Redux: It’s time to rethink international space law
by Michael J. Listner
|Despite the divergence between globalist and geopolitical viewpoints, what is certain is that to ensure outer space security, norms of behavior for outer space actors need to be established.|
Regardless of its meaning, the challenge with realizing and maintaining outer space security is the contradiction that arises between globalist viewpoints and the realities of geopolitical interests. The globalist point of view leans towards the altruistic goal of establishing and maintaining the outer space environment as a global commons, and that all space actors will recognize the benefit for preserving the outer space environment for all concerned and alter their national space activities to conform to this ideal. Taken from the geopolitical standpoint, the perception of states engaged in outer space activities of what are acceptable compromises to its outer space activities to conform to that ideal must be weighed in terms of how it will affect their national security and change its position on the geopolitical game board.
Despite the divergence between globalist and geopolitical viewpoints, what is certain is that to ensure outer space security, norms of behavior for outer space actors need to be established. The term “norm” is commonly defined as “a standard of appropriate behavior for actors with a given identity,” but it is consistently misapplied to be solely the province of formal or informal multilateral international accords. Traditionally, most norms for outer space activities and security have resided in the province of legally-binding treaties or other top-down measures.1 The Outer Space Treaty is a good illustration of a legally-binding treaty that sets out basic norms of responsibility and behavior, the precepts of which have been codified into the domestic space laws and activities of signatory states. Other norms, such as the free access of outer space by all nations, were established by customary practice that became legally binding international law.
However, treaties used to address outer space issues have fallen into disfavor, especially among states who have more developed space programs and depend on outer space for their national security. However, that doesn’t stop some states from presenting multilateral treaties for adoption. For example, the Russian Federation and the People’s Republic of China have been trying to establish international “norms” regarding the ambiguous issue of the space weapons through formal measures such as prevention of an arms race in outer space (PAROS) and the Prevention of the Placement of Weapons in Outer Space (PPWT) in the United Nations Conference of Disarmament. Both of these proposals have stiff international opposition and stand little chance of gaining formal status as international law, and their role in creating legally binding norms will be miniscule if non-existent.
A less formal approach to establish “norms” being explored is the use of transparency and confidence-building measures (TCBMs).2 TCBMs are considered to be “soft law” as opposed to formally binding treaties.3 There are two current efforts to establish norms for outer space security that involve TCBMs. The first involves an effort spearheaded by the United States in the Group of Governmental Experts to use TCBMs to address outer space security issues, and the International Code of Conduct (the Code), which is an effort by the European Union. Of the two, the Code is attracts the most attention. The Code and its predecessor, the European Code of Conduct, are intended to be voluntary, non-legal, and non-binding upon states signing it. Despite this some in the arms control community suggest the voluntary practices within the Code will become legally binding norms through customary international law once a state adopts the Code and institutes the voluntary practices espoused within it, which insinuates that the Code is seen as a backdoor method of arms control in outer space that would bypass legislative scrutiny and pick up where the PPWT has failed.4
|A mandatory domestic state practice influenced a non-binding international norm, which in turn encouraged mandatory state practice among other space actors all without having a legally binding norm to begin with at the international level.|
The use of treaties and TCBMs to create norms presupposes that norms have to be legally-binding under international law in order to be an effective and recognized practice, and that norms must be created from a top-down approach. This assumption ignores that norms can be created by a state and be translated into voluntary international practices that need not be legally-binding to be recognized. That is to say, in the case of outer space security, voluntary international norms can be created by following the example of non-legally binding and legally binding norms that find their genesis in the domestic laws, regulations, and practices of states and non-government actors.
An example of this is established practices surrounding space debris, which is a significant issue surrounding outer space security. The United States unquestionably has contributed to the existing space debris environment, but it has also taken the lead in advancing practices to mitigate space debris. NASA was the first space agency in the world to develop orbital debris mitigation guidelines in 1995 and, two years later, developed its Orbital Debris Mitigation Practices. These practices became policy under the 2006 National Space Policy and mandatory for NASA via executive order under the administration of George W. Bush through NASA Procedural Requirement 8715.6A. The Obama administration took this one step further and extended mandatory compliance with the Orbital Debris Mitigation Guidelines to the Department of Defense.
Comparatively, the United Nations adopted Space Debris Mitigation Guidelines, which are heavily based on the guidelines established by NASA and put in to practice subsequent to the United States, in 2007. The international guidelines adopted by the United Nations are voluntary, but the cumulative effect is that many space actors created their own space debris mitigation guidelines or practices that are mandatory at the state level and meet or exceed the voluntary guidelines espoused by the United Nations.
This example demonstrates that a mandatory domestic state practice influenced a non-binding international norm, which in turn encouraged mandatory state practice among other space actors all without having a legally binding norm to begin with at the international level. Taking the issue of space debris a step further, commercial communications satellite operators, recognizing the issue of space debris, have adopted industry practices to preserve the environment in both low Earth orbit and geosynchronous orbit. The non-binding guidelines and practices being adopted by the industry have no root in international political bodies, but will still have the effect of addressing outer space security with regards to space debris.
Another example of creation of norms at the state level is commercial space activities, which will affect several aspects of outer space security as the industry becomes more prolific. Presently, the United States is the primary state actor facilitating commercial space activities and has adopted domestic laws and limited regulations to administer the industry. As the industry matures, practices will be developed within the industry and domestic regulation will likely be expanded to ensure that operator act in accordance with international treaty obligations. States outside the United States looking to assist the development of commercial space within their own jurisdictions will not look to international bodies that have no practical experience in facilitating commercial space activities. Rather, these states will look to the practice of others like the United States when creating their own regime.
|The reality is that efforts such as those in the Group of Government Experts and the International Code of Conduct for Outer Space Activities represent the dying gasp of top-down creation of norms as it relates to outer space law and policy.|
The line of reasoning here is that state practice and norms for commercial space for one state can be adopted by another without legally-binding international norms dictating what those norms should be. That is not to say legally binding norms will not play a role in commercial space activities, since the Outer Space Treaty and its progeny must be considered by states facilitating commercial space activities.5 The flipside is that once state actors adopt consistent practices and norms at the domestic level regarding commercial space activities, those domestic norms can become legally-binding under customary international law if the actors with significant prestige in the outer space community decide to be bound legally at the international level. This would be a significant political decision and would only occur if an actor such as the United States, which is the premier actor in commercial space activities, decided to take that step.
The time of treaties, international institutions, and other top-down mechanisms to create norms to address outer space issues and security has passed. Issues such as space debris, space traffic management, the debatable issue of space weapons, and other aspects of the outer space environment can be addressed through domestic practices of state actors that are adopted by other state actors, which may then be established as non-binding practices and norms at the international level. Beyond outer space security, thorny issues such as real space property and resource rights, and the tricky issue of space debris remediation, could be addressed through this methodology.
Doubtless those who benefit from the soft power geopolitical advantages, and academic and political prestige, that accompanies the creation of legally-binding international norms will oppose this challenge to the current dogma of international law, but the reality is that efforts such as those in the Group of Government Experts and the International Code of Conduct for Outer Space Activities represent the dying gasp of top-down creation of norms as it relates to outer space law and policy. Rethinking international space law and making the transition from a top-down approach for the creation of norms will not be easy and not without pain, but once it is accepted issues surrounding the use of outer space, including its security, can be addressed more proficiently and effectively.