Governing in a Crowded Space – The Legal Regime for Space

[Q19] What international legal codes or norms are needed to govern the increasingly crowded space domain?

[Q23] Fifty years of space has seen much change. Which aspects of the Outer Space Treaty of 1967 are still valid and which need updating? Is it better to add to/amend the 1967 Treaty or to establish a new framework for the 21st century?

Author | Editor: Bragg, B. (NSI, Inc).

Summary Response

The 1967 Outer Space Treaty (OST) is the lynchpin of the current international legal regime for space. 105 countries have ratified the treaty, while another 25 are signatories.6 The OST extends the UN Charter and its underlying principles to outer space (Berkowitz), and provides additional principles to guide activities in space. These principles have been elaborated and further codified in three subsequent UN treaties related to space activity: the 1968 Rescue Agreement, 1972 Liability Convention, and 1975 Registration Convention.

OST: Retain, Amend, Replace?

The OST and the other “core” treaties were drafted in a relatively short time in the late 1960’s to mid-1970s. The principles upon which they rest—peaceful use of space, free access, and non-territoriality—clearly reflect a shared contemporary concern that Cold War competition could spill over into space. Today, these principles can often be found at the center of arguments that the OST is obsolete, or at least in need of amendment.

However, when asked whether they thought the OST should be amended or replaced, a large majority of the contributors (see Figure 1) respond that the treaty should not be changed at all. Furthermore, contributors who favor amendment specified changes that are limited in scope, rather than a more comprehensive revision of the treaty.8 As Figure 2 shows, opinion does vary between different groups of expert contributors. Academics overwhelmingly favor keeping the OST without change, while the majority of contributors representing commercial enterprises favor amendment or replacement.

OST: Comprehensive Law or Guiding Principles?

The division in opinion over whether to keep the OST unchanged, or amend or replace it, appears to derive primarily from how the contributors conceptualize the role of the OST in space governance. Those favoring amendment or replacement appear to be considering the OST as a stand-alone and independently comprehensive legal document. In light of the enormous changes in the actors involved in the space domain, this perspective leads them to conclude that the OST cannot provide the legal structure necessary for ensuring the development of either commercial space, or the national security interests of the US in space.

In contrast, those who oppose changing the OST consider it as a set of guiding principles for governing space, rather than a comprehensive set of regulations. David Koplow of the Georgetown University Law Center, Dr. Cassandra Steer of Women in International Security-Canada, and Dr. Brian Weeden of the Secure World Foundation compare its role to that of the US constitution. In a similar vein, Dr. Mark J. Sundahl of the Cleveland-Marshall College of Law and Koplow evoke the Magna Carta. However, as Koplow notes,9 just as statements of foundational principles are insufficient to govern a state, they are also insufficient to govern space.

It’s as if, in the case of the United States, we had adopted the Constitution, but then Congress did not get around to passing any laws after. The Constitution sets out the general principles, but you have to flesh those out.

Understood in this light, the continued relevance of the OST is not a function of whether it can address all contingencies and legal requirements for current and future activities in space. Rather, what matters is whether it provides an operative framework for creating subsidiary treaties, agreements, and norms to regulate activities in space. Those who support the continuation of the OST unchanged, judge it to be capable of doing this (Armor; Blount; Gabrynowicz; Gallagher; Hitchens; Johnson; Meyer; Steer; Sundahl). Furthermore, they state, it has been successful; enabling safe and secure access to space (Gabrynowicz; Meyer; Sundahl), blocking the placement of nuclear weapons in space (Gabrynowicz; Sundahl), and preventing national appropriation of the Moon or other celestial bodies (Sundahl). This success has, in turn, given the OST a level of legitimacy and influence that would be difficult to recreate in a new treaty. Christopher Johnson of the Secure World Foundation concludes:

This demonstrates that, rather than the treaty showing its age after fifty years, this long- standing treaty has facilitated five decades of the peaceful and profitable uses of the access, exploration, and use of outer space, and that states respect and observe the treaty.

Arguments for Leaving the OST Alone

Supporters of the OST in its current form tend to see amendment (and even more so replacement) not only as unnecessary but as potentially perilous as well. They do not take this position out of a belief that there is no need to further develop international space law and norms. In fact, all identify very similar areas of activity that need further codification to those presented by the contributors who argue that the OST should be amended or replaced. Rather, their concerns arise from the potential threat to the legitimacy and support for existing space law, more generally, that changes to the OST could trigger.

Several argue that if the OST were opened to amendment, the process may be difficult to control,10 as amending one section of the treaty would put other sections “on the table” as well (Hertzfeld). This, as Major General (USAF ret.) James Armor of Orbital OTK puts it, may “encourage mischief” and be counter to US interests. Similarly, Joanne Gabrynowicz of the University of Mississippi School of Law and an Anonymous Contributor11 see opening the OST as inviting the potential loss of the prohibition on nuclear weapons and WMD in space. Although not in favor of altering the OST, Paul Meyer of Simon Fraser University notes12 that some see a potential for supplementing the OST without running the risks of opening up the treaty text itself. In multilateral diplomacy this is often accomplished through developing an “Optional Protocol” that can supplement the original treaty in some way (e.g., extend the ban on WMD to all space-based weapons, or provide for the type of institutional support such as annual meetings of states parties that is common now but which the OST lacks).

