Summary and Keywords
Outer space is once again facing renewed competition. Unlike in the earlier decades of space exploration when there were two or three spacefaring powers, by the turn of the 21st century, there are more than 60 players making the outer space environment crowded and congested. Space is no more a domain restricted to state players. Even though it is mostly a western phenomenon, the reality of commercial players as a major actor is creating new dynamics. The changing power transitions are making outer space contested and competitive. Meanwhile, safe and secure access to outer space is being challenged by a number of old and new threats including space debris, militarization of space, radio frequency interference, and potential arms race in space. While a few foundational treaties and legal instruments exist in order to regulate outer space activities, they have become far too expansive to be useful in restricting the current trend that could make outer space inaccessible in the longer term. The need for new rules of the road in the form of norms of responsible behavior, transparency and confidence building measures (TCBMs) such as a code of conduct, a group of governmental experts (GGE), and legal mechanisms, is absolutely essential to have safe, secure, and uninterrupted access to outer space. Current efforts to develop these measures have been fraught with challenges, ranging from agreement on identifying the problems to ideating possible solutions. This is a reflection of the shifting balance of power equations on the one hand, and the proliferation of technology to a large number of players on the other, which makes the decision-making process a lot problematic. In fact, it is the crisis in decision making and the lack of consensus among major space powers that is impeding the process of developing an effective outer space regime.
Keywords: space governance, outer space treaty, transparency and confidence building measures (TCBMs), group of governmental experts (GGE), space debris, global governance, PAROS, PPWT, COPUOS, UN OOSA
Technology has affected lives in many ways, in both a positive and a disruptive manner. Space exploration and utilization for a variety of functions in the civilian and military domains capture this aptly. Rising population in outer space including growing levels of space debris, increasingly military-oriented space programs and early trends towards weaponization, spectrum allocation and radio frequency interference, and cyber-enabled space threats are driving the need to create new global governance mechanisms. After a gap of nearly three decades, there are early signs of renewed space competition. Militarization of space is already a reality given that militaries around the world have been using outer space assets for several passive military applications, but governments contemplating the use of space for conventional military operations (as against strategic ones during the earlier decades) must be restricted.
A growing number of countries from the developing world, particularly in Africa and Latin America, have just begun to understand and appreciate the utility of outer space assets for developmental and peaceful applications. With this expansion, the number of countries and other actors engaged in outer space activities will go up manifold in the coming years. Therefore, the rule-making exercise in the outer space domain has become an urgent matter. Unlike in other traditional security sectors such as nuclear weapons, outer space still lacks an effective multilateral management regime. An effective space governance regime must ensure security of space, guarantee order and stability, and maintain long-term sustainability of outer space. Most states recognize and declare these as their objective, but there exist yawning gaps between rhetoric and reality. Thus, the need for effective guidelines, norms, and regulations cannot be emphasized enough. At a time when there is a budding competition in space, particularly evident in Asia, there is a need to clearly delineate and disseminate boundaries of responsible behavior.
Existing Outer Space Governance Mechanisms
There are a few legal instruments that have so far governed outer space activities, but these have become too expansive to be useful. The five key treaties are: Outer Space Treaty (OST) (1967), Rescue Agreement (1968), Liability Convention (1972), Registration Convention (1976), and The Moon Agreement (1984). The five treaties are administered by the UN Committee on the Peaceful Uses of Outer Space (COPUOS).
While each of these five legal instruments is quite comprehensive in covering a particular aspect, one of the biggest drawbacks with these instruments is that they were developed in an era when the threats and challenges facing outer space environment were significantly different. Recognizing the new dimension to outer space activities, the plenary meeting of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (1999), adopted a new declaration highlighting the important changes (UNOOSA, 1999). The Space Millennium: Vienna Declaration on Space and Human Development, adopted on July 30, 1999 notes that “significant changes have occurred in the structure and content of world space activity, as reflected in the increasing number of participants in space activities at all levels and the growing contribution of the private sector to the promotion and implementation of space activities.” In the two decades since, outer space activities have grown even further and are set to grow manifold in the coming years. Two decades since then, outer space activities have grown even further and it is set to grow manifold in the coming years.
