Did you know nearly 17,500 satellites have been launched since 1957? Or what about the fact that more than 10 per cent of those launches weren’t registered internationally?

While more and more orbital objects are going up each year, eventually many come down, like the bus-sized ERS-2 satellite that crashed between Hawaii and Alaska in the Pacific last year.

There’s now a need to address the international ambiguity that separates our airspace from Outer Space. But there’s also an opportunity to create a safer regime for future space exploration and commercialisation.

Jurisdictional scrutiny and clarity (in space)

The International Civil Aviation Organization (ICAO) is a United Nations agency which aims to help 193 countries cooperate and share the skies – regulating everything from safety, air navigation and security, to the economic viability and environmental impact of aviation.

But what happens in the space above ICAO’s jurisdiction is subject to less rigorous scrutiny.

If we look at the market-based measures on the use of airspace for civil aviation, they do not formally extend to activities beyond the Kármán Line – the nominal boundary between Earth’s atmosphere and space.

Sciences & Technology

Where next for space exploration?

The location of the Near Space boundary itself is contested – but falls somewhere between 80 kilometres to 100 kilometres from Earth’s surface.

The Line divides our atmosphere into ‘Near Space’ and ‘Orbital Space’.

Near Space is the upper atmosphere (the stratosphere and mesosphere) where conventional aircraft can no longer fly but the air is still too thick for orbital flight. Orbital Space is the region where an object can travel in a stable, closed path (an orbit) – continuously ‘falling’ around the Earth without hitting it. 

Outer Space is a term often used beyond the mesosphere, encompassing the thermosphere and exosphere, which still contain trace gases within Earth’s gravitational field. But even this is up for debate.

We’re now at a point where we need legal clarification to ensure the Near Space activities of launching States do not create undue harm and damage to other States around the world, particularly those without space programs.

Orbital traffic (particularly Low-Earth Orbit commercial satellites) is rapidly increasing, which highlights the need for exacting jurisdictional scrutiny and clarity of Orbital Space.

While we have the Outer Space Treaty – updated legal instruments are long overdue, as the original treaty did not recognise further further demarcations of Outer Space. In other words, space law has not kept up with space science

There are three subsequent guiding documents; the Rescue Agreement (1968), the Liability Convention (1972) and the Registration Convention (1976).

But there have been no subsequent international laws broadly ratified over the nearly fifty years since they were published.

What do the current laws say?

If we look at Article V of the Rescue Agreement, it stipulates that those responsible for objects returning to Earth should “eliminate possible danger of harm”

However, the Liability Convention defines damage in Article I as “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations”.

Sciences & Technology

The students who built Australia’s first satellite

It stipulates that a ‘launching State’ is both:

• A State which launches or procures the launching of a space object;

• A State from whose territory or facility a space object is launched.

This creates a sovereign liability for failing to regulate the space activities of private entities within their jurisdiction.

Article V of the Liability Convention states: “Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused.”

This distributes the responsibility of multinational corporations engaging with the responsibility of “apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable”.

Further, Article VII states that: “this Convention shall not apply to damage caused by a space object of a launching State to: (a) Nationals of that launching State; (b) Foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent.”

This means that nations without space programs would face no potential for liability under the Convention, as per Article II: “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.”

Finally, Article IX says: “A claim for compensation for damage shall be presented to a launching State through diplomatic channels.”

However, the current Claims Commission process for mediating a compensation claim places a disproportionate burden upon claimant States.

A responsible space industry

In 2018 the Australian Space Agency was established, with an explicit focus on industry development.

But before we start making our mark on the orbital landscape, there’s a responsibility to establish national, regional and international mechanisms for both responsible space exploration and industry.

The current lack of demarcation of what actually constitutes Outer Space muddles regulation, particularly with some jurisdictions unable to agree on where space truly begins.

The existing Outer Space Treaty is not up to the task.

Sciences & Technology

Why do food and drink taste different in space?

With the rapid up-tick of privatised low-earth orbit, calls for laws governing use of Near Space are mounting.

There’s also the growing threat of Kessler Syndrome. This is when orbital bodies collide, creating debris, which makes for an increasingly dangerous, costly, and unnavigable Near Space zone.

Given the international law was crafted over 50 years ago, there’s now an urgent need for a formal structure, proposal, and ratification of a Near Space Treaty that builds on those laws.

A new Near Space Treaty may include a levy on ‘space junk’ while also generating revenue for using near space territory in the volumetric Exclusive Economic Zones (EEZ) of nations.

As part of a new Treaty, an Orbital Activity Levy could both provide safeguards to ensure the proper regulation of orbital traffic as well as the subsequent decommissioning of registered objects in Near Space as well as Outer Space.

It may also help draw public attention to the range of orbital activity already underway – deterring any further militarisation of high-altitude airspace and Near Space territory.

This would build general orbital activity regulation into international law beyond the proposed Prevention of an Arms Race in Space (PAROS) Treaty.

Protecting those with (and without) space programs

The introduction of international policy could remedy the reality that “participation in the Registration Convention is not universal, and not all States comply consistently”.

Something like an Orbital Activity Tax could help pad the national budgets of the Global South, benefitting countries without space programs.

This is particularly true of Pacific Island countries which possess the largest volumetric territories per capita. This tax could amount to a toll or fine for cluttering up the sky that encourages a more judicious planning of launches.

There’s a proposal for an Exclusive Utilization Space (EUS), based upon the Exclusive Economic Zone (EEZ) model, which could demarcate responsible use and rents for activities extending to an altitude of 35,786 kilometres.

Sciences & Technology

Where have all the stars gone?

Regardless, there’s an increasingly strong basis for amendment to the Outer Space Treaty or the introduction of a new Orbital Activity Treaty based on the Space Benefits Declaration.

The evidence of current actions of those launching States indicates increased risk of threat to developing countries.

While “States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis” – this isn’t necessarily the reality as orbital (often military) activities go unchecked overhead.

Allowing billionaires to forge satellite communications dominion that can rain debris indiscriminately down on countries doesn’t provide a basis for mutually acceptable behaviour.

A just and equitable Near Space Treaty is an urgent imperative, as the trajectory of our spacefaring future relies on ensuring both policy and reality serves the best interests of our planet.