BENJAMIN SILVERSTEIN / ANKIT PANDA
Traditionally, commons are areas beyond state dominion that host finite resources available to all (like the oceans) or that provide non-excludable global benefits (like the atmosphere). Outer space is no different, though some dispute this fact. Beyond micrometeoroids, the only natural resource in near-Earth space is the volume of Earth orbits themselves. Space is available for all to use, and states and commercial enterprises use satellites in Earth orbits to deliver agricultural, educational, financial, and security benefits to communities around the globe.
Yet not all leading space powers have endorsed the concept of outer space as a great commons. The United States has not consistently considered space to be a commons. Former president Donald Trump’s administration repeatedly rejected this position, explicitly stating that “the United States does not view [space] as a global commons,” a sentiment reiterated by Congress. This view was a departure from the position of former president Barack Obama’s administration, which reflected a commitment to “safeguarding the global commons . . . to optimize the use of shared sea, air, and space domains.” Meanwhile, other significant space-faring states and organizations recognize space as a commons, including China, which has used the phrase a “global public domain.”
The failure to manage Earth orbits as a commons undermines safety and predictability, exposing space operators to growing risks such as collisions with other satellites and debris. The long-standing debris problem has been building for decades and demands an international solution.
Competing states need to coalesce behind a commons-based understanding of Earth orbits to set the table for a governance system to organize space traffic and address rampant debris. New leadership in the United States can spur progress on space governance by affirming that Earth orbits are a great commons. So far, President Joe Biden and his administration have focused on major space projects, but a relatively simple policy declaration that frames Earth orbits as a great commons can support efforts to negotiate space governance models for issues like debris mitigation and remediation. The Biden administration can set the stage to pursue broad space policy goals by establishing a consensus among states, particularly those with the most invested in Earth orbits, that space is a great commons.
THE PRESSING NEED FOR SPACE GOVERNANCE
The Earth orbits that provide the majority of benefits to states and commercial ventures represent only a tiny fraction of outer space as a whole. Competition for the limited volume of these Earth orbits is especially fierce since two satellites cannot be in the same place at the same time and not all orbits are equally useful for all missions. The number of objects residing in Earth orbits is now at an all-time high, with most new objects introduced into orbits at altitudes of between 400 and 700 kilometers above sea level. Millions of pieces of debris in Earth orbits pose a threat to continuing space operations. For instance, the final U.S. space shuttle missions faced 1-in-300 odds of losing a space vehicle or crew member to orbital debris or micrometeoroid impacts.
Collisions with fragments of orbital litter as small as a few millimeters across can ruin satellites and end missions. Current technologies cannot track all of these tiny pieces of debris, leaving space assets at the mercy of undetectable, untraceable, and unpredictable pieces of space junk. Some researchers have determined that the debris population in low Earth orbit is already self-sustaining, meaning that collisions between space objects will produce debris more rapidly than natural forces, like atmospheric drag, can remove it from orbit.
States—namely the United States, Russia, China, and India—have exacerbated this debris accumulation trend by testing kinetic anti-satellite capabilities or otherwise purposefully fragmenting their satellites in orbit. These states, along with the rest of the multilateral disarmament community, are currently at an impasse on establishing future space governance mechanisms that can address the debris issue. A portion of this impasse may be attributable to disparate views of the nature of outer space in the international context. Establishing a clear view among negotiating parties that Earth orbits should be treated as a great commons would establish a basis for future agreements that reduce debris-related risks.
Beyond debris-generating, kinetic anti-satellite weapons tests, revolutionary operating concepts challenge existing space traffic management practices. For instance, commercial ventures are planning networks of thousands of satellites to provide low-latency connectivity on Earth and deploying them by the dozens. States are following this trend. Some are considering transitioning away from using single (or few) exquisite assets in higher orbits and toward using many satellites in low Earth orbits. These new operational concepts could lead to an increase in collision risks.
Without new governance agreements, problems related to debris, heavy orbital traffic, and harmful interference will only intensify. Debris in higher orbits can persist for a century or more. The costs of adapting to increasingly polluted orbits would be immense, and the opportunity costs would be even higher. For instance, all else being equal, hardening satellites against collisions increases their mass and volume, in turn raising launch costs per satellite. These costs, rooted in a failure to govern space as a commons, will be borne by all space actors, including emerging states and commercial entities.