The OST has Provided a Durable Set of Principles

As Steer argues, recent negotiations over new legal codes for space, which have stalemated over key national security concerns,13 should serve as a warning that the fundamental principles of the OST are not necessarily undisputed. Is this not an argument for amendment or replacement? Not according to a number of the contributors who provided input for this report.

When the OST and three core treaties were negotiated, there were only two nations active in space, and less than 20 members of the Committee on the Peaceful Use of Outer Space (COPUOS). There are now 85 members, as well as many countries with assets in space and a quickly expanding set of commercial space actors (Hertzfeld; Simpson; Steer). Given the current international and space environments, contributors are doubtful that a new or significantly amended treaty could reach greater consensus than the OST (Anonymous Contributor; von der Dunk), and any new treaty is expected to take years, even decades, to complete, if it is at all (Anonymous Contributor; Armor; Hertzfeld). During this time, as an Anonymous Contributor notes, “new customary international rules” for space may emerge14 that may not work or serve US interests as well as the current treaty (Blount; Gallagher). That is to say, simply engaging in the process of renegotiation could undermine the authority the OST by creating competing principles for actions in space. Meyer makes an important point regarding the influence of the OST over the past 50 years:

We are repeatedly told that space is ‘congested, competitive, and contested’ but not reminded that it has been a realm of remarkable international ‘cooperation’ as well. The Outer Space Treaty embodied this cooperative approach.

Spillover Effect

Steer notes that the key “principles and clauses are today considered to be customary international law, thus binding on all states, regardless of whether they are party to the OST or not.” When considered in conjunction with the observation of Dr. P.J. Blount of the University of Luxembourg, that “there is a regime of treaties and UNGA resolutions that elaborate on particular aspects of the Outer Space Treaty, and there is a growing body of domestic law and policy that reveals how states are interpreting ambiguities in the treaty,” the broader implications of amending or replacing the OST become clearer. If the legal regime in space is indeed rooted in the OST, then any changes to the substance or standing of the treaty would spillover to affect other legal codes for space.

Governance in Space

As noted above, regardless of their position on the OST (amend, replace, retain), when asked what changes to international legal codes or norms are needed to govern the increasingly crowded space domain, contributors raise a fairly consistent list of issues. Nevertheless, differences of opinion and interpretation do emerge.

State-Centrism of Current Codes

Dr. Henry Hertzfeld of George Washington University sees the state-centric focus of existing legal codes as problematic given the rapid increase in the number of non-state actors involved in space activities. He suggests that while “[t]echnically, nations are responsible for their activities in outer space and even liable for them,” there is “a whole set of commercial law that is not that precisely defined for space.” Relatedly, Steer notes that the rise to prominence of commercial space actors was “either not foreseen by the drafters of the OST, or, given the political pressures at the time, simply not a priority.”15 As a result, many contributors identify commercial space activities as an area in which clearer legal codes and regulations are needed. Differences of opinion involve whether commercial activities can be accommodated within the OST in its present form. Dr. Frans von der Dunk of the University of Nebraska College of Law and Armor believe that they can. Among those who think not, Jonathan Fox of the Defense Threat Reduction Agency and contributors from Faulconer Consulting Group point to Article VI16 of the OST in particular as needing “to be substantially modified to provide protection of space- related commercial rights arising in the coming years” (Fox).

Barriers to Commercial Development

As space actors are diversifying, so are the activities in which they engage. Article II and the non- appropriation principle17 have been the focus of arguments that the OST stands in the way of commercial development in outer space (Blount). Article II is seen to present significant barriers to commercial actors and investors operating beyond Earth (space tourism, space hotels) (Cheng), as well as those interested in developing space mining (Faulconer Consulting Group; Fox). Fox contends that, as it stands, the OST prevents “legitimate exercise of market-based commercial activities (including natural resource mining, refining, exploration, extraction, transportation, and other related functions) as may safely and practicably be undertaken under the license and authority of space-faring nations, in accordance with their applicable laws.”

Countering this, Armor notes: “the recent [US] Commercial Launch Competitiveness Act allowed ‘ownership’ of resources removed from planetary bodies. It does not violate the OST at all but clarifies commercial exploitation consistent with original intent of the Treaty.”18 Weeden agrees that there is a lack of clarity in the existing principle but notes that lawyers and economists have used fishing laws as a potential model which would enable resource extraction and use without requiring territorial ownership. This view is shared by Blount, who sees the implications of such changes as far-reaching and potentially detrimental to the United States’ national security interests:

It would be foolish to discard a foundational security treaty that helps to maintain international peace over the question of property rights…While the Outer Space Treaty may increase the cost of doing business for commercial operators, their investments would not be safe without such a treaty.