Given this considerable growth in the outer space activities, at the very least, the existing treaties must be reviewed and revised to take cognizance of the new realities. There are a few other international mechanisms as well that have applications to outer space affairs. These include The Treaty Banning Nuclear Weapon Tests in the Outer Space and Under Water (1963), Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1978), and the International Telecommunication Constitution and Convention (ITU) (1994). Even as there are almost ten legal instruments in play, they have been found lacking for several different reasons, which will be explained in a subsequent section, “Existing Instruments in the Outer Space Domain.” It must be also mentioned that, as in other areas, the UN Charter will prevail over other treaty commitments. Two key provisions of the UN Charter that are often debated in the outer space context are Article 2.4, which prohibits threat or use of force including in outer space, and Article 51, on the right to self or collective-defense.
Existing Instruments in the Outer Space Domain
Outer Space Treaty
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (referred to as Outer Space Treaty in short [OST]) remains to date one of the fundamental legal mechanisms relating to outer space activities. The Treaty was adopted by the General Assembly in its resolution 2222 (XXI) on December 19, 1966 and opened for signature on January 27, 1967, in London, Moscow, and Washington DC. The original depositaries were Soviet Union, United Kingdom, and the United States, and the treaty entered into force on October 10, 1967. With only a handful of space powers in the early 1960s, the OST was negotiated and finalized by the US, the USSR, and the UK. Currently, 107 countries are parties to the treaty, while another 23 have signed the treaty but have not completed ratification.
The treaty had its origin in the Legal Sub-Committee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS). (For an excellent overview of the debates in the run up to the development of Outer Space Treaty, see Dembling & Arons, 1967; also Lyall & Larsen, 2007). Following an announcement on December 8, 1966, that an agreement was reached among the 28-member United Nations Outer Space Committee for a treaty establishing principles governing activities in the exploration and use of outer space, the moon, and other celestial bodies, the General Assembly Political Committee approved the Treaty unanimously on December 17, 1966. This was considered a major feat given the diverging political ideologies that major powers belonged to and the overall conflictual nature of relationships that existed between the two superpowers of the day.
The OST, considered one of the most comprehensive instruments, elucidates the principle that:
the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind, and that irrespective of their degree of economic and scientific development, outer space shall be free for exploration and use by all states (Art I); that outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means (Art II); that States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner (Art IV); that astronauts shall be regarded as the envoys of mankind (Art V); that States shall be responsible for national space activities whether carried out by government or non-governmental entities (Art VI); that States shall be liable for damage caused by their space objects; and that States shall avoid harmful contamination of space and celestial bodies.
While the OST is comprehensive in addressing many important issues, it suffers from lapses that must be rectified. A big weakness of OST is that it deals only with non-placement of weapons of mass destruction and not conventional weapons. Also, while no government will likely choose to place weapons in outer space, there is even a bigger concern with countries using ground-based weapons such as anti-satellite (ASAT) weapons to target assets in outer space. Interpretation of OST has also expanded in terms of the scope and categorization of activities. Definitional clarity in this regard is important. What is a space weapon, or how we define defensive or peaceful use of outer space are examples of such definitional issues that need to be tackled on a priority basis. The definition of an astronaut is fraught with even bigger question—typically, an astronaut is someone who has been a “personnel of a spacecraft,” but can a space tourist who goes on a Virgin Galactic flight also be termed an astronaut? (Rajagopalan, 2015).
