LSB June 2022 LR

FEATURE
It is widely accepted that there is
unlikely to be a new multilateral treaty
establishing a regime of space traffic
management. 11 This raises the question
of what pathways exist for normative
development in this important area.
One pathway that can be of
considerable value in the international legal
arena is the development of relevant ‘soft
law’ principles. The best example relevant
to space traffic management are the Space
Debris Mitigation Guidelines developed
under the auspices of the United Nations’
Committee on the Peaceful Uses of Outer
Space (COPUOS). 12 Although not legally
binding, these guidelines are relatively
widely followed and provide useful guidance
as to the avoidance of the creation of
space debris. They only touch tangentially
on space traffic management in calling on
states to ‘[l]imit the probability of accidental
collision in orbit’. 13 The development of
a soft law instrument is perhaps the most
likely means for advancing understandings
of the legal contours of effective space
traffic management.
What principles should be embodied
in any soft law instrument on space
traffic management? Two key scholars
of outer space law have offered valuable
suggestions. First, Paul Larsen has
advocated that any normative regime aim
to address only civil, and not military, uses
of outer space. 14 This would parallel many
other regimes – for example, the Chicago
Convention applies only to civil aircraft,
and the International Telecommunications
Union regulates only civil access to the
radiofrequency spectrum – and is much
more likely to lead to engagement by states.
Second, PJ Blount has suggested that the
best immediate focus would be on what
he terms space traffic coordination. 15 That
is, rather than directly seeking to develop
norms regarding traffic management, the
first step should be to enhance data sharing
with a view to improving general access to
space domain awareness. In other words,
we need to enhance our capacity to identify
key risks of collisions, before we set out in
detail what to do once such a risk has been
identified (a matter which is already guided
by the obligations of due regard and the
avoidance of harmful interference, even if
their precise application is unclear).
CONCLUSION
Just as we rely on traffic management
on the roads and in the air, so we will need
traffic management to ensure effective
and efficient, or even continued, access
to outer space. To achieve an effective
regime of space traffic management will
require lawyers to think more broadly
about norm creation, given that a grand
and comprehensive scheme brought to
force through the traditional means of a
multilateral treaty seems extremely unlikely.
Instead, if we seek to develop consensus
around non-binding guidelines that would
enhance space traffic coordination through
the sharing of space domain awareness
information, and focus on civil rather
than military uses of outer space, there is
a realistic possibility that we will start to
develop the foundations of the effective
regime of space traffic management that
will be essential in future if we are to ensure
humankind’s continued access to outer
space and all the benefits that brings. B
Endnotes
1 See, eg, Corinne Contant-Jorgenson, Petr Lála
and Kai-Uwe Schrogl (eds), Cosmic Study on Space
Traffic Management (International Academy of
Astronautics, 2006) 46-52, 55.
2 James D Rendleman, ‘Space Traffic Management
Options’ in (2014) 57 Proceedings of the
International Institute of Space Law 109, 111.
3 European Space Agency, Annual Space
Environment Report (27 April 2017) 22.
4 European Space Agency, Annual Space
Environment Report (4 April 2022) 52.
5 Harry Baker, ‘How many satellites orbit Earth?’
(14 November 2021) https://www.livescience.
com/how-many-satellites-orbit-earth.
6 See, eg, Paul B Larsen, ‘Solving the Space Debris
Crisis’ (2018) 83 Journal of Air Law and Commerce
475, 481-2; Danielle Miller, ‘Calling Space Traffic
Control: An Argument for Careful Consideration
before Granting Space Traffic Management
Authorities’ (2017) 23(2) ILSA Journal of
International and Comparative Law 279, 283-4.
7 See, eg, Brian Weeden, ‘Billiards in Space’, The
Space Review (23 February 2009) ; PJ Blount,
‘Space Traffic Management: Standardizing On-
Orbit Behavior’ (2019) 113 American Journal of
International Law Unbound 120, 121-3.
8 Weeden (n 7).
9 Treaty on principles governing the activities of States
in the exploration and use of outer space, including the
moon and other celestial bodies, 610 UNTS 8843
(entered into force 10 October 1967).
10 Ram Jakhu, ‘Legal Issues Relating to the Global
Public Interest in Outer Space’ (2006) 32 Journal
of Space Law 31, 31.
11 See, eg: Blount (n 7) 123-4; Brian Israel, ‘Treaty
Stasis’ (2014) 108 American Journal of International
Law Unbound 63; Saadia M Pekkanen, ‘Governing
the New Space Race’ (2019) 113 American Journal
of International Law Unbound 92.
12 Space Debris Mitigation Guidelines of the
Committee on the Peaceful Uses of Outer
Space, UN Doc A/62/20 Annex.
13 Ibid guideline 3. Similarly, the proposed Draft
International Code of Conduct for Outer Space
Activities (2014) would require States to
‘minimise the risk of accidents in space’.
14 Paul B Larsen, ‘Minimum International Norms
for Managing Space Traffic, Space Debris, and
Near Earth Object Impacts’ (2018) 83 Journal of
Air Law and Commerce 739.
15 PJ Blount, ‘Space Traffic Coordination:
Developing a Framework for Safety and
Security in Satellite Operations’ (2021)
Space: Science & Technology https://doi.
org/10.34133/2021/9830379.
June 2022 THE BULLETIN 19