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  • Writer's pictureKiran Mohan Vazhapully

Unified Heavens: Global Space Law and Policy Newsletter, Vol. 3 (4), 30 January 2024

Updated: Feb 14

Navajo Nation's Sacred Concerns vs. Commercial Space Ambitions: The Lunar Remains Controversy



In a contentious move, private companies Celestis and Elysium Space, aboard the Peregrine lander developed by Astrobotic Technology, unsuccessfully tried to send human remains to the moon, a first for an American-made spacecraft since the Apollo program. Launched aboard United Launch Alliance's Vulcan rocket, the Peregrine lander carried memorial capsules containing the remains and DNA of over 70 individuals.


However, the mission faced propulsion system issues shortly after launch, leading to a critical propellant leak that ultimately doomed the lander's moon landing ambitions. This mission, part of NASA's Commercial Lunar Payload Services program, has ignited a profound cultural and ethical debate, drawing objections from the Navajo Nation.

 

Navajo Nation's Stance

 

Buu Nygren, President of the Navajo Nation, had voiced strong opposition to this mission, deeming the lunar deposit of human remains a desecration of a celestial body held sacred in Navajo cosmology. The Navajo Nation's concerns stem from their spiritual connection to the moon, viewing it not as a site for human remains but as a revered entity in their cultural narrative. Despite not opposing space exploration as a whole, the Navajo Nation emphasizes the need for consultation and respect for indigenous beliefs in space missions, recalling a similar objection to NASA's Lunar Prospector mission in 1999.

 

Commercial Entities' Perspective

 

Celestis and Elysium Space, the companies behind the lunar burials, counter the Navajo Nation's concerns, arguing that their missions are a celebration of human achievement and not a desecration. They highlight the individual and familial significance of these "memorial spaceflights," comparing them to earthbound memorials which are not viewed as desecrations. They assert that no single religious belief should dictate space missions and that their practices are handled with care and reverence.

 

NASA and U.S. Government's Role

 

NASA, while a primary customer of this mission, has limited oversight over these commercial payloads. The agency acknowledges the cultural concerns raised but points out the commercial nature of the mission, highlighting the evolving landscape of lunar exploration and industry standards. The U.S. government, recognizing the complexity of the issue, has convened an interagency group to review the Navajo Nation's objections.

 

The Navajo Nation expressed a mix of relief and recognition of the broader setback following the failure of Astrobotic's Peregrine lander, which burned up upon re-entering Earth's atmosphere. This incident prevented the delivery of human remains to the moon, a plan that had sparked significant controversy. Despite the failure, Celestis, one of the companies involved in the lunar memorial plan, has vowed to continue its efforts in the future.

 

Legal and Ethical Implications

 

The debate underscores a broader question of who controls the moon and how cultural, ethical, and religious considerations should be balanced against scientific progress and commercial interests. The controversy raises vital questions about oversight, regulation, and respect for diverse beliefs in the burgeoning era of commercial space exploration. With the lunar economy at its dawn, these discussions are pivotal in shaping future space policies and practices.

 

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ISO Introduces New Space Standards for the Future


In a significant move towards regulating and guiding the burgeoning space and artificial intelligence sectors, the International Organization for Standardization (ISO) has recently published several key standards. On January 1, 2024, ISO unveiled a new standard focused on the design, testing, and operation of large constellations of spacecraft in Low Earth Orbit (LEO). This standard addresses the challenges these constellations pose, such as pressure on the orbital and electromagnetic environments and mission design complexities. It emphasizes practices for ensuring safety from re-entry hazards and promoting the long-term sustainability of space operations.


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SpaceX's Legal Battle Against NLRB


SpaceX's recent lawsuit against the National Labor Relations Board (NLRB) marks a critical juncture in the dialogue around federal union protections. Stemming from an NLRB complaint alleging SpaceX's illegal firing of employees over an open letter criticizing Elon Musk, SpaceX's suit claims constitutional violations by the NLRB. This action brings to light the complex interplay between corporate governance, employee rights, and constitutional law.

 

Constitutional Arguments at Play

 

The heart of SpaceX's argument revolves around the NLRB's structure, which the company asserts violates Article 2 of the Constitution and the Fifth and Seventh amendments. By focusing on the NLRB's employment structure and the administrative law judges' insulation from presidential removal, SpaceX challenges the constitutionality of the agency’s quasi-judicial and quasi-legislative functions. This argument is reflective of a broader trend in the US legal landscape, where the Supreme Court's conservative majority has shown willingness to reconsider regulatory agencies' authority.

