The European Space Policy Institute (ESPI) researchers study the various aspects of the space industry and examine the main trends and innovations under legal, political, regulatory and economical perspectives. In 2022, ESPI researchers contributed to the IISL Space Law Knowledge Constellation platform, sharing their expertise on space-related issues, including cybersecurity, space traffic management, NewSpace, debris removal, governance, liability, spectrum management, global economy, sustainability, security, space debris…
Effective space traffic management is an essential prerequisite for sustainable long-term human activities in Earth orbits in the long-term. While there are various understandings and definitions of STM, the essence of the concept usually concerns an effort to devise an international framework that would enhance the safety of accessing and using space and facilitate the sustainability of the space operational environment in the long-term. The problem of STM today is not that it would be non-existent. In fact, we already have frameworks for the management of space traffic. The problem is that our current STM framework is insufficient and not adapted to future operational challenges associated with the quickly evolving space sector. Improving our STM efforts should be based on the three key ingredients: Firstly, we need to significantly enhance our technical capabilities to better manage the growing risks in orbit, especially the risk of collisions. In particular, space surveillance and space situational awareness needs to further improve to reduce the uncertainties associated with positions and trajectories of space objects, including the very small ones, often impossible to see with our current sensors. In addition to SST and SSA, the need for better technical capabilities also concerns all phases of space mission lifecycle, including active debris removal, in order to reduce debris-generating occasions. Secondly, we need to enhance our normative landscapes governing and regulating the conduct of space activities. STM is largely about the rules of behaviour, and the rulemaking segment has to be an integral part of improving our current STM framework. The point here is not necessarily about just a stricter regulatory regime. It is about updating our regulatory requirements through addressing the gaps and missing pieces in contemporary regulations (e.g. rules for handling collision avoidance manoeuvres and procedures) in a smart way, in which we can enhance the notion of safety without excessively increasing the cost of access to space. Lastly, we need to better coordinate our activities in space with other actors that share this very same operational environment as we do. Near-Earth space, in particular at lower orbits in LEO, is a confined, highly dynamic environment governed by unavoidable laws of physics. The more we venture and operate there, the more we need to acknowledge the activities of others and make sure that we do the best we can in exchanging technical and operational information, maintaining functional lines of communication and implementing best practices.
Although space debris mitigation, through inter alia passivation and post-mission disposal, is expected to play a central part in ensuring the long-term sustainability of space activities, numerous studies published by major space agencies and research institutes have demonstrated the importance of targeted active debris removal, not only for the stabilization of the space debris population but also to try to reverse the trend. In addition, the deployment of large constellations of satellites would lead, even considering an extremely small failure rate, to dozens of dead-on-arrival satellites threatening the stability of critical orbits, requiring the use of dedicated removal services. An appropriate legal framework for the conduct of active debris removal operations has been the subject of intense scrutiny in the space law and policy community in recent years, with the publication of dozens if not hundreds of reports, articles and conference papers. On the governmental side, only one country, Japan, has issued a dedicated licensing procedure and associated requirements for the operations of spacecraft performing rendezvous and proximity operations, including in-orbit servicing and active debris removal. Developed in part to license domestically the Commercial Removal of Debris Demonstration (CRD2) mission, funded by the Japan Aerospace Exploration Agency and to be implemented by Japanese industrial champion Astroscale, this world-first regulatory framework will be at the core of Japanese endeavours to exert leadership in global space safety and sustainability efforts. Beyond legal and regulatory challenges, active debris removal activities also have important perceived security implications. In fact, since the early development of technologies enabling rendezvous and proximity operations, there have been suspicions of nefarious uses, ranging from unapproved close inspections to co-orbital anti-satellite activities. Demonstrating and promoting the understanding of the limited security risks posed by such technologies will be critical for major industrial players and government agencies willing to push for the development of more active debris removal technologies and services. To this end, the open-ended working group on reducing space threats through norms, rules and principles of responsible behaviours established per United Nations General Assembly resolution 75/36 at the end of 2021 will provide an exceptional opportunity for governments, commercial actors and civil society organisations to clear any unreasonable perception of threats that may arise from the spread of direly needed active debris removal service providers.
