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Journal of Air Law and Commerce

Abstract

The space powers (the U.S., the European Space Agency (ESA), China, and Russia) are now preparing national space traffic regimes with insufficient regard for the Outer Space Treaty’s (OST) agreed “Principles Governing the Activities of States in Exploration and Use of Outer Space.” The rapidly growing traffic of satellites, resulting in space debris, and the scarcity of radio frequencies and related orbits create obvious dangerous situations. States, including the U.S., agreed in the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) on twenty-one Guidelines for Long-Term Sustainability of Space, some of which relate to space traffic management (STM). UNCOPUOS is also beginning work on common STM practices. Yet the United States’ space management policy—pronounced in two White House policy statements by former President Trump—anchors U.S. STM policy on a “light touch” management, which diverges from ongoing STM efforts in the UNCOPUOS, the ESA, and the Russo-Chinese outer space alliance. The two White House policy statements assign U.S. STM policy leadership to the Department of Commerce (DOC) based on the management of traffic data provided by private industry and government sources. The DOC contracted with the National Academy of Public Administration (NAPA) for a study of and recommendations on best STM management. NAPA’s report accepted the two White House policy statements and made recommendations accordingly but with insufficient consideration of international space law, guidelines, and subsequent policy priorities.

This Article analyzes the NAPA Report, criticizing it for inadequate consideration of international space law and failure to adequately consider the interests of all stakeholders—in particular the science and astronomy communities. The NAPA Report pays insufficient attention to important government policies on climate change, energy, astronomy, and national security, which are top priorities of the current administration. The Article recommends adherence to applicable international law. It stresses that space traffic safety by the Federal Aviation Administration (FAA) is more important than space traffic promotion by DOC. It recommends (1) separating FAA regulation of operational management of safety in space from the promotion of the space commerce industry and (2) assigning a different administration in the Department of Transportation (DOT) to handle economic regulation and promotion. Doing so would adopt a separation policy similar to the one applied in air commerce. It then recommends the establishment of an international outer space agency to supervise international space traffic rules of the road. Finally, this Article suggests that U.S. commercial space policy decisions be made in the context of related U.S. policies on science, astronomy, climate change, and renewable solar energy.

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