Space Traffic Management in the EU Space Act: Beneficial Extraterritoriality for Regulating Foreign Commercial Actors?

Introduction

The growing number of space actors, including emerging space-faring nations and commercial enterprises, heightens the risk that national activities and interests may eventually come into conflict, potentially leading to security, safety and environmental problems in near-Earth orbit. For example, a note verbale from the Permanent Mission of China to the United Nations reported that the Chinese Tiangong Space Station was forced to perform avoidance manoeuvres on two separate occasions in 2021 to prevent potential collisions with SpaceX's Starlink satellites. However, the United States of America (US) responded that it is unaware of any contact or attempted contact by China to communicate with SpaceX or US officials regarding their concern prior to the perceived potential incidents. Notably, SpaceX's Starlink satellites are implicated in approximately 1,600 close encounters between spacecraft each week, accounting for about half of all such incidents. This episode exposes two major gaps in current space traffic management: first, the absence of universal rules for space traffic operations; second, the lack of an established coordination mechanism.

The current international framework, namely the five international treaties and five sets of principles on space-related activities conducted by the Committee on the Peaceful Uses of Outer Space (COPUOS) (hereinafter OST and associated treaties), does not address space traffic management. But States are taking space traffic management action domestically (e.g. US) and others have called for work on space traffic management through the COPOUS (e.g. Germany) to address the issues demonstrated in the SpaceX encounter above. Amid this lagging international progress, the EU has taken the initiative by proposing its own legislation on space traffic management.

This blog examines the proposed EU Space Act in addressing the legal gap in regulating space traffic. The article first reviews the current international legal framework and the gap concerning space traffic management. Second, by reference to a previous report by the European Space Policy Institute (ESPI), I argue that the proposed EU Space Act's steps to address that gap are appropriate and useful. I conclude by discussing the 'Brussels Effect', whereby the proposed EU Act may may prompt the development of space traffic management rules elsewhere in line with the EU Space Act, based on the extraterritorial effect it exerts.

A final piece of scene-setting is helpful, before we proceed: Space operations can be understood as having three different aspects: security, safety, and sustainability. Space traffic management has thus far largely fallen within the safety aspect. The EU Commission adopts a broad definition of space traffic management as 'the means and rules to access, conduct activities in, and return from outer space safely, sustainably and securely' (page 2 in Commission's joint communication, emphasis added).

Situating space traffic management in international space law

There is no universally accepted and fixed definition of space traffic management under the OST and associated treaties. However, space traffic management is essential for upholding the rights guaranteed to States under OST, such as freedom to explore and use outer space, and freedom of scientific investigation, as states' rights to access could be compromised by collisions and congestion.

As for its legal status, I argue space traffic management should be considered both an enabler and an obligation within the framework of the OST, as it is a precondition for fulfilling the treaty's rights and obligations.

As indicated by the name of the OST, the treaty contains various principles governing the activities of States in the exploration and use of outer space. However, OST and related treaties provide little in the way of a practical operations structure. This is a challenge because space traffic management can turn broad treaty principles into systematic, on‑orbit procedures. Article IX of the OST codifies the principles of due regard and the avoidance of harmful interference, requiring States to conduct their space activities with due regard to the corresponding interests of all other States Parties to the Treaty. This provision reveals the no-harm principle. However, protection against harmful interference is weak under Article IX: affected States may only request consultations rather than compel changes. Paragraph 3 of Article V of the OST is also relevant to space traffic management: it obliges States to immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena discovered in outer space that could pose a danger to the life or health of astronauts. However, it needs further explanation on whether the potential collision of spacecrafts will constitute 'phenomena' under this article. Therefore, without space traffic management, States cannot effectively ensure the safety, sustainability, and responsibility that the OST envisions.

Soft law, such as the Long-Term Sustainability Guidelines (the LTS Guidelines), also provides further building blocks for space traffic management. For example, LTS Guideline B.1 recommends sharing updated contact information and data on space objects and orbital events, while Guideline B.2 encourages improving the accuracy and utility of orbital data sharing. However, the language adopted by the LTS Guidelines is rather soft, as Guideline B.1 only stipulates that 'States and international intergovernmental organisations should exchange, on a voluntary basis, and/or make readily available regularly updated contact information on their designated entities authorised to engage in exchanges of appropriate information on on-orbit spacecraft operations…'. Moreover, the Guideline B.1.2 does not specify what constitutes 'appropriate means to enable timely coordination to reduce the probability of and/ or to facilitate effective responses to orbital collisions, orbital break-ups and other events'. Additionally, the LTS Guidelines primarily address States and intergovernmental organisations, with only limited reference to commercial actors, except for Guideline B.6, which pertains to operational space weather data and thus does not touch the issue of space traffic management. In general, the space traffic management rules in the LTS Guidelines are insufficient and lack binding force.

