Space-Based Night Sky Pollution as a Problem of International Law
New Space Operations continue to touch the Limits of International Law
From weather forecasting to navigation and telecommunication, including broadcasting, satellites have long played a direct or indirect role in the everyday life of most people. But while we often take space technology for granted, new technical developments continue to gain significant public interest. Recent examples include satellite constellations, such as Starlink, that provides fast internet access also in remote regions, for example during the war in Ukraine, and the Webb telescope which enables cutting-edge research and unprecedented insights into our universe. But sometimes, these different uses of outer space conflict with each other, raising also questions of (international) law - while also drawing attention to the limitations of what international law can do.
For untold generations, the view of the starry night sky has sparked the human imagination, but already today, the experience of a clear night sky full of stars is restricted to rural and remote areas with little light pollution and children growing up in urban areas today might not be aware of the wonders of the night sky. Light pollution as a problem has often been considered a regional issue and a necessary byproduct of urbanization and economic and technological development. In recent months, though, a new threat has emerged, which already affects ground-based astronomy. Large-scale satellite constellations threaten to make ground-based astronomy difficult, especially the search for moving objects such as small near-Earth objects. Currently, space activities are a growing concern for the Arctic academic community and large-scale satellite constellations can also affect scientific research in the Nordic region. It is argued by some that the disturbance might only be temporary, but this appears to be far from clear and the question nevertheless requires a clear solution. The currently prevailing legal opinion appears to be that there is very little in international space law which might prevent private actors from launching a large number of satellites in low earth orbits, despite the impact it has on astronomy, and that space-based observatories are the future. n this presentation the problem of decreased observability of the night sky is discussed from the perspective of international law, in particular international space law and the right to conduct scientific research with the aim of reconciling the interests of New Space enterprises with the interest of future generations to be able to see the stars.
As has already been noted by Michael Byers and Aaron Boley, large-scale satellite constellations promise connectivity and technological progress for many parts of the world and the technological and business ideas behind such projects are certainly impressive. But they threaten to make ground-based astronomy difficult, especially the search for moving objects such as small near-Earth objects. It is thought possible that in the not too distant future we will see more satellites than stars when looking into the night sky. Already today, observing the night sky is becoming more and more difficult.
This is not only a problem for astronomers but also a threat to human imagination as a whole. We have always been explorers and after every ocean has been crossed and all shores reached, the stars are the logical next step. In order to survive a system-wide extinction level, we must become an interstellar species. What will sound to most people like far-fetched science fiction is simply a matter of disaster risk reduction. To achieve this goal, we need to nurture an interest in space in future generations. This will become more difficult if the night sky is hardly visible anymore. How many of you are here because at some point in your past, maybe as children, you have been in awe of the night sky? As important as it is to provide remote regions with better internet access through satellites, we have to see that this comes at a cost - in this case, the risk of the experience of the night sky as we are accustomed to it.
It has been suggested that new space companies should finance the installation of observatories in space or on the moon to compensate for the loss in astronomical capacities. This is an idea which is easily understandable for an international lawyer: if you use something which is accessible to all and shared by humankind as a whole and if you make a profit by doing so, you should share the benefits with all of mankind. This notion can be seen in the international regulation of deep sea bed mining in the United Nations Convention on the Law of the Sea. These rules are also based on the economic exploitation of global commons resources and the sharing of economic benefits. But if we lose the ability to engage in citizen-level ground-based astronomy, we might take away the sense of awe and wonder from future generations that come with looking at the stars on a clear night.
Unlike the costs of satellites, rockets, observatories or scientists’ salaries, or the profits made by New Space companies, the desire of future generations to actually want to go to the stars is something which cannot be easily labelled with a price tag. This makes it difficult to turn this into a debate which is easily accessible by lawyers. If it were only about placing a few observatories into space or on the dark side of the moon, this would be a relatively simple calculation. These are things, which, while technologically challenging and very expensive, can be done in principle or at least will be possible in the future. Even if space observatories could fulfil all functions which are fulfilled by Earth-based astronomers today, a more or less certain amount of time would elapse between the impact of large-scale satellite constellations on astronomy, which is visible already today, and the eventual operability of such hypothetical observatories in space or on the moon or elsewhere. How, then, can we use international law, as it exists today, to look for a solution to the conflict between New Space companies and old-school astronomers? Because both activities, astronomy on one hand and the operation of communication satellites which promise to provide affordable internet access to less developed parts of the world on the other hand, can be seen as inherently valuable for humankind in general.
One way to approach the issue is through the lens of human rights. Rather than perpetuating the old view of space activities of as falling into the domain of nation states, I will try to emphasize the very nature of the new space age, which is characterized by accessibility. International space law is largely the product of the cooperation of States during the first space age. In the New Space economy, the State is just one of many stakeholders. Under such conditions, the question should no longer be what is allowed by the State but which rights different stakeholders, such as scientists and corporations, have. Once we know that, we can try to reconcile competing interests by maximizing the use of rights and limiting interference in the rights of others. Before such a balancing of rights can be begun, we need to understand which rights are at stake here. Rather than asking what the rules should be, we will now look at the international legal norms which already exist today and will try to figure out a way to bring these competing interests together by asking what the currently existing rules are.
