A summer update on the COPUOS long-term sustainability guidelines
by Christopher D. Johnson and Victoria Samson
|COPUOS has recently focused much of its time and energy on the development of a set of guidelines on the long-term sustainability of space activities, a topic of continual and growing importance at both the national and international level.|
Space exploration and use are inherently international in nature, and are often aided by international coordination on the bilateral and multilateral level. COPUOS is the forum where the international community negotiated and finalized all of the most important international texts governing the exploration and use of outer space, including the 1967 Outer Space Treaty and the treaties that followed and expanded upon it. COPUOS meets in three formal sessions each year: the Scientific and Technical Subcommittee (STSC) in February, the Legal Subcommittee (LSC) in late March or April, and the plenary session in June.
The STSC and LSC each examine and discuss respectively the scientific, technical, and legal aspects of existing and emerging space activities in greater detail, while the June plenary session uses the subcommittees’ findings and reports to make overall decisions within the larger picture of the UN’s work on international peace and security. As a committee constituted under the UN General Assembly, each year’s COPUOS report will make its way to the General Assembly, which will consider the report for its annual UNGA Resolution on international cooperation in the peaceful uses of outer space. In addition to these yearly resolutions on space, this year the General Assembly will also consider and adopt a declaration specific to the 50th anniversary of the Outer Space Treaty.2
COPUOS has recently focused much of its time and energy on the development of a set of guidelines on the long-term sustainability of space activities, a topic of continual and growing importance at both the national and international level. These guidelines are a series of recommendations arrived at by consensus on the best practices that can help promote the sustainability of space activities over the long-term. The Long-term Sustainability (LTS) process formally began in 2010 with the creation of a LTS Working Group within the STSC, and the negotiations over the last several years have had significant participation and buy-in by all the major and emerging spacefaring and space-utilizing states. With the LTS Guidelines—still officially in draft form—nearing completion, now is a suitable moment to reflect on their development, assess their current state, and look towards their expected finalization, adoption, and implementation.
It is important to understand why these guidelines matter to the broader diplomatic space community. These consensus-based discussions include established and emerging space actors, private corporations, and civil society, and represent a wide variety of all those who utilize space or are affected by space activities. The topics and issues addressed are quite comprehensive and COPUOS is one of the few international fora that has this wide breadth of discussions and viewpoints represented. The decisions made here will have ramifications for all space users and actors. Due to the unique physics of space, the activities of one space actor can have effects on many others, so it is crucial to understand what the best practices are that the international community has agreed to.
Because COPUOS works on consensus, any decisions made on these guidelines and their content are agreed to by all the participants, and thus can be said to be truly indicative of international thought on the issue. While these non-legal guidelines are non-binding, the fact that they were arrived at through a process of consensus among states enhances perceptions of their legitimacy (one of the main strength of norms.) And even if consensus on all the LTS Guidelines as currently proposed cannot be reached, the process of discussions and negotiations within COPUOS helps increase awareness of key issues and spurs national-level discussions among many countries.
Space sustainability has been defined by Peter Martinez, the South African chair of the COPUOS LTS Working Group, as “the set of concerns arising out of the realization that near-Earth space and the electromagnetic spectrum are limited natural resources that are under increasing pressure from the steady growth in the number and diversity of space actors.”3 The process of developing the LTS Guidelines began with the creation of four Expert Groups that developed initial concepts, which then were sent to the LTS Working Group for deliberation among the states.4 Consensus on the first twelve guidelines was reached in June 2016 with a formal vote in the COPUOS plenary, an achievement discussed and celebrated in October 2016 with a joint SWF-US State Department event.
|Space sustainability has been defined… as “the set of concerns arising out of the realization that near-Earth space and the electromagnetic spectrum are limited natural resources that are under increasing pressure from the steady growth in the number and diversity of space actors.”|
This year’s session of the Scientific and Technical Subcommittee was held from January 30 to February 10. During the meeting, the LTS Working Group discussed progress in negotiations since the previous intersessional meeting in September 2016. There were some discussions over whether the already agreed-to guidelines could be reopened for discussion or not.
Conference room papers and working papers by delegations were submitted to the Chair for further discussion at the STSC. Participants agreed that the preamble text of the guidelines should include all issues that are covered in the guidelines themselves. Participants also edited guidelines covering registering space objects, sharing contact information and other information exchange, conjunction assessment, the deliberate destruction of space objects, smallsats, and lasers.5
After the STSC and prior to the June plenary COPUOS meeting, there was an intersessional meeting in Vienna from June 5–6 in an attempt to make as much headway as possible. The Working Group continued to meet during the plenary (held June 7–16) as well, submitting its report to the secretariat on June 14 so that it could be brought to the entire plenary’s attention and approved by close of the meeting on June 16. Working off of the guidelines as they stood post-STSC, the delegations continued to discuss the preamble and guidelines on sharing contact information, general information exchange on space sustainability practices, and lasers. The delegates did not finalize agreement on any more of the guidelines, deciding that they needed “agreement on the preamble and the harmonization of the final compendium of guidelines.”6 In the end, the delegates agreed to have the working chair compile a draft version of the preamble to discuss at the next intersessional meeting and asked the participants to submit their preferred wording by July 31, 2017.
