A simulation of the intercept of the Cosmos 1408 satellite by a Russian ASAT missile in November 15. (credit: COMSPOC)

Reconsidering the efficacy of an “Incidents in [Outer] Space Agreement” for outer space security

by Michael J. Listner
Monday, January 31, 2022

This author posited in an essay here 13 years ago (see “A bilateral approach from maritime law to prevent incidents in space,” The Space Review, February 16, 2009) that five events in the years preceding 2009 brought the issue of “space weapons” and outer space security to the forefront, including the collision of the Iridium 33 and Cosmos 2251.[1] The author suggested at that time a solution to the burgeoning challenges to outer space security might be had in a bilateral agreement analogous to the Incidents on the High Seas Agreement entered into by the United States and the Soviet Union on May 5, 1972, in the form of an “Incidents in Space Agreement.”

In the intervening years, dual-use technology and outer space activities have increased; likewise, the potential threat these technologies pose as counterspace applications, including rendezvous and proximity operations (RPO) and missile defense technology, has not abated. Indeed, space objects such as the Russian Federation’s Luch satellite that maneuvered close to satellites belonging to Intelsat in 2015 and two satellites that maneuvered near a US intelligence gathering satellite in 2020 continue to spark concerns about co-orbital and other counterspace capabilities.

More recently, the Russian Federation demonstrated its anti-satellite capability and capacity on November 15, 2021, when it used its A-235 PL-19 Nudol system to intercept and destroy Cosmos 1408 (COSPAR ID: 1982-092A), which was a defunct signal intelligence gathering satellite.[2] Additionally, the People’s Republic of China demonstrated an impressive rendezvous and proximity capability with its SJ-21 satellite, which has been playing a cat and mouse game in geosynchronous orbit and seemingly towed a defunct satellite in its Beidou Phase-1 GNSS system from its GEO slot to a “super-graveyard drift orbit.”

Indeed, these activities are cause for concern and the perceived scarcity of formal rules has produced several approaches, including the EU Code of Conduct, the International Code of Conduct, transparency and confidence-building measures (TCBMs) advocated in the UN by the US, formal rules for military activity in outer space proposed by academia and non-governmental organizations, and a legally-binding draft treaty to ban space weapons sponsored by the Russian Federation and the People’s Republic of China (see “The 2014 PPWT: a new draft but with the same and different problems”, The Space Review, August 11, 2014). More recent developments include an effort by the United Kingdom in the UN First Committee and Tenets of Responsible Behavior in Outer Space initiated by a memorandum from the US Secretary of Defense on July 7, 2021. Encompassing these initiatives is a US-led desire to create international norms for outer space activities.

Many of these all these efforts have either failed outright while others are still in their infancy and face significant hurdles to be implemented, including geopolitical challenges related to great power competition. Yet, the idea of an agreement analogous to the Incidents on the High Seas Agreement has not faded with a commentor noting the idea of an Incidents in Outer Space Agreement would be a means to address concerns of outer space activities and security. However, the author questions whether the idea of an “Incidents in [Outer] Space” still holds merit.

A review of the Incidents on the High Seas Agreement

During the 1960s, several incidents occurred between naval forces of the United States and the naval forces of the USSR, including incidents involving aircraft and surface vessels.[3] These incidents prompted the United States to propose talks with the USSR to prevent these incidents from becoming more serious and escalating into more serious international incidents.[4] The USSR accepted this proposal and after two rounds of talks, one on October 1, 1971, and the other on May 17, 1972, the agreement known as the Agreement Between the Government of the United States and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas was signed and entered into force on May 25, 1972.[5]

The Agreement is essentially a confidence-building measure that does not directly affect the size, weaponry, or force structure of the parties.[6] More accurately, the Agreement is intended to enhance mutual knowledge and understanding of military activities; to reduce the possibility of conflict by accident, miscalculation, or the failure of communication; and to increase stability in times of both calm and crisis.[7] The Agreement provides for:

• Steps for parties to take to avoid collision;[8]
• The preclusion of interference with the “formations” of the other party;[9]
• Abstaining from maneuvers in areas of heavy sea traffic;[10]
• Obligating surveillance ships to maintain a safe distance from the object of investigation so as to avoid “embarrassing or endangering the ships under surveillance”;[11]
• Employing accepted international signals when ships maneuver near one another;[12]
• Abstaining from simulating attacks at, launching objects toward, or illuminating the bridges of the other party’s ships;[13]
• Informing vessels when submarines are exercising near them;[14] and
• Requiring aircraft commanders to use the greatest caution and prudence in approaching aircraft and ships of the other party and not permitting simulated attacks against aircraft or ships, performing aerobatics over ships, or dropping hazardous objects near them.[15]