 

Broader Implications for Administrative Law

 

SpaceX's lawsuit transcends beyond a mere corporate defence against a labour complaint. It signifies a deeper legal contention with the structure of the NLRB, echoing previous challenges to federal agencies' roles in the administrative state. The case raises profound questions about the separation of powers, the right to a jury trial, and the extent of the executive branch's control over administrative agencies. This case, therefore, holds the potential to reshape longstanding assumptions and practices within the US legal system.

 

Contextual Analysis

 

SpaceX's legal challenge is emblematic of a growing sentiment in certain corporate and legal circles questioning the extent and nature of regulatory oversight in the United States. It revisits constitutional debates central to the formation of the modern administrative state, particularly in the wake of the New Deal. The outcome of this case could set a precedent with far-reaching consequences, potentially leading to re-evaluations of various regulatory frameworks and the role of federal agencies in enforcing labor laws.

 

Moreover, the SpaceX lawsuit is situated within a broader judicial landscape where the Supreme Court's appetite for redefining administrative law is increasingly evident. The implications of a potential victory for SpaceX could reverberate through various sectors, challenging the foundational structures of multiple federal agencies and prompting legislative reconsideration of their constitutional validity.

 

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FCC Reinforces Commitment to Space Safety with Clarified Orbital Debris Mitigation Rules



The Federal Communications Commission (FCC) has recently taken decisive steps to clarify, but not alter, its orbital debris mitigation rules. In a unanimous decision during their January 25 meeting, the FCC commissioners voted to uphold the existing regulatory framework while providing additional guidance for satellite operators. This move underscores the FCC's dedication to ensuring space safety and sustainability.

 

Addressing Industry Concerns and International Involvement

 

The FCC's decision responded to industry petitions that sought changes to the 2020 rules. Notably, a joint petition by several leading industry players, including Boeing and Planet, raised concerns about disclosure requirements and their alignment with U.S. government guidance. The FCC concluded that its rules were not fundamentally inconsistent with other guidelines and dismissed concerns about burdensome disclosure rules.

 

Furthermore, the FCC addressed SpaceX's petition to apply these rules equally to both U.S. and foreign companies. The FCC mandated that foreign companies seeking market access must demonstrate compliance with orbital debris mitigation rules, providing a balanced approach between domestic and international operators.

 

Project Kuiper's Proposal and FCC's Future Plans

 

Amazon's Project Kuiper petitioned for the inclusion of orbital separation requirements in the rules, a request that the FCC ultimately rejected. The commission maintained that coordination among satellite operators is key to space safety, especially as satellite constellations grow.

 

The FCC's decision forms part of a broader "space innovation" agenda, which includes proposals for licensing spacecraft for in-space servicing, assembly, and manufacturing. This agenda reflects the FCC's commitment to pioneering regulatory approaches in the rapidly evolving space industry.

 

Simultaneous with the FCC's decision, a group of senators introduced the SAFE Orbit Act, legislation designed to support space traffic coordination activities by the Office of Space Commerce. This act aligns with the FCC's efforts, highlighting the growing emphasis on comprehensive space traffic management and safety at a national level.

 

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Back to the Moon


Belgium Joins Artemis Accords



Belgium became the 34th country to sign the Artemis Accords, a set of principles for space exploration led by NASA. The signing ceremony in Brussels was attended by Belgian officials Hadja Lahbib and Thomas Dermine.

 

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Oman's Space Aspirations: Establishing the Middle East's First Spaceport in Duqm


Oman has announced a groundbreaking plan to establish the Middle East’s first spaceport, setting the stage for a new era in regional space exploration and development. The proposed spaceport, which is expected to be fully operational by 2030, is to be set up in the strategically positioned port city of Duqm. This move places Oman at the forefront of the Middle Eastern space race, aligning with global aerospace standards and attracting international interest.

 

Strategic Advantages and International Interest


The port’s equatorial location offers unique advantages for space launches, making it a prime spot for such a significant venture. Recognising this potential, global aerospace leaders like Blue Origin and Virgin Galactic have shown a keen interest in utilising this location for their space tourism ventures. The adherence to the US Federal Aviation Administration's rigorous standards further bolsters the spaceport’s appeal as an international hub for space exploration.

