Abstract
The development and operation of small satellites for various purposes is a recent phenomenon that poses new challenges to the regulatory framework of outer space activities. On the one hand, the involvement of more actors, including private entities and universities, in the area of space technology is welcome as it helps more countries and people to benefit from outer space as the “province of all humankind”. On the other hand, small satellites are prone to aggravate the problem of space debris. This is not only due to the increased number of space objects, which is the inevitable consequence of the success of small satellites, but also because of their particular qualities. They often do not have maneuvering capability that would allow them to evade an obstacle or to de-orbit after the end of mission. Furthermore, their limited scale and scope of activity – sometimes even regarded as “amateur” activity – leads to a relatively high failure rate. The regulatory challenges include issues of authorization, registration, frequency allocation, risk, liability, and insurance, as well as space debris mitigation.
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Notes
- 1.
Otto Koudelka, Regulatory Aspects of Small Satellite Missions, Presentation made at the Global Space Applications Conference, 2–4 June 2014, available at www.glac2014.org, ISSN 1995-6258. The record month was November 2013, when 29 satellites were launched on Minotaur-1, and 32 satellites on DNEPR; see also Jordi Puig-Suari, Small Sats: Present and Future, Presentation made at the ITU Symposium and Workshop on Small Satellite Regulation and Communication Systems, 2–4 March 2015, available at http://www.itu.int/en/ITU-R/space/workshops/2015-prague-small-sat/Pages/agenda.aspx
- 2.
Art. I Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of January 27, 1967, 610 UNTS 205 (hereinafter OST).
- 3.
In Brazil, the program to build small satellites started in 2003 by researchers at the National Institute for Space Research (INPE) with support from the Brazilian Space Agency (AEB). In 2014, it launched the first NanoSatC-BR1. On Vega’s first flight, ESA issued a call that led to a flood of proposals from universities all over Europe. Seven university teams made it in time, including UniCubeSat-GG and e-st@r from Italy, XaTcobeo from Spain and Robusta from France. They were launched in 2012; see http://www.esa.int/Education/Central_and_eastern_Europe_make_history_with_small_satellites. See also the BRITE Constellation of Austria, Canada, and Poland launched in 2013, http://www.brite-constellation.at/
- 4.
The Basic Space Technology Initiative (BSTI) in the framework of the United Nations Program on Space Applications undertakes capacity building in basic space technology and promotes the use of such technology and its applications for sustainable development. It consists of “Basis Activities”, such as symposia and technical assistance missions, “International Space Technology Symposia”, which were held in Japan (2012), Dubai (2013) and Mexico (2014), the development of a “Space Technology Education Curriculum”, a long-term Fellowship Program and specific “BSTI Projects”, such as the Humsat-D. See United Nations Office for Outer Space Affairs, http://www.unoosa.org/oosa/en/SAP/bsti/
- 5.
QB50, https://www.qb50.eu/index.php/project-description. FP7 was the multi-annual research program of the European Union administered by the European Commission in the years 2007–2013. See Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centers and universities in actions under the Seventh Framework Program and for the dissemination of research results (2007–2013), OJ L 391/1.
- 6.
See the NASA CubeSat Launch Initiative, http://nasa.gov/directorates/heo/home/CubeSats_initiative.html
- 7.
Neta Palkovitz and Tanja Masson-Zwaan, Orbiting under the Radar: Nano-satellites, International Obligations and National Space Laws, in Proceedings of the International Institute of Space Law 2012 (2013) 566.
- 8.
Ram Jakhu and Joseph Pelton, Small Satellites and Their Regulation, Springer Briefs (Springer New York 2014) 61.
- 9.
See Rainer Sandau, International Study on Cost-Effective Earth Observation Missions Outcomes and Visions, 36 Int’l Soc’y Photogrammetry Remote Sensing Commission Symp. pt. 1, available at http://www.isprs.org/proceedings/XXXVI/part1/Papers/T04-15.pdf
- 10.
