The right of way in space: the core issue of the international governance system for future space transportation

【Global Vision】

A few days ago, the 2022 International Symposium on the Peaceful Use of Space Technology (Health) was held in Beijing in a combination of "online" and "offline". "Science, Technology Innovation, Science Popularization".

The conference invited scientists, astronauts, entrepreneurs, financiers, and educators to discuss topics such as "peaceful application and transformation of space technology, technological innovation and development, popularization of science, and talent exchange and training."

Among them, the special forum on space transportation attracted attention.

Why Space Needs Traffic Rules, Too

　　With the rapid deployment of large low-orbit constellations, space is becoming more and more crowded, and space traffic management has increasingly become a hot topic of discussion in the international community, and it has also become a huge challenge in the field of international space governance.

Before 2021, although the history of human spaceflight has gone through more than sixty years, the total number of space objects such as satellites and space stations operating normally in space at that time was only about 2,000.

According to statistics, the total number of large-scale constellation satellites that have been announced exceeds 130,000.

The deployment of these satellites will lead to a sharp increase in the risk of on-orbit collisions, posing a major threat to the safety of space assets of various countries.

In September 2019, Musk's Starlink satellite nearly collided with a satellite of the European Space Agency, and the European Space Agency was forced to implement satellite evasion operations.

In July and October 2021, two Starlink satellites approached the Chinese space station successively, and China was forced to implement preventive collision avoidance control twice.

It is foreseeable that similar incidents will occur more and more frequently.

The absence of space traffic rules is not conducive to the protection of the security and legitimate rights and interests of space assets of various countries, nor is it conducive to the maintenance of a fair and reasonable international space order.

　　So how should space traffic be governed?

Unlike the road traffic that people are familiar with, there are mature traffic rules such as traffic lights, right turns and straight ahead, etc. Such space traffic rules have not yet been established in space.

The five major international space law conventions formulated in the 1960s and 1970s and the series of United Nations outer space legal documents formed afterward more stipulated the basic principles of free, peaceful and safe use of outer space, state supervision, due consideration, Basic obligations such as consultation in advance, basic systems such as rescue and return, damage compensation, registration of space objects, and basic mechanisms such as notification and notification, but do not stipulate detailed space traffic rules. Which party has the right of way, which party should bear the responsibility for active avoidance, etc.

　　The development of aerospace technology and activities often precedes the development of regulations, but it is impossible for human spaceflight to achieve long-term sustainable development in a vacuum of legal rules.

Legal concepts and legal principles and rules are the basis for constructing a legal system.

However, discussions in the international community on space traffic management are still limited to basic concepts (such as what is space traffic management), basic elements (such as space situational awareness, space debris mitigation and remediation, space operations) or basic mechanisms (such as notifications, consultations, etc.) Although this has a positive effect on enhancing the understanding of space traffic management, it cannot provide a basis for the future national management of space traffic and the international governance of space traffic due to the lack of attention and in-depth discussions on core legal concepts, principles and rules. The construction of the legal system provides fundamental support.

This paper will propose the concept of "right of way in space", and believe that the right of way in space is the basis for constructing space traffic rules and the core legal concept for building the future international governance system for space traffic. The right of way in space should include the right of way, right of way, right of way and stay The international community should focus on the six principles of "active avoidance by the party that creates the risk, priority to manned and other major tasks, priority to public welfare rescue tasks, economic efficiency, effective security guarantees, comity and mutual benefit" to build future space right-of-way rules and space transportation. system of rules.

Future-focused definition of right-of-way

　　The international community has not yet defined the right of way in space.

Sorting out the history of the concept of right of way is of great significance for defining space right of way.

The concept of the right of way is produced with the advent of motor vehicles, the modernization of roads and the increase of traffic flow.

Some scholars pointed out that "the ancient Roman Caesar era produced the world's first road traffic safety management regulations. This law stipulates that in order to avoid street traffic jams, vehicles must drive in one direction; during the specified time period, private carriages are not allowed to drive in the city. ...Although the content is very simple, it has played an important role in ensuring the order and safety of urban road traffic, reflected the reasonable distribution of road rights, and created a precedent for the legalization of road traffic safety management."

