Are Satellites Allowed to Clog the Sky?

International Space Law in Favor of Ground-Based Astronomy

By Rebecca Schembri, Harvard University Extension School, August 13, 2021

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Almost every country in the world is a signatory to the 1967 United Nations Outer Space Treaty. The binding international law sets parameters for peaceful exploration of outer space and for prevention of interference to those involved in scientific study. However, as twentieth century scholar Louis Henkin wrote: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time,” nations observe international law unless it is in their best interest not to.

Today some nations, or States, are honoring commerce over diplomatic health, and are causing satellite pollution to the detriment of other States’ astronomical study. Although legal statutes considered to favor ground-based observation exist, the laws protecting astronomy are being conspicuously overlooked. This particularly applies to the United States who, at best, is impatient to the philosophical pace of the U.N., and at worst, is an international bully, doing whatever it sees fit in the name of capitalistic freedom.

Within the OST, the legal concepts of “harmful interference”, “due regard”, and “international cooperation” signify a coming together for the best of humankind. As the treaty states: “the exploration and use of outer space…shall be carried out for the benefit and in the interests of all countries.” This binds all parties to peaceful relations in the name of human advancement. According to the treaty, exploration of space must be shared: ground-based astronomy must cooperate with satellite companies, and State-licensed satellite companies must cooperate with ground-based astronomy.

In addition, space must be accessible to all—”outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States”. In this case, one country launching satellites is preventing another country from using outer space, such as with Chile’s pivotally important ALMA telescope being hindered by America’s Starlink constellation, which sits along the view lines of the observatory. This is a clash of interests and is not in the spirit of international law.

The OST also prohibits “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” No country is permitted to claim an area of outer space, but the law is being overlooked as States are issuing licenses for myriads of satellites to be placed in Low Earth Orbit. America, for example, is essentially “occupying” LEO by licensing Starlink, a private company, to launch over 40,000 satellites into the sky. This is a violation of “due regard” for the “corresponding interests” of other parties to the treaty, by which States must consider the implications of their work as it relates to—or may inhibit—the work of other States.

Aside from being fair in outer space exploration, any party to the OST causing damages to another party must offer reparations. In this case, satellite reflections are leaving light streaks in the images of careful astronomers who receive funding from private parties, organizations, and governments. The government licensing the satellites should be held responsible for such damages. Such laws are not optional, they have been agreed upon, signed, and ratified by most of the world “in the interest of maintaining international peace and security and promoting international co-operation and understanding.” All parties to the Outer Space Treaty are bound by international law. Obstructive satellites are in violation of the OST, and they diminish international diplomacy.

But fifty years after the United States legally agreed to keep outer space free for exploration and use by all States, and to not practice appropriation—claiming the area by any means—American law was signed to reduce bureaucratic regulations on private U.S. businesses wishing to use outer space. The 2015 legislation includes permissions for exploiting resources of outer space and for keeping the profits. This effort to regulate and license private businesses is backboned in the American tradition of free enterprise, but as the U.S. emerges as the leader in outer space commerce, scholars scratch their heads at why nobody is honoring international law.

Satellites and Space Debris / National Geographic

“The question is whether cheap satellite internet is worth losing aspects of the night sky,” says Johnathan McDowell of the Harvard-Smithsonian Center for Astrophysics. With tens of thousands of satellites going into orbit, he says ground-based astronomy is in real danger: “the technology to cause permanent obstruction of the night sky now exists. If there isn’t some kind of management, we are going to lose [the field].” The science will become a casualty to enterprise.

Enforcing international agreements, however, is not an easy task since the only recourses are diplomacy—including sanctions—and litigation at the International Court of Justice. With the average case resolution taking over a decade, and enforcement optional—countries can refuse to appear in court, and they can refuse to pay amends if they lose—taking the legal route against a country is not likely to render change. After all, what law enforcement will arrest the offenders if they do not comply?

International law is only as strong as the will of those who uphold it. Therefore, it is up to the aggrieved to educate those they are aggrieved by—in this case ground-based astronomers by satellite companies—and to try and reach a consensus on what is best for the world they both share. Mitigation talks are currently being held on multiple levels: the American Medical Association and environmental groups, for example, have reported on adverse health and biodiversity effects from light pollution. Local municipalities have begun audits to calculate the monetary gain of using more efficient lighting, and humanitarian corps such as UNESCO have launched campaigns declaring the night skies as human heritage—a right to all who succeed this generation.  

