Ivan Fino

The new European Union Agency for the Space Program and its relationship with the European Space Agency

European Union Agency for the Space Programme (EUSPA): this is the name of the new space agency created by the European Parliament and the Council with Regulation 696/2021 of 28 April. EUSPA is not an agency created ex novo. On the contrary, it represents the structured evolution of the European GNSS Agency (GSA) to which it fully succeeded. Unlike the GSA, EUSPA has the task of “governing” not only the satellite navigation programs of the European Union but also those of Earth observation and telecommunications.
In general, EUSPA manages the Union’s space programs carried out so far by other European bodies, bringing with it a wealth of know-how and integration of technologies used by the downstream industries that have made the difference in the management of missions and other space programs. In particular, EUSPA is in charge of providing positioning, navigation and timing services with the Galileo and EGNOS components, as well as communicating, promoting and developing the market for data, information and services derived from Copernicus and GOVSATCOM, both from the aforementioned Galileo and EGNOS. From the synergies of these components, EUSPA has the task of implementing the Union’s space programs by providing reliable services and maximizing the economic and social benefits for European companies and societies. The objective is also to improve competitiveness by promoting and strengthening the autonomy, development and technological independence of the Union and its Member States, also with a view to achieving a common defence system. In general, EUSPA aims to support the development of a broader European space ecosystem, with a focus on entrepreneurship and innovation in the Member States and regions of the Union. As argued by Rodrigo Da Costa (Executive Director of GSA and now of EUSPA) it is necessary to develop and implement the downstream sector in the European context. In short, it is the case to say: EUSPA is preparing to launch a new European model of approach to space that can be strategically decisive not only economically but also geopolitically.
The creation of EUSPA must be considered in light of the Brexit issue. With the final exit of the United Kingdom, the Union has indeed had to reconsider the evolution of security space programs at the European Space Agency (ESA) and relocate and organize them ex novo at entities under direct control of the Union bodies: the Galileo program is an example.  It is precisely the British issue that has raised doubts about the advisability of relying solely on ESA for European space matters. The United Kingdom, in fact, being one of the major contributors to ESA, could well tend to adopt strategies that are not necessarily in favor of the European Union.  
It should also be considered that the British space industry has always been connected to the programs developed by the rest of Europe, in a relationship of coexistence and cooperation among the most developed compared to the other (former) European partners. With Brexit, Europe will no longer be able to count on the economic contribution from UK allocations. In fact, the U.K. will not be automatically included in EUSPA projects, yet it will remain a member of ESA. In other words, U.K. will participate in some projects only in cooperation with EUSPA and not directly with the Union’s flagship programs.
The EUSPA founding regulation also emphasized the importance of ensuring the cyber security of European space infrastructure, both ground-based and in-orbit, to ensure the continued operation of systems and services. The need to protect systems and related services from cyber-attacks will be possible by using new technologies and, above all, by exploiting the skills of European entrepreneurship.
Because of the reasons listed above, the creation of EUSPA has certainly received praise from many of the experts in the space sector. However, when talking about “European space” one cannot avoid considering the relationship with the European Space Agency (ESA). Technically, ESA is an international agency that is not directly controlled by the European Union but is co-financed by it. In other words, being a member of the EU does not mean being part of the ESA, whose membership is only optional. In fact, some countries are effective members of ESA but not of the European Union: this is the case of Switzerland and Norway (and, as mentioned above, the United Kingdom).

Given that ESA also has extensive competencies in Earth observation and satellite navigation programs, such as Copernicus and Galileo respectively, it is not clear if and how the risks arising from overlapping budgets and investments can be avoided. The relationship between ESA and EUSPA, therefore, implies both an industrial challenge and a legal challenge: harmonizing at European level (therefore both between states and their respective space agencies and between European space agencies) these two elements means sharing and defending the capabilities present in the region, while maintaining a degree of autonomy as high as possible. For the two agencies to work together seems therefore an unavoidable necessity: to be competitive in the global scenario it is important to combine together all the skills and technologies available, being able to draw on them for the development of complementary and parallel programs and missions. The effectiveness of the ESA-EUSPA collaboration represents a factor too crucial for the successful implementation of services to the population and for missions of exploration or purely scientific-academic value. The same Josef Aschbacher, director general of ESA, in the Agenda 2025, has highlighted the need to intensify the relationship with the European Union and the European Commission” for the development of a space sector at the service of policies, citizens and industry.” The Financial Framework Partnership Agreement last June 22 between ESA and the EU (and thus EUSPA), which seeks to define tasks on joint projects, is only the first step in precisely defining the tasks of EUSPA and ESA.
If the collaboration is to be further strengthened, the prerogatives of the two agencies will also have to be better assigned and defined. In this sense, for the future, it is desirable to proceed towards a greater valorization of the respective peculiarities. The ESA, while continuing to be the main partner of the Union, should limit itself only to assuming technical and scientific responsibility for the development, design and construction of infrastructure. The almost 50 years of ESA know-how will be a crucial element to carry out the ambitious European space program. EUSPA, on the other hand, should assume the prominent role of “manager” of the space observation, navigation and communication components, thus exploiting synergies to the benefit of the downstream value chain in the areas of market monitoring, development of new business strategies for research and development (R&D) and coordination of public and private sector activities.