EXISTING FORMS OF SPACE GOVERNANCE
A well-designed governance system, founded on a widespread understanding of Earth orbits as a great commons, could temper these risks. Currently, space is not wholly unregulated, but existing regulations are limited both in scope and implementation. Many operators pledge to follow national regulations and international guidelines, but decentralized accountability mechanisms limit enforcement. These guidelines also do not cover the full range of potentially risky behaviors in space. For example, while some space operators can maneuver satellites to avoid collisions, there are no compulsory rules or standards on who has the right of way.
At the interstate level, seminal multilateral agreements provide some more narrow guidance on what is and is not acceptable in space. Most famously, the Outer Space Treaty affirms that outer space “shall be free for exploration and use by all states without discrimination of any kind” and that “there shall be free access to all areas of celestial bodies.” Similar concepts of Earth orbits being a great commons arise in subsequent international texts. Agreements like the Liability Convention impose fault-based liability for debris-related collisions in space, but it is difficult to prove fault in this regime in part because satellite owners and operators have yet to codify a standard of care in space, and thus the regime does not clearly disincentivize debris creation in orbit. Other rules of behavior in Earth orbits have been more successful in reducing harmful interference between satellite operations, but even these efforts are limited in scope.
States have acceded to supranational regulations of the most limited (and thus most valuable) Earth orbits. The International Telecommunication Union (ITU) coordinates, but does not authorize, satellite deployments and operations in geosynchronous orbits and manages radiofrequency spectrum assignments in other regions of space to reduce interference between satellites. These coordination activities are underpinned by the ITU’s constitution, which reminds states “that radio frequencies and any associate orbits . . . are limited natural resources,” indicating a commons-based approach to governing the radiofrequency spectrum. However, the union’s processes are still adapting to new operational realities in low Earth orbit, and these rules were never designed to address issues like debris.
BUILDING ON PRIOR MODELS FOR MANAGING COMMONS
The histories of other great commons provide lessons on how to manage shared space resources meaningfully and effectively. Efforts to minimize damage to other great commons—like the Convention on Long-Range Transboundary Air Pollution and subsequent protocols—offer guidance on how to resolve compliance issues. Notably, the negotiations on the original convention on air pollution involved, among others, the United States and the Soviet Union. This suggests that states can pursue mutual benefits in areas considered great commons even under competitive conditions. More recent negotiations on the convention’s accompanying protocols show that these competing states can even agree on financing a monitoring regime to support progress.
Existing conventions and implementing agreements indicate that states can reach valuable commitments to manage the Earth’s great commons. These governance models protect state interests and preserve the commons themselves. These principles apply to space, but progress on establishing more encompassing space governance principles, enforcement mechanisms, and dispute resolution procedures hinges on states sharing the fundamental view that space is a great commons. Reaching such a consensus is an important first step.
New leadership in prominent spacefaring states can revitalize efforts to recognize space as a commons and can build on established legal standards to pursue commons-related principles for governing Earth orbits. Space actors do not have to resolve all their competing interests based on the debris problem. But negligence, mismanagement, or poorly designed rules may spell disaster for Earth orbits. As a more diverse range of actors with space-based interests emerges, no single actor will be able to unilaterally impose universal rules. States can, however, negotiate agreements to manage commons areas to better pursue national objectives. The only way to effectively govern state and commercial space activities is to settle on and abide by common norms or rules.
New conventions or regulatory mechanisms for governing Earth orbits will not appear overnight, but states can build toward these goals by clarifying their commitments to treat space as a commons and pursuing governance arrangements that reflect this commitment. New policies in the United States should reflect that Earth orbits are a great commons.
However, this is only the beginning of the path toward international governance in space. Developing internal commons-based policies for Earth orbits is only an initial action to create conditions for cooperative regulation of space activities. This domestic policy development effort alone would have limited effect without the necessary next steps: engaging partners and allies to align perspectives and eventually leading negotiations among competitors to mitigate issues like space debris and orbital traffic congestion. Future governance and regulations can leverage commons-based principles to establish accountability mechanisms that preserve the usefulness of Earth orbits for all.