Fri, Jun 4, 2021

The future of global space governance for the new commercial era

GeoTech Cues by Inkoo Kang

Space Space Security

Outer space grows more crowded by the day, with some estimates indicating the number of satellites in orbit will triple by 2030. However, unlike in the past, this new space race is being driven primarily by commercial interests rather than nation states. Space is also no longer the exclusive domain of great powers, nor is it a sanctuary for science and exploration, having become central to most military operations.

Globally, there is much interest in the growing geopolitical and economic significance of space. However, one critical area has gone largely unaddressed: space governance. The current legal framework, drafted in an era when space was dominated by just two great powers, does not yet reflect a new era in which the majority of space activities will be conducted by private actors. As more players enter the domain, they are likely to encounter a governance system that will have little efficacy for dealing with space’s new challenges. To ensure that space remains safe and sustainable, policy makers must examine and remediate gaps within the current governance framework. 

Shortcomings of the current space regime:

Throughout the 1960s and 1970s, the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) established four multilateral treaties to govern outer space. Of the four agreements, the Outer Space Treaty (OST) was the inaugural and most fundamental. These arrangements established a nascent governance framework, but no new multilateral treaty has been agreed on since 1984 despite numerous attempts. The failure to establish new accords has left a fundamental flaw in the regime: it assumes space is a realm for nation-states, not companies or individuals.

Under the current framework, numerous studies indicate ongoing practices will render long-term space operations unsustainable. The limited number of orbital slots necessary for satellite operations, especially in geosynchronous-earth orbit (GEO), is shrinking as more actors vie for them. Moreover, an increasing number of states are developing capabilities that can disrupt, deny, or destroy space systems. Unaddressed, legal inflexibilities and ambiguity could spell disaster. Orbital debris could deny the United States and others access to critical orbits. Vague regulations regarding dual-use and anti-space technologies could threaten national and commercial objectives, and the lack of international cooperation could reduce the economic rewards of development. Successfully capitalizing on space is not inevitable—in fact, it could be impossible within a century due to the aforementioned trends. For the decade ahead, leaders from all sectors, nations, and industries must prioritize the construction of new governance measures to avoid cutting the new space era short.

Governance gaps:

The insufficiencies of the current regime are clear. Article VIII of OST, for example, assigns “jurisdiction and control” of assets to their state of registry, but it makes no mention of changing jurisdiction, indicating perpetual ownership. The 1972 Space Liability Convention builds off this principle and makes states permanently liable for damages, even if a non-governmental actor is at fault. Considering there are approximately thirty times more unregistered than state-registered pieces of orbital debris, such a measure is impractical. It not only puts the onus of debris reduction on the launching state, as opposed to the most capable or needed actor, but it also curbs commercial debris reduction ventures as it bans transnational debris removal without explicit state-authorization. Worse, there are no enforcement mechanisms or “rules of the road” to prevent the collisions that would create more debris. SpaceX demonstrated such gaps in 2019 when it refused take evasive measures after finding out one of its Starlink satellites risked colliding with a European satellite. The head of the Space Debris Office at ESA keenly noted, “Nobody did anything wrong. Space is there for everybody to use. There’s no rule that somebody was first here . . . Space is not organized.” Indeed, space is chaotic. Without clear international norms accounting for private sector involvement, disaster is only a matter of time.

From a security perspective, the regulations are equally insufficient. Article VI of OST notes that states are responsible for private activities in space that are “national activities.” However, it fails to distinguish whether “national activities” refer to the activities of a respective state’s citizens, activities originating from its territory, a combination, or a different category all together. Scholars argue this lack of specificity complicates the principle of lawful targeting. Although Article 52 of the Geneva Conventions distinguishes military assets as those that “by nature, location, purpose or use make an effective contribution to military action,” it also notes that in cases of doubt, “it shall be presumed not to be so used.” As a result, commercial satellites constellations may fall into a legal gray-zone as they perform multi-tiered, wide-ranging functions that vary depending on the subsection of satellites. For the principle of lawful targeting to hold, there must be some metric for commanders to reference as they determine whether a specific space system qualifies as a military asset. Unfortunately, the current treaties offer no clear demarcation for conventional weapons – they only ban weapons of mass destruction. Limited ambiguity may have been tolerable during the Cold War when the primary space threat was a nuclear strike from one of two great powers. With new actors and the further integration of commercial satellites into most military operations, however, there will be more opportunities for misuse, misunderstanding, and accidental casualties – jeopardizing even well-intentioned space ventures.