The Agreement also requires parties to approach each other’s ships and aircraft with prudence, operate proper navigational lights, and raise proper signals when launching aircraft.[16] Moreover, it requires parties to give advance notice to mariners of actions on the high seas that could create a hazard to navigation and make increased use of signals from the International Code of Signals when maneuvering in proximity to other ships.[17] In the event of an incident, both parties are required to provide information to the Soviet Attaché in Washington and the US Naval Attaché in Moscow.[18] A protocol to the Agreement was signed on May 22, 1973, prohibiting simulated attacks by aiming guns, missile launchers, torpedo tubes, and other weapons at non-military ships of the other Party, or launching or dropping any objects near non-military ships of the other Party that could be hazardous to the ships or constitute a hazard to navigation.[19]

The Incidents in [Outer] Space Agreement

The author proposed the Incidents in Space Agreement 13 years ago to promote the idea of a legally-binding bilateral measure not only between the US and the Russian Federation but also the People’s Republic of China. The idea of the Incidents in Space Agreement was to change the archetype from banning instrumentalities in outer space to acknowledging it is not the existence or presence of dual-use technologies that would incite an incident, but rather the conduct and use of that technology that could lead to a an incident in outer space.[20] The Incidents in Space Agreement was intended not to restrict the nature or function of space assets, but rather to reduce the possibility that an international incident would occur through an accident or misunderstanding involving the activities of the spacecraft or to prevent an escalation of an existing incident through protocols within the Agreement.[21]

The Agreement would create a dialogue through which the likelihood of an incident occurring or escalating would be diminished through the enhancement of mutual knowledge and understanding of each other’s space operations.[22] This would be accomplished by reciting the intent and circumstances of the Agreement to assure the safety of navigation of spacecraft of the Parties without interference as well as incorporate by reference the current body of customary international space law and law that is codified in agreement through the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies and its children Treaties. The Agreement would define with particularity for purposes of the Agreement the concepts of spacecraft, aircraft, and ground station, with emphasis on including both non-military and military entities within the definitions. This, in effect, would cover all potential avenues of interference from which a Party might proceed against another Party’s space assets.

The Incidents in Space Agreement would also contemplate “Rules of the Road” that would consider conduct of spacecraft in relation or proximity to each other, including placement of spacecraft in co-orbits, simulated attacks, electronic targeting of spacecraft, and the use of energy devices, including lasers, by spacecraft, aircraft, or ground stations to illuminate or disrupt another Party’s spacecraft. The “Rules of the Road” would also include activities and conduct that might deny the use of space by the other party, incorporating activities that could potentially create hazards that interfere with the transit of the other party’s spacecraft through certain orbital planes.

Finally, the Incidents in Space Agreement would contemplate and create a protocol for informing the respective Parties of any activities that may interfere with the space activities of either Party and mandate the formation of a committee that would discuss and set protocols specifying fixed distances between spacecraft, including those in separate orbits and those in co-orbits.[23]

Reconsidering the Incidents in Space Agreement

In the years since the author proposed the Incidents in Space Agreement, the geopolitical environment, including the outer space environment, has changed along with the author’s experience and evolving thoughts on the topic. When revisiting the idea of the Incidents in Space Agreement, the glaring question is where, in light of realpolitik, such an agreement is viable. Consider the following four points:

1. Outer space is a unique domain whose closest parallel is Antarctica and not the maritime domain.[24] Irrespective of its dissimilarities, the maritime domain has hundreds of years of experience compared to outer space. Before a binding agreement like the Incidents in Space Agreement could be entered into effectively, there is a need for more practical experience to allow norms to grow organically instead of creating them through formal discussions or transplanting them from a terrestrial domain.

2. Outer space is an asymmetric environment and will remain so for the foreseeable future; however, that doesn’t mean it isn’t without order. Outer space has high strategic value in terms of national interests. Therefore, the creation and adherence to of rules of the road, norms, etc., will be subjective and pawns of players in the great power competition. This means top-down measures, norms that are “agreed to” in international bodies, and formal rules will find support in academic and diplomatic circles but will not be viable in practice and paid lip service as the strategic nature of outer space will ensure national interests will prevail. However, bottom-up measures and practices gained through experience will gradually give symmetry to outer space and lead to norms and rules that evolve organically into customary international law as opposed to being compelled by formal agreements and “agreed-to norms.”[25]

3. Outer space is law of the jungle, and measures such as the Incidents in Space Agreement will be ignored and used as implements of lawfare.[26] The misconception surrounding legally binding measures is they will ensure compliance, yet treaties, norms, rules, etc., do not possess magical powers to compel that compliance. Nor does international law have sovereign authority and cannot mandate adherence or provide the means to effectively punish non-compliance. The reality is international law receives its authority from sovereign states that willingly comply with its precepts. However, states have interests, and international rule-making is subject to those interests, and states may ignore the rule of law when it benefits their strategic interests. Indeed, actions in the “nine-dash line” region of the South China Sea and even the Russian Federation’s lack of compliance with the Incident of the High Seas Agreement as evidenced by incidents involving aircraft and ships on the high seas contrary to the Agreement portend a similar level of non-compliance with an Incidents in Space Agreement.[27] Consequently, the reality of lawfare and realpolitik does not create a viable opportunity for legally-binding agreements like the Incidents in Space Agreement, which, along with formal norms and rules, create a potential geopolitical and geolegal trap that adversaries will take advantage of.