 

Economic and Educational Boon


Oman’s foray into the space industry is not limited to the establishment of the spaceport. The Sultanate is also planning to construct the Etlaq Space Launch Complex under the auspices of the National Aerospace Services Company (Nascom). This project is expected to catalyse the region's space programmes, while also providing opportunities for local educational research initiatives. The launch centre, with the potential to be operational as soon as next year, is designed to be globally accessible, inviting a diverse range of international clients.


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Latest from India's Space Telecommunications


Eutelsat OneWeb Seeks Government Clarity on Satellite Spectrum


In light of India’s new Telecommunications Act, Eutelsat OneWeb is actively seeking clarity from the Indian government regarding the specifics of satellite spectrum allocation. This global satellite entity, supported by the Bharti Group, is preparing to launch satellite broadband services in India. Their query focuses on the available spectrum bands for satellite broadband, the quantum, terms, and the pricing methodology for the administrative allocation of airwaves. Eutelsat OneWeb's move is significant in the context of India's burgeoning satellite communications market, where it aims to lead ahead of other major players.

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Indian Space Industry Calls for Reforms and FDI Clarity


The private space industry in India, represented by the Indian Space Association (ISpA) and Satcom Industry Association (SIA-India), is advocating for comprehensive reforms and clear guidelines on foreign direct investment. Following the government's decision to allocate satellite-based spectrum administratively, these bodies are pushing for the approval of the Space Activity Bill in Parliament. This bill is expected to cover various aspects of India's space ambitions, including space insurance, international obligations, and private sector participation. The industry also seeks increased financial support and incentives to boost innovation and competitiveness in the space sector.


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Reliance Jio Nears Approval for Satellite Internet Services


Reliance Jio, led by Mukesh Ambani, is on the verge of obtaining essential authorizations from IN-SPACe to introduce satellite-based internet services across India. Collaborating with Luxembourg-based SES, Jio is poised to join the competitive satcom market in India, which already features players like Eutelsat OneWeb, Starlink, and Amazon. The company's impending approval for landing rights and market access is a crucial step in its journey to offer gigabit fibre services via satellite. This development aligns with the Indian government's goal, supported by the Telecommunications Act of 2023, to expedite satellite spectrum allocation and boost India’s space economy, projected to significantly grow by 2033.

 

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European Commission Collaborates with ESA and EIB to Boost Space Financing


In a strategic move to enhance the financing of space companies, the European Commission (EC) has forged an alliance with the European Space Agency (ESA) and the European Investment Bank (EIB). Signed on January 24, this tripartite agreement aims to simplify access to various financial resources to nurture Europe's space ecosystem.

 

A primary investment channel for the EIB in the space sector is the Strategic European Security Initiative (SESI). Launched in 2022, SESI is a five-year fund with an allocation of 8 billion euros, primarily directed towards security and defense assets. Despite the fund's considerable size, only a fraction has been dedicated to space, an industry increasingly recognized for its strategic importance.

 

Recognizing space as a key priority area, the SESI fund is pivotal for Europe in its pursuit of enhanced sovereign capabilities. These capabilities include ambitious projects like a broadband constellation, expected to be contracted by the end of March, as Europe endeavors to match the advancements of the United States and other non-EU countries.

 

Access to financing, however, continues to be a significant hurdle for domestic space projects, as highlighted by EC director-general for defense and space, Timo Pesonen. To address these challenges, the EC, ESA, and EIB plan to conduct regular meetings to identify and discuss financial bottlenecks in space financing.

 

Further steps include the EIB's commitment to proactively seek promising European space projects, offering them financial advice and facilitating access to debt financing. The institutions also intend to share insights on successful public-private partnerships (PPPs), aiming to encourage more PPP space projects within the EU.

 

This partnership aligns closely with the recent launch of a 175 million euro equity fund by the European Investment Fund, a division of the EIB focusing on startups and SMEs, which also holds potential benefits for the space sector. Additionally, Europe's Cassini space entrepreneurial initiative, which includes a one billion euro seed and growth fund, further underscores the region's commitment to fostering a robust and dynamic space industry.

 

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Space Security


US DoD Revamps Classification Policy to Enhance Space Program Collaboration




 The Department of Defense (DoD) is taking significant steps to modernize its approach to classifying space programs. Deputy Secretary of Defense Kathleen Hicks has endorsed a new policy, fundamentally revising the classification standards for space programs. This move, as explained by DoD Assistant Secretary for Space Policy John Plumb, shifts away from the stringent use of Special Access Program (SAP) status. The aim is to foster greater openness within the department and with US allies and industry partners, moving from a culture of secrecy to one that supports more inclusive and collaborative space operations.