See Jakhu and Pelton, Small Satellites and Their Regulation, supra, fn 8, 2; Werner Balogh, The Role of Binding and Non-binding Norms in the Implementation of Small Satellite Programmes, in Soft Law in Outer Space (Irmgard Marboe ed, Böhlau 2012) 325, 326.
- 11.
Paul Muri and Janise McNair, A Survey of Communication Sub-systems for Intersatellite Linked Systems and CubeSat Missions, 7 J. of Comm. 290, 295 (2012).
- 12.
Milton Smith and Stephen Smith, Legal Issues Presented by Hosted Payloads, in Proceedings of the International Institute of Space Law 2011 (2012) 495.
- 13.
See, for example, the standardized off-the-shelf solution offered by the Dutch startup company Isis in Space, http://www.isispace.nl/cms/
- 14.
One recent example is the BRITE mission in which Austrian, Polish and Canadian scientists and researchers cooperate to investigate the brightness variations of highly illuminous bright stars for the purpose of finding out more about the origins and the composition of the universe. See http://www.brite-constellation.at/
- 15.
See, for example, the external platform program and small satellite deployment by Nanoracks, http://nanoracks.com
- 16.
See CubeSat, http://www.cubesat.org/
- 17.
See Balogh, supra, fn 10, at 325, 327.
- 18.
See the NASA CubeSat Launch Initiative, http://nasa.gov/directorates/heo/home/CubeSats_initiative.html
- 19.
Rainer Sandau, Int’l Acad. of Astronautics, Presentation at the Fourth African Leadership Conference on Space Science and Technology for Sustainable Development, Small Satellites for Capacity Building in Space Technology Development 6 (Sept. 26 2011), http://www.oosa.unvienna.org/pdf/bst/ALC2010/02_Sandau_ALC-Mombasa.pdf
- 20.
SkyBox Imaging, http://www.skyboximaging.com/technology. See also Michael Dornik and Milton Smith, Small Satellite Industry and Legal Perspectives in the US, in: Irmgard Marboe (ed.), Small Satellites – Chances and Challenges (forthcoming).
- 21.
Dornik and Smith, supra fn 20; see also James O’Toole, Google Buys Satellites Startup Skybox Imaging, http://www.money.cnn.com/2014/06/10/technology/innovation/google-skybox/
- 22.
There are, however, also ideas on small communication satellites in GSO, see A. E. Buravin, Small communication satellites on the GSO: niche and prospects (2006) 3 Technologies and Communications, http://tssonline.ru/articles2/bypub/tss-3-2006
- 23.
Jakhu and Pelton, Small Satellites and Their Regulation, supra, fn 8, 15.
- 24.
See Dornik and Smith, Small Satellite Industry and Legal Perspectives in the US, supra, fn 20.
- 25.
Jakhu and Pelton, Small Satellites and Their Regulation, supra, fn 8.
- 26.
- 27.
Jakhu and Pelton, Small Satellites and Their Regulation, supra, fn 8, 14.
- 28.
Ibid.
- 29.
Article VI OST reads: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of nongovernmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. […]”
- 30.
See Irmgard Marboe, National Space Legislation , in: Christian Brünner and Alexander Soucek (eds.), Outer Space in Society, Politics and Law (Springer, Vienna-New York 2012) 439, 444 ff.
- 31.
Irmgard Marboe and Karin Traunmüller, Small Satellites and Small States: New Incentives fo r National Space Legislation, in 38 Journal of Space Law (2012) 289, 305–307.
- 32.
Jean-François Mayence, Introduction to Belgian Law on the Activities of Launching, Flight Operations or Guidance of Space Objects, in 5 Space Law: Basic Legal Documents E.X (Karl-Heinz Böckstiegel et al. eds., 15th ed. 2011).
- 33.
(new) Article 3, No 2, of the Belgian Space Act.
- 34.
See Palkovitz and Masson-Zwaan, Orbiting under the Radar, supra fn 7.