The Liability Convention, 1972, lays down two different legal regimes for damages caused by space objects “on the surface of the earth or to aircraft flight” (Art. II) or occurring “elsewhere than on the surface of the earth to a space object […] or to persons or property on board” (Art. III). Respectively, the State shall be “absolutely liable”, or “liable only due to its fault or the fault of persons for whom it is responsible”. Absolute liability is usually justified by the high risk inherent in space activities and requires only proof of the causal relationship between the event and the damages, regardless of the violation of a specific norm of due diligence, which is instead the basis of fault liability. In a context of increasing orbit congestion and resultant high risk of collisions in space, the topic of fault liability deserves further definition. The specific parameters to determine the degree of fault especially remain to be properly identified. Acts of hard international law such as the Liability Convention leave the matter unaddressed, and the academic discussion has slowly progressed over the years. Nevertheless, there is a concrete opportunity to refer to soft law norms – such as the ones contained in the 2019 COPUOS Guidelines for the Long-term Sustainability of Outer Space Activities as well as future STM rules potentially adopted – to build up specific criteria to measure the diligence maintained by a State while conducting space activities. If those rules served as the basis for parameters to assess the degree of fault, then this framework would result in a win-win situation: first, soft law acts will be used as points of reference in judicial and ADR cases, and consequently their implementation worldwide will be enhanced. Soft law guidelines and best practices may therefore aim at becoming the customary standard of care in conducting space activities, so gradually acquiring binding force. Finally, the technical applicability of the agreed discipline would be under question. Actually and for instance, the large amount of SSA data that is currently available could be used as evidence of compliance with some of the established rules, despite the international challenges that could arise in agreeing on such a control mechanism. On the whole, a clear identification of the parameters to measure fault would benefit the liability discipline, making it truly implementable, and in parallel could contribute to facilitating the establishment of incentivised and verifiable standards.
The evolution of the space sector, toward a mature industrial and business domain, has led to the emergence of a sizeable global space economy and high expectations for future growth are motivating private actors to invest massively in new business ventures. Estimated today in the order of a few hundred billion dollars, new prospects for innovation and business development have led some analysts to foresee the rise of a trillion-dollar space economy in the coming decades. Such a hopeful forecast is certainly welcome but probably downplays the serious challenges that the space sector will face to develop new mass markets or to transition to new business growth engines, for example from satellite broadcast to broadband. Yet, it would be short-sighted to totally reject this scenario. Although it is somewhat of a catch-all concept that may not be as “new” as one would think, New Space does embody a tangible evolution of the space sector toward a more service and business-oriented sector, also more deeply rooted in global technological and economic trends. Among these trends, the growing symbiosis between the space sector and the digital economy is probably the one that offers the most promising opportunity for growth in the near future. Admittedly still at an early stage, the growing involvement of digital giants in the space sector is certainly the most striking illustration of this evolution. Investment after investment, project after project, they highlight the growing role of space in their digital business strategy across two complementary facets: connectivity and data. In this respect, digital actors are shaping a new ecosystem for space services, one where satellites become an integral component of the digital infrastructure and where space-based data are mingled in the wider data value chain. The World Bank estimates that the digital economy accounts for 15% of the global GDP and that it grows more than two times faster. The World Economic Forum foresees that 70% of the new value created in the economy over the next decade will be based on digitally enabled business models. From this perspective, the prospect of a trillion-dollar space economy will probably depend, first, on the capacity of the space sector to become an enabler of future digital architectures and solutions, before space mining and space tourism become a profitable business.
The concept of space security can be extended to include the area of space defence, which is made of two dimensions: “space for defence” and “defence of space”. The former refers to the use of space solutions for the conduct of military activities on Earth. Indeed, Earth observation, telecommunications and position, navigation and timing capabilities provide essential services to the armed forces, from precise intelligence, surveillance and reconnaissance to the possibility of guiding missiles and to communicate securely. For this reason, the integration of space systems into military planning has steadily increased since the 1991 Gulf War. The second dimension, “defence of space”, refers to the protection of assets in orbit, in particular against antisatellite technologies or cyberattacks. In the past, and still to a major extent today, military space programmes used to rely on exquisite and tailor-made spacecraft, manufactured by a few trusted companies. However, in the recent years, a change has occurred, especially in the United States: military actors have been increasingly eager to adopt the products, services and concepts developed by commercial companies belonging to the New Space ecosystem. As an example, the Space Development Agency, set up in 2019, plans to launch a constellation of hundreds of small satellites to provide different types of services to the armed forces (e.g., data transfer, early warning, ISR). This project is clearly influenced by the idea of large constellations promoted by non-traditional private actors, most notably SpaceX, and aims at reinforcing the resilience of the services essential to the conduct of military operations. Similarly, the U.S. Department of Defense is increasingly interested in the concept of “responsive launch” (launching small satellites at any time, from anywhere) and, for this reason, keeps an eye on the evolution of the micro-launcher sector. At this moment, this trend remains mostly circumscribed to the United States, as the military space programmes of other major spacefaring nations (e.g., Russia, China) still rely exclusively on their traditional defence sector. Nonetheless, this evolution calls for new approaches in tackling space security and defence issues and, in particular, the role of private actors in these activities.