It can be seen that the early right of way was more about the restriction of unilateral behavior of the subject of the right of way, and did not involve the issue of how to deal with the conflict between the right of way of two or more subjects.

In contrast, in the Anglo-American legal system, the right of way often refers to the right of way, that is, the right of way.

According to the "Yuanzhao Anglo-American French Dictionary", the right of way refers to "when two vehicles or vehicles and pedestrians pass through the same place at the same time, one of them enjoys the right of priority, but the obligee is still responsible for the safety of himself and the other party." There is a duty of care.” The right-of-way rule (right-of-way rule) is a rule that stipulates who should pass first among two road users approaching a road intersection at the same time.

　　In addition to ground rights of way, related concepts in the field of aviation and navigation are also worthy of study and reference.

During World War II, the advancement of aviation gave birth to an aviation rights and interests system similar to the right of way.

The 1944 "Chicago Convention" stipulates the transit rights and air transport rights of relevant aircraft.

At the same time, countries have also begun to attach importance to maritime security and proposed a system of maritime navigation rights and interests.

For example, foreign ships enjoy the right of innocent passage through a country’s territorial sea, and the 1982 United Nations Convention on the Law of the Sea stipulates that “in the high seas or exclusive economic zone...all ships and aircraft have the right to unimpeded transit passage” "Wait.

　　In the field of space, as the country with the most comprehensive aerospace legislation, the United States has not yet proposed the concept of right of way in space.

In March 2022, NASA signed a special agreement with SpaceX under the authorization of the National Aeronautics and Space Act, which stipulates that if the Starlink satellite is too close to the International Space Station or other NASA spacecraft, the Starlink satellite You should take the initiative to take maneuvering measures to avoid.

The agreement also requires that the initial orbit of the Starlink satellite after launch should be at least 5 kilometers away from the International Space Station or other NASA spacecraft.

The agreement is the result of coordination between the U.S. government and private entities, and it is a preliminary practice of the right of way in space within a limited scope, but it is not an international rule on the right of way in space.

International rules should be the result of negotiation and recognition among countries and have universal applicability.

The key to inter-state negotiations is to reach a consensus on the concept and basic principles of the right of way in space, so as to clarify the rights, obligations and responsibilities of all parties.

　　To sum up, the right of way has the following characteristics: First, the right of way is not only a right, but also a certain restriction. The subject of the right of way must have certain qualifications to enjoy the right of way; secondly, the right of way includes both Requirements (reflected as individual rights), also include related requirements (reflected as collective rights) when there is a conflict of the right of way between two or more subjects.

The right of way as an individual right can often be realized by the subject itself (having certain qualifications and meeting certain requirements).

As a collective right, the right of way can only be realized through coordination and cooperation between relevant rights subjects; thirdly, the right of way is not limited to areas within the jurisdiction of national sovereignty (such as territorial land, territorial water, airspace) and areas outside the jurisdiction (such as international The connotation of airspace and high seas may be different. The realization of the former generally requires the approval of a sovereign state or manifested as the right of innocent passage, while the latter is mostly embodied as the right of free passage; finally, the right of way often includes the right of passage (including the right of transit) , Right of way (priority of way), right of occupancy (right of stay) and other connotations.

　　Combining with the characteristics of space activities, this paper defines the right of way in space as: the space objects (launch vehicles, satellites, space stations and other spacecraft) under their jurisdiction or control enjoyed by the subject of space activities to stay or operate in a certain orbit or area in space .

The right of way in space has the following basic legal characteristics: First, in the context of international law, the subject of the right of way in space (the owner of the right of way) is generally a country or an intergovernmental international organization, while private entities, such as commercial aerospace companies, do not enjoy the right of way in international law. The right of way in space, but through national legislation, it can enjoy the right of way in space in the sense of domestic law; secondly, the realization form of the right of way in space is reflected in a state where space objects stay and operate in specific orbits and areas in space. Areas include, but are not limited to, orbits around the Earth or other celestial bodies, orbits (trajectories) leaving orbits of any celestial body to land on that body.

