Modern states face an acute struggle to provide affordable, reliable and low-carbon energy.
Russia’s war in Ukraine only underlines Europe’s hazardous dependency upon imported hydrocarbons. Confronted with these problems, states have been turning to solutions that have long been the realm of speculative fiction.
In 1941 Isaac Asimov imagined satellites in orbit around the sun transmitting power back to earth using microwave beams. Today, governments and academic institutions in Japan, the United States, China and the United Kingdom are working to develop and launch space-based solar power (SBSP) projects.
A detailed study of the economic and technical feasibility of such projects was published in the United Kingdom in late 2021 by the Department for Business, Energy and Industrial Strategy. This concluded that SBSP represented a viable means of helping the UK meet its climate change reduction objectives.
Such projects contemplate a large satellite or group of satellites being launched into geostationary orbit (GSO) and mounting kilometre-scale solar panels. Electricity generated by those panels would be transmitted using microwave frequencies to a ground station on earth. Because a satellite in GSO is exposed to the sun’s radiation 99% of the time, such a platform would not be subject to the problems of intermittency that confront terrestrial solar power.
Successfully introducing such projects on an international scale will place further burdens upon the already strained machinery of the international law governing outer space. Two international legal issues will be of particular importance.
Allocation of orbital slots
The main legal instrument governing outer space is the Outer Space Treaty of 1967 (OST) to which all of the major space operating states are party. This treaty aims to preserve outer space from interstate competition by providing that it shall not be subject to any form of national appropriation.
Unhelpfully, the OST does not provided any definition of where “outer space” begins, but on any view the OST applies to objects in GSO and to most of the other areas in which SBSP would operate.
While the OST prevents national appropriation of outer space, in practice states play an important role in allocating and distributing resources in space. In particular, there are only a limited number of available slots to place satellites in GSO and some of these are significantly more valuable because they are located above heavily populated areas.
Use of orbital slots in the GSO and elsewhere is regulated by the international telecommunication union (ITU). The ITU’s Constitution requires member states to treat events as limited national resources to be used ‘actually, efficiently and economically’.
In reality, access to orbit operates on a ‘first-come, first-served’ basis. A state wishing to launch a satellite into a particular orbital slot must register the assignment of that slot with the ITU. All such registrations must be made by a state. However, in practice many state registration applications are made …….