A NEW SPACEFARING NATION: Papua New Guinea?

International space law and the treaty regime have remained largely theoretical constructs for most of the Space Age. While great for moot-court exercises or the occasional congressional hearing on treaty obligations, their real-world applications were scarce. Yet those of us who have practiced commercial space law have long warned that a time would come when “Space Law 101” would play an important part in opening the high frontier.

That time is now. The FCC faces a decision that goes beyond whether to grant AST & Science a “market access” request for a new constellation of non-geostationary spacecraft in the crowded 700-kilometer orbit. Far more important is whether the FCC will require companies seeking authority to operate in the United States to be licensed by countries which agree to be bound by the norms of international space law.

The AST & Science application itself is problematic enough, with its 243 gigantic satellites each with a cross-section of 450 square meters. NASA initially filed a report raising significant concerns with this application, arguing that the number and size of the satellites in the AST constellation posed a significant risk and would cause NASA to “experience a very large number of satellite conjunctions, certainly with debris objects and potentially with A-Train satellites themselves, both as part of the AST satellites’ ascent/descent to on-orbit locations and during regular operations.”

TechFreedom filed comments raising similar concerns, adding that AST & Science has zero experience building large structures in space.

But the greater problem is that rather than seek a license directly from the FCC for their enormous satellites, AST & Science got a license for its system from Papua New Guinea (PNG). This is more than a “flag of convenience” situation, however, as PNG has signed neither the 1971 Liability Convention nor the 1974 Registration Convention. While PNG has signed the 1967 Outer Space Treaty (OST), those latter two treaties are what put actual “meat on the bone” of the OST. Choosing not to sign these leaves PNG outside of the sphere of countries which have agreed to both norms of governance and resolution procedures for outer space disputes.

In short, PNG has not stepped up to accept specific international responsibility or liability for the activities of commercial entities it has licensed.

Well, under the Outer Space Treaty, the launching state retains responsibility for those things, and they’re not going to be launching from Papua New Guinea any time soon.