Legal Issues Related to the Future Adventof Small Satellite Constellations

Steven Freeland

ContentsIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3The Evolutionary Events that Have Led to Small Satellite Constellations . . . . . . . . . . . . . . . . . . . . . . 4The Current International Legal Framework and Regulatory Requirements . . . . . . . . . . . . . . . . . . . . 6International Regulatory Requirements for Deployment and Operation of Space Systems . . . . 8

International Responsibility: Authorization and Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8International Liability: National Indemnity Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Registration: National and United Nations Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Sustainability of the Space Environment: Space Debris Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Other Regulatory Considerations: Frequency Allocation/Space Traffic Management/Impacton Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Professor of International Law, Western Sydney University; Permanent Visiting Professor, iCourtsCentre of Excellence for International Courts, University of Copenhagen; Visiting Professor,University of Vienna; Visiting Professor, Universite Toulouse 1 Capitole; Associate Member,Centre for Research in Air and Space Law, McGill University; Adjunct Professor, University ofHong Kong; Adjunct Professor, University of Adelaide; Member of Faculty, London Institute ofSpace Policy and Law; External Examiner, Universiti Teknologi MARA, Malaysia; Member,Australian Space Agency Advisory Group; Director, International Institute of Space Law; Member,Space Law Committee, International Law Association; Member, Space Law Committee,International Bar Association; Member, European Centre for Space Law. This chapter was writtenin September 2019 and builds on my previously published research as follows:1. From Little Things, Big Things Grow: How Should We Regulate the Commercial Utilization

of Small Satellite Technology? in George D. Kyriakopoulos and Maria Manoli (eds), The SpaceTreaties at Crossroads: Considerations de Lege Ferenda 65–78, 2019 Springer.2. A Delicate Balance: Regulating Micro Satellite Technology in a Big Satellite World

(2014–2015) 18:1 University of Western Sydney Law Review 1–18.

S. Freeland (*)Western Sydney University, Sydney, Australiae-mail: S.Freeland@westernsydney.edu.au

© Springer Nature Switzerland AG 2020J. Pelton (ed.), Handbook of Small Satellites,https://doi.org/10.1007/978-3-030-20707-6_73-1

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http://crossmark.crossref.org/dialog/?doi=10.1007/978-3-030-20707-6_73-1&domain=pdfmailto:S.Freeland@westernsydney.edu.auhttps://doi.org/10.1007/978-3-030-20707-6_73-1

AbstractThe development of international space law within the United Nations, andspecifically as negotiated through global consultations of the UN Committee onthe Peaceful Uses of Outer Space (COPUOS), was largely first undertaken in the1960s and 1970s. This process resulted in the negotiation and creation andimplementation of the Outer Space Treaty and four additional subsidiary bindinginstruments. Quite understandably, these twentieth-century agreements did notanticipate many of the latest developments in space technology and systems thathave arisen in the twenty-first century. One of the most significant developmentsin recent years is the development of small satellite technology and systems thatcan be designed, manufactured, and launched at much lower cost. The interna-tional space law that was agreed a half century ago is in some way not sufficient tospecifically address all of the issues associated with deployment of large numberof small satellites. These issues include a number of concerns related to frequencyallocations and interference, removal or deorbit of small satellites at end of life,space situational awareness and space traffic control, and other concerns relatedto the safety of space systems in Earth orbit.

The processes of agreeing international space law are complex and are basedon achieving global consensus and thus tend to be quite slow. By contrast, thecurrent pace at which small satellites are being developed and launched isaccelerating each year. This raises concerns about space safety and the avoidanceof collisions in space, as well as increased levels of frequency interference. Thecomplexities associated with achieving new levels of international agreementsuggest that many of these safety, frequency interference, and improved spacesituational awareness and space traffic management issues will need to beaddressed at the national regulatory level – especially with regard to smallsatellites. In this regard, issues related to the deployment of the so-called mega-constellations and removal of these satellites at the end of life are perhaps amongthe most urgent.

This chapter explores the background of international law and regulation withregard to the launch of satellites into Earth orbit, and especially with regard to theincreasing number of small satellites that are now being launched or planned fordeployment. It also suggests that national regulatory controls and safety measuresto prevent the excessive buildup of space debris and increased frequency inter-ference will be the critical near-term solution to these emerging problems. Inaddition, some form of “soft law” guidelines and informally agreed measures atthe international level might also be helpful.

KeywordsAustralian Space (Launches and Returns) Act 2018 · Barriers to access to space ·Collision avoidance maneuvers · Frequency allocation and interference · FederalCommunications Commission · General Assembly Principles · LiabilityConvention · Long-term sustainability of outer space · Mega-constellations ·National space regulations · Outer Space Treaty · Small satellite constellations ·

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Soft law · Space debris · Space traffic management · United Nations SpaceTreaties

Introduction

On 2 September 2019, the European Space Agency (ESA) performed what itreferred to as a “collision avoidance maneuver” – in layman’s terms, a change ofcourse – of its low Earth orbit observation satellite Aeolus, (https://www.esa.int/Our_Activities/Operations/Aeolus_operations 2019) in order to avoid a potentiallycatastrophic collision with a SpaceX Starlink satellite. This Aeolus satellite had amass of 1.3 tons when launched in August 2018 and thus as a substantial target. TheStarlink satellite is known as Starlink 44 – represents one of some 60 satelliteslaunched by SpaceX on 23 May 2019 as the initial phase of the constellation. Thissatellite with a mass of 227 kg when launched is substantially less massive than theAeolus satellite, but a collision would have created thousands of new debris ele-ments. While such evasive actions are not unheard of, the unique aspect of this eventwas that it was the first time that an operator had found it necessary to undertake sucha maneuver to mitigate against the possibility of a conjunction with a small satellitethat is part of a small satellite “constellation.”

Small satellite (“mega-”) constellations can be thought of as fleets of hundredsand perhaps even thousands (https://www.spacex.com/sites/spacex/files/starlink_-press_kit.pdf 2019) of spacecraft working together in orbit. Typically, they willcomprise “small” or “nano-’ satellites, albeit that those terms are not strictly definedand are generally thought to include space objects ranging from tiny “femto-’satellites weighing less than 100 gm to those “mini” satellites weighing up to500–1000 kg, and everything in between (at this stage, most small satellites seemto be at the lower end of the scale).

For various reasons outlined below, small satellite constellations are expected tobecome a significant feature of space activities over the next few years and thus willgive rise to a disproportionately large increase in the number of space objects thatoperate within the Earth’s space environment.

While such objects are much smaller than the average low Earth orbiting satellite,given the required orbital velocity necessary for them to remain in space, they arestill large enough to cause serious damage to other (larger) spacecraft supplyingimportant services such as Earth observation and meteorology. This has not escapedthe attention of the national and international authorities, and there is the risk of abacklash from the established players concerned about the potential increase incollision risk from the additional number of small objects in low Earth orbit.