The rise of large LEO constellations has led to several challenges, not only related to the increasing congestion of specific orbits. Indeed, this trend also has a profound impact on the management and regulation of the use of radio frequency spectrum, a scarce natural resource with finite capacity, whose risk of shortage notably grows. The critical role played by the satellite industry in the telecommunication sector and the rising need to better integrate space and terrestrial networks are demonstrated by the recent inclusion of non-terrestrial networks in standardisation documents, such as, for instance, the 3rd Generation Partnership Project (3GPP) Release 17, “5G for space: the NR NTN standard” published in March 2022, and further complemented with the ITU Working Party 4B´s developing standards for the satellite component of International Mobile Telecommunications (IMT) 2022. Among other challenges, the problem of orbit and spectrum reservation without actual use, and the phenomena of spectrum warehousing and overfilling with so-called paper satellites are incrementally being considered within ITU. Resolution 49 to the Radio Regulations (RR) on administrative due diligence applies to satellite networks in the FSS, MSS, and BSS that are subject to ITU coordination procedure, and requires specific information (in the application of RR No. 11.48) to be submitted within 30 days after the end of the regulatory deadline (RR No. 11.44), and otherwise resulting in the suppression of the submission. Focusing on the rising issue of spectrum speculation in the context of large constellations, the practice of the ITU-R Bureau (BR) on non-GSO satellite systems is reflected in the Rules of Procedure for RR No. 11.44C. The latter state that a frequency assignment to space stations in any non-GSO system has been brought into use (BIU) when one satellite with the capability of transmitting or receiving that frequency assignment is deployed and “maintained on one of the orbital plane(s) for a continuous period of 90 days”. During WRC-19, participants have agreed on a new regulatory procedure, under which non-GSO systems shall deploy 10% of their constellations within two years after the end of the regulatory period for bringing into use, 50% within five years, and complete the deployment within seven years (Resolution 35). Within the context of the WRC-23 agenda item 7, the ITU-R Working Party 4A will have to continue exploring new mechanisms for BIU frequency assignments to non-GSO constellations. The objective should be to prevent spectrum warehousing, while also considering operational requirements for the deployment of non-GSO systems and the functioning of the coordination procedure.
In the past decades, several trends have occurred in both the space and digital sectors, which have resulted in increased vulnerability of space systems to cyberattacks. Space systems have become increasingly digitized, and the space sector at large has progressively become more digitalized. It means that not only satellites have gone from analogue electronics to digital systems, but that most processes in the design, manufacturing, testing, control, and operations of satellites are based on digital technologies. This trend is growing with the emergence of new technologies such as cloud ground stations, which enable operators to send commands to their satellites through their virtual private cloud; or fully software-defined satellites, which can be entirely reprogrammed remotely. It increases the attack surface and threat vectors, making space cybersecurity more difficult and complex. Moreover, outer space has been increasingly militarized and weaponized. The militarization of outer space is the use of space for military purposes, which is an old phenomenon. The weaponization of outer space is a fairly recent one, which can be defined as the placement and deployment of weapons in outer space. At the same time, cyberspace has also been progressively militarized by a growing number of State and non-State actors. In addition, space and cyberspace have become more accessible sectors to both State and non-State actors. Any malicious actor with a computer and technical knowledge can attempt to launch an attack on a space system. As a result, space operators have to protect themselves against a rising number and type of threat actors. Space systems can be regarded as very expensive computers flying in orbit in the naturally hostile and dangerous environment that is outer space. These spacecraft are now connected to another unfriendly environment: cyberspace. These two domains are also progressively recognized as warfighting domains similar to land, sea, and air, making satellites prime targets of cyberattacks and raising new questions regarding the application of international humanitarian law. Despite the adoption of cybersecurity standards and best practices, space and cyberspace remain rather unregulated domains. More importantly, the space and cybersecurity communities do not often interact in international fora (UN OEWG, UN GGE, UNCOPUOS, etc.) to adopt guidelines, norms, and other binding or non-binding rules.
