Space Alert: Review of the key legal, regulatory and political developments for the space sector in 2019

By Thomas Jones, Jean-Claude Vecchiatto, Willy Mikalef, Tom Macken, Nicholas Puschman, Jeff Tian

12-2019

From continued growth across the global space industry to key decisions being made on spectrum and European space funding, 2019 has been an important year for stakeholders across the space sector. In 2019 the Satellite Industry Association valued the global space economy at US$360 billion. We witnessed many developments in the industry, including an increasingly competitive launcher market, growth in downstream applications and the launches of the first batch of satellites that will form the mega constellations by OneWeb and SpaceX.

As we now look ahead to 2020, we reflect on some of the key legal and political developments from this past year.

Legal, regulatory and policy developments

National laws, regulations and policies

A growing number of countries recognise the important link between having a national space law regulatory framework for the licensing of space activities and the growth of a country's space sector. For a country that has ratified the UN Space Treaties and accepted the legal obligations contained within these treaties (in particular those relating to a country's obligation to authorise and continually supervise the activities of private actors and a country's international liability for damage), having a national law in place and a licensing framework serves as a means for a country to flow down certain of its international obligations and even offset potential liability. A national law provides legal certainty to space operators and can be a driver for innovation and growth in the sector. In 2019, several countries, with developed space capabilities or those seeking to develop such capabilities further, enacted national laws:

  • Australia: the Space (Launches and Returns) Act 2018 entered into force on 31 August 2019. This law, together with other legislative documents (known as the 'rules'), is part of the legislative framework for space activities in Australia and replaces the former Space Activities Act 1998 and Space Activities Regulations 2001.

  • Portugal: Portugal enacted its national space law (Decree Law no.16/2019) on 22 January 2019 which represented an important step under the Space Strategy 2030 which was approved in 2018. This law establishes a licensing framework for Portuguese operators and space activities in Portugal and, like other national laws, contains provision on space object registration and operators' liabilities.

  • Philippines: the Philippine Space Act (Republic Act 11363) was signed on 8 August 2019 which, among other things, established the Philippine Space Policy and the creation of the Philippine Space Council

This year also saw progress being made by a number of other countries around the world, including in Europe, the Middle East and Africa, towards developing or enhancing their national legal and regulatory frameworks for space activities. There were also notable policy developments such as the African Space Policy and Strategy (adopted by the African Union), which requires African countries to begin establishing their own national space laws in order to promote domestic space capacities and participation across the continent.

The EU and space

In 2018, the EU Commission introduced a proposal for a regulation establishing the EU space programme and the EU Agency for the Space Programme. This proposal set out an ambitious EU space budget with an increase from €11.1 billion to €16 billion between 2021 and 2027 for satellite navigation, Earth observation and secure communications (GOVSTACOM). In 2019, this increased budget was approved and it was announced that the new agency to be created, the EU Agency for the Space Programme, will open in 2021.

The EU's increased interest and investment in its space programme was demonstrated by the reorganisation of the different portfolios within the EU and the restructuring of Directorates-General, introduced following the start of the new European Commission, presided by Ursula von der Leyen. One of the most significant changes which the von der Leyen Commission intends to make is the introduction of the new Directorate General for Defence Industry and Space. The combination of defence and space under the same directorate is also indicative of the EU's view on the potential role that space can play (in addition to civil and commercial purposes).

International rules on space sustainability

Space sustainability

One of the outcomes of the 62nd session of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) was the referral of the Guidelines for Long-Term Sustainability of Space to the UN General Assembly. These Guidelines (annexed to the Final Report of the 62nd session, available here), set out voluntary measures to ensure that space remains an "operationally stable and safe environment". On 1 November 2019, the Fourth Committee of the UN General Assembly considered and approved the draft resolution referred by COPUOS which contained the guidelines.

While these guidelines are not binding on countries, this development represents important progress in ensuring the long-term sustainability of space activities. This is an area that has long been important at the international and diplomatic level (especially in the United Nations), but is now increasingly important to space operators. An example of industry's recognition of the importance of space sustainability is the Responsible Space programme introduced this year by OneWeb.

Space and defence

The global space economy continued to grow in 2019 and this upward trend is expected to continue. In addition to the growth in commercial space, 2019 was noteworthy for the developments that occurred in the area of military space. Space is an important domain for national military capability, but three developments in particular made clear that space is now recognised as vital for national and inter-governmental defence:

  • In July 2019, the French government announced the creation French Space Command (Commandement de l'Espace) within the French Air Force. In addition to the creation of this military command which, among other duties, is responsible for France's military space capabilities, the government announced its intention to produce legislative changes to transfer responsibility for defence satellites from CNES to the Minister of the Armed Forces.

  • In November 2019, NATO Member States recognised space as a new operational domain, alongside air, land, sea and cyber. This announcement followed the introduction of NATO's first space policy earlier this year which underscored the risks of space being used for aggressive, non-peaceful purposes such as the hacking, jamming or weaponisation of satellites.