Thirdly, in the scenario of launch and reentry, the right of way in space may extend to airspace, such as the rocket launch orbit, which passes through airspace, and generally does not pass through the airspace of other countries.

Large space objects (such as spaceships, large-mass failed satellites) re-enter the atmosphere and also pass through airspace. At this time, they may pass through the airspace of other countries. If it is a controlled re-entry, that is, reaching the predetermined landing point is controlled in the plan However, if it is an uncontrolled re-entry, for example, the space object has lost control and the landing point is not controlled, then it is necessary to obtain prior consent in international law. Controversial.

The author believes that there is no need to obtain the prior consent of the airspace sovereign state at this time, because it is impossible to accurately determine which countries the reentry object will pass through the airspace of the country; finally, the right of way in space is an attempt to reconstruct the space rule system from the perspective of rights, and now Some international space law systems place more emphasis on obligations, such as the obligation of due regard, space debris mitigation, and notification requirements.

How to understand space right of way

　　In order to better understand the right of way in space, this article divides the right of way in space into the right of way, right of way, right of way, and right of stay.

　　First, the right of way in space, that is, under certain conditions, the subject of space activities enjoys the right to enter space or enter a specific orbit for its objects (launch vehicles, spacecraft).

In road traffic management, motor vehicles and drivers are generally required to meet corresponding conditions before they are eligible to drive on roads, and the same is true for space.

The 1967 Outer Space Treaty stipulates the freedom of all countries to explore and use outer space. In theory, all governments and private entities under their jurisdiction (including legal persons, unincorporated organizations and natural persons) have the right to travel in space.

But also according to the Outer Space Treaty, each country should also undertake the obligation of approval and continuous supervision of its own space activities. According to this, each country should formulate relevant access systems and licensing systems (such as spectrum licenses, launch licenses, etc.) , A series of requirements will be put forward for the qualifications, technical capabilities and product quality of relevant entities.

The right of way is a right that the subject can enjoy in compliance with domestic legal requirements without the recognition or cooperation of others. The right of way is a prerequisite for the subject to realize other space rights of way.

　　Second, the right of passage in space, that is, under certain conditions, the subject of space activities enjoys the right to operate its space objects in a specific orbit or area.

The right of way is the most basic right of way in space, which includes the right to pass in a specific orbit or area, as well as the right to pass during launch and re-entry.

In road traffic, vehicles have the right of way under the premise of complying with specific rules.

For example, my country's "Road Traffic Safety Law" stipulates that "motor vehicles and non-motor vehicles shall pass on the right side", and roads are divided into motor vehicle lanes, non-motor vehicle lanes, sidewalks, special lanes, etc., and relevant entities have the right of way on their respective roads.

Clearly, these regulations do not apply to space.

But there are similar "exclusive lanes" in space, that is, specific orbits, which are closely related to the registration information of space objects.

The 1975 "Registration Convention" stipulates that each country registering a space object should submit relevant information about the object to the United Nations in a timely manner, including basic orbital parameters, such as: node period, tilt angle, apogee, perigee, etc.

It can be seen that for a space object registered as required, its relevant subjects have the right to operate the space object on this orbit, that is, the right of passage.

In contrast, there will be many uncertainties in the determination of the right of passage of unregistered space objects.

　　In addition, the relevant provisions of the United Nations Resolution on Improving Transparency in Space (2013) are of reference significance for the confirmation of the right of passage of space objects.

For example, “States should try their best to notify the countries that may be affected in a timely manner of scheduled maneuvers that may endanger the flight safety of space objects in other countries.” The so-called “scheduled maneuvers” are planned orbit changes.

