Mega-Constellations and the Strain on Space Law
On 15 May 2021, SpaceX placed 52 satellites into Low Earth Orbit (LEO) as part of its Starlink network, following a launch of 60 satellites less than a week earlier. When complete, Starlink will comprise thousands of satellites designed to deliver affordable high-speed internet globally. OneWeb, a competitor, has deployed 146 satellites in its own LEO constellation. The rapid expansion of such networks by non-governmental entities has amplified concerns about congestion in LEO, heightening risks of in-orbit collisions and potentially affecting the principle of freedom of access to outer space—a cornerstone of customary international space law.
Historically, large mobile communication satellites were positioned in the Geostationary Orbit (GSO), approximately 36,000 kilometers above the equator, offering fixed coverage over vast regions. By the 1990s, companies began developing constellations in LEO, below 2,000 kilometers altitude, enabling broader and more flexible coverage. The GSO, recognized under Article 44 of the International Telecommunication Union (ITU) Constitution as a scarce natural resource, became subject to allocation frameworks. LEO, by contrast, remains less regulated, even as it becomes increasingly crowded.
The 1967 Outer Space Treaty (OST) governs activities in space. Article VI places direct responsibility on States for their “national space activities,” requiring authorization and ongoing supervision of non-governmental entities. However, the treaty does not define these terms, leaving States to establish their own licensing and regulatory regimes. This provision was shaped during an era dominated by state actors, long before the commercialization surge of the NewSpace movement.
OneWeb’s operational history illustrates the complexity of jurisdiction. Since 2019, its satellites have launched from Russia’s Vostochny Cosmodrome, yet the Russian government has barred the company from offering internet services domestically, citing national security. OneWeb has sought approval from the U.S. Federal Communications Commission to expand its constellation, while ownership stakes are held by the UK government and India’s Bharti Enterprises. Such multinational involvement makes it difficult to identify the State responsible under Article VI or determine which national oversight regime applies.
Legal scholars, including Bin Cheng, interpret “national space activities” as those with a “special connection” to a State or falling under its territorial, quasi-territorial, or personal jurisdiction. Private instruments like the Cape Town Convention and its Space Protocol could help build frameworks supplementing the OST’s State responsibility provisions.
Article II of the OST prohibits “national appropriation” of outer space by sovereignty claims, use, occupation, or “any other means.” Combined with Article I’s declaration of space as the “province of all mankind,” this principle restricts exclusive rights in space. Mega-constellations, with satellites occupying multiple orbital planes, test the boundaries of this principle. Developing nations, lacking capacity for large-scale projects, risk being sidelined. The Bogota Declaration of 1976, in which equatorial States claimed rights over GSO segments above their territories, was rejected internationally but underscored tensions between equitable access and orbital resource use.
The ITU allocates orbital slots and spectrum on a “first come, first serve” basis, without a mechanism for space traffic management. Exclusive use of LEO by mega-constellations for commercial gain remains largely unregulated. This gap threatens equitable access for developing countries and poses challenges for astronomy due to light pollution from bright satellites.
Supporters of mega-constellations argue they serve “the benefits and interests of all mankind” by expanding broadband access, without asserting ownership or sovereignty. Opponents contend that collision risks and congestion impede other nations’ space activities, and that “any other means” in Article II could encompass forms of appropriation beyond sovereignty claims. Treaty interpretation under Article 31(3) of the Vienna Convention could evolve through subsequent practice to reflect contemporary realities.
The urgency of equitable access is magnified by the arrival of new players. Chinese state-run enterprises have announced plans for the Guowang constellation, totaling 13,000 satellites. A University of British Columbia study warns that even one such constellation could trigger a “tragedy of the commons” in space. The absence of binding frameworks for LEO traffic management exacerbates risks. A near-collision between OneWeb and SpaceX satellites—passing within 190 feet—demonstrated the fragility of current safeguards. While Space Debris Mitigation Guidelines aim to support sustainability, collisions could rapidly multiply debris hazards.
The mounting pressures on the concept of outer space as the “common province of mankind” point to a need for stronger inter-State coordination and clearer national regulations. The expansion of mega-constellations by a handful of actors intensifies the call for governance capable of balancing innovation, safety, and equitable access.