As the number of satellites in space dramatically increases, close approachesbetween two operated spacecraft will occur more frequently. In contrast to potentialconjunctions with space debris – nonfunctional objects including dead satellites andfragments from past collisions – these require coordination efforts between therespective operators to avoid conflicting actions and, ultimately, collision avoidancemaneuvers of the type conducted by ESA in situations of high potential disaster.

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The Aeolus/Starlink 44 incident will, therefore, add further fuel to the increas-ingly strident debate that is emerging about the risks and opportunities that thistechnology gives rise to. It seems that the advent of small satellite constellations isinevitable, at least from the perspective of industry, even in the absence of clearprohibiting regulation; thus it is important to understand the major relevant legalissues related to this development. These issues are discussed in this chapter.

The Evolutionary Events that Have Led to Small SatelliteConstellations

Since the launch of Sputnik 1, the first human-made space object to orbit the Earth,there has been a breathtaking and seemingly endless development of space-relatedtechnologies. Humankind is now engaged in a multitude of space activities farbeyond the contemplation of those involved at that time. The utilization of spacetechnology now forms a crucial part of everyday society in all parts of the globe –irrespective of the (geo)political, economic, societal, and cultural characteristics ofany one country.

Simply put, our reliance on space technology is such that the world would ceaseto function in many respects without constant and unimpeded access to space, andthis imperative is likely to become even more pronounced for future generations.This has primarily been driven by the increasing “commercialization” of outer space.

Yet, as is well known, there remains a vast gulf between the space capabilities ofthe relatively small number of space “powers” and the rest of the world. It has beenestimated that approximately up to 60–70 States currently possess some form ofdirect indigenous space capability, although the extent that they are able to utilizespace for their own development (and other) purposes varies quite significantly. Ofcourse, this also means that perhaps up to 130–140 States thus far do not possess anyindependent indigenous capability to directly access space themselves, despite theirreliance on the technology for many aspects of their functioning and development.These countries are instead totally dependent on others for their space access, whichtherefore impacts upon their space independence and national security and may wellalso impede opportunities for creativity, innovation, industrial development, andprogress among their citizens.

The reality is that their access to satellite data and the ability to utilize vital spacetechnology in a crisis would be largely dependent on and subject to the strength andenforceability of their existing contractual relationships and political ties. Given thechanging nature of international (geo)politics, it seems that reliance upon historicaland traditional strategic links, or pre-agreed international arrangements, may bemore prone to uncertainty and difficulties than ever before.

This invariably operates within the space arena as well – the combination offactors arising from any State’s growing reliance on space assets and space-relateddata and intelligence, coupled with its increasing focus on maintaining sovereignindependence and capability in areas of critical infrastructure, means that any

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country will seek out ways in which it can be more self-reliant in its interaction withspace activities.

It is in this context that the recent development and adaptation of small satellitetechnology potentially represents a paradigm shift in the way humankind accessesspace. These satellites are usually cheaper and less complex to develop, build, andlaunch than conventional (large) satellites. They therefore open up the possibilitiesfor a significantly greater degree of space access to a much larger range of States andtheir space “actors.” Initially, groups such as university students and nonprofitorganizations in both developed and developing countries increasingly have becomeinvolved in space through these means. In many countries, the development of thistechnology may represent an important precursor to the establishment of indigenousand independent space programs in States that previously were not in a position toconsider such activities.

In effect, by eliminating some significant barriers to entry, small satellite tech-nology may facilitate capacity building, broader collaborative opportunities andeducation/training programs, as well as bridging (some) technology gaps, for hith-erto “non-space-faring” States. It will also open up even more diverse commercialopportunities for a much broader range of potential service providers and, generally,“bring space to more people.”

But more than that, significantly, as the technology has been developed evenfurther, it has also opened the door also to “traditional” users of outer space –including both States and private commercial entities – to utilize it for existing aswell as new purposes. This has served to broaden the scope of their capability at asignificantly lower relative cost, which may present some interesting and potentiallylucrative commercial opportunities. Of course, this is subject to the development offeasible and achievable business cases – although the fact that several large corpo-rations are proceeding down this path seems to suggest that this is possible.

In addition, this has and will require a mind-shift on the part of existing spaceactors, as they grapple with whether and how to adapt to this relatively newtechnology and adjust their activities to the challenges posed by the potential fornew market entrants. Yet, as is clear from the announced plans of companies such asSpaceX, One Web (2019), Planet (2019), Amazon (Sheetz 2019), and others, it is anopportunity that is being embraced in significant terms.

As a consequence, the increasing advent of this technology is already redefiningthe landscape of many activities in space. This new space paradigm will not see theend of more traditional satellite technology since, naturally, small satellite technol-ogy will not quench our insatiable demand for all that space can provide. However, itdoes open up a plethora of possibilities, many of which we are simply not in aposition to comprehend or even imagine at this point. In this regard, one might likenthe potential of small satellites to the way that mobile phones have revolutionizedterrestrial communication activities. We simply do not know where this technologymight ultimately lead and what it will allow us to do. However, we can confidentlyexpect that it will open the door to an even more expansive array of profitablecommercial opportunities.

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Thus, from a technological perspective at least, small satellite technology mostlikely represents a “win-win” possibility that enhances the momentum for changeand further promotes commercial space activities. Indeed, in many respects, this hasbeen the primary motivation for both developers and users thus far. As with manyaspects related to the exploration and use of outer space, the technology continues tomove forward at a rapid pace without sufficient attention being paid to the regulatoryconsequences and requirements. It is therefore important not to be too caught up inthis wave of optimism and innovation, without at least also considering how thesedevelopments coexist with the current international regulatory framework, whichhas largely been designed to govern those space activities carried on through theutilization of “big” satellite technology.

Moreover, the fact that small satellite constellations allow greater access to spacefor more people does not necessarily translate into an adherence to responsible spacebehavior. Indeed, it may have the opposite effect, particularly if the regulatoryregime is not specifically relevant, appropriate, and/or respected. This, of course,gives rise to immediate questions as to what the major issues are and what the currentregulatory framework has to say about these. From there one has to then considerwhether a sui generis set of prescriptive rules, principles, or standards should bedeveloped and made applicable to small satellite constellations.

The purpose of this chapter is therefore to take pause and reflect on variousregulatory requirements and challenges posed by the existing international legalregime in relation to the use of small satellite technology to develop constellations.While many of the users of this technology are no doubt cognizant of theserequirements, it is this author’s experience that many are not; or, put another way,they do not consider the regulatory issues with the same degree of attention as theydo the technical factors.

What this discussion will highlight is the fact that the existing legal frameworkwas not designed with small satellite technology specifically in mind. As a result,further regulation will most likely be required – particularly at the national level –and this will necessitate a “balancing” of sometimes competing interests betweenprotecting the State from potentially very significant liability on the one hand andencouraging innovation and research and development on the other.

