China claimed it had to move its new space station twice last year to avoid close approaches by SpaceX Starlink satellites. (credit: CMSA)

China says Elon Musk’s Starlink is “phenomenal,” but what is the real message?

by Michelle Hanlon and Josh Smith
Monday, January 3, 2022

On December 3, 2021, China used a diplomatic message known as a Note Verbale to inform the Secretary General of the United Nations of a “phenomena” they discovered in outer space that “could constitute a danger to the life or health of astronauts.” The perilous culprit was not a threatening alien spacecraft or even a hazardous field of space debris, as was created by Russia when it tested an anti-satellite weapon in November. No, this danger to life or health was Elon Musk.

It is inarguable that China has raised a legitimate concern. The Chinese Space Station, launched over the course of five missions in 2021, has experienced two close encounters with SpaceX Starlink satellites in July (Starlink-1095) and October (Starlink-2305). These encounters were close enough to require the Chinese to expend precious propellant to implement preventive collision avoidance maneuvers. This is a very serious issue and puts necessary focus on the fact that low Earth orbit, which hosts more than 3,000 operational satellites that supports, betters, and saves lives here on Earth, is starting to get dangerously crowded.

Some incongruities

But the multitude of incongruities in both the message and the circumstances raise serious questions about exactly what China is seeking to convey in this diplomatic salvo.

First, it is important to point out that although imperfect and over-broad, there are a number of general principles in the form of a Treaty that more than 100 countries, including China and the United States, have agreed govern human activities in space. Article IX of the Outer Space Treaty is very clear that all parties to the Treaty “shall conduct all their activities in outer space… with due regard to the corresponding interests of all other” parties. As the Chinese Note Verbale helpfully points out, Article VI of the Treaty also makes it very clear that nations are responsible for the activities of their nationals. Thus, the United States is responsible for what the Chinese consider the potentially dangerous phenomena that is Elon Musk’s Starlink.

Why Article V?

The problem, and the first oddness, is that China did not invoke the due regard clause of Article IX in its admonition. Instead, it relied on Article V, which is devoted to the protection of astronauts. This in and of itself raises a barrage of additional questions.

Does reliance on the provision intended specifically to protect astronauts signal that the Chinese are truly only concerned about human life? The concerns raised would have much more sweeping implications if the Chinese government had relied on the much more general “due regard” provision of Article IX.

Notably, the Article IX provision requires only that the countries involved have a “consultation” if harmful interference is anticipated. Is the use of the astronaut provision a strategic decision by the Chinese government to “virtue signal” and call out the Americans on the world stage?

What more from Starlink?

A second absurdity lies in the fact that the United States has developed one of, if not the most, robust and transparent regulatory regimes governing space activities in the world. This is clearly demonstrated by the fact that the Chinese were able to specifically identify the satellites they had to avoid in the Note Verbale. China acknowledged it knew of the path of both Starlink satellites, leading to the collision-avoidance maneuver—likely based off the information in the international registry of space objects maintained by the United Nations (which was envisioned by Article VIII of the Outer Space Treaty) and the plethora of technology tracking orbital space objects.

Article VIII of the Outer Space Treaty was extrapolated into the Registration Convention, which obligates countries to maintain national registries of space objects and contribute to the international registry maintained by the UN. The purpose of these registries is to create transparency in attributing responsibility and liability. To this end, Article IV of the Registration Convention specifically requires several data points on a space object be submitted when registering, including the basic orbital parameters, including: “nodal period, inclination, apogee, perigee,” as well as “the general function of the space object.” The United States has implemented this international obligation into federal law under 14 CFR § 417.19, requiring commercial space actors provide the same information for the US’s national registry.

Starlink 1095 and Starlink 2305 were registered on the international registry, with the above information. Starlink 1095 was launched January 7, 2020, and Starlink 2305 was launched March 24, 2021. The astronauts on board the Chinese space station did not launch until June 17, 2021. Therefore, China was aware of the existence and approximate orbital parameters of these space objects at the time it launched its personnel, and again at the time of the alleged, potential collision. China will need to expect such maneuvers moving forward as orbit becomes more congested if they want to continue to be a player in this space—just like every other country.