Main source: https://www.agendadigitale.eu/mercati-digitali/euspa-un-nuovo-approccio-allo-spazio-funzioni-e-sfide-della-nuova-agenzia-ue/

The need to tackle space debris

On June 13, 2021, at the G7 summit in Carbis Bay, Cornwall, delegates from Canada, France, Germany, Italy, Japan, the United States of America, the United Kingdom and the European Union (EU) pledged to combat the increasing amount of space debris crowding Earth’s orbits. This is a powerful political stance, as international attention was given to a phenomenon that is becoming more and more real and could potentially jeopardize current and future space programs.

During the summit, the importance of following international guidelines governing the mitigation of this phenomenon was highlighted. In this sense, depending on the type of orbit, the Inter-Agency Space Debris Coordination Committee (IADC) has indicated different standards to be followed. If the orbital altitude is below two thousand kilometers (LEO), it is recommended that satellites be re-entered to the Earth’s atmosphere within twenty-five years of mission completion. For GEO satellites, after completion of the mission, they should be re-orbed into a graveyard orbit, located about three hundred kilometers above geostationary orbit to prevent any interference with operational satellites.

Finally, satellites located in Lagrangian points are required to clear the area as soon as possible at the end of their mission, so that it can then be used again by new satellites.

There are also some technical measures that, if followed, can limit the damage caused by wreckage and space debris. One of these is passivation, which involves dispersing a satellite’s fuel in order to avoid accidental explosions at the end of the mission.

It should be noted that, although mitigation measures are effective in containing debris growth, some removal systems must be put in place. This is for two reasons: first, the creation of new space debris due to malfunctions or collisions between space objects cannot be entirely avoided. Secondly, one has to deal with the debris that has accumulated over the last sixty years. The American satellite Vanguard I, launched in 1958, is still in orbit. It has been estimated that the population of debris larger than ten centimeters could increase by seventy-five percent in the next two hundred years.

The need to actively counter the build-up of space debris (which was also discussed at the G7) can be met by Active Debris Removal (ADR) measures. Actually, there are actual space missions aimed at dropping space debris into the atmosphere to cause its destruction by friction. The most promising and technologically advanced (but at the same time overly expensive) ADR programs include the use of space lasers or the deployment of wire ropes and slings to drag objects. In this sense, the European Space Agency (ESA) has already committed itself to promote further initiatives: the first concerns a project carried out by CleanSpace, consisting in the examination of technologies for advanced image processing, complex guidance, navigation and control and innovative robotics, aimed at capturing debris in orbit. The second initiative is a controlled deorbit action, called eDeorbit, which could be the first ESA-led ADR mission to remove large space debris from occupied orbit for controlled re-entry into the atmosphere.

Although space debris removal measures are useful to ensure the sustainability of space activities, they may not always be entirely lawful. Article VIII of the 1967 Outer Space Treaty (OST) states that the State of registry has exclusive jurisdiction over space objects; thus, States retain both jurisdiction and control over objects launched into space.

Conversely, no treaty has ever stipulated that control and jurisdiction disappear if space objects cease to function or are destroyed; the States of registry, therefore, continue to exercise their powers of control and jurisdiction over space debris.

The same applies to the ownership of space debris. One might wonder whether the State of registration might really be interested in maintaining ownership over these objects. In this respect, it has to be taken into account that even inactive space objects, such as space debris itself, may contain sensitive information or technologies whose intellectual property is to be preserved.

