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Space objects come in different shapes and sizes, as well as purposes. Under articles VI and VIII of the OST, by authorizing, supervising, and taking responsibility for their operations, nations treat their respective space objects as their pseudopods, over which they retain both jurisdiction and control. Contemporary space law does not define the dimensions of a space object, thus a cylindrical space habitat, or a space station the size of a small moon, falls into the same category as small sats or Iridium comsats. There is also no legal limit to how many objects can be launched and placed in orbit, or on the surface of a celestial body. Though every space object is an island upon itself, even formation flying satellites are treated as collections of individual objects. Jurisdiction and control of the state of registry are restricted only to these objects and their physical dimensions, while the gaps between them remain the province of all mankind, no matter the size and cohesion of the objects. Or is it?
There have been several debates going on in the space law community, which although consider different topics, are revolving around the same principles. These are safety zones and megaconstellations. The most frequent issue with safety zones is, besides the misunderstanding of their purpose among a portion of science communicators or how much the concept itself predates the Artemis Accords, the idea of appropriation and claims of sovereignty based on their establishment. Safety zones are established and calculated based on the mutual position of two space objects and the type of their operation s. Similar to how Roche limits are calculated for two bodies, safety zones are to be calculated by taking into account the effect of one’s activity (such as blasting and spewing debris during propulsive landing) on other objects within certain ranges, positions, and parameters. Their purpose is to ensure safety and avoid possible harmful interference between operating space objects. It would also ensure the safety of any surface crew, astronauts and space tourists, barring them from getting too close to a place of ongoing operations to avoid harm or loss of life on their behalf. One must remember, that safety zone requirements wouldn’t only impact objects under the jurisdiction of other state parties, but also objects and personnel of the state party establishing such safety zone around its operation. One must keep that in mind when discussing safety zones as means of national appropriation and reducing other nations’ access to that particular piece of outer space or celestial body. Even the ISS has it’s own „Keep Out Sphere” and specified approach and docking procedures, that need to be followed. Similarly, objects and personnel even of the same state of registry will be required to abide by the rules of approaching an object for which a safety zone will be created, as they should also avoid harm or danger. Whether it be dust blasts, propulsive landing, radio/electromagnetic interference, powerful emissions, or tremors, certain activities and phenomena will pose a danger of harm and damage to objects and personnel in close vicinity or moving through an area of activity, no matter their state of registry or nationality.
However, there is also the type of quasi-safety zone, which might not be covered by the Artemis Accords, but stems from both Article IX of the OST and the practice of satellite megaconstellations. The issue we may call the „void gap”. A void gap is an area between two or more space objects falling under the same national registry (thus jurisdiction and control), to which no nation, under the present state of International Space Law (Article I and II of the OST) can claim sovereignty or jurisdiction, but might exercise effective control. This gap, between two or more objects, might have several square or cubic kilometers between them, or be as small, as a few centimeters. The smaller it is and the more a constellation, a squadron or a „web” of space objects requires it to be empty or to remain „void” of any non-assigned, foreign object, the more problematic will it become for the future of space activities at certain orbits or celestial bodies. While space objects forming modern large and megaconstellations are equipped with proper maneuvering systems, allowing them to avoid collisions or „regroup”, the problem remains. To put it simply, the owner, especially the State of registry, might prohibit a foreign space object from trying to „fit” between its space objects, flying, moving, or standing in their purposeful cohesion. While on the face of it, this concept looks like just another instance of Article IX and avoiding harmful interference via entering consultations and informing the foreign state, to which that „alien” object is registered, about the situation, there is something more to it.
Under article II, outer space and celestial bodies are not subject to claims of sovereignty or national appropriation via occupation or any other means. This means, that by the sole act of establishing and operating a group of space objects, no matter how numerous and densely packed, a nation can gain neither control nor jurisdiction or any other exclusivity over a patch of orbital space or a celestial body. Yet Article II isn’t the only part of the OST, and thus Article IX creates an indirect exemption. By not allowing a space object to enter an empty portion of space (literally, outer space) between other space objects, forcing foreign other State-party’s to abide by certain approach protocols, or be it redirecting their space objects to other positions, the State of registry of such swarm is exercising a form of effective control over an area. This has been pointed out in numerous works and articles as the problem of limiting the access to shared „space” in outer space. Here the problem with megaconstellations creating a sort of Dyson Swarm around a celestial body (mostly Earth, for now) resides with the inadequacy of international space law to resolve or mitigate the problem of changing technologies and expansion of human activity (even if performed by robots).
