Efforts by individual nations and organizations to mitigate orbital debris demonstrate a top-down approach to international space law may no longer be effective. (credit: ESA)

Redux: It’s time to rethink international space law

by Michael J. Listner
Monday, November 24, 2014

In 2005, I wrote my first piece for this publication focusing on the need to rethink the current body of international space law (see “It’s time to rethink international space law”, The Space Review, May 31, 2005). Since then, I have reevaluated my position, particularly regarding the solutions I proposed in that piece. That reassessment leads me to deem that while the issues presented have not fundamentally changed, the solutions I offered to address those issues have evolved. The purpose of this essay is to explore the issue of outer space security and norms, and present an alternative means to the traditional methods of creating norms to address those challenges.

Outer space security and international norms

Outer space security is a front-burner topic internationally, and it is a frequent topic of discussion and the focus of rhetoric of not only the current space actors but emerging space actors as well. The meaning of the term “outer space security” has been diluted in the geopolitical environment to the extent that what it means to have outer space security and the means to attain it are subject to the point of view from which it is advocated.

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

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 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.

Conclusion

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.

Endnotes

1. “Top-down” international rulemaking typically centers on a state’s treaty-based commitments or on an intergovernmental institution born from a treaty. Conversely, “bottom-up” rulemaking, which will be alluded to in this essay, involves lawmaking by private parties, but also has been defined to cover lawmaking made by domestic government actors and government agencies. See generally Janet Koven Levit, A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments, THE YALE JOURNAL OF INTERNATIONAL LAW, Vol. 30, p. 125.
2. TCBMs are political agreements that are not intended to be legally binding in the international community. They are part of the legal and institutional framework and are commonly used in the realm of arms control by supporting military threat reductions and confidence-building among nations. The United Nations recognizes TCBMs as a means to tender transparency, assurances, and mutual understanding amongst states, which is intended to reduce misunderstandings and tensions. TCBMs are considered a top-down approach to addressing issues, but they are intended only as a stepping-stone to legally binding treaties and are not intended to supplant them. See generally, Andrey Makarov, Transparency and Confidence-Building Measures: Their Place and Role in Space Security, Security in Space: The Next Generation-Conference Report, 31, March–1 April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008.
3. Whether an agreement is considered “soft law” is multi-dimensional, but for purposes of this discussion TCBMs are considered “soft law” because they are not legally or formally binding upon the state that enters into them.
4. This line of reasoning is fundamentally flawed and is the result of a misconstruction of customary international law. For a practice to become a legally binding norm under customary international law a practice must first be a general and consistent practice of states. The practice need not be universally followed, but the practice should reflect wide acceptance among the states involved in the relevant activity. The second requirement for a practice to become a legally-binding norm under customary international law is that there must be a sense of legal obligation, or opinio juris sive necessitatis . In other words, a practice does not become customary international law if it is generally followed by states and those states feel legally free to disregard the practice; to be considered a legally-binding norm under customary international law there must be a sense of legal obligation on the part of the state to the international community, and states must follow the practice because they believe it is required by international law, not merely because they think it is a good idea, politically useful, or otherwise desirable. The legal definition of customary international law is nuanced because not all states are equal when considering whether a state’s practice and opinio juris sive necessitatis reaches the level of customary international law. State practice and opinio juris sive necessitatis of states such as the United States, which holds a special place and position of prestige in the field of outer space activities, will be given more weight than a state that has a fledgling space program and a practice asserted as a legally-binding norm would be more likely considered to be customary international law than those of a state with a nascent space program. The assertion that practices implemented by the Code will become legally-binding norms via customary international law is nonsensical because the Code expressly states that it is not legally binding. Therefore, there can be no legally-binding effect of the practices within the Code or any other TCBM so long as a state voluntarily signs onto the Code with the intent to implement its practices because it believes it is a good idea, politically useful, or otherwise desirable. To make the jump that it is otherwise is contrary to the concept of customary international law.
5. The argument that norms have to be legally binding at the international level to be effective is without merit because the very nature of international law creates an environment where punitive measures for non-compliance are nonexistent. International practice has shown that the legality of an international treaty or norm created by a treaty or customary international law tends to be ignored when it is to the geopolitical advantage of a state and mere embarrassment is not a deterrent. The “legality” of a treaty or norm is often used to the geopolitical advantage of states to increase their soft power to the detriment of their geopolitical adversaries. Conversely, as state created norms become proven and entrenched among state actors, other state actors will have less incentive not to adopt these practices even if they are non-binding at the international level.

Michael J. Listner is an attorney and the founder and principal of Space Law and Policy Solutions, a think tank and consultation firm that identifies issues and offers practical solutions for legal and policy matters relating to outer space security and development, including issues surrounding space debris and space property rights. He is member of the New Hampshire Bar and peer-reviews for Space Policy Journal. You may contact Michael via email Michael@spacelawsolutions.com or follow him on Twitter @ponder68 and @spacelawpolicy.

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