Having referred to space debris mitigation and removal measures, let us now consider the hypothesis in which a State is not interested in implementing them. Surely, in such a case, one or more third States might be concerned that the unremoved space debris might cause some harm to their own space activities. What alternatives would there be when faced with the presence of one or more hazardous space debris? The third States could try to obtain prior consent for the removal of space debris from the State registry. Another option would be to request the transfer of the registration of the satellite from which the debris originated.

If these options are not feasible, could the removal of this dangerous space debris finally proceed? In order to avoid incurring any kind of international responsibility, anyone who has reasonable grounds to believe that satellites they have launched into orbit may be adversely affected by a satellite that is no longer operational or by portions of it (space debris) may have recourse to the instrument of prior international consultations provided for in Article IX of the OST. The purpose of these consultations would be to convince the State of registry of the hazardous debris to implement appropriate removal measures. However, the long timeframe of such an international confrontation could exponentially increase the probability of a collision; therefore, if the risk of immediate damage or destruction proves to be well-founded, the State of registration of the hazardous satellite would be entitled to invoke the state of necessity and proceed to the immediate removal of the hazardous debris, proceeding in self-defense of its own interests. It should be borne in mind that this applies only to debris demonstrably from a registered satellite. Therefore, especially for smaller space debris, anyone would be entitled to proceed to the removal.

It also follows from the current legal regime for space activities that States are obliged both to provide for the disposal of the space debris produced and to verify that private companies do the same (Article VI of the OST). If this were not the case, the State of registration would be internationally responsible for any damage caused.

Despite the increasing size of satellite constellations and the resulting risks for space debris mitigation and removal, a new market opportunity for service provision is emerging. This is demonstrated by the investments of the Space Alliance (Thales Alenia Space and Telespazio) in the Canadian NorthStar Earth and Space project for a satellite constellation with dual function: Earth observation and space debris tracking directly from orbit. Moreover, D-Orbit is developing commercial debris activities as well as propulsion solutions for satellites and in-orbit services. This company aims to ensure safe and sustainable access to space by studying and developing in-orbit services and expanding in this specific area.

Where space debris clearly represents a critical issue to be kept monitored and controlled with the support of soft law instruments, it also represents an excellent investment and market opportunity, which will lead to the development of technologies and the implementation of innovative ways to safeguard space activities.

A manifesto for cleaner orbits

To date, according to data and software for monitoring satellites in orbits developed by ESRI, there are more than fourteen thousand satellites in orbit, of which about seventy-eight percent are no longer functioning. Furthermore, as stated by ESA’s Space Debris Office regarding the number of estimated fragments, there are thirty-four thousand objects larger than ten centimeters, nine hundred thousand objects between one centimeter and ten centimeter, and almost one hundred and thirty million objects between one millimeter and one centimeter. The indicated objects can be either fragments or simply no longer operational objects that remain in orbit.

Objects of such a small size, which on Earth are normally harmless, in orbit assume absolute importance in terms of danger for any type of satellite, becoming real projectiles with very high kinetic energy. An orbiting object can reach speeds of several thousands of kilometers per hour. The problem of space debris has been the subject of a famous theory by NASA scientist Donald J. Kessler. He hypothesized that, sooner or later, the density of objects in low Earth orbit (LEO) would cause cascading collisions that would make space activities and the use of satellites in specific orbital ranges impractical for many generations.

If a solution is not found to the inexorable increase in space debris, hundreds of satellites could be damaged and rendered useless.

Hundreds of billions of dollars in the space economy would therefore be at high risk. The protection of satellites from space debris can be qualified itself as a cost, starting from the need to design and build more resilient satellites, as well as to monitor and track dangerous debris. For satellites in geostationary orbit, the OECD reports that costs amount to an estimated five to ten percent of total mission costs, amounting to hundreds of millions of dollars. In low Earth orbit (LEO), the relative costs per mission could be even higher.

Not only strictly economic aspects, but also socio-economic aspects more generally. The Kessler Syndrome would mean that space technologies that make everyday life easier would be unusable, from smartphones to home automation systems, and GPS navigation. Many other applications closely linked to satellite systems would be jeopardized, including weather forecasting, monitoring climate change and natural disasters, and precision agriculture.

The congested orbits being the result of the increasing presence of space debris calls for some geopolitical considerations. First of all, in recent years, many countries have had the opportunity to deploy their first satellite and therefore, to have direct access to space: in 2006, forty-seven countries were investing in space and, probably, in a couple of years, they will reach eighty. This almost exponential growth is due to the reduction of construction, launch and management costs, as well as the development of new technologies and the introduction of “rideshare”. On the other hand, however, with the increase of space actors, there will certainly be an escalation of competitiveness involving the need to develop more independent applications and thus, the need to deploy additional constellations with different functions.

