Abstract
With the commissioning of the first constellations of hundreds or even thousands of small satellites, we are witnessing today an infrastructure shift. While it has not completely distanced the exploration and use of outer space from the dramatic geopolitical and military implications they once entailed for States, it is undoubtedly transforming this realm into a new economic frontier of competition, with its predominant players, this time being private profit-driven actors sensitive to market forces. As the exploitation of outer space becomes more economically viable, new commercial services should emerge through the deployment of SmallSat constellations and the provision of services by means thereof, creating a risk of increased dependency of the services consumed on earth on these new infrastructures. Therefore, new legal challenges pertaining to competition, foreign investment and the global economy as a whole do arise.
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Notes
- 1.
Today of more than 80 (85), whereas they were only about thirty to invest in the space sector, at the turn of the century, in 2000.
- 2.
D. Alary, L. Rapp, The way forward to ICSO: an International Organization to handle a sustainable Space Traffic Management (Paper code: IAC-19,E3,4,11,x50161), in: 70th International Astronautical Congress (IAC-19), Washington, D.C., 2019.
- 3.
The Artemis Agreements are part of the Artemis program launched in 2017 by U.S. President Donald Trump. This program is articulated in several stages, the end-point of which should be the sending of astronauts on the lunar ground in 2024. Ultimately, the goal is to build a sustainable infrastructure on the Moon's surface in preparation for future missions to Mars.
- 4.
Please see Victor Dos Santos Paulino and Adriana Martin “Satellite Miniaturization: Are new entrants about to threaten existing space industry ?”, SIRIUS, 2016.
- 5.
F. von der Dunk, “International Space Law,” in Fabio Tronchetti and F. von der Dunk (eds.), Handbook of Space Law, Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2015, pp. 57–58.
- 6.
F. Tronchetti, Fundamentals of Space Law and Policy, New York: Springer, 2013, pp. 13–14.
- 7.
F. von der Dunk, “International Space Law,” op. cit., pp. 57–58.
- 8.
J.L. Zell, “Putting a Mine on the Moon: Creating an International Authority to Regulate Mining Rights in Outer Space,” Minnesota Journal of International Law, 2006, vol. 15, pp. 507–508.
- 9.
The 1991 EU-US Competition Cooperation Agreement constitutes such an example.
- 10.
R.D. Anderson et al., “Competition policy, trade and the global economy: Existing WTO elements, commitments in regional trade agreements, current challenges and issues for reflection,” WTO Staff Working Papers ERSD-2018-12, WTO, Oct. 2018, p. 59, available at: https://ssrn.com/abstract=3321116.
- 11.
See, in particular, Articles VIII, IX, XV, XVI and XVII of the GATS.
- 12.
F. Lyall and P.B. Larsen, Space Law: A Treatise, Surrey, UK and Virginia, US: Ashgate, 2009, p. 457.
- 13.
Section 1340(a) of The Department of Defense and Full-Year Appropriations Act, Public Law 112-10, 2011.
- 14.
1972 Liability Convention, Article I(a).
- 15.
S. Hobe and K.-W. Chen, “Legal status of outer space and celestial bodies,” in R. S. Jakhu and P. S. Dempsey (eds.), Routledge Handbook of Space Law, Abingdon, Oxon and New York, NY: Routledge, 2017, pp. 35–37.
- 16.
Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union.
- 17.
See TSM Regulation, Recital 19.
- 18.
See TSM Regulation, Recital 8.
- 19.
This issue is covered by the Agreement on Subsidies and Countervailing Measures concluded on April 15, 1994 under the Marrakech Agreement establishing the World Trade Organization (Annex 1A, 1869, U.N.T.S.14). However, certain OECD reports indicate that despite this agreement and the obligations it imposes (in particular the obligation to notify these subsidies and countervailing measures), these subsidies continue to grow, sometimes reaching very significant amounts (between US$20 and US$70 billion in the aluminum sector between 2013 and 2017). Moreover, the prohibited subsidies and countervailing measures only concern imports of products from third countries; in the case of the European Union, they leave out of their scope the intra-Community trade in services provided by foreign companies established in the territory of the Union.
- 20.
17 June 2020, COM (2020) 253 final.
- 21.
ASD—Eurospace, Aggregation of European institutional launch service levels, Position Paper, 2018, available at: https://eurospace.org/wp-content/uploads/2018/07/eurospace-pp-on-aggregation-of-european-institutional-launch-services_july-2018.pdf.
- 22.
F. von der Dunk, “International organizations in space law,” in Fabio Tronchetti and F. von der Dunk (eds.), Handbook of Space Law, Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2015, p. 312.
- 23.
F. von der Dunk, “European space law,” in Fabio Tronchetti and F. von der Dunk (eds.), Handbook of Space Law, Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2015, pp. 265-266.
- 24.
Ibid.
- 25.
DG CNECT/GROW Informal Working Document, DG COMP, 18 September 2020.
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Rapp, L., Topka, M. (2021). Small Satellite Constellations, Infrastructure Shift and Space Market Regulation. In: Froehlich, A. (eds) Legal Aspects Around Satellite Constellations. Studies in Space Policy, vol 31. Springer, Cham. https://doi.org/10.1007/978-3-030-71385-0_1
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