International Space Law in Favor of Ground-Based Astronomy
By Rebecca Schembri, Harvard University Extension School, August 13, 2021
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.
“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 Schembri is a Social Science graduate student at Harvard University. Her concentration is in Space Diplomacy.
She is from Reno, Nevada, USA