Traditionally, international law has only regulated affairs between states. The emergence of international human rights law as one part of international law has been a deviation from what has long been the standard. Today, individuals but also corporations and other non-state actors, such as intergovernmental organizations or non-governmental organizations, play a much greater role in international law and international affairs than they used to do - but the state remains the core institution of international law. In legal terms, the state is the primary subject of international law. International law is made by states, either through customary international law or, more and more since the last century, through international treaties, either directly, through international negotiations between two or more states, or through entities which have been established by an international treaty. The latter approach is used for example for the development of more technical norms for the maritime and aviation industries through the International Maritime Organization (IMO) and the International Civil Aviation Organization (ICAO), to mention just two examples. The fundament for all of this is the consent of states to be bound by international norms. There are only a few norms, which are deemed so important, that no exception is possible and that consent no longer matters, for example, the prohibition of genocide, torture, slavery or piracy. As a general rule, though, the creation of international legal norms requires the active participation of states.
When international space law was first created during the dawn of the space age in the 1950s, 1960s and 1970s, this was not a problem because only states were in a position to engage in space activities. The idea of privately owned and operated spacecraft was at best science fiction. Because of the way international law is made, it is usually reactive in nature, meaning that international law is a tool which is used by the international community to tackle a problem which has been identified, and can be addressed through regulation. For a long time, the relatively few norms which make up international space law, such as the Outer Space Treaty or treaties concerned with the registration of spacecraft or liability for damages caused by the operation of spacecraft were sufficient, because it was only a few states which were engaged in space activities in the first place.
Under Article I of the Outer Space Treaty, outer space is accessible to all states. A key principle of space law is that space is not open to the acquisition of sovereignty and that it is accessible for all. Like on the high seas, access to space is not limited. As long as the requirements of international space law, for example, those in the Registration Convention, are met, satellites may be put into orbit. Therefore, in principle, the placement of large satellite constellations is legal under existing international law. When the Outer Space Treaty was adopted in 1966, space operations were the exclusive domain of nation states but the treaty also applies to private actors. It follows from the Registration Convention that spacecraft are registered with states. Here space law shows that its origins can be traced to ideas which have long existed in the international law of the sea. Also in the international law of the sea, international treaties refer to the rights of states. In practice, these rights are used by ships which fly the flag of nation-states. The same concept applies to spacecraft, including satellites in large constellations. Access to orbit is therefore not restricted but regulated. The Convention on International Liability for Damage Caused by Space Objects was adopted in 1971 to ensure that damages caused by spacecraft would be compensated. While it might be argued that the operation of large satellite constellations makes the operation of ground-based observatories more difficult and constitutes an interference with the operation of Earth-based observatories, the factual loss of functionality is unlikely to be considered damage within the meaning of the Liability Convention. Unless human life or health is affected, Article I lit. (a) of the Liability Convention requires loss of property or damage to property. This is not the case here. The disturbance caused by satellites can hardly be argued to amount to damage within the meaning of the Liability Convention. Despite the impact of large satellite constellations on Earth-based astronomy, the deployment of these satellites, in general, is compatible with international space law as it exists today. International Space Law, therefore, does not provide a solution for our problem. The suggestion by Byers and Boley to use the ‘polluter pays’-principle, which is a cornerstone of International Environmental Law, is a first step in the right direction.