Another factor to be taken into consideration is the trend related to mega-constellations, in particular of small satellites for telecommunications and Earth observation: in fact, an increasing number of satellites in orbit, even if small in size, is leading to a progressive crowding of the orbits, with a consequent increase in the risk of accidents and collisions and the creation of further debris. Finally, the third critical factor relates to the attention of governments and the public to environmental and sustainability issues beyond the atmosphere. For example, crowded orbits make it difficult to observe the firmament because of reflections of sunlight off orbiting satellites. In addition, it is in the interests of both those managing satellite operations commercially and government agencies to keep orbits as manageable and sustainable as possible to ensure the proper and fully operational function of in-orbit infrastructure.

The ultimate goal of managing and controlling in-orbit sustainability cannot be separated from the proper implementation of the space law framework available to us today. Therefore, the most conspicuous part of the regulations concerns preventing the space debris phenomenon (so-called mitigation measures).

First of all, the issue of environment and orbit sustainability is not regulated by any international instrument systematically. However, it is useful to consider articles I, II and IX of the 1967 Outer Space Treaty, containing some general references. More specifically, Article I, expressing the four fundamental freedoms concerning space activities (of access, exploration, use and scientific research), specifies that these freedoms are not absolute since their purpose is to benefit present and future generations. Article I is also closely related to the international law of sustainable development “meeting the needs of the present without compromising the ability of future generations to meet their own needs” as defined by the Brundtland Commission in 1987. Indeed, the principle of sustainable development requires States to use resources rationally so that they are not depleted in the long run, thus linking in turn to the concept of intergenerational equity.

The provision of Article I is complemented by that of Article II of the same treaty, which provides for the prohibition of appropriation of space by claiming sovereignty, by use or occupation or by any other means.

The exponential increase of launches we are witnessing, implying an increase of space debris, is, in fact, a progressive appropriation of terrestrial orbits. In other words, the permanent occupation of a particular orbital area with space debris for a sufficiently long time, permanently excluding any third party from using that area, would be equivalent to an illegal appropriation of that area.

It seems that a real threat to the future sustainability of any operation in space is taking shape, to the detriment of future generations and of the technologically less advanced States in the sector, which are currently unable to “occupy” those orbital areas that they might one day need.

Article IX, finally, contains the fundamental discipline on the adoption of appropriate precautionary measures to preserve the integrity of space, requiring States to adopt certain technological standards. What characteristics should these standards have? In this regard, one might consider the “Draft Articles on the Prevention of Transboundary Damage from Hazardous Activities”, developed by the International Law Commission, where it is stated that “the standard of care against which the conduct of the State of origin should be examined is that which is generally considered appropriate… to the degree of risk of transboundary harm in the particular case”. It also requires legislative, administrative and supervisory measures that reflect relevant international standards to prevent the specific risk.

Although there are no generally recognized international standards, international organizations and States are adopting the Inter-Agency Space Debris Coordination Committee (IADC) standards, an international forum of governmental bodies to coordinate activities regarding space debris issues. The latest version of the 2007 text, in paragraph 5.3.2, provides the so-called “25-year rule” for all satellites that cross LEO or have the potential to interfere with it. These satellites must then be deorbited or otherwise moved to an orbit whose period of stay does not exceed twenty-five years from the end of operations. The main problem with this, as with other standards, is that legally they belong to the soft law category. In other words, their adoption is not mandatory for States. This lack of compulsoriness could cause huge problems in the future, as mentioned above when space debris from large satellite constellations could concretely impede access to Earth orbits. Conversely, the large satellite constellations themselves could be plagued by the presence of space debris, creating a dangerous vicious cycle that could affect all other space activities.

The ideal solution, though hardly feasible, would be to form an international agreement that clarifies disposal duties and imposing other obligations on users, such as an obligation to pay a sum before launch into orbit that includes the cost of disposing of that satellite, or the obligation to pay a bond in the event of non-compliance with active debris removal (ADR) obligations could then cover the cost of such negative outcomes.

The inherent difficulty in forming such an international treaty would lie in the very lengthy procedures required to find a consensus on the provisions. Also, as is well known, some States such as the U.S. are quite reluctant to bind themselves to new international treaties.

This article was written by Ivan Fino, Pietro Santoriello and Gabriele Faggioli (Partners4Innovation).