A delicate balance: regulating micro satellite technology in a big satellite world.

Author:Freeland, Steven
 
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Abstract

The development of space-related technology since the dawn of the space age in 1957 has given rise to many new and exciting possibilities. It has also meant that space activities continue to evolve, facilitating the participation of a variety of space 'actors' other than States. One of the potentially most significant developments in this regard has been the increasing use of small satellites. These are in general cheaper and less complex to develop, build and launch than conventional satellites, and have thus enabled groups such as university students and non-profit organisations to become involved in space. More significantly, the possibilities now exist for 'traditional' users of outer space to also utilise this technology for existing as well as new commercial and other purposes. This may represent a pivotal moment towards the development of a new space paradigm. Yet, despite the tremendous potential offered by small satellites, it is important to recognise that, like other space objects, they are subject to the regulatory requirements specified in the international space treaties, as well as other instruments and national legislation. This article discusses a number of the more significant regulatory requirements and analyses how they might apply to space activities involving small satellites now and into the future.

I THE CHANGING NATURE OF SPACE TECHNOLOGY

October 1957 witnessed the launch of the first human-made space object to orbit the Earth, Sputnik 1. Since that time, there has been a breathtaking and seemingly endless development of space-related technology. Humankind is now engaged in a multitude of space activities far beyond the contemplation of those involved at that time. The utilisation of space technology now forms a crucial part of everyday society in all parts of the globe--irrespective of the (geopolitical, economic and cultural characteristics of any one country. Simply put, our reliance on space technology is such that the world would cease to function in many respects without constant and unimpeded access, and this imperative is likely to become even more pronounced for future generations. This has primarily been driven by the increasing 'commercialisation' of outer space.

Yet, as is well known, there remains a vast gulf between the space capabilities of the relatively small number of space 'powers' compared with the rest of the world. It has been estimated that approximately up to 60 States now have some form of direct space capability, (1) although the extent to which they are able to utilise space for their own development (and other) purposes varies quite significantly. Of course, this also means that perhaps up to 140 States thus far do not realistically have any independent capability to directly access space themselves. This is despite their reliance on space-related technology for many aspects of their functioning and development. These countries are instead totally dependent on others for their space access, which therefore impacts upon their space 'security' and impedes opportunities for creativity, innovation and progress among their citizens. The reality is that their access to satellite data and the ability to utilise vital space technology in a crisis would be largely dependent on, and subject to, the strength and enforceability of their existing contractual relationships and political ties.

It is in this context that the recent development and adaptation of so-called 'small' satellite technology potentially represents a paradigm shift in the way humankind accesses space. These satellites are usually cheaper and less complex to develop, build and launch than conventional satellites. They therefore open the possibilities for a significantly greater degree of space access to a much larger range of space 'actors'. Already, groups such as university students and non- profit organisations in both developed and developing countries have increasingly been able to become involved in space through these means. (2) The development of this technology may represent an important precursor to the establishment of indigenous and independent space programs in States that previously could not have considered such activities. In effect, by eliminating some significant barriers to entry, small satellite technology may facilitate capacity building, broader collaborative opportunities and education/training programs, as well as bridging (some) technology gaps, for hitherto 'non-space faring' States. It will also open up even more diverse commercial opportunities for a much broader range of potential service providers and, generally, 'bring space to more people.'

Significantly, as the technology develops even further, it may also open the door to traditional users of outer space--both States and private commercial entities--to utilise it for existing as well as new purposes, thus expanding the scope of their capability at a significantly lower relative cost. Of course, this may also require a mind-shift on the part of existing space actors as they grapple with whether, and how, to adapt to this relatively new technology and adjust their activities to react to the challenges posed by the potential for new market entrants. (3)

As a consequence, the increasing advent of this technology could potentially redefine the landscape of many activities in space. This new space paradigm will not see the end of more traditional satellite technology since, naturally, small satellite technology will not quench our insatiable demand for all that space can provide. However, it does open up a plethora of possibilities, many of which we are simply not in a position to comprehend or even imagine at this point. In this regard, one might liken the potential of small satellites to the way that mobile phones have revolutionised terrestrial communications activities. We simply do not know where this technology might ultimately lead and what it will allow us to do. However, we can confidently expect that it will open the door to an even more expansive array of commercial opportunities.

Thus, from a technological perspective at least, small satellite technology most likely represents a 'win-win' possibility that enhances the momentum for change and further promotes commercial space activities. Indeed, in many respects, this has been the singular motivation for both developers and users thus far. As with many aspects related to the exploration and use of outer space, the technology continues to move forward at a rapid pace without sufficient attention being paid to the regulatory consequences and requirements. It is therefore important not to be too caught up in this wave of optimism and innovation, without at least also considering how these developments coexist with the current regulatory framework, which has largely been designed with 'big' satellite technology in mind.

The purpose of this article is therefore to take pause and reflect on various regulatory requirements and challenges posed by the existing international legal regime in relation to the use of small satellite technology. While many of the users of this technology are no doubt cognisant of these requirements, it is probably fair to say that many are not; or, put another way, they do not consider the regulatory issues with the same degree of attention as they do the technical factors.

What this discussion will highlight is the fact that the existing legal framework was not designed with small satellite technology specifically in mind. Moreover, there are significant political, legal and logistical realities giving rise to difficulties in amending the existing international legal regime. As a result, at least in the short-medium term, further regulation will be required--particularly at the national level--and this will necessitate a balancing of sometimes competing interests between protecting the State now and into the future from potentially very significant liability on the one hand, and encouraging innovation and research and development on the other. Although the discussion below focuses on the current regulatory requirements, it leads to the conclusion that the design of future legal regimes to deal specifically with small satellite technology will necessitate some fundamental policy decisions by national lawmakers and regulatory bodies.

II THE CURRENT INTERNATIONAL LEGAL FRAMEWORK AND REGULATORY REQUIREMENTS

The international regulation of the exploration and use of outer space is primarily based upon a series of five United Nations Space Treaties (4) and several General Assembly Principles. (5) The Treaties in particular set out a number of fundamental rules, imposing various obligations on States Parties, some of which are also regarded as representing customary international law. (6) More and more States have come to recognise the need to promulgate national space laws to transform these international obligations into their respective domestic legal spheres. (7) Given that the advent of small satellite technology presents opportunities for hitherto non-space faring States to engage in space activities, it may well be that the development of such technology in a particular country may pre-date any specific applicable national laws. Thus, the possibilities of greater access to this technology may be a driving force in the enactment of a further wave of national space law in various countries--for example, as was the case in Austria, which enacted its national space law in late 2011.

It should be noted that, in addition to these various instruments, there have recently been an increasing number of 'soft-law' guidelines concluded that also relate to the conduct of particular activities in outer space. (8) This has been for several reasons, partly related to the strategic and political nature of space, which has made the finalisation of internationally binding treaties more difficult to achieve.

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