Challenges Of Practical Space Operations Under The OST Presented by: Dr. HORVÁTH Date: 7 March 2024 The Space Legal Environment - "Space Law" usually means the 5 UN space treaties, agreements and conventions: • Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies ("OST", UNGA resolution 2222, 1967) • Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space ("Rescue Agreement", UNGA resolution 2345, 1968) • Convention on the International Liability for Damage Caused by Space Objects ("Liability Convention", UNGA resolution 2777, 1972) • Convention on Registration of Objects Launched into Outer Space ("Registration Convention", UNGA resolution 3235, 1976) • Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Agreement", UNGA resolution 34/68, 1984) - In addition to the 5 UN space treaties, other fields of international and national law also affects space activities. Actually, an important aspect of space legal discussion is the overreaching effect of national legislation. The Fundamental Problems Of Space Law - The 5 UN treaties, agreements and conventions define many aspects of space activities, but they unfortunately do not define: • Where outer space is? • What are space activities? - This opens the legal basis of space activities up to interpretation. - The space law did not change in the last 40 years, it is not universally ratified and adopted by states (the Moon Agreement was only ratified by 18 countries, and by no large space power). Finally, even those states that ratified (for example the Registration Convention) do not always fulfill their responsibilities and can do that with impunity. - The realities of space activities far overtook the legal regulations. Technological advancements enable operations that were not regulated, and the business environment moved the bulk of space activities from state-centered to enterprise-centered. Case #1: Lack Of Delimitation Of Airspace And Outer Space - Questions Of Suborbital Ex Atmospheric Flight Suborbital point-to-point flight operations - Suborbital flights do not reach the combined energy necessary to complete an orbit around Earth, while reaching the altitudes usually associated with "spaceflight". Based on the "spaceports" presented in the SpaceX Star port Network promo video, 2 suborbital point-to-point flights were simulated, reaching roughly 1000 and 4000 km altitude. - These flights: • Cross into the physical volume usually associated with spaceflight but there is no binding legal definition of a boundary between airspace and outer space ("spatial delimitation") • Were not launched with the intent to orbit Earth ("functionalist delimitation") • Will overfly several countries • Leave the volume of airspace that is usually associated with flight operations and that the states can exercise their control over • Are physically unable to comply with the regulations defined in the Chicago Convention - Suborbital point-to-point flights are not space launches and reentries, even though physically they correspond to those. - They are not spaceflights as commonly understood. - They are not conventional air flights as commonly understood, but they are marketed as alternatives to those. - They are not capable of complying with the regulations of the Chicago Convention on international air operations. - In short, this technology cannot be undisputably fit into any existing legal category. - This new technology can be regulated before it proliferates, but the time to do this is getting short. Case #2: Lack Of Defined Safety And Security Zones In Outer Space – Questions Of Sovereignty Around Spacecraft Co-orbital formation flying - Co-orbital maneuvering occurs when 2 spacecraft orbit a common central body on orbits very close to each other. This formation flying often looks like one spacecraft is orbiting the other, but from the celestial dynamic point of view, they fly on independent orbits (just close). - Space law declares unoccupied space as common heritage, free for innocent passage. Co- orbital maneuvering without actual contact or physical interference is innocent (unless proven otherwise, but any evidence will be denied by the other party anyway). - However, co-orbital maneuvering can be used for observation, intelligence gathering, prepositioning an attack vehicle and to constrain the maneuvering of the approached satellite. - An operator would welcome a volume around their spacecraft to serve as operational safety and protective security zone to legally (and with active measures, physically) prevent an approach and formation flying. But this would create a sovereign controlled volume in outer space. - As of now, an operator can only closely monitor an approach and be prepared to conduct evasive maneuvers at a moment's notice. The approaching spacecraft has a clear advantage to influence the activities of the target. - At the same time, the protection of a critical infrastructure is a justified need. There are proposals to actively protect spacecraft from approach (French patrol spacecraft). - Sovereignty over territorial waters historically originates from the ability to control (and actively limit) maneuvering in areas of waters near the shoreline (cannons hot rule). Based on this, the ability to control maneuvering in a volume around a spacecraft would mean declaring sovereignty in outer space.