Coupled with these considerations, the increasingly crucial notion of responsiblespace behavior must also play a part in determining how to address some of thesespecific issues. Although the discussion below focuses on the current regulatoryrequirements, it leads to the conclusion that the design of future legal regimes to dealspecifically with small satellite technology will necessitate some fundamental policydecisions by national lawmakers and regulatory bodies.

The Current International Legal Framework and RegulatoryRequirements

The international regulation of the exploration and use of outer space is primarilybased upon a series of five United Nations Space Treaties. These are (i) 1967 Treatyon Principles Governing the Activities of States in the Exploration and Use of Outer

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Space, including the Moon and Other Celestial Bodies, 610 U.N.T.S. 205 (OuterSpace Treaty); (ii) 1968 Agreement on the Rescue of Astronauts, the Return ofAstronauts and the Return of Objects Launched into Outer Space, 672 U.N.T.S.119 (Rescue Agreement); (iii) 1972 Convention on International Liability for Dam-age Caused by Space Objects, 961 U.N.T.S. 187 (Liability Convention); (iv) 1975Convention on Registration of Objects Launched into Outer Space, 1023 U.N.T.S.15 (Registration Agreement); and (v) 1979 Agreement Governing the Activities ofStates on the Moon and Other Celestial Bodies, 1363 U.N.T.S 3 (Moon Agreement).

Also of importance are several General Assembly principles: (i) 1963 Declarationof Legal Principles Governing the Activities of States in the Exploration and Use ofOuter Space, United Nations General Assembly Resolution No 1962; (ii) 1982Principles Governing the Use by States of Artificial Earth Satellites for InternationalDirect Television Broadcasting, United Nations General Assembly Resolution No37/92; (iii) 1986 Principles Relating to Remote Sensing of the Earth from OuterSpace, United Nations General Assembly Resolution No 41/65; (iv) 1992 PrinciplesRelevant to the Use of Nuclear Power Sources in Outer Space, United NationsGeneral Assembly Resolution No 47/68; and (v) 1996 Declaration on InternationalCooperation in the Exploration and Use of Outer Space for the Benefit and in theInterest of All States, Taking into Particular Account the Needs of DevelopingCountries, United Nations General Assembly Resolution No 51/122.

The treaties in particular set out a number of fundamental rules, imposing variousobligations on States parties, some of which are also regarded as representingcustomary international law (Hobe et al. 2009).

Those States that are parties to the major United Nations Space Treaties aresubject to various obligations that logically point to the need to develop nationalspace law (Freeland 2012) to regulate those private entities within their respectivejurisdiction that engage or wish to engage in “national activities in outerspace.”(Outer Space Treaty, Article VI) More and more States are therefore promul-gating national space laws to “transform” these international obligations into theirrespective domestic legal spheres. The status of these various national space laws asreported here are not necessarily up-to-date for those countries, nor comprehensivein its coverage. For example, in December 2017, the New Zealand Outer Space andHigh-altitude Activities Act 2019 came into force in that country. Quite a number ofother States have also finalized or are in the process of developing their own nationalspace legislative framework (United Nations Office of Outer Space Affairs(UNOOSA) 2019).

Given that the advent of small satellite technology presents opportunities forhitherto non-space-faring States to engage in space activities, it may well be that thedevelopment of such technology in a particular country may “pre-date” any specificapplicable national laws. Thus, the possibilities of greater access to this technologymay be a driving force in the enactment of a further “wave” of national space law invarious countries – for example, as was the case in Austria, which enacted itsnational space law in late 2011 (Freeland et al. 2018). Another example is theAustrian Outer Space Act 2011, which entered into force in December of that yearand was introduced largely in response to the development of small satellite pro-grams by a number of Austrian universities, and the impending launch of two

Legal Issues Related to the Future Advent of Small Satellite Constellations 7

Austrian-built small satellites, which were eventually launched from India into lowEarth orbit in February 2013.

In certain respects, therefore, the development of national space law represents amajor growth “industry” for space professionals and government regulators.

It should be noted that, in addition to these various instruments, and possibly alsoto supplement any perceived “gaps,” there have recently been an increasing numberof “soft-law” guidelines concluded that also relate to the conduct of particularactivities in outer space. This has been for several reasons, partly related to thestrategic and political nature of space, which has made the finalization of interna-tionally binding treaties more difficult to achieve (Marboe 2012). Given the currentincreasingly competitive geopolitical environment between the major powers, thesedifficulties will, if anything, be further exacerbated.

This chapter will refer primarily to existing “hard-law” regulatory requirementsthat flow from the United Nations Space Treaties – although reference will be madeto one important set of voluntary guidelines – from the perspective of how they mayrelate to the use of small satellites and seek to raise some pertinent questions thatarise from their applicability. It is not intended in this chapter to be exhaustive in thisregard or comprehensive as to all precise details, but rather to raise the moresignificant issues and the challenges they pose. This will also serve to highlightthe importance of properly addressing the reality of small satellite constellations byway of specifically directed regulation, given that the use of small satellite technol-ogy, and the “management” of these constellations, will most likely continue to growexponentially into the future.

International Regulatory Requirements for Deploymentand Operation of Space Systems

Some of these (international) regulatory requirements are as follows.

International Responsibility: Authorization and Supervision

As noted above, the regime for space activities is structured on the basis that Statesbear international responsibility for “national activities in outer space,” includingwhen such activities are carried on by nongovernmental entities. While there is noprecise definition in the Outer Space Treaty as to what constitutes a “national”activity, the terms of the domestic space law of a particular State will clarify thescope of activities to which it refers – in essence, representing an interpretation bythe drafters of that legislation as to what they regard as constituting national activitiesin outer space, at least for the purposes of the specific domestic law.

A review of existing national space legislation indicates that, in most cases, Stateshave legislated for the regulation of space activities based on the “territoriality” ofthe activity (i.e., where an activity, e.g., a launch, involves the territory of that State),in accordance with general international law principles of jurisdiction. In addition,

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many States that have national space law also regulate space activities based on thenationality of the space actor (i.e., the person/entity engaged in the space activity).

For example, one of the express objects of the Australian Space (Launches andReturns) Act 2018 is:

to establish a system for the regulation of space activities carried on either from Australia orby Australian nationals outside Australia. . .

Thus, a launch of a small satellite in Australia by any private person or entity will inall likelihood engage the international responsibility of that State under the OuterSpace Treaty, as will the involvement of that person/entity in a small satelliteprogram – for example, the QB50 program. Under this program the satellites werelaunched from outside Australia. In these circumstances, therefore, (international)responsibility under the Outer Space Treaty is interpreted as extending to extrater-ritorial activities and is applied under the general international law concept of“nationality.” (One such example is the involvement of a number of Australianuniversities in the QB50 mission, which involved the launching in 2017 of a networkof 36 “CubeSats” built by universities all over the world, with the aim of performingvarious scientific experiments in the lower thermosphere at an altitude of approxi-mately 320 kilometers. Twenty-eight of these small satellites were deployed from theInternational Space Station in May 2017 and eight from India in June 2017.)