The Rescue Agreement
The Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (referred in short as the Rescue Agreement) was adopted by the General Assembly in its resolution 2345 (XXII) and opened for signature on April 22, 1968. The Agreement entered into force on December 3, 1968. The debates in the run up to the conclusion of this agreement touched upon issues from ownership to liability as well as compensation. However, it was finally agreed upon that the commitment to rescue and return astronauts and space objects would be dealt with separately from the responsibility to compensate for damages. In December 1958, the General Assembly established an 18-member Ad Hoc Committee on the Peaceful Uses of Outer Space and tasked it to examine and report “the nature of legal problems which may arise in the carrying out of programmes to explore outer space.” This Ad Hoc Committee in turn established a Legal Subcommittee, and its 1959 report (UN Doc. No. A/AC.98/2 at 7) brought to the fore several problems that warranted priority attention, including:
the desirability of the conclusion of multilateral agreements concerning re-entry and landing, such agreements to contain suitable undertakings on cooperation and appropriate provisions on procedures. Among the subjects that might be covered by such agreements would be the return to the launching state of the vehicle itself and-in case of a manned vehicle-provision for the speed return of personnel.
The Rescue Agreement, a relatively short instrument with ten articles, expands upon article 5 and 8 of the OST. The Agreement “calls for the rendering of all possible assistance to astronauts in the event of accident, distress or emergency landing, the prompt and safe return of astronauts, and the return of objects launched into outer space” (UNTS, 1968). Even though the Agreement is clear on the status of the astronauts as “envoys of mankind,” there has been so far little opportunity for other states to help when one state’s astronauts or cosmonauts were in distress. Hence, the Agreement is referred to by space law experts as “sleeping beauty,” waiting to be awakened (von der Dunk, 2008).
The Liability Convention
The Convention on International Liability for Damage Caused by Space Objects (referred to as Liability Convention in short) was adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on March 29, 1972, and entered into force on September 1, 1972.
From the time Sputnik was launched into space, there were debates about the difficulties caused when satellites crash into foreign soil. Though the interpretation was that satellites or spacecraft remain the property of the state that launched it, some also argued that, once a satellite is launched, it is not entirely within the control of human beings, and so its legal position should be somewhat comparable to that of a meteor. In the case of a meteor, possession belongs to the state where it lands. Nevertheless, it was finally agreed that a satellite launched by man is not like a meteor as its flight paths and movements can be controlled by the launching state to a large extent (Dembling & Arons, 1968; Lyall & Larsen, 2009). Irrespective of the nature of the entity launching a space object, states (countries) remain responsible for all the space objects launched from their territory, which essentially translates to the same states being responsible for liability for damages should there be an incident.
According to the Liability Convention, claims against damage or destruction are brought by a state against a state, irrespective of who caused the incident (in other words, even if it is commercial actor). This Convention is important because, according to most national legal instruments, an individual or an industry could initiate a lawsuit against another individual or industry, whereas the Liability Convention made it categorically clear that it is the states that are responsible even if an incident is caused by a private actor. The first and only incident where Liability Convention came into play was when a nuclear-powered Soviet Cosmos 954 satellite crashed in northern Canada (Karacalıoğlu, 2014).
The Registration Convention
The Convention on Registration of Objects Launched into Outer Space (usually referred to as Registration Convention) was adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on January 14, 1975 and entered into force on September 15, 1976. The Convention has been ratified by 64 states as of December 2017 (see UN Convention on Registration of Objects Launched into Outer Space, 1976). The Convention has a straightforward objective of the registration of space objects. The Registration Convention builds on Article VIII of the OST, which deals with registration as well as jurisdictional aspects of an object launched into outer space. It is important from the perspective of both the Rescue Agreement and Liability Convention in cases of incidents, to identify whose object it was, as well as to fix liability and compensation on states for damage or destruction. Thus these three treaties can be seen as a package (UN Treaty Collection, 1974, 2017; von der Dunk, 2003).
Signatories to the Convention are required to submit to the UN details about each space object launched into earth orbit or , and the Registry of objects launched is maintained by the United Nations Office for Outer Space Affairs (UNOOSA) as per a UN General Assembly Resolution in 1962. The Register includes information such as name of launching state, an appropriate designator of the space object or its registration number, date and territory or location of launch, basic orbital parameters like nodal period, inclination, apogee, and perigee, and general function of the space object launched.