The UN Guidelines for the Long-term Sustainability of Outer Space Activities recognize that “The Earth’s orbital space environment constitutes a finite resource”. Yet, we see limited discussion on how this finite resource is managed and more importantly (given its finite nature) how much of its capacity is currently consumed. Orbits, by definition common pool resources, face the problem of congestion as they are universally accessible, not excludable, and rivalrous in consumption. Reflecting on Ostrom’s first principle for managing a commons (i.e. defining the boundaries of the CPR and of those authorized to use it) the unprecedented deployment of space objects in Low Earth Orbit (LEO) compels us to raise the question of available capacity within the LEO environment, with developments at certain orbital altitudes requiring particular attention. Despite notable specificities of orbital environments, the reality of operations is bound by similar limits as other traffic regimes, whereby traffic density has an inherent upper limit that still allows for safe management and coordination. As more and more satellites share orbital environments, it naturally leads to an increase in conjunction warnings, which in turn increases the aggregate risk for collisions, further worsening the risk levels for all actors sharing adjacent orbital environments. In September 2021 the United Nations Secretary General reported on persistent calls by member states to strengthen the governance of global commons. If there is indeed political will for ensuring that the Earth’s orbital environment remains safe and sustainable, we must avoid a situation where the orbital environment would be either destroyed or monopolized by a few actors. To ensure sustainability, we don’t necessarily need better (or more) data as often suggested – while crucial for the initial identification of phenomena, data itself does not compel individual actors to utilize the resource in line with Pareto optimal. A quantitative metric focused on the available and consumed capacity in the Earth’s orbital environment, would allow us to contextualize the data and comprehend the extent to which our behaviour in this environment is (or isn’t) sustainable. Developing and agreeing on shared metrics represents a crucial enabler for setting up institutions or mechanisms to foster cooperative behaviour – a precondition for the long-term survival of any common pool resource.
The global space governance comprises the extant set of regimes that govern the interaction among space actors and around which the expectations of behavior of these actors converge. Space governance structures are based on a combination of principles, norms, rules and enforcement tools that are formally or informally shared by the actors to either avoid a mutually undesirable outcome or ensure a mutually desirable outcome in the conduct of their space activities. The most striking observation about the current space governance is how resilient its principles, norms and rules continue to be. This is despite having mostly been formulated several decades ago, when all the activities flourishing today did barely exist. From a neo-realist perspective, this resilience can be primarily explained with the fact that, unlike other global governance’s issue-areas, strategic interaction in outer space has been traditionally very limited. This is an occurrence that has not inhibited states, and now private actors, from pursuing their objectives. Indeed, most issues associated with space have entailed situations where different actors could do as they pleased without harming others. In those few areas where unrestrained activities could cause collective problems, such as the use of the radio-spectrum, issues have been solved through relatively simple coordination regimes. But even where visible restrictions have been accepted, these have not, to date, imposed real constraints upon the actors (for instance, the denial of sovereignty claims over celestial bodies or the ban on placing WMD have been costless concessions given the state of technologies). This situation, however, is nowadays changing considerably. The entry of many new actors with far-reaching undertakings (e.g., the mega-constellations), the advent of new enabling technologies and new uses of space – coupled with the critical dependence modern society has on space assets and the unravelling of the post-cold-war order – are all transformations strongly impacting strategic interaction and creating a clear progression towards typical dilemmas of common interest, for which only cooperation mechanism could guarantee stability. Constructing regimes to solve cooperation problems is, however, notoriously challenging because cooperation regimes, unlike coordination ones, require not only convergence around a set of rules that all actors share, but also mechanisms for verifying and enforcing these rules. The greatest challenge confronting the current global space governance is that more and more space issues are moving towards cooperation problems. More elaborated governance structures with proper mechanisms of verification, adjudication and enforcement will hence be needed for actors’ behaviour to converge and ensure that conditions in outer space will remain suitable for continued use.
The space economy is constantly growing and evolving. What used to be a predominantly government-driven sector now sees increasing interest from commercial actors. Nevertheless, the governments keep playing a vital role not only due to the budgets they allocate but also thanks to their policy-making prerogative. Most space-faring countries coordinate their space activities through dedicated agencies: NASA in the US, CNSA in China, JAXA in Japan, Roscosmos in Russia, ISRO in India, and ESA in Europe. It is worth noting that with its 22 member states and 3 associate members, ESA is the only example of a transnational space agency. Such a unique setup allows ESA to develop synergies between its members, thanks to coordinating their resources, knowledge, and technical capacities. A collaborative model represented by ESA supports initiatives that deepen the bonds and understanding between the European states. For instance, the now well-known European Centre for Space Law was created in 1989 to facilitate constructive and interdisciplinary dialogue on space law across all the member states and has been very successful ever since. Drawing on this good experience, ESA Director General Josef Aschbacher has established this year the European Centre for Space Economy and Commerce, in short ECSECO, which provides a European platform for interdisciplinary discussions and research on space economy and commerce. The activities of ECSECO will support further development of the space economy and commerce in Europe and go in line with one of the five priorities of ESA Agenda 2025: boosting commercialisation. On 4th July, we organised the launch event of ECSECO, which gathered a selection of high-level actors and analysts of the European space economy, including ESA DG Josef Aschbacher. Interdisciplinarity lies at the heart of ECSECO, which was visible during the event as our guests represented various professional backgrounds and came from the private and public sectors and academia. The event officially opened the applications for membership in ECSECO, and since then, we have welcomed nearly 200 members to our community. We look forward to the first General Meeting of members, which will be an opportunity to meet with the members for the first time. The Secretariat of ECSECO is located in Vienna and supported by ESPI. We eagerly anticipate the exchanges and discussions between the members of ECSECO and their impact on the further development of the space economy and commerce in Europe.
