A New Year – A New Challenge – Regulating Low Earth Orbit

The first flight of Elon Musk’s Falcon 9 rocket back in 2010 launched a new space age. Since SpaceX developed its first reusable rocket, the costs of sending satellites into orbit have plummeted, opening up a multi-billion-dollar market for thousands of companies around the world. Arguably, Musk has done more than anyone since Neil Armstrong to reignite interest in space.

But Josef Aschbacher, head of the European Space Agency, has sounded the alarm over the US billionaire’s dominance of the new space economy. SpaceX has enable Musk to launch satellites at an unprecedented rate for his space-based internet service Starlink. In less than two years he has built a constellation of nearly 2,000 satellites, roughly 40 percent of all active satellites. Within years he plans to have 12,000 satellites, and national regulators have granted permission for some 30,000 satellites.

Some dismiss the European Space Agency (ESA) boss as a European protectionist. That in our opinion misses the point. Aschbacher was not blaming Musk for breaking any rules. He was underlining the fact that rules just do not exist to guarantee responsible and sustainable use of low Earth orbit, up to 2000 km above the Earth, where most satellites operate. Others, from the UK’s OneWeb to Jeff Bezos’ Project Kuiper, also plan big constellations. Existing international agreements, designed when space was largely the preserve of governments, have been left behind. The UN Outer Space Treaty of 1967 proclaims space “the province for all mankind”. But responsibility for licensing satellite operators rests with the nation states, which all want a slice of the new market.

While the International Telecommunication Union regulates radio frequencies on which satellites transmit, there is no system for coordinating orbits and no global space traffic management system. There are no requirements to share information on trajectories, no rules for who should move out of the way to avoid collision, and no binding regulations on removing satellites at the end of their life. In 2019, the UN Committee on the Peaceful Uses of Outer Space adopted 21 guidelines for the long-term sustainability of space – but voluntary ones with no agreed consequences for transgression.

So, a crisis looms that could kill off the space economy in its infancy. On current plans, there could be 100,000 satellites in orbit by the decades end, for everything from internet services to Earth monitoring. Space is a big place, but the multitudes of planned constellations raise the odds of collisions that could render some orbits unusable.

Russia’s recent anti-satellite test is the latest example of Vladimir Putin’s game of brinkmanship. This test should in our opinion act as a wake-up call to mankind as we risk turning Earth’s celestial neighbourhood into a junk yard. Unless we change course, the opportunities of space to improve our lives on Earth could be closed off for generations. When Moscow deliberately destroyed a satellite last year, the blast reportedly created a debris field of at least 1,500 pieces of unguided shrapnel, and potentially many thousands more non-trackable but lethal, smaller fragments. Travelling at speeds of around 7 km per second, even a fleck of paint can cause critical damage to infrastructure in space. Astronauts in the International Space Station were forced to take precautionary measures following the Russian test.

According to the French, this one test alone has increased, by five percent, the risk of Kessler syndrome – the effect where debris creating collisions cascade until our orbits are rendered inaccessible. This would in our opinion literally ground mankind on planet Earth and bring all the economic, environmental and scientific benefits of space to a screeching halt. Just one incident has caused this much damage and risk. The rules governing the use of space by governments and the private sector are no longer fit for an age where space is increasingly congested and contested. While the 1967 Outer Space Treaty bans the stationing of weapons in space, it does not stop Russian satellites snooping on other satellites which are beaming critical data to NATO forces on the ground. Nor does it prevent adversaries from mounting potentially hostile operations against other satellites.

Yes, in the coming years the world intends to saturate space, especially low-Earth orbit of around 500km to 600km with tens or even hundreds of thousands of satellites, known as mega-constellations. These promise greater global connectivity for both military and civilian use. But just as space opens to those new possibilities, the reckless rush to launch many thousands of objects into orbit is in danger of shutting it down. Until now, most communications satellites have operated in much higher orbits of around 36,000km, each circling the planet in its designated slot, not causing significant risk of interfering with other operators.

The major misconception in our opinion is that space is big enough to sustain all this activity. But the opposite is true: the space within our orbit is finite. Every satellite launched increases the risk of collision. Research suggests the debris from a collision of two mega-constellation satellites would be similar to that produced by the Russian missile test. The problem with the Kessler syndrome is that we will not know it has begun until it’s too late.

Space regulators in our opinion need to dust off their rule books, which date back to a time when satellite companies were launching only a handful of satellites. With larger numbers in orbit, the hazards rise exponentially, but the regulators and the regulations have not responded to the heightened risk. It is therefore no surprise that the space insurers are increasingly raising the alarm on this unsustainable behavior. Before setting new rules, however, regulators need to understand what volumes of satellites our orbits can safely sustain. This is exactly what has been done in civilian airspace. In an ideal world, the UN or the International Telecommunications Union would set these new rules. Unfortunately, despite the best intentions, consensus on meaningful rules in our opinion is very unlikely. NATO members and space powers like the US, UK and France share the same concerns about hostile behavior in space by Russia and China. But they are also competitors in the commercial space field and would not necessarily welcome new rules. This is where in our opinion the EU needs to step in. Europe is the only major jurisdiction not to have conducted an anti-satellite test in space and it has leverage over how its national governments grant market access to satellite operators.

If European and national regulators were to set clear conditions to lower the risk of collisions, this could influence other key markets like the US. The European Commission should take the lead in providing ready-made criteria for national governments to deploy. Brussels took a similar approach to national security concerns over 5G networks.

Space in our opinion is the new frontier for mankind’s unsustainable behavior. If regulators fail to design rules that prevent our orbital activity from becoming self-defeating and destructive, we will soon find we have squandered another of Earth’s greatest resources.

A new, overarching space treaty is probably not achievable in our opinion in the short-term. But smaller steps could ensure the space economy remains safe, sustainable and open to all. Nations that signed the 2019 guidelines should ensure there are drastic penalties for violators. Launch companies and users of satellite services could refuse to do business with operators who ignore them. An urgent agreement is in our opinion also needed on communication and traffic management protocols to avoid collisions.

Nations, not billionaire entrepreneurs such as Musk, must ultimately take joint responsibility for regulating space. But his control over a big chunk of commercial space and close relations with the US regulators might give him already a strong voice on what constitutes responsible behavior. If Musk puts his energy into supporting global norms to ensure a safe environment, the world most probably would listen. On the other hand, as Musk is already the one person owning half of the active satellites in the world, regulators have to be careful that he is not going to make his own rules. That at least would not be the first time – remember the PayPal Mafia.