Is space becoming “the wild, wild west” that some, including top U.S. national security officials, fear? Or does the fact that we have several international treaties on space provide the necessary rule of law framework to maintain peace in space? The answer likely lies somewhere in the middle. If so, the international community might consider updating the existing space legal regime to ensure it meets current political, economic, social, and technical challenges.
Of significant concern is the fact that the increasing great-power competition between the United States, the People’s Republic of China, and the Russian Federation is making space more dangerous. This danger is exacerbated by the lack of binding international rules, governance regimes, and institutions that would induce or compel coordination and collaboration between allies and adversaries alike, and constrain the aberrant behavior of malicious or negligent actors through the imposition of both soft and hard enforcement mechanisms. This article posits that our existing means of space governance — a framework reliant on treaties from the 1960s and 1970s, non-binding voluntary guidelines, and under-developed norms of behavior — is failing. It further posits that international consensus decision-making, and the institutions that support such decision-making (e.g., the United Nations and its Committee on the Peaceful Uses of Outer Space), may well offer some of the best and most immediate solutions to preserving a peaceful and sustainable space. In particular, and despite the significant political and diplomatic challenges, amending and updating the 1967 Outer Space Treaty to establish more detailed binding rules could be a crucial and productive first step. This could be in addition to the current U.N. open-ended working group on space threats, as well as the current efforts to develop norms of behavior for space.
Perhaps the most prominent and painful examples of the failure of the current space governance framework concern space debris (or space junk) and anti-satellite testing. As a matter of international law, the exponential production of space debris and anti-satellite testing are lawful based on current norms (such as they are). Debris creation is not per se prohibited by the Outer Space Treaty, nor is its management addressed. Despite the incorporation of some debris mitigation guidelines into the national laws of some countries, the growth of space debris is reaching such levels that it may make certain orbits that we depend on for satellite operations unusable in the not-too-distant future. Currently, the international community (as a whole) has no authority or mechanism to enforce compliance with debris mitigation guidelines or remove existing space junk. On this issue, it is difficult to conclude that reliance on existing norms and individual state practice has been anything other than a failure.
Moreover, despite anti-satellite testing by four spacefaring nations, and the thousands of pieces of incredibly dangerous, long-lived debris resulting from some of those tests, no nation has taken an official position that such tests are unlawful under the space treaties (or any existing space law). The international community’s primary tool thus far to combat this issue is resorting to public outcry and condemnation — a tool that has proved useless with respect to all previous anti-satellite tests, including the Russian test in 2021. This fact remains despite America’s announcement in April 2022 of the imposition of a unilateral moratorium on its own anti-satellite testing. Whether this action by the United States will create a new norm of behavior by which other nations with anti-satellite capabilities will abide remains to be seen. In the meantime, and absent a binding treaty agreement or protocol, it appears that the international community will continue to rely on public shaming as a method to combat this grave risk.
In addition to weak governance, the threats to space from both great-power competition and the lack of equitable access have grown considerably since Russia touched off the space race in 1957 with the launch of Sputnik. For over a decade, the United States and other nations have acknowledged that space is growing “congested, contested, and competitive” — the “three Cs.” Since 2013, several key indicators and events show that all three aspects have worsened.
As of Jan. 5, 2022, 12,480 satellites have been launched into orbit, but only approximately 4,900 remain functional. In the next decade or so, tens of thousands more are due to be launched by SpaceX, Amazon, and OneWeb as these companies seek to create megaconstellations — groups of satellites that can number in the tens, hundreds, or even thousands that operate together. China has plans to establish a 13,000-satellite megaconstellation. These launches compound the threat resulting from the lack of an international space traffic management — and collision avoidance — system. That’s in addition to the existing hazard of the exponential rise in space debris. Spacefaring nations and actors continue to rely on publicly available data — produced free of charge by U.S. Space Command’s space-track.org — and one-to-one calls and emails to avoid collisions. All stakeholders appear to agree that this framework is not sustainable.