The Moon Agreement
The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies was adopted by the General Assembly in its resolution 34/68, opened for signature on December 18, 1979 and entered into force on July 11, 1984, when Austria ratified it as the fifth country to do so.
Like the other three treaties, the Moon Agreement too is built upon the principles enshrined in the OST and sought to establish a set of rules around the use of Moon and other celestial bodies within the solar system, other than Earth. The Agreement states that the Moon shall be used by all states “exclusively for peaceful purposes,” and that “(A)ny threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited.” In addition, it prohibited placement or use of weapons of mass destruction (WMD) on the Moon, as well as the “establishment of military bases, installations, and fortifications, the testing of any type of weapons and the conduct of military manoeuvres” (UN Office for Disarmament Affairs, 1979).
The Moon Agreement is yet to have much support—only eleven countries are signatories to the Agreement (UNTC, 1979). Among the established space powers, the United States, Russia, and China have not signed or ratified the Agreement, making it a weak agreement from an international law perspective (Listner, 2011). Michael Listner lists access to natural resources on the Moon (Article 6) as possibly the most controversial aspect about the Agreement, which is why many states have not signed or ratified the Agreement. Listner adds, “The Moon Treaty provides that the Moon and its natural resources are the common heritage of mankind and the harvesting of those resources is forbidden except through an international regime established to govern the exploitation of such resources when it becomes feasible to do so” (Listner, 2011). Even so, there are many areas that require clarification, such as what constitutes resources.
While these five treaties form the fundamentals of an outer space regime, there are weaknesses in the existing regime. This has compelled states to contemplate new additional measures, although support for legally binding measures is weak. Thus, there is interest among states, particularly those in the West, to push for political commitments such as Transparency and Confidence Building Measures (TCBMs) and UN Group of Governmental Experts (GGE). TCBMs enjoy reasonable support even among non-Western countries. However, these countries tend to approach TCBMs as good supplementary measures than replacements for legal instruments (Venkatesh Varma, 2015). For instance, countries such as India have usually taken common positions along with other non-aligned countries like G-21 in the Conference on Disarmament (CD) in Geneva. In addition to TCBMs, there are also draft treaties being considered, but they have yet to gain any significant support.
Transparency and Confidence Building Measures (TCBMs)
TCBMs are essentially voluntary measures that countries join on their own volition, are aimed at building confidence among spacefaring powers, and have the ability to predict with reasonable certainty on how countries may behave. With growing number of threats, both intentional and natural, to continued and uninterrupted access to space, there is a compelling need to improve transparency around outer space activities. TCBMs could go a long way in developing certain norms for responsible behavior, and they could expand space situational awareness, which could possibly mitigate some of the threats including orbital collisions and radiofrequency interference.
TCBMs are meant to promote higher level of transparency and openness, which could alleviate some of the tensions that are characteristic of the great power relations today. They are not legally binding, but if they are successful, TCBMs could possibly remove some of the political hurdles that have become hindrances in developing legal instruments. TCBMs have an advantage because they help in building the much-required trust and confidence levels in each other and thus strengthen overall regional and global stability. They are also seen as an important intermediate step between recognizing a functional need and materializing a binding instrument. If countries do feel the need for a binding arms control measure, TCBMs can enable different parties to talk to each other and build up the support for a specific area such as the risks of orbital space debris. They are essentially channels to bolster dialogue and conversations between states parties at different levels that could support openness and sharing of information. Once there is greater trust established through TCBMs, it is relatively easier to make progress towards legally binding measures.