Article VI of the Outer Space Treaty goes on to require that the “appropriateState” – which is thought by most commentators to refer to the State whose nationalactivity it is – undertake the “authorization and continuing supervision” of suchactivities. Typically, the authorization of space activities is implemented by way of alicensing regime established under national law (at least for those States with specificdomestic space legislation) (Freeland 2010). This can be through the creation of acomprehensive “one-size-fits-all” license regime or, more likely, via the establish-ment of different forms of license, depending upon the particular space activity forwhich authorization is being sought.

For example, the Australian Space (Launches and Returns) Act 2018 specifies anumber of different licenses to deal with specific space activities, including an“Australian Launch Permit” for launches from Australian territory and an “OverseasPayload Permit” for launches of a space object by an Australian national fromoutside of Australia.

In relation to the use of small satellites, there is little conjecture that their launch/deployment and use do, indeed, constitute a space activity. Moreover, the satelliteitself would in most circumstances be a space object for the purposes of internationalspace law – including for the purposes of the Liability Convention, as well as thenational law of most countries. Activities involving small satellites therefore wouldtypically fall within the scope of Article VI of the Outer Space Treaty.

This in itself is not surprising, but must be taken into account, particularly bythose wishing to engage in “experimental” and “amateur” small satellite activities.When it comes to sophisticated commercial operators, particularly those that areplanning to launch/deploy small satellite constellations, one must assume that they

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are now familiar with this requirement. In any event, the reality is that those seekingto engage in small satellite activities, irrespective of where those satellites might belaunched, should take careful note of the relevant national laws and apply for therequisite license (where applicable). As noted below, this might also have addedconsequences in terms of financial and liability concerns, as well as other aspects ofconditionality.

Moreover, the requirement of continuing supervision on the part of the State maybe quite complex. There is, for example, some conjecture as to how, in practice, theneed for continuing supervision might be undertaken in circumstances where therelevant space activity is a cooperative venture between institutions in a number ofStates, such as the case with the QB50 project. Internal arrangements between thecooperating States should be put into place to allow for each State to, in some way,exercise a degree of supervision, at least in relation to those aspects of the activity(and over its nationals who may be involved in its ongoing operation) in which it hasa specific interest.

Yet, even this presupposes that the institutions or persons engaged in the spaceactivity have informed the relevant governmental agency of their involvement andhave provided specific and comprehensive details as to the scope of the program,design, payload, issues of control, etc. The recent “tardigrades” incident on the moonillustrates precisely this point – it seems that, in this instance, one of the entitiesinvolved in the Beresheet mission allegedly failed to inform other relevant stake-holders about the fact that living organisms (tardigrades) were on board the spacevehicle (Johnson et al. 2019).

Another example of the difficulties that could arise with respect to the authoriza-tion and continuing supervision obligations that arise through the Outer SpaceTreaty, and which involved a group of small satellites, is illustrated by the “SwarmSpace Bees” incident in 2018. Four very small space objects were launched (fromIndia) into low Earth orbit even though the relevant American regulatory authority,the Federal Communications Commission (FCC), had refused to grant authorizationto the operator to proceed with the launch of those particular small satellites (Howell2018). Although the company was ultimately fined for its actions, the casehighlighted the problems that can arise when a space actor fails to comply with therelevant national regulatory requirements.

This incident also gives rise to interesting questions as to the extent of, in thiscase, the United States’ liability under the international space regulatory frameworkhad one of these unauthorized objects caused damage to another space object. Thisauthor has had informal discussions with officials from the United States’ Admin-istration, who confirmed that, from their perspective at least, the Liability Conven-tion regime for fault liability (Liability Convention, Article III) would not apply,given that the Administration had exercised an authorization process (and decidednot to authorize the launch) with respect to this group of small satellites. This is anissue that will no doubt be further debated by commentators.

Adding further to the complexity is the fact that many small satellites have, todate, not been designed with control systems, and therefore cannot be maneuveredonce they are launched and operative. As a result, for these small satellites, as soon

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as they are placed in orbit, their position cannot be altered from Earth. This may alsoexplain why the continuing supervision requirement may often have beendisregarded, leaving the responsible State in a difficult position in terms of itsobligations under the Outer Space Treaty. Of course, the features of more sophisti-cated satellites may change when they are a part of a commercial small satelliteconstellation that is required to perform more complex functions.

International Liability: National Indemnity Requirements

The general international liability provisions found in the Outer Space Treaty and themore detailed regime specified in the Liability Convention impose liability on a“launching State” for certain damage caused by a space object. There are no timelimitations or caps on the amount of this liability under the Liability Convention, aslong as it represents “damage” by a “space object” as those terms are defined for thepurposes of that instrument.

Article VII of the Outer Space Treaty prescribes the general terms that give rise tointernational liability for damage caused by an object launched into outer space. Thescope of international liability is then elaborated in the Liability Convention.

However, even if it is not a State Party to the Liability Convention, a State wouldstill be subject to the liability provisions in the Outer Space Treaty, as well as anyother potential claims under relevant general principles of public international law.Further, the identity of the relevant launching State(s) is determined at the time oflaunch, with Article I(c) of the Liability Convention defining a launching State as:

(i) A State which launches or procures the launching of a space object;(ii) A State from whose territory or facility a space object is launched

Finally, Article I(a) of the Liability Convention defines “damage” as:

. . .loss of life, personal injury or other impairment of health; or loss of or damage to propertyof States or of persons, natural or juridical, or property of international intergovernmentalorganizations.

It would be difficult, given this background to seek to argue that an operating smallsatellite was not a space object for the purposes of the Liability Convention, even if itis not maneuverable while in operation.

In the absence of specific indemnities in relation to claims by third parties, orwhere various exceptions and exonerations contained in the Liability Convention donot apply, a launching State will bear this international obligation of liability(Freeland 2001) even in circumstances where the space activity is undertaken by anongovernmental entity and perhaps also even where the State may not be aware ofthe activity at all. On this point, there may be an argument that, where the onlypossible relevant mode by which a State could be a launching State in a specific caseis by “procuring” the launch, there is a minimum “threshold” test to demonstrate

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whether there has in fact been a procuring, at least based on knowledge of theparticular activity. However, it is unclear whether such an argument reflects thecorrect legal position.

This represents one compelling “incentive” for States to pass domestic space law.The enactment of national space law enables States to formalize domestic legalprocesses that would allow them to pass on financial responsibility to and recoverfrom their national nongovernmental entities the full amount (or part thereof) of thedamage for which the State may be liable at the international level, either under theinternational legal and regulatory framework for space activities or otherwise underinternational law.

Of course, this does not remove the international obligation of liability of alaunching State under the Liability Convention – this contingent liability remainsin place in relation to any space object for which a particular State is deemed to be alaunching State. Awell-known expression that is often used by teachers of space lawis: “Once a launching State, always a launching State.” However, it does enable theState to put in place a domestic mechanism by which it can transfer the financial“risk” associated with this potential international liability for third-party claims.Indeed, this is precisely the practice that a number of States have followed in theirnational laws in relation to “traditional” satellite technology.