The long-term sustainability guidelines reflect existing best practices used by states and will exist as non-binding norms, rather than binding international law. But what are norms, and why are they so often mentioned? Norms are not law, although the content of norms may separately inform the content of laws and international agreements. In distinction to laws, norms are non-binding, meaning that they are not enforced by any particular authority. The violation of norms does not mechanically trigger any actions or repercussions for their non-observance. You might think of them as “best practices” or simply as things that one “ought” to do (even if nobody is forcing you to.)
|Observing norms shows respect to others, and respect for the social systems we inhabit. Because actors want others to also observe norms, they observe them themselves, as both a good example and to encourage others to follow them as well.|
Norms are often established because formal regulatory instruments many not be timely enough for rapidly-developing activities. Instead, norms can emerge from all actors in a bottom-up fashion, subject to iterations and corrections, as a way in which to create some sort of stability for the new situation that has gotten ahead of formal laws on the matter. Furthermore, in cases where it may be too challenging to get sufficient agreement to get a treaty law created on an issue, the emergence of widely-accepted norms may prove to be a workaround for this hindrance. Given that most of the work done on space law treaties occurred over four decades ago, it could be argued that the international community has de facto reverted to allowing norms for space to develop organically.
Why should anyone observe norms, especially since they are not enforced? Finding this answer is easier with laws, as you can assert “because it’s the law” and because a sovereign force is behind them. The answer is more difficult for norms, because their force does not derive from a sovereign authority which enforces them, nor is there a threat of negative legal repercussions for violating them. Observing norms shows respect to others, and respect for the social systems we inhabit. Because actors want others to also observe norms, they observe them themselves, as both a good example and to encourage others to follow them as well. Voluntary norms are regularly created out of self-interest, both by state actors and non-state (even commercial) actors.
If norms are correctly formulated and actually contribute to useful results, the logical justification that impels their observance is best boiled down to simply because “norms ought to be observed.” This more general justification, that good rules are made to be observed and therefore they should be observed, requires some willingness by actors to want to be responsible actors within the system they operate, or at least that they will benefit by operating in a system where these rules exist, as this results in a system that is in the self-interest of its members.
Norms are increasingly used in the space domain. The cautious and iterative development of norms seem especially well-suited to activities in outer space, and in undertakings where technologies and capabilities continue to progress and evolve, and where it is therefore difficult—and perhaps counterproductive—to develop comprehensive and/or binding laws and regulations before these activities and routines are well-established and made routine. To foster commercial space activities, and to encourage innovation across all aspects of space activities, it is recognized that regulations make sense only in phase with an understanding of technical, business, and scientific maturity. Consequently, norms often fulfill many present regulatory needs in space activities.
Norms can both precede the development of actual law, or they can exist alongside or in lieu of law. However, as space technologies and capabilities reach maturity or are widely deployed, norms may need to be supported by law, both domestic and international. This is true both for emerging undertakings (such as small satellites, large constellations of satellites, satellite servicing, debris remediation, and resource use on asteroids and large planetary bodies) and for already occurring activities which otherwise may impact space sustainability (such as activities that may lead to the creation of debris, radiofrequency interference, and orbital crowding.) Space is especially challenging for the development and promulgation of suitable norms, as it is a relatively new domain for humankind and it does not have the benefit of centuries of best practices to draw upon. Actors in space are generally creating norms as they go about their business.
The lifecycle of a norm is: 1) norm emergence, 2) norm acceptance, and 3) norm internalization (actors thinking “this is just the way things are done.”) Norms for behavior that helps promote the long-term sustainable use of space are, for the most part, still in the emergence or the acceptance phase. This, too, will change as more time goes by and more new actors emerge on the scene and seek guidance for how they should be behaving as responsible users of the space domain.
|For those interested in or affected by COPUOS’ efforts to develop, promulgate, and implement norms and best practices for space sustainability, being informed of and keeping an eye on the work of COPUOS in these efforts is and will remain crucial.|
In the future, in order to develop rational, efficient, and implementable governance systems for outer space that will work well in the future, we ought to consider and determine what activities are best-suited for national regulations and international agreements, and which activities are fine under non-obligatory norms. Finally, unlike most of the history of space age, an increasing number of the actors currently in space are not nation-states, so if there is to be a true representation of stakeholders in discussions of best practices, it has to be done in a manner that allows the input of non-state actors. Treaties, by their very definition, are worked out at the state level, while norms are created by all those who are actively working in space, including non-state actors.
Discussions and work on space at the United Nations level is not done for the year. The fifth intersessional meeting on the long-term sustainability guidelines will be held October 5–6, 2017, in Vienna, Austria.7
Looking towards 2018, the Scientific and Technical Committee will meet for its 55th session from Janary 29 to February 9, and will consider the balance of whatever tasks remain in finalizing the long-term sustainability guidelines from the fall 2017 intersessional work.8 The 56th session of the Legal Subcommittee will meet April 9–20,9 but the LTS Guidelines have not often been discussed there. As they continue to near completion, the long-term sustainability guidelines will again inform and influence work at these meetings. The final form of the guidelines remains undecided, and they may end up as a UN General Assembly Resolution, or annexed to a Resolution, and/or incorporated in the UNISPACE+50 process.
UNISPACE+50, a series of high level sessions at the UN meant to reflect and consider the entire COPUOS workplan for the next dozen years, as well as the entire UN-wide engagement with and use of outer space, will be held June 20–21, 2018. The discussions held and decisions made about the LTS Guidelines will shape COPUOS’ work for the foreseeable future. UNISPACE+50 will no doubt keep this in mind when deciding COPUOS’ workplan, as there have been suggestions to continue some of the guidelines discussions as permanent working groups, as well as the possibility of starting the process over with new guidelines as new norms emerge from new technologies.10
More prosaically, the UNISPACE+50 process will take up the first two days of the 61st session of COPUOS, which will convene in Vienna, Austria, June 20–29, 2018.11 For those interested in or affected by COPUOS’ efforts to develop, promulgate, and implement norms and best practices for space sustainability, being informed of and keeping an eye on the work of COPUOS in these efforts is and will remain crucial. This is one of the most widely attended and inclusive international fora where best practices are being discussed and agreed upon, and they will definitely be used as guidance for future efforts in space, no matter what the final document looks like.