There are many advantages and some disadvantages to TCBMs. One of the big plus points for TCBMs is that these are voluntary measures by states and therefore they are far easier to conclude, unlike legal instruments that could take up to a decade to agree upon. Again, unlike in a treaty-like mechanism, there are no lengthy discussions on what needs to be implemented and verified because these agreements are political instruments and not legally binding. Developing a treaty could involve extensive discussions on technical, legal and political aspects of that instrument. However, the reality is that TCBMs work well in certain domains but not in all domains. If one were to look at the Chemical Weapons Convention (CWC), despite the cumbersome verification measures, they have been far more successful than any agreement might be in the space domain. But if states are to implement measures against states from diverting their civil space technology into military space program or, even worse, develop ballistic missile program, it is impossible to know for certain. Unless a country tests its ASAT weapons or conducts a ballistic missile test, the global community possibly has no ways of knowing if a country is violating its commitments. The only way to prevent violation of a commitment is deterrence, which is to say, if one side does it, others will do it. Therefore, parties involved may have an incentive to stay true to their commitments and not break them. This is precisely the disadvantage of TCBMs—unlike in legal mechanisms, a country violating commitments is not subjected to any penalty.
Some of the useful TCBMs considered in recent years include Group of Governmental Experts (GGE) and International Code of Conduct for Outer Space Activities.
Group of Governmental Experts (GGE)
UN Group of Governmental Experts (GGE) in outer space activities is seen as a successful initiative for a couple of reasons. The fact that GGE is constituted within the UN umbrella offers solace to those countries that continue to emphasize the importance of multilateralism through established institutions such as the UN. Also, the GGE reports are usually consensual in nature, and therefore, there is a binding support from the parties that are engaged in the process.
GGEs are established by the by the UN General Assembly to examine the contemporary debates including current and future threats and challenges to space security and sustainability and possible ways to deal with them. They are meant to strengthen international cooperation, encourage mutual trust, and reduce tensions and misperceptions to prevent intended or unintended conflicts (Johnson, 2014). GGEs usually comprise of 15 member states from across different continents, and the 5 Permanent Five members have a seat at every GGE established irrespective of the number of simultaneous GGEs. For instance, non-P-5 countries have to choose which GGE they want to be part of if there are two GGEs being established simultaneously. The GGE is derived from the UN General Assembly’s First Committee that debates security and disarmament issues.
There have been three GGEs on outer space so far. The first GGE was constituted in 1991, and the second one was established in 1993 with an objective to explore confidence-building measures related to outer space activities. The focus of the third GGE was to examine the five foundational treaty mechanisms in the context of growing space security challenges. The third GGE during 2012–2013 was considered a reasonable success since the group produced a report that was based on consensus among the 15 members. The 15 members were Brazil, Chile, Italy, Kazakhstan, Nigeria, Romania, South Africa, South Korea, Sri Lanka, and Ukraine, and the P-5 countries. (For an overview of the third GGE in terms of their objectives, conclusions, and recommendations, see the presentation by Ambassador of Sri Lanka, in Jaffeer, 2014). In the process of writing the report, the Group also consulted other UN bodies such as the Conference on Disarmament (CD), UN COPUOS, International Telecommunication Union and the World Meteorological Organization (Lagos Koller, 2012). Even as the report was formulated following consultations with a number of stakeholders and on the basis of consensus, it was seen as lacking for a couple of reasons. One, these reports were recommendatory in nature and do not have a binding effect on states to implement recommendations. Nevertheless, the GGE recommendations can be made more effective if these are taken up by member states and introduced as UN General Assembly Resolutions, which could then possibly become binding. Two, the GGEs are seen as having limited geographical representation. Since it has representation from only 10 members across the globe, it is felt that they do not have adequate geographical representation.