Governance of Space Debris and Traffic

As the space domain becomes more crowded the need for regulation to protect assets and valuable orbits has become apparent if space is to remain sustainable (Sundahl). Space debris is in many ways a classic collective action problem—it creates potential risk to every space actor, if not addressed it could ultimately render space unsafe for all, and it cannot be “solved” without cooperation between most or all space actors.

Orbital debris guidelines, such as those developed by the Inter-Agency Space Debris Coordination Committee (IADC), have been effective but need to be updated to account for new capabilities, such as large constellations of satellites (Spire Global Inc.). While Steer notes that these guidelines have generated “a very high level of compliance,” Dr. Luca Rossettini of D-Orbit and contributors from Spire Global Inc. argue that binding rules and some enforcement mechanism are required. Matthew Schaefer of the University of Nebraska College of Law notes, however, that ownership issues may create a problem here. Specifically, whether objects owned by another actor can legally be removed without the owner’s consent.

Space traffic is also seen by the contributors to be an area in which the need for better regulation is becoming more pressing, as it threatens the collective interest of all space actors in the long-term (Steer; Sundahl; Weeden). Commercial plans for satellite servicing, refueling, and outer-orbit inspections will involve getting close to and docking with satellites (Weeden), and Rossettini argues that regulation and clear norms need to be created “to ensure the use of space becomes a controllable or at least verifiable.”

Surveillance and Irresponsible Behavior

Traffic and proximity issues also raise national security concerns. Sundahl and Weeden both give the example of a state actor flying satellites close to those of an adversary. As Weeden ponders:

What is the space equivalent of an Incidents at Sea Agreement that is going to kind of give a bright line of ‘you should do this, this is how you behave responsibly, and this is how we do it normally,’ and if there is deviation from that, it suddenly becomes an indication or warning that something is not right.

Without agreed upon norms of behavior, the potential exists for either unintended escalation or loss of security. To this point, Steer suggests further development of data sharing and transparency norms. This approach is consistent with discussions by Tanja Masson-Zwaan of Leiden University, Dr. Nancy Gallagher of the Center for International and Security Studies at Maryland, and Johnson, and reflects the assessment of Marc Berkowitz of Lockheed Martin that there is a need to strengthen mechanisms for consultation, crisis management, and dispute resolution.

Bottom Line

Regardless of their stance on the OST, all of the contributors see existing space law and norms as insufficient to manage the rapidly evolving nature of space activities, and the current and potential threats these activities present. As space becomes more crowded, the risk of accidental or intentional harm to an actor’s assets increases. And, as space capabilities become more critical to actors, the cost of losing those assets also increases. Both of these conditions create a collective action problem that the further articulation of international norms and regulation could potentially mitigate for all. However, most contributors do not think that amending or replacing the OST is either necessary or advisable. These contributors warn that opening up the OST would likely trigger a long and uncontrollable process of negotiation that in itself would create uncertainty and undermine the legitimacy of the OST. Furthermore, there is no guarantee that the final treaty would work as well, let alone any better.

Contributors

Anonymous Contributor;2 Major General (USAF ret.) James Armor3 (Orbital ATK); Marc Berkowitz (Lockheed Martin); Dr. P.J. Blount (University of Luxembourg); Dean Cheng (Heritage Foundation); Faulconer Consulting Group; Jonathan D. Fox (Defense Threat Reduction Agency Global Futures Office); Joanne Gabrynowicz (University of Mississippi School of Law); Dr. Nancy Gallagher (Center for International and Security Studies at Maryland); Gilmour Space Technologies, Australia; Dr. Peter L. Hays (George Washington University); Dr. Henry R. Hertzfeld (George Washington University); Theresa Hitchens (Center for International and Security Studies at Maryland); Christopher Johnson (Secure World Foundation); Group Captain (Indian Air Force ret.) Ajey Lele4 (Institute for Defence Studies and Analyses, India); David Koplow (Georgetown University Law Center); Tanja Masson-Zwaan (Leiden University, Netherlands); Paul Meyer (Simon Fraser University, Canada); Dr. George Nield (Federal Aviation Administration); Michiru Nishida5 (Ministry of Foreign Affairs of Japan, Japan); Dr. Luca Rossettini (D- Orbit, Italy); Matthew Schaefer and Jack M. Beard (University of Nebraska College of Law); Dr. Michael K. Simpson (Secure World Foundation); Spire Global Inc.; Dr. Cassandra Steer (Women in International Security-Canada, Canada); Dr. Mark J. Sundahl (Cleveland-Marshall College of Law); Anne Sweet (NASA); ViaSat, Inc.; Dr. Frans von der Dunk (University of Nebraska College of Law); Dr. Brian Weeden (Secure World Foundation)

 

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