The United States, China, Russia, and other spacefaring nations have all made statements or taken actions that have resulted in space becoming a warfighting domain. However, at the same time, there are many unresolved issues related to military operations, activities, and rules of engagement for space. For example, there are no agreed-upon rules regarding how close satellites may get to each other (i.e., rendezvous and proximity operations). There are also no rules regarding how countries are may safely deploy dual-use technologies. Given that a satellite arm can be used for both anodyne repair operations and the destruction of an adversary’s satellite, determining how, when, and where an arm may be used is crucial to ensuring that it is not perceived to be a threat. All of these issues present significant hurdles to reducing instances of misunderstanding, miscalculation, or misperception that can lead to conflict. Unfortunately for space, however, there are no codified rules, regulations, or norms that address these challenges. Although many nations have called for the development of norms, there has been little action to describe, determine, and agree on norms related to these key issues that have increased contestation.
Spacefaring nations and private actors vigorously compete for orbiting space, which is limited in both low-earth and geosynchronous-earth orbits. Satellites and other space objects require positioning in either orbit to function properly, particularly with respect to the available regions of the radio-frequency spectrum that are essential for satellite communications. As the number of spacefaring actors grows, competition will likely become more intense, potentially leading to conflict between nations jockeying to control or maintain these limited resources. Additionally, competition by nations and private corporations to return to the Moon, build installations, and conduct mining and other operations is also increasing. Again, rules regarding territorial or geographic boundaries, how the installations would be manned (e.g., by civilians, the military, contractors, etc.), or who would be responsible for their governance and management do not yet exist.
The Existing Space Governance Regime
From 1967 to 1976, via the U.N. Committee on the Peaceful Uses of Outer Space, the vast majority of nations agreed to four treaties. Each treaty attempted to address the pressing issues surrounding the use and exploration of space at the time: the placement of nuclear weapons in orbit or on a celestial body, the registration of space objects, the rescue and return of astronauts, and the liability of nations for damage caused by the launching and operation of space objects. However, all four of these treaties are principle-based documents and use terms and phrases that lack agreed-upon definitions, because the United States and the former Soviet Union — the only two spacefaring nations at the time — dominated the treaty-drafting process. Cold War interests determined where consensus could be reached (e.g., freedom of overflight, prohibition of nuclear weapons in orbit, and non-appropriation of orbits and celestial bodies).
The anchor treaty of the four is the 1967 Outer Space Treaty — often referred to as the “Magna Carta of space.” The document is short, with only 17 articles and about 2,500 words in total. It offers few, if any, binding rules to regulate or punish conduct that may be deemed to be in violation of its articles. This combined with its ambiguous terminology and phrasing make the treaty — as an authoritative and effective governance document — virtually nugatory with respect to the “three Cs” described above. Even rudimentary terms that could be used as a basis for international cooperation on norms, such as “outer space,” “exploration and use,” “national appropriation,” “debris,” “[space] object,” “harmful contamination,” and “harmful interference,” are not defined, and indeed still have no agreed definition across the international community today.
Since the adoption of these treaties, the international community has relied on national governments to regulate space activities and actors within their jurisdictions. These have consisted primarily of launch and communications licensing regulations. By design, these regulatory regimes have been crafted to promote scientific exploration and incentivize the growth of the commercial space industries, products, and services from which we all benefit. They have also helped to ensure safe launch operations and compliance with the International Telecommunications Union’s standards for spectrum allocation.
Beyond this limited level of space governance, the international community continues to rely principally on voluntary, non-binding guidelines and norms of behavior to invite conduct that would promote safety, security, stability, and sustainability. For example, both the Inter-agency Space Debris Coordination Committee and the Committee on the Peaceful Uses of Outer Space have published debris-mitigation guidelines that some nations have adopted in full or in part. In terms of fostering norms, the United States, through the Artemis Accords, has attempted to develop and enter into (non-legally binding) agreements with other nations (21 so far) for the purpose of lunar exploration and resource extraction.
However, just as with the infirmities inherent in the Outer Space Treaty, reliance on national regulation and non-binding mechanisms has failed to stem the challenges presented by the three C’s. National laws either do not cover or do not sufficiently enforce against non-compliant behavior. Norms and non-binding guidelines are underdeveloped and, more importantly, wholly unenforceable. This should give any spacefaring nation or actor pause. The lack of a true rule of law system for space has arguably compounded problems related to debris, interference (light and spectrum), safe maneuver, resource allocation, and negligent or malicious behavior. In the face of worsening conditions related to all three C’s, there is little evidence that our current reliance on the existing framework, consisting of aging space treaties, weak national laws, and volunteerism, is working to preserve a peaceful and sustainable space.