As a consequence, national space legislation often attaches conditionality to theissue of a license to engage in a specific space activity, the practical effect of which isto require the applicant to provide or somehow procure an indemnity to the govern-ment for damage, although the amount may be subject to specific caps under theparticular national law. Although it would be relatively straightforward to simplyrequire the applicant in these circumstances to take out appropriate commercialinsurance against third-party claims to the extent of the specified (maximum)damage, this would often be impractical (given the relative lack of depth of theinternational space insurance market) and, more specifically in the case of somesmall satellite operators, disproportionally costly. Under the Australian Space(Launches and Returns) (Insurance) Rules 2019 made under the Space (Launchesand Returns) Act 2018, which also came into force on 31 August 2019, certainlaunch and return activities require zero insurance to be procured by an applicant,while for others, the specified minimum amount of insurance required is $100million (Rule 6). For those activities that do require a specified amount of insurance,the Australian Space (Launches and Returns) Act 2018 envisages that, in certaincircumstances, rather than satisfy those requirements, an applicant could insteadshow “direct financial responsibility” for the relevant launch or return as an alterna-tive (section 47(b)).

Indeed, such a requirement might make the planned small satellite activityunaffordable, thus preventing it from going ahead at all, although this will obviouslynot be as much of a concern for those large corporations planning to embark on asmall satellite constellation program.

For the less affluent small satellite operators, however, this could conceivablygive rise to difficult considerations that would require a “balancing” between theprotection of the State from potential financial liability and the desirability of

12 S. Freeland

encouraging expertise, research, and development, perhaps as a precursor to moreprofitable and commercial opportunities down the track.

Such potentially conflicting interests between a need for regulation on the onehand and the provision of incentives for new innovation on the other are not uniqueto the situation of small satellite operators. Indeed, similar arguments have beenraised in relation to the requirement for the “equitable sharing of benefits” derivedfrom the exploitation of natural resources under the Moon Agreement. Section 3(b)(i) of the Australian Space (Launches and Returns) Act 2018 refers to the need toconsider inter alia “. . .the removal of barriers to participation in space activities andthe encouragement of innovation and entrepreneurship in the space industry. . ..”

However, unlike the Moon Agreement, virtually every space-faring State is aparty to both the Outer Space Treaty and the Liability Convention – and, in anyevent, the liability regime they establish arguably is also reflective of customaryinternational law. It is therefore incumbent on all States with an (potential) involve-ment in space to somehow address this issue.

The ideal scenario would be for the small satellite operator to negotiate with therelevant launch service provider for the provision of insurance cover and/or anindemnity by that provider (and perhaps also the government standing behind thatprovider) to the launching State and the payload owner, at least in relation to certainelements of potential third-party claims (again most likely subject to a cap). This isoften the case in commercial launch service contract arrangements for large satel-lites. Some small satellite operators contend that the position is more complicated inthe case of a collaborative small satellite program such as the QB50 project.However, the point remains that many such programs have proceeded without theissue even being raised with either the launch service provider or the intermediaryarranging the launch. Potential operators of small satellite constellations should beaware of this preferable negotiating course of action when discussing their commer-cial contracts.

Once again, this is something that should be negotiated coincidentally with thedevelopment of the technical aspects of such a program. A failure to do so potentiallynot only places the launching State(s) in a difficult position but might also expose theinstitution or corporation supporting the small satellite operators to a real andunacceptable risk of liability. Obviously, this should be of practical concern tothose involved, although one would likely assume that a large corporation planninga multimillion dollar small satellite constellation program will be sufficiently abreastof this issue to address it more comprehensively.

Registration: National and United Nations Registers

The Registration Convention provides for a two-pronged regime of registers that arerelevant in respect to space objects that are launched inter alia “into earthorbit.”(Registration Convention, Article II(1)) The State of Registry (as defined) isto maintain a national register in which such space objects are to be included and, inaddition, shall provide certain specified information in relation to those objects to the

Legal Issues Related to the Future Advent of Small Satellite Constellations 13

United Nations, which itself maintains a central register (Ibid, Article IV(1)). Inaccordance with the terms of the Outer Space Treaty, the registration of a spaceobject within a State’s national register also has implications with regard to the“jurisdiction and control” of that object (Outer Space Treaty, Article VIII).

In situations where a State has not, for instance, previously been involved inlaunching activities, it may not have in place a national register nor a mechanism forthe furnishing of the required information to the United Nations. There may be a timelag associated with the establishment of the national register, which, in mostcircumstances, could only be implemented and maintained on an ongoing basisunder national space legislation (Australian Space 2018). Once again, this willrequire consultation and information flows between the small satellite operator andthe relevant government agency (if indeed such an agency exists).

In addition, with widespread cooperative small satellite programs that maypotentially involve institutions from many countries, there will be a need for carefulcoordination between the various launching States as to who should be the State ofRegistry – it can only be one of the launching States (Registration Convention,Article I(c)). It may not, for example, make practical sense that each launching Statewould seek to be the State of Registry for its specific small satellites in the context ofa joint program involving a large constellation of objects launched simultaneouslyfrom the one launch vehicle.

Likewise, where a large number of (identical/similar) small satellites are launchedor deployed into Earth orbit as part of a constellation program, either at the same timeor over a period of time, it may not be feasible or practicable to require a separateregistration filing and number for each one of them. This is a practical and policyissue for each national regulatory authority to determine and has implications alsofor the information that is subsequently passed on to the United Nations Office ofOuter Space Affairs (on behalf of the United Nations Secretary-General) pursuant tothe terms of the Registration Convention (Article IV).

Sustainability of the Space Environment: Space Debris Mitigation

One of the major challenges for the future exploration and use of outer space and forthe long-term sustainability of space activities is the growing proliferation of spacedebris, which represents both a major area for environmental concern but also canand increasingly will impact upon human safety. Much has been written about theexponential growth of pollution in outer space and the hazards that it poses(Bohlmann and Freeland 2013).

There are many approaches as to how the problems should be addressed, giventhat the whole issue of the environment of outer space is a complex one, with manyinterconnecting variables at play (Bohlmann and Freeland n.d.). As noted above,these variables, and the enormous financial implications that would arise fromsetting in motion binding requirements, have meant that, to date, only soft lawguidelines, rather than hard law treaty regulation, have been agreed to address thisissue.

14 S. Freeland

Nonetheless, these IADC guidelines, (2007) although voluntary and expressed ingeneral terms, are significant in that they reflect existing practices as developed by anumber of States and international organizations and set (minimum) standardstoward which space-faring nations should strive. By implementing the guidelinescontained in these soft law instruments via national or agency policies, policymakers might ultimately contribute to the formation of a due diligence standard,assuming that international practice is sufficiently widespread and representative.

