The public debate triggered by the possibility of Italy equipping itself with a satellite network supplied and controlled by a private company from outside the EU focuses rather myopically on the issue of “ceding sovereignty” over critical infrastructures. It forgets that telecommunications networks have not been under Italy’s exclusive control for years, and that public institutions and companies have been in a similar situation for even longer when it comes to using software and platforms. Finally, as in other areas of technology, the time and investment required to regain a degree of autonomy in the space sector are incompatible with today’s needs. In this sense, even if the problem of satellite outsourcing were real, it would be nothing new.
Instead, two issues that are as crucial as they are related remain in the background: whether there is national sovereignty over Earth orbits, and whether or not orbits are regulated, as far as we are concerned, by the European Union.
Who owns Earth orbits?
The answer is (prima facie) simple: nobody.
In fact, there is currently a distinction between airspace, which is under national jurisdiction, and space, which, according to the 1967 Outer Space Treaty (OST), is considered to be the common heritage of mankind, but the problem is that it has not been decided once and for all where the sky ends and space begins (and, consequently, to whom the relevant orbits ‘belong’).
To date, the boundary between the Earth’s atmosphere and space has been conventionally identified with the ‘Kármán line’, about 100 km above sea level. Since the orbits used by satellite constellations are above this line, they (or rather the specific parts that ‘cover’ the territory) are not subject to the sovereignty of the states over which they ‘fly’.
However, this distinction is proving to be inadequate, as some terrestrial orbits, such as Low Earth Orbit (LEO), have become areas of intense economic and strategic activity, also for private actors, making the legal distinction derived from the intersection of the OST and the conventional attribution of the value of ‘border’ to the Kármán Line less and less tenable.
Why (and how) revise the legal concept of space?
From a political and legal point of view, the difficulty in drawing a boundary with outer space lies in the desire to use a physical rather than a normative parameter. In other words, it is not a matter of ‘drawing a line’ in the sky, but of deciding that if an area of the sky is susceptible to economic exploitation, then it becomes a legal (public) good and its use must be regulated.
Shifting the focus from the physical definition to a functional classification of space would allow states to extend sovereignty even over areas for orbital and sub-orbital activities, while space would remain subject to Outer Space Treaty principles such as freedom of exploration and peaceful use.
The legal distinction is not new. Lawyers have long debated the idea of extending national sovereignty upwards, based on the ancient Roman legal principle that law extends usque ad sidera – to the heavens, and thus without limit.
Although intuitively acceptable (there is no qualitative difference between a plane flying at 10,000 metres and a satellite orbiting 300 km above a state’s territory), this proposal was considered unworkable. Today, however, technological developments, changes in the market and geopolitical balances mean that this position needs to be reconsidered. On the other hand, it is a question of using a functional criterion rather than a scientific one, so that there is nothing to prevent the creation of a “national airspace”, to be added to the existing “national airspace”, in which the orbits of interest would fall.
Should it be done?
The creation of an ‘orbital jurisdiction’ would have concrete and immediate effects.
First, it would allow rational management of a resource, terrestrial orbits, which is vast but finite and therefore scarce, like radio frequencies or IPv4 numbers.
The creation of a system of concessions and authorisations (again by analogy with radio frequencies) would facilitate international agreements to regulate licences, allocate responsibilities and coordinate satellite constellations, thus reducing the risk of conflict and the militarisation of space.
Furthermore, harmonised legal instruments could better address the challenges of dual-use satellite technologies, ensuring a balance between national interests, shared security responsibilities and economic development. The only question is whether these issues can be addressed directly by the European Union, as they may fall within the competence of Member States.
Avoiding the Nightfall effect
Beyond the strictly geopolitical and industrial aspects, however, there is a deeper reason for the importance of regaining control of orbits, and that is to avoid what we might call the “Nightfall Effect”.
In the short story Asimov wrote in 1941, the civilisation of a planet periodically destroyed itself because, accustomed to living in a state of constant illumination by the suns around which it orbited, it went mad when, just as periodically, a moon caused an eclipse when there was only one visible sun. The inability to cope with darkness for even a few minutes plunged the inhabitants into such chaos that they almost became extinct, and so civilisation had to be ‘reset’ each time.
We are certainly not (yet) at such a level, but the congestion of satellites is already causing serious problems for terrestrial astronomical observation and astrophotography.
Together with light pollution, the indiscriminate growth of satellite constellations is in danger of blinding the very eye that made it possible to look at the universe and that, seeing infinity, decided to explore it.