Space traffic management in the EU Space Act and its extraterritorial effect on third countries' space services providers

The proposed EU Space Act introduces two notable innovations. First, the Act also has a standalone Chapter V on Orbital Traffic Rules, now explicitly addressing and regulating space traffic management. Second, there are requirements for third-country operators and international organisations providing space-based services in the EU in Chapter III, which may enlarge the coverage of the EU Act due to its extraterritorial effect.

A 2020 report from the European Space Policy Institute (ESPI) suggested that space traffic management encompasses three complementary functions:

• monitoring (assessing the operational environment to ensure the safety of space operations);
• regulation (setting principles and rules for operations activities to ensure that they are not detrimental to the safety and long-term sustainability of the space operating environment); and
• coordination (organising stakeholder cooperation).

Chapter V of the proposed EU Space Act reflects all three dimensions.

Concerning monitoring, Article 102 empowers the competent avoidance authority to request up-to-date information on spacecraft. The provision addresses a longstanding operational obstacle in space traffic management, namely, the availability and reliability of orbital information. The provision corresponds with the LTS Guideline B.1 (information sharing) and Guideline B.2 (information accuracy) and specifies that the information be reported 'in the context of the annual reporting or of specific investigations carried out on Union spacecraft operators'. Critically, it transforms the LTS principle from soft law into EU hard law (while still currently in its proposal phase).

The dimensions of traffic regulation and coordination are both found in Article 103, which is titled Conditions for collision avoidance manoeuvres in case of high interest event. The Article distinguishes between cases where both spacecraft are registered with the EU's Collision Avoidance (CA) entity and cases where only one is. When both are registered, EU spacecraft operators are expected to agree on a CAM strategy under Article 103 (2); if no agreement can be found, the CA entity proposes a strategy based on right-of-way rules, guided by seven specified elements. If only one spacecraft is registered with the EU, the CA entity must still seek coordination, applying the same seven elements. This is a significant development compared to the LTS Guideline B.1.2; the EU Space Act provides clear criteria to determine appropriate means to avoid orbital collision (although the hierarchy among the listed seven elements remains somewhat unclear). This right-of-way approach, which is also directly promoted by the EU Space Act and has only previously been discussed in the NASA context, also represents a significant advancement in codifying rules into law.

Besides the concrete rules on space traffic management, Chapter III (in particular Article 15), which establishes rules on space services providers from third countries and international organisations, deserves close attention. Chapter III explicitly establishes the extraterritorial (over-)reach of the EU Space Act. Notably, the Regulation distinguishes between requirements for spacecraft operators and those for collision-avoidance space service providers. While the operational rules in Chapter V are carved out from direct application to third-country spacecraft operators (outside the scope of Article 15.1), other critical rules around space traffic management do apply to third-country operators, namely in respect of environmental sustainability (e.g. Article 70 on space-debris mitigation), safety (e.g. Article 69 on orbital positioning and information analysis, still apply to third-country operators). In particular, Article 15.4 stipulates that third-country collision-avoidance service providers are subject to the rules set out in Chapter V.

Two types of extraterritoriality could arise from the Act. The first is the direct extraterritorial application of the proposed EU law to third-country actors (e.g., environmental sustainability rules). Also seen in the EU Green Deal, direct extraterritoriality is sometimes criticised as overreach and may raise questions of regulatory autonomy under international trade law. The second is the indirect extraterritorial effect, namely the so-called 'Brussels Effect', where the influence of EU rules extends internationally as foreign actors are an incentive to adjust their practices to avoid regulatory divergence. This type of influence can leverage the EU's normative and market power to shape global standards. A parallel can be drawn with the EU's earlier extension of its Emissions Trading System (ETS) to aviation, a move characterised by some as 'collective unilateralism'. The EU only suspended its ETS for aviation when the International Civil Aviation Organisation introduced a comparable global scheme, thereby demonstrating how unilateral regional action can drive broader international standards.

The proposed EU Space Act demonstrates the EU's willingness to fill regulatory gaps left by stalled international negotiations or weak soft law, and is viewed as using its own standards to shape global practices.

Conclusion

The proposed EU Space Act marks a significant step forward in addressing the regulatory vacuum on space traffic management. By introducing clear operational rules, promoting right-of-way approaches, and extending certain requirements to third-country service providers, the proposed Act may exert extraterritorial influence, both directly and indirectly. This dual approach positions the EU as a catalyst for developing global space traffic management norms. While the proposed EU Space Act continues to place states as the responsibility bearer for space activities, aligning with the current space law framework, it demonstrates the potential, through unilateral and extraterritorial action, to help bridge international regulatory gaps.