Regarding international cooperation, Article II of OST decrees that space and the Moon are “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Such a prohibition may have been feasible when only two nations could claim jurisdiction over space, but that is no longer the case. Ostensibly, private firms should not affect this proscription. However, the current framework has a possible loophole. Specifically, Article VI mandates that private firms must follow national laws. Consequently, if a state charters extraction activities, its companies would be required to adhere to the national regulations of the launching state under OST Article II. Both the United States and Luxembourg have passed legislation to allow their firms to mine in space, and more nations are following suit. Moreover, many private firms seek to establish operating hubs in space, which implies the authorizing states will have jurisdiction in certain areas. If diplomatic leaders do not address these loopholes proactively, there may be a future in which firms create pseudo-national colonies in space—the very scenario OST sought to avoid.

Ways forward:

No single system can function as a perfect model for governing space, but analogues do exist and suggest there may be ways to build a more practical legal framework for governing space activities. If history can serve as any indication, it is only a matter of time before some norms develop naturally. As the world’s leading space power, however, it is in the United States’ interest to be at the forefront of codifying those norms and to create a legal regime best aligned to its national and global interests. The following are five possible models to consider for a more effective regime.

New space order (NSO):

Contrary to popular belief, nowhere in the original treaties exist the phrases “global commons,” “res communus unum,” or “res publica”— specific terms that place legal limits against any one country establishing sole jurisdiction over a domain. Antarctica is considered a global commons for this exact reason. The only exception is found in the 1984 Moon Agreement—the final and most recent UN space arrangement. However, no space-faring nation has adopted the Moon Agreement. Thus, many scholars view it as a failure and do not consider space to accurately fit the legal definition of a global commons.

As more actors enter this domain, however, one option for the United States would be to unequivocally affirm space as a global commons where all parties, regardless of nationality, institution, or sector must adhere to the same global principles. While it may appear simplistic, a nascent form of this arrangement already exists in the United Nations International Telecommunication Union (ITU) and International Space Station (ISS). Established in 1947 and in 1998 respectively, many principles governing the two suggest that such a regime could work. Like orbital slots, radio frequencies are finite and require coordinated allocation. Thus, the ITU manages and allocates these networks to both commercial entities and every UN nation-state except Palau, the only non-signatory. The International Space Station Intergovernmental Agreement, which established the ISS, creates true governance as all its adherents must follow its code of conduct, which establishes standards for work, safety regulations, and even an arbitration process among other governance measures. The longevity of these arrangements suggests that nations can work together to ensure that space remains the “province of all mankind.”

Although the NSO approach would limit American freedom of action, potentially undermining an aspect of the 2020 Space Strategy, it would prevent other nations from establishing monopolies as well. Some even argue that such a policy may promote the US 2020 Space Strategy overall by securing key orbital slots against malicious actors. Considering that orbital debris, dual-use threats, and exploration are human, not just national, concerns, such a polycentric approach should not be dismissed outright.

Capabilities-based regime:

A well-known reality of nuclear governance is that the line differentiating civilian and military programs is complicated and razor thin. Regardless, there is a line. International regulations specify the degree to which a civilian program can enrich nuclear materials before they are considered weapons-grade.

Some states have called for an analogous regime to govern emerging space assets. The United Kingdom recently proposed a UN resolution that sought to “characterize actions and activities” that could be defined as threatening and to find the means to interpret such behaviors and determine “whether the systems will be used for purposes inconsistent with the objectives of maintaining international security and stability.” In short, it called for the United Nations to extend its jurisdiction into the national security arena—a highly controversial decision, but one that would clearly establish a new form of capabilities-based governance.

Although the most recent UN Group of Governmental Experts on the Prevention of an Arms Race in Outer Space failed to produce such a determination in 2019 due disagreements among the major space powers, renewed US efforts could lead to a breakthrough. As the leading presence in space, both commercially and civically, the United States has the most to lose from malicious actions. Due to the private sector’s growing capabilities, which will inevitably lead to military consequences, a more focused arms-control agreement could help minimize the risk of non-state actors harming US space assets, while also preventing the further proliferation of dual-use space assets. While a capabilities-based framework would not eliminate the possibility of hostile actions, it could set regulations that clarify when an actor should have concern for hostile-intent, which would mitigate potential for avoidable conflicts.

Bilateral agreements:

The United States recently took a major step toward space governance with the Artemis Accords, a set of common, bilateral principles for space exploration. Although limited to ten signatories at the time of writing, acceptance of the Accords established a framework of bilateral agreements among the United States and other like-minded nations for US-led space activities.