 

Collaborating with Allies and Industry


This policy change marks a critical transition in how the DoD handles its space programs, especially regarding cooperation with international allies and industry stakeholders. The revision seeks to lower barriers to information sharing by reducing the classification level of certain programs from SAP to Top Secret or lower. This strategic move is expected to provide significant benefits to warfighters and the department at large, enabling a more integrated approach to military space operations. It is a response to the growing importance of space as a domain for national security and acknowledges the need for increased collaboration and information sharing in this area.

 

The Impact on Global Space Dynamics


The DoD’s revised classification policy is set against a backdrop of escalating space militarization by global superpowers. By lowering classification levels, the DoD hopes to create an asymmetric advantage and force multiplier, countering potential challenges from nations like China and Russia. This policy shift is not just about declassifying information but strategically sharing it to bolster the United States' superiority in space. The new approach signifies a significant departure from past practices and is a step towards more effective and collaborative space program management, aligning with the broader goals of US military and its allies in space.


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China Launches G60 Mega-constellation to Rival SpaceX's Starlink


China's strategic endeavour to strengthen its position in the global space race has reached a new milestone with the commencement of production of the G60 Starlink mega constellation in Shanghai. Marking a direct challenge to SpaceX's Starlink, the first satellite of this ambitious project rolled off the assembly line at the digital-production plant in Shanghai’s Songjiang District. With plans to launch and operate at least 108 satellites by 2024, this state-of-the-art facility, managed by Shanghai Gesi Aerospace Technology, aims to achieve a production capacity of 300 satellites per year. This rapid production rate significantly reduces the satellite build time, demonstrating China's commitment to expanding its space technology capabilities.


Shanghai's Space Ecosystem: A Hub for Innovation


The G60 Starlink project is a cornerstone of Shanghai's broader initiative to develop a comprehensive commercial space ecosystem by 2025. This initiative encompasses the entire spectrum of space-related activities, including satellites, launch vehicles, and related infrastructure. The project, part of the Yangtze River Delta G60 Science and Technology Innovation Corridor, aims to produce 50 commercial rockets and 600 commercial satellites annually. This ambitious goal is supported by recent investments and the establishment of new manufacturing capacities by both state-owned and commercial entities, illustrating China's aggressive approach to becoming a dominant force in the global space industry.


Competing Mega-constellations and Global Implications


With the G60 Starlink and the 13,000-satellite Guowang (SatNet) national network, China is not only intensifying its competition with the United States but also laying the groundwork for significant global internet connectivity improvements. These developments have the potential to revolutionize access to the internet in remote and underserved areas, fostering economic growth and advancing global health initiatives. However, this rapid expansion in low Earth orbit (LEO) communications raises crucial issues concerning space traffic management, collision avoidance, and the mitigation of orbital space debris, posing new challenges for international coordination and technological innovation.


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Mark Your Calendars


Saudi Space Agency’s Global Dialogue on Space Debris



The Saudi Space Agency is set to host its inaugural conference on space debris. Titled "Securing the Future Growth of the Global Space Economy," this event, starting on February 11 in Riyadh, is organized in collaboration with the Saudi Communications, Space and Technology Commission and the UN Office for Outer Space Affairs. It marks a crucial step towards raising international awareness of the challenges and risks posed by space debris.


The two-day conference aims to become a leading platform for space industry leaders, experts, and enthusiasts. It will shed light on the growing concerns of space debris and discuss strategies to combat it through effective global governance. The conference will also delve into necessary policies, legislation, and innovative research needed to tackle this escalating issue, highlighting the agency's commitment to enhancing sustainability in space.


The conference will cover a range of critical issues, including the analysis of space debris concerns and the exploration of hurdles in relevant legislation and policy-making. A significant focus will be on encouraging discussions on innovative research in space debris removal, emphasizing the role of cutting-edge technologies such as artificial intelligence in managing space traffic. This event underlines the Saudi Space Agency's dedication to promoting environmental sustainability and the sustainable use of outer space, aiming to raise public awareness and support for innovative solutions to this critical environmental concern.


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Kiran is a senior lawyer working for an intergovernmental organisation based in New Delhi. He was an Erin J.C. Arsenault Graduate Fellow at the Institute of Air and Space Law, McGill University, where he specialised in space law. He is also a visiting professor at National Law School, Bangalore. He is the founder of the Unified Heavens newsletter on global space law and policy. 

 

 



 

 

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