- 35.
See Sa’id Mosteshar and Irmgard Marboe, Authorization of Small Satellites under National Space Legislation, in: Irmgard Marboe (ed.), Small Satellites: Chances and Challenges (forthcoming).
- 36.
Ibid.
- 37.
See the English translation of the Explanatory Report by the government to the Austrian parliament to the draft of the new Outer Space Act in: Irmgard Marboe, The New Austrian Outer Space Act, 61 Zeitschrift für Luft- und Weltraumrecht (2012) 26, 42 ff. See the German original at the website of the Austrian parliament, http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I_01466/fname_232781.pdf
- 38.
See Niklas Hedman, Swedish Legislation on Space Activities, in National Space Law (Eds. C. Brünner & E. Walter)(2008) 74; Niklas Hedman, Vertices of an Administrative Procedure/Costs: The Swedish Experience, in Project 2001 Plus – Towards a Harmonised Approach for National Space Legislation in Europe (Eds. S. Hobe, B. Schmidt-Tedd & K.U. Schrogl)(2004) 75.
- 39.
See Article 4, para. 4 of the Austrian Outer Space Act; in the UK, a consultation process has started pursuing a similar goal. See Mosteshar and Marboe, supra fn 35.
- 40.
See Principle 8 of the Declaration of Legal Principles, GA Res of 1963; Art. VII OST; and Articles II and III of the Convention on International Liability for Damage Caused by Space Objects of March 29, 1972, 961 UNTS 187 (hereafter LIAB).
- 41.
Art. II and III LIAB supra fn 40.
- 42.
The concept of “space traffic management” encompasses the development of “rules of the road” for space objects in various orbits. See the IAA Study on the topic, http://iaaweb.org/iaa/Studies/spacetraffic.pdf
- 43.
Irmgard Marboe, The importance of Guidelines and Codes of Conduct for Liability of States and Private Actors, in: Irmgard Marboe (ed.), Soft Law in Outer Space. The importance of non-binding norms in international space law (Böhlau Vienna 2012) 119, 122 ff.
- 44.
Armel Kerrest and Lesley Jane Smith, Article VII, in Hobe/Schmidt-Tedd/Schrogl [eds.], Cologne Commentary on Space Law [2009], Volume 1, page 144, paras 65–67.
- 45.
Franz Werro and Vernon Valentine Palmer, The Boundaries of Strict Liability in European Tort Law (Carolina Academic Press/Staempfli Verlag 2004) 400 ff.; Gert Brueggemeier, Risk and Strict Liability: The Distinct Examples of Germany, the US and Russia, EUI Working Papers Law No. 2012/29, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201536
- 46.
Kerrest and Smith, supra fn 44, page 135, para 30.
- 47.
Cécile Gaubert, Insurance in the context of space activities, in: Frans von der Dunk and Fabio Tronchetti (eds), Handbook of Space Law (Cheltenham Edward Elgar 2015) 910, 912–942; see also Irmgard Marboe, Small Satellites: Liability, Risk and Insurance, Presentation made at the Global Space Application Conference, Paris, 2–4 June 2014, available at www.glac2014.org, ISSN 1995-6258.
- 48.
Gaubert, ibid, 933 ff.
- 49.
Cécile Gaubert, Do small satellites need insurance, Presentation made at the conference “Small is beautiful – Challenges and Risks of Small Satellites, Vienna, 29 March 2014, available at http://www.spacelaw.at/documents/2014/14_Insurance_Gaubert.pdf
- 50.
Article 6 of the French Space Operations Act (2008); Article 4, para 4 of the Austrian Outer Space Act (2011).
- 51.
Gaubert, supra fn 49.
- 52.
Ibid.
- 53.
Resolution adopted by the General Assembly 1721 B (XVI), International co-operation in the peaceful uses of outer space of 20 December 1961.
- 54.
Convention on the Registration of Objects Launched into Outer Space of 12 November 1974, 1025 UNTS 15 (hereinafter REG).