Furthermore, while the idea of creating safety zones around space objects on planetary and other celestial surfaces (including the Lunar surface) beyond Earth has been hit with harsh criticism, due to its association with space resource operations, the problem will be more severe with swarms of robots moving and working on the lunar surface, or even within the regolith and rock themselves. Here is where the void gap comes back, presenting us with the problem of ever smaller robots, or microbe-based living space objects. Registering robots or „space objects with living components” (similarly to biosatellites) with a State party extends its jurisdiction and control over said objects, no matter their size or numbers. Bearing in mind, that although biomining on celestial bodies is being discussed and experimented upon, as we currently lack space-hardened organisms which would operate beyond the safety of space objects (Tardigrades included, as they are able to survive in their cryptobiotic state), the art of biomimetics and miniaturization would enable the creation of small, bioinspired robots performing different tasks on celestial surfaces. From repairing, monitoring, surveying, experimentation, building, processing, and mining to what can be called Industraforming (an operation similar to paraterraforming, which would prepare the ground of a celestial body for a complex robotic industrial ecosystem, akin to soil inoculation). While swarms and megaconstellations of satellites operate at hundreds of meters to tens of kilometers apart between individual satellites, the groundwork robots and installations would be operating at smaller distances and greater density in a given area. While according to Article II, all space objects must be considered „mobile” and non-permanent (meaning its operations and presence does not create sovereign rights or territorial claims, thus denying any party any form of „homesteader’s” rights in regards to spatial territory, including exclusivity), their presence, operation and spatial placement (cohesion, mutual distance, planar distribution) might impact other parties operations with regard to a certain area of a celestial body. If three space objects were to form an equilateral triangle, where the distance between every object is 1,5 meters, and the circular field of „unoccupied space” between the metaphorical „arms” of the triangle has a radius of 0.43 meters – that’s less than 0.9 meters in diameter (though in actuality a larger object might fit in the space between these objects, we’ll skip that for our analogy). Now a foreign space object trying to enter the „unoccupied space” via wheels or appendages is probably free to do so, unless such activity or presence would create any form of harmful interference, to which the owners of the „triangulated” group of objects, via its State of registry, might certainly object. Now let’s scale this concept a bit, and those triangles create a grid on the surface of a celestial body. this grid is formed of small dots of space objects, which communicate with each other via optical channels (like a laser). This grid, covering a large field of lunar maria, regardless of its actual purpose, does not create sovereign land rights or territorial claims to its state of registry. It also does not provide any legal exclusivity to the area between objects forming the grid. These holes in the non-physical net are, by the letter of the Outer Space Treaty, the province of all mankind and are free to be used and explored by any state party and their national entity. However, the fact that those zones are present between a series of space objects, that are „hogging the ground” creates a conundrum, as their status and operational functions may be used as leverage and means to exercise exclusive control over an area of land. The problem of exercising control will mostly remain political, though one cannot rule out the use of force, even violence, or means of „unrestricted warfare” to secure space within the void gap.
The void gap differs from safety zones in a few features. First of all, safety zones are created around objects to provide proper operation and mitigate possible harm and damage to either the object it is formed around or any objects or personnel in its vicinity. Including those of the same State of registry. A void gap isn’t established or maintained by official declarations and consultations but is rather created ad hoc, rife for opportunistic exploits. Second, safety zones by their nature apply to both parties. To re-iterate – once a safety zone is established around a „lunar spaceport”, it applies to the port operators’ equipment and personnel as well. The void gap however might not apply to one’s operations. And not because one’s personnel and non-essential equipment are safe and won’t pose a threat to the installations, but because it’s an exploitation of a loophole in International Space Law. By utilizing the Void gap, one regards the application of Article I of the OST to the space between space objects in close proximity as a questionable legal fiction, not as the de facto rule of Space Law. Furthermore, the dimensions of safety zones will be openly made known to national and foreign operators, while the void gap remains hidden until triggered by convenience. Similarly, establishing permanent or temporary safety zones will be consulted and acknowledged by State Parties and operators. The void gap will lurk in the dark.
