if MegaLEOs' indefinite access to exclusive orbital slots threatens the non-appropriation principle in the Outer Space Treaty, which bars states from asserting exclusive rights in outer space and analyzes potential solutions. Understanding these four issues and how they cooperate with one another is crucial to understanding the role MegaLEOs will play in shaping and redefining the international order in space. Part VI looks back on these questions and concludes that the new space race among space companies requires more international cooperation on establishing practices and norms, or even legislation, for orbital operations and remedying the consequences of MegaLEOs.

I. Background and Historical Perspective

A. "Mega-Constellations" of Small Satellites in Low-Earth Orbit (MegaLEOs) in Detail

A "mega-constellation" of small satellites in low-earth orbit, or MegaLEO, is a group of dozens to thousands of individual artificial satellites, which operate

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to cover a vast span or even the whole of the Earth's surface.⁶ Hundreds, if not thousands, of satellites are required to provide sufficient connectivity for a given area because satellites in low-earth orbit (LEO) are in constant motion in their orbits, cover small areas of surface with each pass, and are mostly only visible for twenty to thirty minutes per pass.⁷

Business entities and governments deploy small satellites into low-earth orbit to expand internet access for a multitude of reasons. Smaller satellites requiring less fuel can be sent into LEO as compared to medium-Earth orbit (MEO).⁸ Especially for communications and navigation satellites, these objects experience a shorter communication time lag (low latency) and higher bandwidth when they are closer to the ground.⁹

SpaceX's Starlink is a private broadband MegaLEO operator, which has launched upwards of 2,500 satellites as of May 2022,¹⁰ with clearance to launch up to 12,000 into orbit by 2027, and has applied for regulatory approval of another 30,000 satellites.¹¹ U.K.'s OneWeb plans to operate a MegaLEO of 648 satellites by the end of 2022.¹² Amazon's Project Kuiper plans to operate a MegaLEO of 3,236 satellites to extend broadband internet to the rural United States.¹³ As previously mentioned, the Chinese government plans to oversee a "national network" satellite broadband project, or "Guowang," with a total of 12,992 satellites.¹⁴ MegaLEO projects will only increase in frequency and intensity, as private companies and governments realize MegaLEO satellites can deliver high-speed internet to rural areas, areas that cannot support ground

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terminals, or areas where ground terminals are too expensive to transmit internet, thus providing near-global coverage to the populated world.¹⁵

B. Satellites' Historical Role in Telecommunications

Knowledge was historically transmitted via the spoken word, then the written word, and not until recently, by electric and electronic signals. The internet is perhaps the single most significant advancement in the Information Age, allowing people from all over the world to connect, interact, and learn.¹⁶ Although the internet has and will provide this extraordinary service of interconnection, about forty percent of the world's total population remains offline.¹⁷ It should be noted, however, that internet connectivity has been increasing steadily in areas that remain largely unconnected.¹⁸

The United States and Europe were first connected via undersea telegraph cables on July 29, 1858.¹⁹ Today, upwards of ninety-five percent of intercontinental global internet traffic similarly travels through undersea cables.²⁰ The solution to serving areas with low internet connectivity with access to high-speed internet lies with satellite internet. It is critical for the next generation of high-speed internet to come from constellations of satellites in LEO. LEO satellites can deliver high-speed internet with reduced lag compared to traditional satellite internet.²¹ LEO satellites can deliver high-speed internet to rural areas, areas that cannot support ground terminals, or areas where ground terminals are too expensive to transmit internet, thus providing near-global

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coverage to the populated world.²² Satellite enterprises, including SpaceX, Amazon, OneWeb, and the Chinese state-run "Guowang" constellation, plan to extend global internet coverage and reduce the price of internet access.²³ As of March 2021, the number of satellites, both active and defunct, in LEO is about 5,000.²⁴ Tens of thousands more communications satellites in low-earth orbit are awaiting permission from regulatory agencies and are expected to enter into orbit in the coming years.²⁵

C. Laws of Space

The law governing MegaLEOs once in orbit is international space law, a branch of public international law, which is the body...