The principles underpinning the debris mitigation guidelines are that care shouldbe taken to minimize the risk of debris “creation” in the conduct of space activities.The UN Guidelines recognize two broad categories of space debris mitigationmeasures: those that curtail the generation of potentially harmful space debris inthe near term, through the minimization of the production of mission-related spacedebris and the avoidance of break-ups, and those that limit their generation over thelonger term, for example, by end-of-life procedures that remove decommissionedspacecraft and launch vehicle.

The importance of accessing and using space for all aspects of our lives neces-sitates a diligent adherence to these standards to the greatest extent possible. It isgenerally recognized that it is in the interests of all space-faring States to follow theseguidelines, and this is, as noted, increasingly reflected in their practices. The long-term sustainability of outer space activities is a matter of interest and importance forthe international community as a whole and has been a principal focal point forUNCOPUOS over more recent years. During its 62nd session in June 2019,UNCOPUOS adopted the Preamble and 21 Guidelines for the Long-TermSustainability of Outer Space Activities (Long-Term Sustainability Guidelines).These provide guidance on policy and regulatory framework for space activi-ties; safety of space operations; international cooperation, capacity-building,and awareness; and scientific and technical research and development. Theproblem of space debris remains as a major element among the specific issuesaddressed by the Long-Term Sustainability Guidelines. UNCOPUOS is encour-aging States and international intergovernmental organizations to voluntarilytake measures to ensure that these guidelines are implemented to the greatestextent feasible and practicable: (UN Doc. A/AC.105/C.1/L.366 2019)

There are some potentially significant environmental challenges that arise fromthe use of small satellite technology, particularly the development of plans for largeconstellations of small satellites as has been announced by major corporations.Growing demand, the expanding range of functions, and, ultimately, the commercialservices can provide point to rapid increases in the numbers of small satellites thatwill be placed into Earth orbit. In order to utilize this technology to achieve “global”coverage, very large constellations of small satellites will be required, and, as noted,some are now at various stages of implementation. While, at least initially, most ofthese satellites will be placed into a low Earth orbit, projects such as these will“populate” important orbits with a significant number of space objects and increas-ingly pose a potential collision risk, as well as raising other concerns as to possiblefuture de facto “appropriation” of particular orbits.

Legal Issues Related to the Future Advent of Small Satellite Constellations 15

Even with respect to less ambitious low-cost small satellite programs, the issuemay still remain. Many experimental satellite programs have been exactly that“experimental.” They have often utilized existing “off-the-shelf” components, andthe expectations of mission success for any significant period of time have notnecessarily been high. It is fair to say that such circumstances give rise to lowerperceptions of risk and a higher tolerance toward failure. For many such programs, atleast in the relatively early phases of small satellite development, the process haslargely been about the journey (to space) rather than the delivery of services – thoughof course this is now changing.

Many of these programs have relied on “piggyback” launches, which have meantthat the satellites have been placed in orbits significantly higher than the very loworbits that would allow them to decay relatively quickly. For many small satellites,therefore, there is a potentially very long period (perhaps in excess of the 25-year capsuggested by the IADC Debris Mitigation Guidelines) before orbital decay, eventhough the satellite itself will have been functioning for only a short timeframe.

This also highlights the seeming change in risk tolerance that is occurring due tothe advent of much cheaper small satellites, as compared to large and very expensivetraditional satellites. The issue of an increased “acceptable failure rate” might alsoapply to small satellite constellations to an even greater degree in terms of numbersof inoperable space objects. It is entirely feasible to suggest that, when a “mega-’constellation comprising thousands of small satellites is launched/deployed, there isconsiderable “redundancy” built into in the system, meaning that literally hundredsof objects may fail – thus rendering them inoperable and non-maneuverable – andyet the commercial goals of the operator are still achievable.

Even though operators may claim that this is not a “problem” given that thoseobjects will descend to and burn up in the Earth’s atmosphere in a relatively shortspace of time, (Henry 2019) this will certainly not always be the case. In this regard,large operators have announced plans to eventually locate small satellite constella-tions in orbits higher than the low Earth orbits that are currently being utilized,meaning that they will almost certainly remain in space for a long time, thus posingan increased collision risk. It has been reported that, as part of its Starlink smallsatellite constellation, SpaceX hopes to launch approximately 2,800 satellites ataltitudes between 1,100 and 1,325 km above the Earth (Mosher 2019).

Moreover, as noted, there are several variants of small satellite technology. Whileit is too simplistic to categorize them solely on the basis of their size and weight,some satellites may be too small to be picked up by conventional tracking systems.Indeed, this was the stated reason for the FCC decision not to authorize the launch ofthe Swarm Space-Bees, although, that assertion has been disputed (Fernholz 2018).Yet, even such low-mass objects can cause catastrophic damage in certain circum-stances. The potential consequences, and therefore the potential risks, would, ofcourse, be greatly magnified should the development of a large-scale commercialhuman spaceflight industry ultimately come to fruition (Virgin Galactic website2010).

Of course, these issues are relevant to the question of potential liability raisedabove. They also point to the need to carefully consider how, and to what extent, the

16 S. Freeland

future advent of small satellite constellations can and will be undertaken, so as to asmuch as possible be consistent with the overarching goal of managing the long-termsustainability of outer space activities in such a way as to maximize the (commercial)benefits that can be derived while maintaining appropriate and acceptable safetystandards, particularly, but not only, for missions involving humans.

In some senses, therefore, the environmental consequences relating to smallsatellite constellation programs have not really been properly factored into theregulatory framework. This is also a question of education and awareness but is ahighly important factor to take into account when designing the future legal regimeto apply to such programs.

Other Regulatory Considerations: Frequency Allocation/SpaceTraffic Management/Impact on Science

As noted, these brief comments do not purport to be comprehensive as to the relevantregulatory factors associated with the new commercial space paradigm constitutedby small satellite constellations. However, the primary regulatory issues that ulti-mately stem from the principal requirements under the United Nations SpaceTreaties have been raised.

There are, of course, other equally relevant considerations that also arise. Forexample, as more such programs emerge, particularly offering commercial services,the issue of radio frequency usage becomes all important. As noted, the historic useof the “amateur band” frequencies by experimental and noncommercial operatorswill no longer be applicable and appropriate in the case of small satellite constella-tions developed and operated by large commercial corporations. The regulatoryframework of the International Telecommunication Union (ITU) will become evenmore relevant.

While the ITU operates effectively to manage the use of radio spectra, it is a largeintergovernmental organization and can be highly bureaucratic. Decisions aboutallocations of valuable (commercial) frequencies need significant periods of timeand are sometimes highly political, particularly in a context where there existincreasingly competitive pressures for spectrum. While the debate regarding the28 gigahertz frequency may not directly impact on small satellite constellationprograms, it is symptomatic of an even broader concern about the apparent “deple-tion” of available spectrum for space-related activities (see, e.g., Caleb Henry,“Satellite operators worried about losing Ka-band spectrum”, Space News, 7 May2019: https://spacenews.com/satellite-operators-worried-about-losing-ka-band-spectrum/ (accessed 11 September 2019).