International Code of Conduct for Outer Space Activities (ICoC)
EU-initiated International Code of Conduct for Outer Space Activities was one of the more recent political initiatives, though again without much success. Initially, the EU expected a global endorsement of its Code by 2012 but the ICoC met with harsh criticism from all the major and emerging space players. The fact that they were not part of the consultation process in developing the Code became a big hindrance in finalizing it. Countries across Asia, Africa, and Latin America perceived the EU exercise as an exclusionary one, with the EU determining what is good for the world (Rajagopalan, 2012). The EU made a bad judgment call in this regard and lost an important opportunity to engage with other space powers to formulate what could have been effective rules of the road for outer space activities. Involvement of other countries in the consultations and thus securing their political buy-in should have been an important consideration for the EU as it prepared the ICoC (Rajagopalan, 2013).
Having recognized their folly, the EU began to reach out to all the spacefaring powers and held regional conferences in every geographical region to understand the different perspectives on TCBMs in general to ICoC in particular. The EU roped in the UN Institute for Disarmament Research (UNIDIR) to conduct the regional seminars in Asia, Africa, Americas, and Europe and possibly bridge the gap between the EU and these countries/regions. To this end, the EU conducted three Open Ended Consultations (OECs), open to all the countries, with the objective of gaining greater understanding and enlisting the support of as many countries as possible. The OECs (held in Kiev, Bangkok, and Luxembourg in May and November 2013 and May 2014, respectively) were helpful to large extent with a lot many more countries willing to engage the EU, but they also led to sharp divisions on a couple of important themes. The debates around the right to self/collective defense created a sharp divide between established and emerging spacefaring powers (Rajagopalan & Porras, 2013). The code of conduct and norms of responsible behavior are perceived as exercises undertaken by the West to restrict opportunities for newcomers to space. Although the ICoC, for instance, clearly talked about international cooperation and technology sharing without much conditionality, the developing world approached ICoC from a technology denial perspective. Though one could argue that this was more of a misperception, the history and track record of the West in using multilateral regimes to deny technology, especially during the Cold War, reminded these countries of what might lie ahead.
Developing countries were also concerned that the West could, through the Code, come up with a taxation regime for spectrum allocation, for instance, thus making access to space a lot more expensive. In the meantime, the ICoC ran into rough weather following some major geopolitical developments involving Russia and Ukraine. The Ukraine crisis in 2014 reduced Russian support, essentially freezing the initiative. Without the support of critical powers such as Russia and China, the ICoC will be an inadequate instrument. In addition to Russia and China, there are a number of countries in Africa, Asia, and Latin America that have raised objections, and the EU has to satisfactorily address their concerns before securing their support (Rajagopalan & Porras, 2014). Therefore, what is required is both a critical number of states and critical actors to make the ICoC or any instrument effective and viable. In the absence of a large support base and the participation of critical actors, ICoC will see the repeat of the Hague Code of Conduct against Ballistic Missile Proliferation (HCoC) exercise, which has not been very successful.
Prevention of Arms Race in Outer Space (PAROS) is another measure that has been debated year after year at the UN General Assembly. However, it has yet to make any serious impact on how states are deciding their outer space policy. Much like other treaties, PAROS builds upon the principles outlined in the OST, to prohibit states from placing weapons, including conventional ones, in outer space. PAROS has remained an important agenda item in the UN arms control debates, but it is unlikely that it will gain critical traction to make effective changes in the immediate future. There is a near consensus as far as the goal of preventing weaponization of outer space is concerned, at least in the rhetoric of all the space powers, but the lack of enthusiasm from some of the critical players makes PAROS a distant reality. For instance, the United States does not subscribe to the need for a PAROS-like treaty, considering that no country has placed weapons in outer space. But the reality of Chinese counter-space capabilities like robotic arms and other force projection competencies and the global strike capabilities of the United States with space components amount to weaponization of outer space. Thus, given the contemporary global space developments where there is a budding arms race among established space powers, an international endorsement for PAROS is an unrealistic goal.
With writing of the global rules of the road for outer space activities gaining traction, there have been efforts at developing TCBMs as well as legal measures. Russia and China have been championing the case for a draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT). The two countries produced the first version of the draft treaty in 2008, and a revised text was submitted to the CD in Geneva in 2014. PPWT is based on an earlier working paper submitted by Russia, China, Vietnam, Indonesia, Belarus, Zimbabwe, and Syria to the CD in 2002 (China and Russian Federation, 2002). According to China, the key objectives of the PPWT are “to prohibit the placing of weapons in outer space and to prohibit the use or threat of force against objects in outer space” (Ji, 2017).