- 55.
Resolution adopted by the General Assembly 62/101, Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects of 17 December 2007.
- 56.
Palkovitz and Masson-Zwaan, Orbiting under the Radar, supra, fn 7, 566.
- 57.
According to Art. VI, sentence 1, OST. See the discussion on “Authorization” at text & notes 29 – 39, supra.
- 58.
See Art. 44 (2) ITU Constitution.
- 59.
Constitution of the International Telecommunication Union (Geneva, 22 December 1992), as amended by the 2010 Plenipotentiary Conference, see http://www.itu.int/en/history/Pages/ConstitutionAndConvention.aspx
- 60.
Convention of the International Telecommunication Union (Geneva, 22 December 1992), as amended by the 2010 Plenipotentiary Conference, see http://www.itu.int/en/history/Pages/ConstitutionAndConvention.aspx
- 61.
The Radio Regulations complement the two basic ITU documents mentioned above. They implement and regulate in more detail the provisions and principles contained in them. They are regularly re-negotiated and updated at the World Radio Conferences (WRC) that take place every 3 years.
- 62.
ITU RR 2012, No 1.56.
- 63.
This has even led to the formation of a specialized organization, the Satellite Interference Reduction Group (sIRG). See Jakhu and Pelton, supra, fn 8, 57 f.
- 64.
The respective procedures are regulated in detail in Articles 9 and 11 of the ITU RR 2012.
- 65.
WRC-15, see www.itu.int/en/ITU-R/conferences/wrc/2015
- 66.
Resolution 757 (WRC-12), www.itu.int/en/ITU-R/space/AmateurDoc/RES-757.pdf
- 67.
ESA, Fly Your Satellite. Frequency Registration Guidelines for SmallSat Missions (2014) 6; see generally the respective ESA educational project of the same name: http://www.esa.int/Education/Call_for_Proposals_Fly_Your_Satellite
- 68.
ESA, Guidelines, supra fn 67, 19.
- 69.
Ibid. 23.
- 70.
Federal Communication Commission, Guidance of Obtaining Licenses for Small Satellites, Public Notice, Released 15 March 2013.
- 71.
See the Communications Act of 1934, 47 USC Chapter 5, as amended, and the Federal Satellite Communications Regulations, 47 Code of Federal Regulations, Part 25.
- 72.
See Jakhu and Pelton, Small Satellites and Their Regulation, supra, fn 8, 9.
- 73.
Space Debris Mitigation Guidelines 2002 of the Inter-Agency Space Debris Mitigation Committee (IADC), see http://www.iadc-online.org/Documents/Docu/IADC_Mitigation_Guidelines_Rev1_Sep07.pdf
- 74.
Space Debris Mitigation Guidelines of the Committee for the Peaceful Uses of Outer Space, endorsed by the Resolution of the General Assembly 62/217 of 22 December 2007, see http://www.oosa.unvienna.org/pdf/publications/st_space_49E.pdf
- 75.
See Jakhu and Pelton, supra, fn 8, 1. See the most interesting “Ten Top Things to Know About Small Satellites and Space Debris” to face the challenge of space debris, ibid, 71–77.
- 76.
See, e.g., Alex Da Silva Curiel, University of Surrey, Presentation at the UN/ESA/Austria Symposium on Small Satellite Program for Sustainable Development, Space Debris – Issues and Mitigation Measures (15 September 2011), http://www.unoosa.org/oosa/SAP/act2011/graz/index.html
- 77.
United Nations/Mexico Symposium on Basic Space Technology, 20–23 October 2014, Ensenada, Baja California, Mexico, see http://www.unoosa.org/oosa/en/SAP/bsti/mexico2014.html
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Marboe, I. (2016). Small Is Beautiful? Legal Challenges of Small Satellites. In: Sterns, P., Tennen, L. (eds) Private Law, Public Law, Metalaw and Public Policy in Space. Space Regulations Library, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-27087-6_1
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