The Accords not only renewed space initiatives but also set the new precedent of “safety zones” around lunar operations, which some have decried as violating OST. Nevertheless, the United States showed that it did not need international consensus to set new measures: it could simply attract like-minded nations to create new “rules of the road.” Following this model, the United States could seek to keep the existing legal framework and welcome all interested parties. With enough signatories, the United States could position itself as a leader not just in space exploration but also governance. South Korea’s decision to join as the Accords as its first nonoriginal member indicates the promise of such an approach. For the foreseeable future, focusing on aspiring nations and building off incremental agreements could be a powerful tool for establishing a US-led space governance regime.

However, this approach has notable limitations. Specifically, it may inadvertently create spheres of influence in space. The Artemis Accords were controversial, with Russia and China being notable holdouts. Instead of joining, they established a parallel agreement that created a separate International Lunar Research Station. Limited governance measures among like-minded states may have net benefits, but such an approach would not eliminate all the dangers of the upcoming space era. Commercial space companies will not be limited to the boundaries of the United States and its allies, and China and Russia are the second and third leading space powers respectively. As such, parallel governance measures may not minimize the chances of fallout from orbital debris, conflicts over dual-use assets, and the appropriation of vital space resources.

Commercial arrangements:

Conversely, as the nation with the most developed commercial space regulations, investments, and satellites, the United States may not need to undertake bold initiatives like the Artemis Accords. It may simply be able to enforce compliance with domestic regulations through international commercial arrangements.

Worldwide, the number of launch contracts available for competition averages just twenty to twenty-five per year. Although the number is set to increase, the entities sending the most assets into space—SpaceX, Blue Origin, and Virgin Galactic—are all based in the United States. As international space commerce becomes the norm, foreign firms will have powerful incentives to conduct business with the United States, giving it significant leverage. The United States already has a history of utilizing its economic power to mold international regulations. In 2018, the Department of Commerce released its strategic plan to promote the US space industry with Strategic Objectives 3.1 and 3.2 suggesting such intentions. Requiring compliance on issues such as orbital debris mitigation, dual-use transparency, and cooperation could thus be a prudent, natural way to build the norms and codes necessary for future space activities.

However, overreliance on this strategy could be counterproductive. Stringent regulations could disincentivize investment in US firms and render them uncompetitive. The United States’ adversaries are hell-bent on becoming the world’s leading space power—Chinese space companies now number over one hundred, and several of them have reverse engineered SpaceX’s innovations for their own use. Moreover, the United States already has an excess of complicated regulations that span multiple departments. While it may work in the short run, adding gratuitous layers of complexity could end up harming US interests.

Deterrence:

Of course, a new framework could revolve around deterrence rather than laws. Some scholars argue that the prospects of Mutually Assured Destruction (MAD) established a precarious but stable equilibrium during the Cold War. Modeling this, the United States could capitalize on the ambiguities of the current laws, integrate commercial capabilities into military operations without inhibition, and embrace a laissez-faire policy toward space management, acknowledging that adversaries will do the same. In short, it could seek stability through martial equilibrium.

This approach would give the United States the most freedom to maneuver, but it would also undermine the premise of OST. Adversaries, as well as key allies, may criticize such a strategy, and further militarization would only exacerbate the risks of conflict, state-sponsored colonization, and orbital fallout. After all, as more societies become reliant on space capabilities, even non-kinetic, non-military disturbances could have significant repercussions. The uncontrolled reentry of China’s ten-story, twenty-three-ton Long March 5B rocket in May 2021 exemplifies the consequences a chaotic space global regime could have on global security.

Moreover, as some recent studies suggest, MAD may not actually have been very effective as a deterrent, leading some to argue that deterrence by punishment may not be effective in space. It is important to recall just how close the world was to nuclear Armageddon during the Cuban Missile Crisis and other incidents. Nevertheless, as with arms reduction agreements during the Cold War, this approach may lead to international arms control measures and compel actors of all parties, both public and private, to adhere to a shared doctrine based on nonaggression and cooperation in strategic areas such as debris mitigation and dual-use functions.

Conclusion

Creating modern space governance is a necessary step in ensuring the successful development of outer space. While certainly challenging, the United States has created global governance measures before. The laws were not perfect, but they reduced the chances for misunderstanding and promoted international cooperation. Today, the stakes are far higher: competitors are more numerous and disruptive capabilities more obtainable. Reassessment and analysis of current measures must be a priority for policy makers as the commercial space industry continues to heat up in the next decade.

Inkoo S. Kang is a Research Consultant for the Atlantic Council’s GeoTech Center. He is also a lieutenant in the United States Air Force and a Program Advisor for Air University. The views expressed are those of the author and do not reflect the official policy or position of the US Air Force, the Department of Defense, or the US government

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