If the subject of space activities notifies the international community in advance of the possible re-orbit operation plan of its space objects, the right of passage it enjoys may not only be limited to the original established orbit, but also include the orbit occupied by the re-orbit operation.

Conversely, it remains to be discussed whether space subjects will have access to these new orbits without prior notification.

The degree of transparency of the relevant subject's activities should be directly proportional to the scope and degree of the subject's right of passage.

　　Third, the right of way in space. When there is a conflict between the rights of way of different subjects, the right of way of each subject needs to be realized through the coordination and cooperation of other subjects, and the right of way is the basic legal basis for determining how to coordinate and cooperate between subjects. One of the subjects is given the right to pass normally first.

Some scholars have pointed out that "the right of way, also known as the time right of way, is the right that traffic participants enjoy according to law to pass on a certain road or within a certain range of a road within a certain period of time under the premise of enjoying the right of way."

When there is a risk of dangerous rendezvous or collision between two space objects in orbit, the right of way in space is used to determine which party has the right to maintain the established orbit and which party takes the initiative to take evasive measures (such as raising or lowering the orbit, braking, etc.) Legal concept of obligation.

Determining the right of way in space needs to be based on certain legal principles, such as safety principles, efficiency principles, convenience principles, and public welfare principles.

The establishment of the right of way in space is the core of building space traffic rules and an international governance system for space traffic.

　　Fourth, the right to stay in space refers to the right enjoyed by the subjects of space activities to stay still or stay in space orbits or areas within a certain time and space range.

"Stationary" and "staying" are different from "passing". The former is the state and right of the lunar lander to stay at the landing site, or to "brake" the satellite and temporarily stop it in a specific orbit based on the needs of experiments, experiments or other space activities. The latter is the state or right of satellites (including abandoned satellites) to stay in a predetermined orbit in space as a whole.

The traditional right-of-way system often uses another concept, that is, the right of occupancy. "Related to the right of way is the right of road occupancy, that is, the legal right of road users to use the road for non-dynamic traffic activities or other related activities within a certain time and space. The right to traffic-related activities can also be said to be the right of way in a special sense. For example, occupying the road for temporary parking and long-term parking, occupying the road for stacking, setting up stalls, digging, etc.”

The author does not adopt the traditional concept of possession or occupancy, lest it appear to be in conflict with the "principle of non-appropriation" of space law.

The "Outer Space Treaty" stipulates that "states shall not appropriate outer space (including the moon and other celestial bodies) for themselves through claims of sovereignty, use or occupation, or any other measures."

It can be seen that appropriating space orbits or regions for oneself is prohibited by international law.

　　In fact, even from the perspective of "stationary" or "staying", a satellite should not occupy a predetermined orbit for a long time.

The Space Debris Mitigation Guidelines established by the Inter-Agency Space Debris Coordination Committee (IADC) in 2007 stipulate that space objects should not stay in orbit for more than 25 years. Although this is not legally binding, more and more countries are Similar requirements are made in domestic law.

For example, the "Notice on Promoting the Orderly Development of Microsatellites and Strengthening Safety Management" issued by my country in 2021 stipulates that "microsatellites should have the necessary capabilities to facilitate deorbiting and avoid long-term occupation of common orbits. The deorbiting technology adopted It should be mature and reliable. After the end of mission, termination or expiration of life, the residence time of microsatellites with an orbital altitude not exceeding 2000 kilometers should not exceed 25 years, and microsatellites with an orbital altitude exceeding 2000 kilometers should actively enter the graveyard orbit or be unused track".

The "Simplified Small Satellite Licensing Procedure" enacted by the US Federal Communications Commission (FCC) in 2019 requires small satellite operators to deploy satellites below 600 kilometers...by taking certain measures in satellite design to ensure that through active methods (such as propulsion Force) de-orbit within six years.

It can be seen that although there is no clear requirement in international law, the period of orbit (stay) of space objects still needs to comply with the provisions of relevant domestic laws.

