While international space law has served us well since the 1960s, there are gaps and uncertainties which have been filled by non-binding principles. It is time to consider more detailed and nuanced rules for the responsible governance of outer space.
The Outer Space Treaty (OST) and the other United Nations (UN) Space Treaties (Rescue and Return Agreement, Liability Convention, Registration Convention, and, to a much lesser extent, Moon Agreement) have provided a solid framework for the use of space since the 1960s. However, the increased commercial use of outer space and growing tension over space as a potential place of conflict have reopened the question of how space can be governed.
Outer space is an inherently international domain. Activities in space can affect actors in outer space and on Earth. Recognising the uncontrollable potential impact on Earth of a nuclear detonation in space, the first specific reference to outer space in a multilateral treaty was in the Partial Test Ban Treaty in 1963. The US and USSR each announced compliance with this prohibition by refraining from placing any weapons of mass destruction or nuclear weapons in outer space. UN General Assembly (UNGA) Resolution 1884 called upon states to “refrain from placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space,” and this wording was adopted in Article IV of the OST.
Currently, the OST has 112 ratifications and 23 signatories. It reflects a successful compromise between the Cold War-era space powers, however, its scope and interpretation are increasingly challenged. The OST focuses on transparency, cooperation, and ensuring freedom of access to space. For example, Article I provides that the exploration and use of outer space “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Article III explicitly obliges states to “carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” However, beyond the clearly aspirational wording, there is little consensus on customary international law to fill in the gaps between those provisions. There is, however, a growing patchwork of non-binding norms and voluntary guidelines.
Recent years have witnessed the exponential creation of space debris, largely due to the intentional destruction of satellites by Direct-Ascent Anti-Satellite (ASAT) tests. Further concerns include the potential congestion of low Earth orbit (LEO), consequent challenges to viewing of the night sky and spectrum scarcity from the deployment of massive constellations of communications satellites, and the standing up of military space forces by several nations. Further, the US-led Artemis Accords have been criticised as an attempt to undermine international law. The Artemis Accords now have 21 members, exceeding the number of signatories of the Moon Agreement. At the same time, both Russia and China have announced their intention to send humans to the Moon. Each of these missions will likely target the same areas of the Moon and engage in resource extraction necessary for a sustained presence on the Moon. The UN Space Treaties and applicable international law are at least stretched by such activities.
Non-binding norms and confidence building measures
The UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) deals specifically with matters related to the peaceful uses of outer space. Matters relating to military uses of space are referred to the UN Conference on Disarmament (CD). This creates issues for establishing a clear forum for progressing further treaties on arms control with respect to outer space. Progress been made only in areas of non-binding principles, such as the UN Group of Governmental Experts on Transparency and Confidence Building Measures in Outer Space Activities and the voluntary Guidelines for the Long-term Sustainability of Outer Space Activities.
Of course, UNCOPUOS is not a governing body, nor is it a dispute resolution body. When China provided a Note Verbale to UNCOPUOS in late 2021, alleging that two Starlink satellites launched by SpaceX had created “dangers to the life and health of astronauts aboard the China Space Station,” requiring the China Space Station to implement two preventative collision avoidance manoeuvres, it was clearly an opportunity to call out the US for the behaviours of a US-based commercial entity. The note served as a notification to the UN secretary-general under Article V of the OST of a potential danger to the life or health of astronauts and remind parties of their obligations under Article VI.
Article VI of the OST requires states parties to “bear international responsibility for national activities in outer space…whether such activities are carried on by governmental agencies or by non-governmental entities and for assuring that national activities are carried out in conformity with the provisions set forth” in the OST. Further, it requires that states must exercise “authorization and continuing supervision” over “the activities of non-governmental entities in outer space.” While this articulates the principle that states must be responsible for all activities undertaken by government, private, and commercial actors in space, it remains unclear and contested how far the concept of “national activities” extends.
With more commercial entities operating in space, often in partnership with governments, this principle will be put to the test. This uncertainty increases tension with respect to responsible space governance and creates an opportunity for grey zone rivalry.
Creating Norms of Responsible Behaviour
In December 2021, the UNGA passed the UK-sponsored Resolution “Reducing Space Threats through Norms, Rules and Principles of Responsible Behaviour.” This resolution convened an open-ended working group (OEWG) to consider current and future threats to space systems and “make recommendations on possible norms, rules and principles of responsible behaviour relating to threats by States to space systems.” These recommendations are also to include how such norms would “contribute to the negotiation of legally binding instruments, including on the prevention of an arms race in outer space.” The OEWG will hopefully push past the logjam in the CD with respect to work on prevention of an arms race in outer space and contribute to the development of norms of responsible behaviour, which may then serve as the basis for the development of more binding treaties.
The US has declared a moratorium on destructive ASAT tests and intends to introduce a resolution at the UNGA in September 2022 calling for a halt on such tests. Certainly, this will be a key discussion point at the OEWG in considering irresponsible behaviours.
These developments provide an opportunity to push forward with the next phase of space governance to develop legally binding rules which will support and facilitate greater commercial use of the space domain, and safe, sustained human presence in space. The Outer Space Treaties still represent a solid foundation for the safe and peaceful uses of space, but some work is needed to create new laws for the new uses of space that are rapidly developing and deter any conflict which may prevent this from flourishing.
Professor Melissa de Zwart is Professor (Digital Technology, Security & Governance) Director, Jeff Bleich Center for the US Alliance in Digital Technology, Security and Governance at Flinders University and Deputy Chair of the Space Industry Association of Australia.
This article is published under a Creative Commons License and may be republished with attribution.