The “due regard” obligation in the deployment and operation of satellite mega-constellations

Abstract

Satellite mega-constellations pose significant challenges to space traffic management and environmental governance. The due regard obligation under Article IX of the Outer Space Treaty, which is critical to addressing regulatory gaps, plays an important role in coordinating the activities among actors, promoting common interests, and adapting to technological advances. It presents both substantive and procedural obligations for the regulation of mega-constellations. At the substantive level, due regard entails the balancing of rights and interests in cases of unreasonable interference. Conflict may arise from mega-constellation activities with regard to the risk of orbital collisions, interference with spacecraft launches, interference with astronomy, and impacts on the space debris environment. Guided by the obligation, the State concerned should take coordinated action to avoid collisions, reserve launch windows for critical space missions, minimize impacts on astronomy, and enhance space debris mitigation measures. At the procedural level, due regard requires cooperation between States in the form of impact assessment, notification and consultation, building trust, and maximizing the utility of resources and space. Furthermore, in order to address the challenges posed by mega-constellations, there is an urgent need to develop and improve space traffic management regimes.