4. The Russian Federation and the People’s Republic of China have invested substantial resources in developing technologies that have the capability of being employed as counterspace weapons. The People’s Republic of China has not only shown it has an ASAT capability with ground-based weapons, but it has also demonstrated rendezvous and proximity technology with its SJ-21 spacecraft that could also serve as a co-orbital ASAT. The Russian Federation, for its part, has not only demonstrated an ASAT capability and capacity with the November 15, 2021, intercept of Cosmos 1408 but has also demonstrated the political willingness to use that technology and the inclination to violate existing treaty law. Moreover, the Russian Federation’s shadowing of civilian and national security space assets registered to the US demonstrates its co-orbital capability and the potential to employ it. An implemented Incidents in Space Agreement will not deter either of these actors from continuing to develop their technology nor persuade them to abandon its use in a non-peaceful manner.

Taking these and other points into consideration, the author concludes the Incidents in Space Agreement would not be a viable means to address outer space security.

Conclusion

The Incidents in Space Agreement is a model for outer space governance that does not have a footing in the geopolitical and lawfare environment that exists today. It is the opinion of the author who proffered this concept over a decade ago that an Incidents in Space Agreement, while noble, would not be a practical tool in the realities of great power competition. Many continue to bemoan the US needs to take leadership in outer space security and governance yet, their means are mostly top-down methods conjured in academia and think-tanks isolated from the realpolitik of the international arena.

The Incidents in Space Agreement, which was created in the pages of this publication with the same idealism of other top-down measures, suffers similar deficiencies. Conversely, bottom-up approaches such as the Artemis Accords, which builds upon the existing foundation of outer space law, represents the leadership lamented as lacking by commentors and will provide an organic approach to rule-making that creates norms through practice and not theory.

Endnotes

1. The author will use the term “space weapon(s)” loosely in this essay considering the term is subjective and is resistant to an acceptable legal definition.
2. The author takes the position the November 15th intercept was a demonstration of an ASAT capability and capacity and not a test, which means arguably the Russian Federation violated international law when it destroyed Cosmos 1408 even though it was a spacecraft registered to the Russian Federation. The author discussed the November 15th intercept, including the legal and geopolitical aspects in a Special Issue of the space law and policy briefing letter, The Précis.
3. The terms of the Agreement were assigned to the Russian Federation after the dissolution of the Soviet Union.
4. Listner, Michael J., “A bilateral approach from maritime law to prevent incidents in space,” The Space Review, February 16, 2009.
5. Narrative, Agreement Between the Government of the United States and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas, 852 UNTS 151, May 25, 1972.
6. Ibid.
7. Id.
8. Agreement Between the Government of the United States and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas, 852 UNTS 151, art. III(1), May 25, 1972.
9. Ibid at art. III(2).
10. Id. at art. III(3).
11. Id. at art. III(4).
12. Id. at art. III(5).
13. Id. at art. III(6).
14. Id. at art. III(7).
15. Id. at art. III(8).
16. Id. at art. IV-V.
17. Id. at art. VI.
18. Id. at art. VII.
19. Agreement Between the Government of the United States and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas, 852 UNTS 151, Protocol, art. II, May 22, 1973.
20. Listner, Michael J., “A bilateral approach from maritime law to prevent incidents in space,” The Space Review, February 16, 2009.
21. Id.
22. Id.
23. Id.
24. See Beattie v. U.S., 756 F.2d 91, 99 (D.C. Cir. 1984).
25. A prime example is the Artemis Accords, which, with the recent inclusion of the State of Israel, has 15 states in its membership.
26. The author defines lawfare as follows: “To employ the rule of law and its instruments to augment or replace physical force to serve a national interest or achieve a political/geopolitical end.” See also, Dunlap, Charles J, Colonel, 2001, “Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts”, paper presented to Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University, Washington, D.C, November 29, 2001, viewed January 28, 2022.
27. Some in academia, media and NGOs frequently take aim at the activities of the US in outer space and elaborate on its presupposed hegemony and non-compliance with international law while simultaneously ignoring or diminishing the actions of states such as the People’s Republic of China and the Russian Federation in furtherance of their national interests. See e.g. Koplow, David A, “Reverse Distinction: A U.S. Violation of Armed Conflict in Outer Space,” HARV. NAT. SEC. J., Vol. 13:25, p. 62.

Michael J. Listner is an attorney and the founder and principal of Space Law and Policy Solutions and the author and editor of the space law and policy briefing letter The Précis.

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