There have also been discussions about future Martian operations and the question of atmospheric safety. While Mars is also subject to contemporary International Space Law, and by extent, national regulations on space object operations (and possibly some contractual act, like the International Space Station IGA or a future generation of Artemis Accords), the proven possibility of using aerodyne (and possibly aerostat) provides a similar problem to safety zones and the void gap. The lack of proper atmospheric travel and utilization laws doesn’t impact contemporary Mars operations, especially not any upcoming human landings or robotic missions. However, future space regulations regarding Martian operations will require a degree of incorporating aviation laws (though the term Air law might sound sinister to people living in enclosed habitats). Not only creating ground installations of atmospheric and space traffic around Mars would create a better environment for future missions, such as limiting the risks involved with the „7 minutes of terror” of the EDL phase. It will be required if traffic and operations increase and there might be a risk posed to vulnerable installations and equipment on the surface or in the atmospheric space. Here is where the problem begins – International space law, as mentioned before, treats all objects as a mobile craft. Thus the presence of bases, scientists, workers, settlers, or celebrities does not provide one with any aspect of territorial sovereignty. Jurisdiction and control (in the meaning presented in Article VIII of OST) are only in regard to the physical dimensions of space objects. However, safety concerns tend to allow some level of extended „control”, or at least the right to object to an activity that may interfere or cause damage to said space object. Therefore Martian space law, or Terrestrial Space Law concerning the use of the surface and atmosphere of Mars and its orbits and Moons, will have to include provisions on „atmospheric safety”, creating institutions akin to „air sovereignty”, or at least three-dimensional safety zones around ground installations, launch ports, and other facilities. Although we are still a long way from having busy martian air traffic, contemporary space traffic management relies on its own mechanisms, coordination, and regulations, rather than on the rules set out by International or Contractual space law.
It is possible, that future generations of space law will have to tackle the problem of „expanding safety spaces” and address the issues of the void gap, as well as redefine space operations to include objects manufactured using resources of celestial bodies, and the issues of „shipbreaking”, salvaging, recycling and hulking. Currently, international space law lacks both the swiftness and the foresight to contemplate upcoming issues of space operations. Tailored Safety spaces or “limited control zones” might be established around and between parts of a multi-object settlement or installation, to guarantee the safety of personnel or visitors within the vicinity of the group of objects, limiting any unauthorized operations within the space between habitats, workspaces, greenhouses, etc. Such limited control zones won’t serve as a basis for exclusive civil or criminal jurisdiction or bear any territorial aspect, such as claims of sovereignty. The aim of their creation would be the protection of personnel and objects within such „hab villages” from the unwarranted activity of the foreign party. Similar zones would operate within „multinational villages”, where habs of different registries (thus control and jurisdiction) operate in close cooperation and proximity. However, in such a case the „limited control zones” would be established similarly to the KOS around the ISS (and the „village” would itself be regulated by an IGA).
While this piece mentioned a hypothetical megastructure – the Dyson Swarm, several space powers are contemplating actual megastructures in outer space: Powersats, or SBPS. Large orbital and lunar structures are being planned and studied, while international space law remains inert, or worse – tries to convince every state party interested in „unorthodox” operations (such as mining, manufacturing, and power transmission), that such activity is prohibited, problematic or otherwise at odds with the present state of ISL. And to make matters worse, there is no treaty on the horizon, which would address those issues. That is why states pursuing grand goals of space utilization or industrialization, tend to break off from the ongoing tug-of-war and game of lawfare, expanding their activities based on the principles of Article VI of the OST and reinforcing their position with acts of contractual space law (The Artemis Accords, interagency MoUs, IGAs). And it is in these acts that one can seek solutions to problems, such as the Void Gap. Right now, it patiently awaits its first victim.
Edited by Mariusz T. Kłoda