Both corporate activities, such as bringing satellites into orbit, and the freedom of scientific research on the ground can be protected by international human rights law and domestic laws and constitutions. Human rights obligations of states extend to their entire jurisdiction. Article I of the Outer Space Treaty refers to “freedom of scientific investigation in outer space”. However, the word “in” here indicates that Earth-based astronomy is not covered by this norm. This is hardly surprising because the Outer Space Treaty regulates space activities. The right to conduct research can, for example, be covered by Article 8 of the European Convention on Human Rights. The jurisdiction of the state ends at the lower edge of outer space and in space is limited to spacecraft and hypothetical bases on other celestial bodies. Therefore human rights obligations of registration states extend to the effects of spacecraft which are under their jurisdiction. The existence of human rights obligations, however, does not mean that it is easy to actually enforce them. If the realization of human rights, such as the right to make astronomical observations, is made impossible by a state allowing the operation of spacecraft which hinder observations, the person whose rights are affected would have to take the case to the courts of the state where the spacecraft are registered. This is not only complicated, but there will also be a very limited chance for success, even if the state where the spacecraft has been registered is a party to international human rights treaties, such as the European Convention on Human Rights or the International Covenant on Civil and Political Rights, which guarantee human rights which can be claimed in domestic courts. From a practising lawyer’s perspective, this approach is unlikely to be practical for astronomers from other countries because not all key spacefaring states are parties to such human rights treaties. Other obstacles are the high costs of litigation, for example in the United States, and the general lack of the rule of law and of an independent judiciary in other key spacefaring states, notably Russia and China. But rights are part of international law and also outside international human rights treaties in the narrow sense of the term. The rights in question will usually, from a legal perspective, be the rights of a person, be it a natural or a legal person, against an authority, usually a State, one’s own or a foreign state, represented by its organs, such as a national space administration or agency. It will then be up to the State to ensure the rights of natural or legal persons. Depending on the international legal norms applicable to a specific situation, the level of dependency of the right holder on the cooperation of the state can be larger or smaller. It is easier to enforce rights which are protected through a specific human rights framework, such as the European Convention on Human Rights, which gives you access to an international human rights court, than it is in the context of a general international treaty between states, such as the Outer Space Treaty, which only create rights and obligations for states. Until the emergency of international human rights law in the middle of the last century, the latter situation was the standard in international law. In many international legal frameworks outside human rights treaties, this is still the case. This mediation leaves natural and legal persons at the mercy of states in situations when international legal norms are violated which are designed to protect them without rising to the level of actual international human rights law. Today, this attitude can be seen not only in space law but also, for example, in the international law of the sea. There, a conflict between ships flying flags of different countries or between a ship and a foreign coastal state, are legal disputes between different states. A common example is the detention of a foreign ship by the authorities of a port state if the ship is suspected of violating environmental or other regulations applicable to all ships in a region, such as stricter sulphur emissions standards which entered into force globally at the beginning of this year. In such a case, seafarers from many countries might be affected by the detention of their ship by the port state, but it is only the flag state of the ship in question which can claim rights under the international law of the sea, not the individual seafarer. The same idea applies to international space law. Even though it is corporations which send satellites into orbit, on the international level, it is the states that interact with each other.
It, therefore, has to be concluded that international law is a tool of limited practical value when it comes to protecting the interests of astronomers vis-à-vis satellite operators. At this time, this problem highlights a greater issue which should be relevant for the New Space industry: the potential lack of cooperative spirit. 16 The Arctic, Antarctica, the oceans and outer space are areas of cooperation, often also across political divides. Especially in areas which are beyond the jurisdiction of nation-states, there is an expectation of mutual respect and cooperation. This expectation applies not only to emergency situations but is an expression of a general attitude to how one should behave in areas which are particularly dangerous. Article III of the Outer Space Treaty calls for international cooperation, a notion which is essential for international space law and which has been repeated, for example, in Article 4 (2) of the Moon Agreement. At first, this spirit of cooperation seems to be missing in the current context. It appears likely that this is the case because of the absence of a directly visible human risk as the competing activities are ground-based astronomy and the operation of uncrewed spacecraft. It seems a fair assumption that in the long run, cooperation between privately owned spacecraft will be similar to the existing cooperation between privately owned ships at sea, where economic interests are important but may be trumped at times by humanitarian concerns, for example in emergency situations. Thie issue has not been ignored by industry actors, e.g. SpaceX has experimented with satellites that are coloured black in an attempt to reduce the amount of sunlight they reflect.
From a legal perspective, though, the idea of voluntary cooperation will be of limited practical value. In the legal relationship between ground-based astronomers and New Space corporations, this spirit of cooperation cannot be enforced because the competing activities happen in different legal spheres. The boundary between the jurisdiction of states on the ground and outer space law is an artificial but necessary legal construction. Earth and space are connected. This is the point behind the deployment of the satellites in the first place. Astronomers on Earth have fallen into a legal black hole which provides limited protection for their interests. Asking New Space companies to cover some of the costs for new astronomy infrastructure off-planet will only solve part of the problem. In the long, run, space corporations have a lot to offer to humankind. Affordable, reliable global connectivity, which is likely to contribute to economic growth and to save human lives in sparsely populated parts of the world, is just one aspect. In the last decade, research undertaken in space or in connection with space activities has led to significant technological advancements and to improvements in the quality of life of many people around the world.
About the author
Prof. Dr. Stefan Kirchner is working at the intersection of international environmental law, human rights, and the law of the sea. In addition to practising law, he has taught international law at universities in Germany, Finland, Italy, Lithuania, Ukraine, and Greenland. His most recent books include “Security and Technology in Arctic Governance” (ed., 2022), “Governing the Crisis: Law, Human Rights and COVID-19” (ed., 2021) and “El Ártico y su gente - Ensayos de derecho internacional” (2020), and “The Baltic Sea and the Law of the Sea - Finnish Perspectives” (with T. Koivurova, H. Ringbom and P. Kleemola-Juntunen, 2019). Prior to his legal career, he was an emergency services worker with the German Red Cross. This text only reflects his personal opinion.
About this text
This text is an updated version of “The Impact of large-scale Satellite Constellations on Earth-based Astronomy as a Problem of International Law”.