Core Principles of Right of Way in Space

　　The future space right-of-way rule system (space traffic rule system) should include six elements: the concept and connotation of space right-of-way, the international platform for space situational awareness (space traffic command center), the principle of on-orbit collision avoidance, coordination mechanism, emergency mechanism and post-processing mechanism.

The design of space right-of-way rules should take the security of space assets of various countries as the core goal, fully consider various situations of collision avoidance in orbit, and give consideration to efficiency and fairness.

　　One is the principle of active avoidance by the party that creates the risk.

Once the risk of collision is caused by one of the parties performing operations such as orbit changes, the party should, in principle, unconditionally assume the responsibility of actively avoiding.

"The person who creates the risk shall first bear the responsibility of eliminating the risk." This is a general principle of law, and it is also in line with the principle of due consideration in international space law, that is, when one party conducts space activities, it should properly take into account the safety of other countries' space activities.

　　The second is the principle of giving priority to major tasks such as manning.

For space missions of great or special significance to the international community, special consideration should be given, and the other party should bear the responsibility of actively avoiding them.

At this time, the party actively evading may request appropriate compensation from the other party as appropriate.

For manned spaceflight missions, since the safety of astronauts is involved, the party that endangers the manned spaceflight mission should take the initiative to avoid it without any compensation unless there are special circumstances.

　　The third is the principle of giving priority to special tasks such as public welfare rescue.

When one party is performing special tasks such as disaster prevention and mitigation, space rescue, etc., in principle, the other party should take the initiative to take avoidance measures.

The relationship between this principle and the principle of prioritizing major tasks such as manning should be analyzed in combination with specific scenarios and cases.

　　The fourth is the principle of economic efficiency.

When both parties have the ability to avoid collisions and the above three principles do not exist, the party that can avoid collisions at a lower cost should take the initiative to take avoidance measures.

Space governance must focus on both fairness and efficiency.

"Lower cost" is not simply a calculation of the direct cost (such as fuel cost) that all parties will spend on evasion measures, but also considers the impact of evasion measures on the life of space objects and the tasks they perform, that is, the " lower cost".

　　The fifth is the principle of effective security guarantees.

When none of the above four principles are applicable or cannot be confirmed in a timely and effective manner, the party that is more confident in avoiding collisions should take the initiative to take evasive measures (for example, a space object with the ability to change orbit should avoid a space object without the ability to change orbit).

After all, "safety protection" is the fundamental starting point for establishing the right of way in space, which is also in line with the general legal principles of "effectiveness" and "convenience".

It should be noted that this principle does not mean that the party with less developed technology can not bear any responsibility. If its space object does not have the ability to change orbits required by international space law, the party that actively avoids collisions can pursue responsibility for it.

　　Sixth is the principle of comity and reciprocity.

That is, when none of the above five principles can be clearly applied, based on the spirit of international cooperation and comity, one party can voluntarily evade. If the same situation occurs again, it should be the other party’s turn to voluntarily evade to show fairness.

This is also in line with the general legal principle of reciprocity or reciprocity, as well as the spirit of international cooperation and mutual assistance stipulated in international space law.

　　The space right-of-way theory will provide an important legal perspective and rule-building path for the construction of an international governance system for space transportation in the future.

The space right-of-way rule system does not conflict with the existing international space law system, and will provide a new perspective for improving the international rule of law in space, and promote the transformation of the space international legal system from "obligation-based" to "right-based".

The relationship between the right of way in space and the existing systems of principles and obligations in space law, such as peaceful use, due consideration, advance consultation, registration, and compensation for damages, remains to be studied.

At least it is foreseeable that the theory of right of way in space will give birth to a series of new concepts and principles, such as space traffic accidents, space traffic infringement, etc., which will not only play an important role in enriching and improving the damage liability system of international space law, but may also creatively introduce Brand new space rules and system.

　　(Authors: Wang Guoyu and Hu Yifan, respectively the dean and assistant researcher of the Institute of Space Policy and Law, Beijing Institute of Technology) (Source: Guangming Daily)