Whether America, who loves to lead, will soften its stance and mesh to the rest of the world is to be seen. Space law exists because the exploration of outer space is an internationally dependent activity that must account for the needs of every party. “It is not the time for unilateral actions when we are all affected by the challenges we face,” says Simonetta Di Pippo of the United Nations Office of Outer Space Affairs.  Although States are pushing for economic and technological advancement, the needs of the whole world must be considered in balance. Losing Earth’s ground-based cosmic perspective would prove devastating for more than just astronomers, any person who has ever looked at the stars would notice the change.

Rebecca From Reno

Rebecca Schembri is a Social Science graduate student at Harvard University. Her concentration is in Space Diplomacy.
She is from Reno, Nevada, USA

International Law: What Makes Nations Get Along?

By Rebecca Schembri, Harvard University Extension School, April 7, 2021

International law is a system set up by nations, or states, to engender civilized predictability in relations between each other. Since states prosper in times of peace, and benefit from working together in commerce and intellectual growth, it is to a nation’s advantage to remain amicable with the rest of the world. Although international agreements do not inherently supersede a state’s national constitution, they are considered binding—only to be violated when the core values of a nation are questioned. States take international law seriously, writing its defense into their constitutions and honoring tradition in the absence of formal treaties. However, depending on a state’s attitude, such laws are not taken as supreme, and can be overridden when necessary.

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Photo Caption: The United Nations aims to maintain international peace and security

The importance of international law may be seen in state constitutions worldwide. Illustrating such gravity, the constitution of the Italian Republic states that the “…Italian legal system conforms to the generally recognised principles of international law….” Likewise, South Africa’s constitution proclaims that the “… Republic is bound by international agreements.” These countries are not alone in forming accords with other nations, in fact, most states make room for it in their founding documents. Article VI of the Constitution of the United States of America decrees that: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Under this document, treaties with other countries are protected and upheld.

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Photo Caption: At the United Nations, states agree to the terms of International Law

Customary law, or the longevity of practice, can also be binding, as in the case of violated rights of Cuban fisherman, The Paquete Habana. Here, courtesies that had been observed for centuries were not easily undone when the U.S. Supreme Court ruled in favor of the boat owners, obliging spoilers to pay damages on goods they had confiscated. This accountability to custom was explained by the court: “…where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators.” This urgency of international customary law is considered a vital part of organized rule.  

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Photo Caption: Modern Space Law requires international agreement

Depending on their political beliefs, however, states adhere to international law differently. This can be catalogued into two sections: monist or dualist, and, according to scholar David J. Bederman’s writings, hinges on “whether a domestic constitution or statute can ‘[override]’ a customary international law or treaty obligation as a matter of domestic law.” This means that if states adopt international law without question, it becomes their law, whereas a state that first honors its own laws, then those of treaties it has signed, keeps a distinction between the two. Monist, and partially monist, states, such as the Netherlands, Germany, Italy, and Austria merge international law with their own and generally accept treaties and custom as firm. Although these states differ in their degree of acceptance, overall they uphold these laws as one with their internal legislation.

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Photo Caption: International Law requires all astronauts to help each other, regardless of country origin

Dualist states, on the other hand, adhere to international agreements yet keep the obligations of such as secondary to their own. In the United States, for example, it is “well-established that neither a rule of customary international law nor a provision of a treaty can [repeal] a right granted under the Constitution.” Although international law is solemnly honored, the United States’ values, and those of other dualist nations, prevail in court over international interests. This was shown in the U.S. Supreme Court case Reid v. Covert, when an American woman’s constitutional rights were upheld even though she was charged for a crime in England. As situations like this arise, and states must choose between their international legal aspirations and their own centric beliefs, domestic courts will consider the nation’s laws before ruling. In South Africa, for example, Article 232 of its constitution states that “[c]ustomary international law is the law in the Republic unless it is inconsistent with the Constitution or Act of Parliament.” This failsafe to protect the needs of the country before the needs of diplomacy is also marked for international treaties the state has signed.

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Photo Caption: Space exploration is an international effort

In sum, although a nation makes every intention to keep its word, it is bound by international law only as far as it chooses to be and may do so on an item-by-item rationale: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time,” wrote twentieth century scholar Louis Henkin. This strict keeping of laws except in dire situations is, in Bederman’s words, solidly fluid. “The best way of thinking about international law in this respect,” he writes, “is that it may well be “separate” from domestic legal systems but it is not “apart”. The laws of a nation include international law, and they are a branch of each state’s judicial system. As the U.S. Supreme Court observes, “international law is part of our law.” The hard decisions of honoring one’s internal obligations before the external are not taken lightly and carry a legacy of precedent. It is for state leaders to make these calls, and to reap the consequences of the histories they write.

Rebecca From Reno
Rebecca Schembri is a Social Science graduate student at Harvard University. Her concentration is in Space Diplomacy.
She is from Reno, Nevada, USA