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The most exciting and far-reaching contemporary developments regarding human activities in outer space arise from the recent drastic reductions in the costs of building, launching, and operating satellites, and from the concomitant sudden emergence of large constellations of small, inexpensive, privately-owned spacecraft. These satellites--devoted to highly remunerative functions such as communications (bringing high-speed, affordable internet to underserved constituencies), remote sensing (facilitating land use planning, weather forecasting, and emergency search and rescue), and support for military operations (in Ukraine and elsewhere)--already number in the thousands and will soon reach the tens of thousands.

But in addition to generating billions of dollars of revenue, these new constellations also raise a series of profound and unprecedented legal, economic, and social problems. The first concerns congestion of the most favored low-altitude orbital slots and the associated dangers of interference, collisions, and debris. This is a classic “tragedy of the commons,” where each participant is incentivized to exploit a shared resource too intensively, without husbanding it for the longer term. A second problem arises from the interference that the new satellite swarms cause for astronomy. An overflying satellite will disrupt an observatory's ability to peer into far-distant space in pursuit of scientific discoveries. The satellite's passage leaves an obnoxious white streak across the telescope's images, obscuring the effort to collect and interpret faint data. Third, the growing armada of private satellites is increasingly used for military and intelligence purposes, obliterating the fundamental requirement under the longstanding international law of armed conflict to preserve a vital “distinction” between military and civilian objects and to achieve physical “separation” between those types of assets.

This Article examines the growing number of soon-to-be-ubiquitous constellations of small satellites and the three aforementioned special problems they pose. It also suggests some legal reforms to combat the dilemmas and temper an otherwise dangerous renewal of an unconstrained and unproductive international race to space. Among the recommendations are a call for the prompt development of additional legally-binding and non-legally-binding standards for allocating orderly access to shared space, measures of accommodation for rivalrous users of space, and greater separation of military and civilian space assets.

Publication Citation

Harvard National Security Journal, Vol. 15, No. 2, Pp. 257-292.