As is well known, the coordination of frequencies so as to minimize harmfulinterference is complex. This lengthy process does not necessarily sit comfortablywith the shorter timeframes associated with the development of small satelliteconstellation programs. Accordingly, procedures will need to be established toaccommodate this technology without compromising the important work of theITU. This will not be an easy task.

Legal Issues Related to the Future Advent of Small Satellite Constellations 17

https://spacenews.com/satellite-operators-worried-about-losing-ka-band-spectrum/https://spacenews.com/satellite-operators-worried-about-losing-ka-band-spectrum/

In addition, the introduction of small satellite constellations will highlight evenmore the imperatives to consider the development of international traffic manage-ment systems involving space traffic, as well as its intersection with air traffic. Whilethis issue has been discussed already for some time, and some initial steps are beingtaken to consider the relevant factors, there is much work to be done by allstakeholders. For example, already in early 2015, the United Nations Office ofOuter Space Affairs (UNOOSA) and the International Civil Aviation Organization(ICAO) jointly sponsored an “AeroSPACE” symposium where some of these issueswere discussed.

More recently, another (nonlegal) issue has been raised – the impact that thelaunch/deployment of large numbers of small satellites into low Earth orbit (andbeyond) will have on scientific endeavors and research such as astronomy. Thisobjection arose (coincidentally) as a result of the launch of the first 60 Starlink smallsatellites (Bartels 2019) – obviously it is to be anticipated that this debate will onlygrow louder as more small satellite constellations come into existence.

Conclusion

This chapter has highlighted the fact that the current international legal frameworkcontinues to apply to new and developing space technologies and systems – such assmall satellite constellations – that will contribute to the further evolution of com-mercial space activities. The advent of small satellite technology into the mainstreamof space activities, and particularly the likely eventuality of various forms of smallsatellite constellations comprising large numbers of space objects, is an issue that iscurrently being addressed by the international community. For several years already,the Legal Subcommittee of UNCOPUOS has considered as an agenda item the issueof “General exchange of views on the application of international law to smallsatellite activities.”

Interestingly those discussions have thus far seen a diverse range of views as towhether, and if so how, a sui generis set of rules should be established to specificallyregulate small satellite constellations. The UN Committee on the Peaceful Uses ofOuter Space (COPUOS) operates on the basis of decision-making by consensus. Inlight of the divergent opinions currently held by various UNCOPUOS MemberStates, this means that any such new legal or regulatory regime, if it were to bedeveloped at all, will not be forthcoming for quite a period of time. Thus, the existinginternational framework continues to apply to small satellite constellations in everyrespect.

As it stands, however, the existing law and the technology, at least at theinternational level, does not represent a natural fit. The international regulatoryframework was not designed specifically to deal with the advent of this technologynor for the expansive range of new space actors. Moreover, these new actors, inparticular, may not be completely aware of, or understand, the relevance andimplications of the existing framework.

18 S. Freeland

The United Nations General Assembly and its Committee on the Peaceful Uses ofOuter Space (COPUOS), as noted above, are therefore conscious of the imperative toexplore the potential dynamics of the small satellite industry. There is awareness ofthe need to address both the challenges and to promote the opportunities posed bysmall satellite constellations. Yet, even putting any current initiatives aside, it is clearthat such shifts in space technology and new space systems require the developmentof appropriate regulatory standards in a relatively short timeframe. Small satelliteentrepreneurs, and large constellation operators, are anxious that any real(or perceived) barriers to entry posed by national regulatory requirements areremoved.

Whether or not these fears are justified in every case, what seems increasinglylikely is that, in some respects, small satellite technology and systems will becomemainstream means of utilizing space for commercial purposes in the future. As partof this evolution, it seems likely that in the relatively near future that a number ofsmall satellite constellation programs involving many thousands of space objectswill be implemented. Attempting to regulate this twenty-first-century technologysolely by reference to twentieth-century rules, devised for other space systems andtechnologies, is likely to create difficulties and uncertainties and perhaps deter somewho would otherwise consider engaging in these new space industries and space-based services.

In the meantime, however, there is no doubt that small satellite technology canoffer great opportunities, but it also poses some significant challenges to the broaderperspective of the exploration and use of outer space. The desirability of clearregulation to specifically address this technology is clear, and it thus falls on nationallawmakers to consider how to provide what is required within a more expedienttimeframe (Freeland and Davis 2015).

In the end, therefore, clear national policies must be formulated. National legis-latures will need to come to grips with the ever-changing range of space technology,particularly if they wish to become increasingly involved in space activities. Somegovernments have, through their national legislation, dealt specifically with theissues that arise through the advent of small satellite technology, (Marboe andTraunmuller 2012) but there is a long way to go, particularly as the ever-increasingplans for future programs emerge. Whatever rules are put in place must find the rightbalance. On the one hand, there is the need for regulation of the financial, opera-tional, and technical elements, so as to minimize the risks to an acceptable level. Onthe other, there is the need to facilitate research and innovation to allow for greaterand more efficient access to space and the potential for commercial returns oninvestment.

Complex public policy questions arise as to whether, for example, to exemptsmall satellite operators from several of the existing national regulatory requirementsthat apply to their large satellite “brethren.”Yet, to do so may have the ultimate effectof minimizing the “incentives” or motivation of these operators to engage in bestpractice or to take simple, inexpensive steps to ensure that their local stakeholdersare covered by existing protections.

Legal Issues Related to the Future Advent of Small Satellite Constellations 19

Naturally, this may not necessarily be the case when it comes to those largecorporations that are developing small satellite constellations; however, it issuggested that the industry as a whole would not necessarily be unduly stifled bythe requirement that, in all circumstances, they take proper and appropriate riskmanagement steps. Any relaxation of the rules for the users of this technology willbring with it added risks for the regulators and the relevant State, as well as raisingsome of the broader questions that have been alluded to in this chapter.

These are difficult choices, and States will take differing paths, depending upontheir specific circumstances. This will, unfortunately, mean that there is unlikely tobe established a uniform international set of rules to specifically address the com-plexities of small satellite constellations, at least in the short-medium term. Onepossible way forward is that we might see the emergence of a soft law code ofconduct at the international level, but this may not provide a sufficiently compre-hensive basis to properly regulate the conduct of those new actors in the spaceparadigm.

This again points to the strong role that national law and lawmakers have to play.For this to be effective, it will require close consultation between all stakeholders andemphasizes the need for regulators, the scientific community, the entrepreneurs, thelarge corporations, and the lawyers to all talk to each other to a far greater degreethan has thus far been the case. It is clear therefore that any appropriate solution toaddress the many and varied issues that arise with the advent of large-scale smallsatellite constellations will need to be carefully thought through with responsibleaction taken at both the national and international levels.