  • In December 2019, following announcements earlier in the year, President Trump signed into law a new branch of the US armed forces called the US Space Force. The creation of the Space Force, which will be part of the Air Force, was introduced as part of the approval of the next overall US defence budget.

Inter-governmental and political developments

UNCOPUOS Legal Subcommittee (April 2019)

The Legal Subcommittee of the UN COPUOS ('LSC') met for its 58th session from 1 – 12 April 2019. As in most sessions of the LSC, there were several topics of particular relevance to industry on the agenda. These include (i) small satellites activities, (ii) space resource exploration, exploitation and utilisation and (iii) space traffic management.

Some of the key views expressed by the Subcommittee included:

  • it was crucially important that a set of international norms and standards regulating peaceful space activities be developed by the Committee and its Subcommittees (as the prime international forum for multilateral cooperation in this domain);

  • countries needed to ensure that their spacefaring entities conducted their outer space activities in compliance with the relevant UN space treaties;
  • space debris was becoming an increasing problem which countries should address by implementing space debris mitigation guidelines in their national frameworks;

  • a comprehensive international space traffic management system could enhance the safety and sustainability of space activities conducted in outer space; and

  • it remained to be determined whether non-renewable space resources could be subject to an ownership regime. 

The LSC's final report, which includes full details of the agenda items, is available on the website of the UN Office for Outer Space Affairs here.

WRC-19 (October – November 2019)

The ITU World Radiocommunication Conference (WRC-19) took place in Sharm El-Sheikh, Egypt from 28 October to 22 November 2019. In advance of the start of WRC-19, we provided commentary on what the possible outcomes of the decisions made at the conference could mean for the satellite industry going forward, ranging from 5G to satellite coordination processes and procedures (of particular relevance to large satellite constellations).

The following summarises some of the key outcomes of WRC-19 for the space and satellite industry:

  • NGSOs: as we commented in our article in October 2019, agenda item 7 included points on the regulatory provisions to be introduced for the bringing into use of NGSO systems, such as mega-constellations. These included the need to specify a minimum period of operation and the introduction of a NGSO-specific milestone approach to monitor the deployment of NGSO systems. At WRC-19, the ITU adopted a milestone approach. As part of this agenda item, the ITU also established new rules for short-duration NGSOs, i.e. small satellites that are in orbit for three years or less. 

  • C-band: delegates agreed on the allocation of UHF spectrum for mobile while protecting the range of C-band spectrum. This is of particular importance to broadcasters as this spectrum is used for the distribution of broadcast channels in Europe, Africa, Asia and the American regions.

  • Aeronautical applications: certain of the decisions taken at WRC-19 also concerned spectrum for aeronautical applications, which will be of relevance to players involved in the provision of in-flight connectivity.

  • WRC-23: a number of agenda items were agreed for the next WRC in 2023, including ESIMs and the need for additional spectrum to accommodate the demand for fixed and mobile satellite services for broadband and 5G.

The revised ITU Radio Regulations, Resolutions and Recommendations following WRC-19 are all contained in the Final Acts, the provisional version of which is available on the ITU website here.

ESA Council at Ministerial Level (November 2019)

The ESA Council at Ministerial Level, which takes place every two to three years, met from 27 to 28 November 2019. At this occasion, ESA Member States are asked to approve the forthcoming ESA programmes and to indicate their level of investment (called 'subscriptions' in the Agency's various programmes which range from human and robotic exploration, space safety and space transportation to science, telecommunications and Earth observation.

The 2019 Council at Ministerial Level centred on the theme of Space 19+, intended to be an "opportunity to direct Europe's 'next generation' ambitions in space, and address the challenges facing not only the European space sector but also European society as a whole".

The outcome of this meeting was an endorsement by Member States of the largest budget to date: contributions by Member States of €14.4 billion. The majority of the funding by Member States was towards Earth observation, space transportation, telecommunications and human and robotic exploration, with programmes such as navigation and space safety receiving smaller contributions.

This overall record investment is noteworthy, as is the individual contributions by Member States. The four largest contributing Member States to the budget are Germany (22.9%), France (18.5%), Italy (15.9%) and the UK (11.5%). The UK has increased its previous contributions to ESA to £374 million per year (for the next five years).

Looking to 2020

We can expect to see continued commercial growth in the space and satellite sectors in 2020. Some of the trends that we will be looking out for include:

  • New developments in in-orbit servicing, with new demonstrations due to take place in 2020 which could have a positive impact on the opportunities for this sector;

  • More launches of LEO constellation satellites and the initiation of full operational capabilities;

  • New tests and missions for space exploration, in particular to the Moon;

  • The first launches of new launchers, such as Ariane 6; and

  • New trends in manufacturing, such as a rise in testing the possibilities of additive manufacturing, and lower satellite manufacturing costs.

These exciting, innovative industry developments will necessarily be accompanied (and enabled by) regulation. In 2020, we therefore expect to see new national and international legal, regulatory and policy developments.