Solutions by Means of Successive Amendment
Notwithstanding the existing weaknesses of the current governance regime described above, the Outer Space Treaty and other existing space treaties may serve as the starting point for effective cooperation, not only among the great powers but also among all spacefaring and non-spacefaring nations. The inclusion of non-spacefaring nations is important because activities in space by the well-resourced can have a profound effect on other nations, particularly the least developed countries. For example, the degradation of orbits due to debris or the mining of rare elements on the Moon or an asteroid can significantly impact the economy and, therefore, the stability of a least developed country. Additionally, the great powers and all spacefaring countries share aligned incentives in key areas: space traffic coordination and management, debris mitigation and removal, and reduction of the threat of potential conflict resulting from misunderstanding, miscalculation, and misperception related to rendezvous and proximity operations and dual-use technologies.
The process of amending a treaty, or developing implementing protocols to an existing treaty, would require consensus decision-making within Committee on the Peaceful Uses of Outer Space, the U.N. General Assembly, and the U.N. Security Council. Many experts believe that building such consensus among the great powers — particularly given the widely dispersed and disparate stakeholder interests in space, and the current state of geopolitical tensions — is likely a bridge too far. For space, the current lack of any effective regulatory regime worsens this situation, which gives powerful and wealthy first-movers a significant advantage to capture space resources without having to incur the costs that are normally concomitant with, for example, environmental and resource extraction regulations.
Notwithstanding these impediments, an effort to amend the Outer Space Treaty offers the opportunity to tackle particular “three C’s” issues singularly or in succession. Doing so could obviate the need to engage in a more comprehensive amendment process or treaty convention, where more complex interests would require the balancing of trade-offs and where consensus would be more difficult to reach and more easily scuttled by one party. This is not unlike how the initial four space treaties were developed, when the United States and the Soviet Union — at the height of the Cold War — found agreement on the most pressing space-related questions of the day in order to prohibit nuclear weapons in orbit, determine basic liability and registration of space objects, and ensure the proper treatment of astronauts. These agreements helped to preserve peace between the superpowers, allowed for the commercial development of space by nations and private entities, and even helped to create joint scientific and operational endeavors, such as the International Space Station.
Moreover, the successive approach toward the development of space treaties that the United States and the Soviet Union engaged in during the 1960s and 1970s not only fostered growth in the space domain, but also served the valuable function of helping both countries maintain a peaceful détente while forging other key agreements related to arms control (the Strategic Arms Limitation Treaties of 1971 and 1979, the Anti-Ballistic Missile Treaty of 1972, the Intermediate-Range Nuclear Forces Treaty of 1987, etc.). Indeed, the continued application of a piecemeal diplomatic approach may now allow adversaries like the United States, China, and Russia to initiate productive dialogue on the most pressing and dangerous issues, such as anti-satellite testing (particularly given the American unilateral moratorium). In turn, this may enable the principal spacefaring parties to build the necessary good faith, goodwill, and trust to tackle more complex issues such as space traffic coordination/management, which involves multiple national institutions (military and civil) and the sharing of what might otherwise be protected data and information related to national space objects.
Space has the potential to be a domain in which current great-power competitions and frictions can be mediated. All spacefaring and non-spacefaring nations, and the great powers of the United States, China, and Russia, have similar (albeit to varying levels) incentives to reduce and mitigate the current risks and threats in space that could lead to the significant degradation of national capacities — communication; position, navigation, and timing; remote sensing; intelligence gathering, etc. When the foundational space treaties were forged, international and multinational institutions and diplomatic processes offered perhaps the best solution for tackling the interrelated and complex problems related to space at that time. This is still true today. International and multinational institutions, diplomatic processes, and binding international agreements are effective tools that can be employed to both reduce the existing dangers in space and preserve a sustainable space in the future for the entire global community.
Douglas Ligor is a senior behavioral/social scientist at the nonprofit, nonpartisan RAND Corporation, and a member of RAND’s Space Enterprise Initiative. Formerly, he was an attorney for the Departments of Commerce, Justice, and Homeland Security. This article is a product of a 2022 workshop on “Challenges and Opportunities at the Dawn of the New Space Age,” hosted by the University of Pennsylvania’s Perry World House.
Image: U.N. photo