The intensification of space activities, the growing number of objects in space and the emergence of new actors, are increasing the risk of collision and the amount of space debris. To this end, various national, European and global initiatives are currently addressing space debris. Among others, the UN COPUOS Guidelines for the Long-term Sustainability of Outer Space Activities and the IADC Space Debris Mitigation Guidelines were developed – which unfortunately experience too little compliance because these guidelines are voluntary and non-binding. In addition to the growing number of commercial activities, political tensions are transferred in space which increases the generation of space debris. For instance, the direct-ascent anti- satellite test conducted by Russia in November last year created approx. 1.500 new pieces of orbital debris. What is required to tackle the challenge of increasing space debris? First, the basis for the surveillance of the space environment and all further measures is sharing of technical SSA data. Even though the number of SSA data sharing agreements is increasing, there is still a big lack of information and data. The exchange of SSA data is still the necessary condition for further efforts and more data sharing agreements are needed. Second, the challenging effort to establish a global STM framework is moving on slowly. STM is supposed to contribute to preventing collisions of satellites. The EU is working on a European STM framework in different projects, such as SPACEWAYS and EUSTM. Once a European common approach is fully developed and adopted, it can be proposed in multilateral discussions through UNCOPUOS. Third, space debris active removal has been gaining increasing relevance. ESA identified active debris removal technologies as a strategic goal and is addressing this issue in its Clean Space initiative, looking at required technology developments to capture debris. Fourth, in-orbit-servicing and new technologies, such as collision avoidance, are pushed forward. Capabilities to repair space systems in space are key to mitigating space debris. Moreover, satellites equipped with collision avoidance systems can conduct avoidance manoeuvres. This summer 2022 saw various efforts towards more sustainability and safety in space. For instance, in June, the Space Sustainability Rating was launched, which aims to increase the transparency of space debris mitigation efforts by providing a score representing the sustainability of a mission. Since there is only limited compliance to international space debris mitigation guidelines (such as UN COPUOS LTS-guidelines), new incentivising concepts to ensure long-term sustainability in space need to be developed.
The past two decades have seen the global landscape of space activities undergo profound changes. Whereas most space activities were (and still mainly are) led by governments, a disruptive, commercially driven ecosystem emerged. ESPI assessed New Space as being a combination of 6 underlying dynamics: New public schemes, new entrants, new industrial set-up, new solutions, new markers, and new private investments. This wide range of interrelated trends have led the space sector towards a more business and service-oriented set-up. One of the key underlying dynamics that made the New Space dynamic break from previous historical commercial phases of space sector development is the sheer volume of private investments. Private investments have exploded over the past decade reaching a staggering €12 billion globally in 2021. Even while fundamentally different in purpose, private investments now not only supplement public space budgets but truly complement them. As a result, much of the global New Space sector has relied or is expected to rely on private investments in the future. Recent market conditions have taken a turn for the worse. Worldwide inflation, supply chain shortages, geopolitical tensions and a rise in interest rates are combining to make even the most bullish of investors fear a recession. Public markets are generally first in line when it comes to being affected by macroeconomic conditions; however, private markets and investment are never far behind. It appears increasingly likely that a slowdown of private investments is on the horizon, with investors moving away from risky investments and businesses that remain far from revenue. The New Space ecosystem will be increasingly put under stress should a protracted economic downturn occur. In the case of Europe, the lack of large-scale anchor tenancy contracts by public institutions such as seen in the United-States is a key risk factor for European space start-ups. The “dependency” on private investments at all development stages, may force many companies to make tough decisions in the months and years to come depending on their runway. In an actively changing funding landscape, the New Space ecosystem may likely mutate into a new phase, where only the companies with the most efficient business models and credible paths to revenue survive. With a concentration of talent and capital into the most capable companies, this new phase, while initially destructive, may also witness the emergence of the leading space companies of tomorrow.