US obligations?

A third curiosity is the language used by Chinese diplomats in explaining their actions. At a routine briefing on December 28, 2021, Chinese foreign ministry spokesman Zhao Lijian stated that the United States “disregarded its Treaty obligations and posed a grave threat to the safety of astronauts.” Here, the obligation of the United States can be found, as pointed out by the Chinese Note Verbale, in Article VI of the Outer Space Treaty which indicates that nations are responsible for the activities of their nationals (in this instance, SpaceX) in outer space and for assuring that all such activities are carried out in conformity with the Treaty. Yet the United States has not violated any international treaties or customs in permitting SpaceX to operate Starlink. And Starlink was operating lawfully in orbit. The fact that low Earth orbit is crowded does not, as the Chinese seem to suggest, mean that crewed space stations must take precedence over all other space objects—though that is clearly something that the international community can agree on in the future.

From a language standpoint, the Chinese interpretation of a “phenomena” also raises question. It is puzzling to think that the standard operation of a satellite would be considered a “phenomena”—a word defined commonly defined as a fact or situation whose cause is unexplained or in question. Taking China’s interpretation would mean any country that has personnel in space will have the absolute power to criticize un-crewed space objects that may have been operating in a defined orbit for decades. It is inconceivable that operating a satellite with continuing supervision and due diligence is a “phenomena” under any Treaty interpretation.

And about that ASAT test

Finally, the timing and context of the message cannot be ignored. The Note Verbale was issued just a couple of weeks after Russia decided to exhibit their anti-satellite capability by destroying one of their own defunct satellites using a ground-based missile. While this demonstration did not violate any treaty obligations, it did create a field of debris that threatened humans on the International Space Station. While that test was not illegal by any metric, it offered much less benefit to humankind compared to the fully-registered Starlink satellites bringing life-changing access to the internet to rural areas. And, the lack of response from China on this incident demonstrates that such obligations only matter when its own investments are at risk.

Of course, the Chinese cannot be expected to go through the trouble of taking diplomatic note when its own nationals are not imperiled. Yet, one cannot but wonder how this fits into the context of another current event, namely, their recent revelation of a road map for a joint Moon base, the International Lunar Research Station.

Let’s take a direct approach

Elon Must certainly is phenomenal. But not in the way China suggests.

While the protection of humans is an absolute must as we begin to spread our populations into the stars, the international stage should not be used as a means to strongarm your way into orbital paths that are known to have existing space objects under the guise of protecting astronauts. At a certain point, the nation launching its personnel, knowing that space objects exist in the path of such personnel, needs to accept that maneuvers will be necessary to protect their citizens and not cry out or blame other States Parties operating in good faith, with continuing supervision, and with due diligence. Clearly, something more is afoot here.

Nevertheless, the Note Verbale provides stark proof that our international space law framework needs updating yesterday. Certainly, the marked increase in small satellite constellations poses new and heretofore unanticipated stresses on the current space law regime. Hopefully, the international community will be able to derive and agree to norms and even new laws that will fill out the basic guidelines set forth in the Outer Space Treaty and address not just satellite constellations but also orbital debris remediation, space resource utilization, and space solar power. However, steps in this direction must be made transparently, in good faith, and expand beyond the protection of humans in space to encompass and tease out the concept of due regard for all activities in space.

Michelle Hanlon is space lawyer and Co-Director of the Center for Air and Space Law at the University of Mississippi. She is President of the National Space Society and Co-Founder of For All Moonkind, the only organization in the world focused on protecting human heritage in space.

Josh Smith is an attorney at Bell Nunnally & Martin LLP in Dallas, Texas, with a practice area focused on mergers & acquisitions and other general business transactions. Josh obtained his Dual BA in political science and public relations at Virginia Tech prior to attending SMU Dedman School of Law in Dallas, Texas. He is currently a candidate for his LL.M. at the University of Mississippi Center for Air and Space law.

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