Cross-References

▶ “Rules of the Road” for Launch and Operation of Small Satellites and RelatedIssues

▶Capital Financing for New Small Satellite Ventures▶De-orbit Requirements and Adoption of New End of Life Standards▶Long Term Sustainability of Space and Sustainability Requirements▶New Financial Models and New Economic Systems Analysis for Small SatellitesSystems

▶Obtaining Landing Licenses and Permission to Operate Small Satellite Constel-lations on a Global Basis

▶Requirements for Obtaining Spectrum and of Orbital Approvals for Small SatelliteConstellations

▶ Space Traffic Management and Control▶The Legal Status of MegaLEO Constellations and Concerns About Appropriationof Large Swaths of Earth Orbit

20 S. Freeland

http://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=``Rules of the Road�� for Launch and Operation of Small Satellites and Related Issueshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=``Rules of the Road�� for Launch and Operation of Small Satellites and Related Issueshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Capital Financing for New Small Satellite Ventureshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=De-orbit Requirements and Adoption of New End of Life Standardshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Long Term Sustainability of Space and Sustainability Requirementshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=New Financial Models and New Economic Systems Analysis for Small Satellites Systemshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=New Financial Models and New Economic Systems Analysis for Small Satellites Systemshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Obtaining Landing Licenses and Permission to Operate Small Satellite Constellations on a Global Basishttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Obtaining Landing Licenses and Permission to Operate Small Satellite Constellations on a Global Basishttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Requirements for Obtaining Spectrum and of Orbital Approvals for Small Satellite Constellationshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Requirements for Obtaining Spectrum and of Orbital Approvals for Small Satellite Constellationshttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=Space Traffic Management and Controlhttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=The Legal Status of MegaLEO Constellations and Concerns About Appropriation of Large Swaths of Earth Orbithttp://link.springer.com/search?facet-eisbn=978-3-030-20707-6&facet-content-type=ReferenceWorkEntry&query=The Legal Status of MegaLEO Constellations and Concerns About Appropriation of Large Swaths of Earth Orbit

References

See, as an example, the Australian Space (Launches and Returns) Act 2018, Part 5M. Bartels, ‘Astronomy Group Says Starlink and Other Satellite Constellations Could Threaten

Science’, Space.com, 4 June 2019. https://www.space.com/astronomy-group-worries-about-starlink-science-interference.html. Accessed 11 Sept 2019

U.M. Bohlmann, S. Freeland, in The Regulation of Space Activities and the Space Environment,ed. by S. Alam, Md J.H. Bhuiyan, T.M.R. Chowdhury, E.J. Techera. Routledge Handbook ofInternational Environmental Law (2013), Routledge, p. 375

T. Fernholz, ‘The first illegal satellite launch came with a $900,000 penalty’, Quartz, 21December 2018. https://qz.com/1503575/swarm-technologies-settles-illegal-launch-for-9000000/. Accessed 10 Sept 2019

S. Freeland, There’s a satellite in my backyard! – Mir and the convention on international liabilityfor damage caused by space objects. Univ. NSW Law J. 24(2), 462 (2001)

See S. Freeland, Matching detail with practice: the essential elements of national space legislation.Proc. Int. Inst. Space Law 53, 540 (2010)

S. Freeland, ‘The Development of National Space Law’, in Steven Freeland, ed. by R. Popova,S. Passy. Contemporary Issues for National and International Space Law: Commentary andSource Materials (2012), AMG, p. 12

S. Freeland, M. Davis, ‘Space treaties are a challenge to launching small satellites in orbit’, TheConversation, 17 April 2015. https://theconversation.com/space-treaties-are-a-challenge-to-launching-small-satellites-in-orbit-37971. Accessed 11 Sept 2019

S. Freeland, V. Sim, K. Hutchison, How technology drives space law down under: The Australianand New Zealand experience. Air Space Law 43(2), 129 (2018). See also Rocket Lab website:https://www.rocketlabusa.com/. Accessed 9 Sept 2019

C. Henry, ‘Amazon lays out constellation service goals, deployment and deorbit plans to FCC’,Space News, 8 July 2019. https://spacenews.com/amazon-lays-out-constellation-service-goals-deployment-and-deorbit-plans-to-fcc/. Accessed 10 Sept 2019

S. Hobe, B. Schmidt-Tedd, K.U. Schrogl (eds.), Cologne commentary on space law, volume i –outer space treaty (2009), and Volume II – Rescue agreement, liability convention, registrationconvention, moon agreement. (2013)

E. Howell, Four Cubesats Snuck into Orbit Without Regulatory Approval, FCC Says, Space.com,16 March 2018. https://www.space.com/40001-four-cubesats-unauthorized-launch-fcc.html.Accessed 9 Sept 2019

See https://www.esa.int/Our_Activities/Operations/Aeolus_operations. Accessed 7 Sept 2019See https://www.spacex.com/sites/spacex/files/starlink_press_kit.pdf. Accessed 7 Sept 2019IADC Space Debris Mitigation Guidelines issued by Steering Group and Working Group 4 of the

Inter-Agency Space Debris Coordination Committee in September 2007 (IADC Debris Mitiga-tion Guidelines). http://www.unoosa.org/documents/pdf/spacelaw/sd/IADC-2002-01-IADC-Space_Debris-Guidelines-Revision1.pdf. Accessed 11 Sept 2019; United Nations GeneralAssembly Resolution 62/217, which (in paragraph 26) endorsed the Space Debris MitigationGuidelines agreed by the United Nations Committee on the Peaceful Uses of Outer Space(UNCOPUOS) (UN Guidelines)

Ibid, Article IV(1)C.D. Johnson, D. Porras, C.M. Hearsey, S. O’Sullivan, M. Vidaurri, The curious case of the

transgressing tardigrades (part 2), Space Rev. 3 September 2019. http://www.thespacereview.com/article/3786/1. Accessed 9 Sept 2019

Liability Convention, Article IIII. Marboe (ed.), Soft Law in Outer Space: The Function of Non-binding Norms in International

Space Law (2012); S. Freeland, For better or for worse? The use of ‘soft law’ within theinternational legal regulation of outer space. Ann. Air Space Law XXXVI, 409 (2011)

I. Marboe, K. Traunmuller, ‘Small Satellites and Small States: New Incentives for National SpaceLegislation’. J. Space Law 38, 289 (2012)

Legal Issues Related to the Future Advent of Small Satellite Constellations 21

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22 S. Freeland

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Legal Issues Related to the Future Advent of Small Satellite ConstellationsIntroductionThe Evolutionary Events that Have Led to Small Satellite ConstellationsThe Current International Legal Framework and Regulatory RequirementsInternational Regulatory Requirements for Deployment and Operation of Space SystemsInternational Responsibility: Authorization and SupervisionInternational Liability: National Indemnity RequirementsRegistration: National and United Nations Registers

Sustainability of the Space Environment: Space Debris MitigationOther Regulatory Considerations: Frequency Allocation/Space Traffic Management/Impact on ScienceConclusionCross-References