Even as many countries generally support legally-binding measures, PPWT has not seen large-scale support. The limited support for PPWT is driven by a few issues (for a critique of the PPWT, see Listner & Rajagopalan, 2014). One, there is an over-emphasis on arms race in outer space. Though there is probably an emerging arms race in space, it is in its infancy and yet to manifest as a significant threat. Two, there are far more pressing challenges, such as space debris, that do not find any mention in the PPWT. Three, the excessive focus on the placement of weapons in outer space without mentioning the threat of anti-satellite (ASAT) weapons is a self-defeating goal. The threat from ground-based ASAT weapons, and from other kinetic means of targeting assets in outer space, is more threatening than placement of weapons in outer space (Liu, 2014). Absence of ASATs in the PPWT is fairly conspicuous and a major drawback. Given these pitfalls, it is unlikely that PPWT will gather significant momentum in the near future.
The Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets (referred to as The Space Assets Protocol, or Berlin Space Protocol) deals with objects functioning in space like satellites or satellite parts (Unidroit Committee, 2011). The Convention has been opposed by space and the telecom industries across the board, arguing that it could “make the financing of new satellite projects more difficult and expensive, including those planned by developing nations to serve their citizens” (Satellite Industry Association, 2012). The Protocol has yet to enter into force because it requires at least ten parties to ratify whereas it has only four signatories so far (Unidroit, 2012).
No First Placement (NFP)
Pursuing the agenda of banning the placement of weapons in outer space, the First Committee of the UN on Disarmament and International Security forwarded a draft resolution to the UN General Assembly in 2014 on no first placement of weapons in outer space, emphasizing the need to urgently deal with the issue of arms race in outer space (United Nations, 2014). Subsequently, in December 2014, the UN General Assembly passed the resolution No First Placement of Weapons in Outer Space (NFP), proposed by Russia (Permanent Mission of the Russian Federation to the United Nations, 2017). Also, all the spacefaring powers are being “encouraged to consider the possibility of upholding as appropriate a political commitment not to be the first to place weapons in outer space” (Space Daily, 2014). Subsequently, in December 2015, the UN General Assembly adopted a Russian resolution, “No first Placement of Weapons in Outer Space,” with the backing of 129 countries (United Nations, 2014). However, the United States has opposed NFP on three specific grounds: “First, the NFP initiative does not adequately define what constitutes a “weapon in outer space.” Second, the NFP initiative contains no features that would make it possible to effectively confirm a State’s political commitment “not to be the first to place weapons in outer space.” Third, the NFP initiative is silent with regard to terrestrially based anti-satellite weapons, which constitute a significant threat to outer space systems” (Wood, 2017). Russia disagrees with the US position and continues to press the urgent nature weaponisation of outer space to be addressed by the international community (Belousov, 2017).
In addition to the different initiatives, both TCBMs and legal measures, there are institutions that have remained critical in the global governance of outer space. These include the UN COPUOS, UN OOSA, CD and ITU.
UN Committee on the Peaceful Uses of Outer Space (COPUOS) has remained one of the most important multilateral institutions in developing the outer space regime. The Committee was established in 1959, with a key objective of overseeing the implementation of the five foundational legal agreements on outer space. COPUOS was originally established as an Ad Hoc Committee of the UN General Assembly with 18 members—Argentina, Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the UAR (United Arab Republic, composed of Egypt and Syria 1958–1961, Egypt continuing to use the name until 1971), the United Kingdom, the United States, and the USSR—through a UN General Assembly Resolution 1348 (XIII) of December 13, 1958, concerning the “Question of the Peaceful Use of Outer Space” (UNOOSA, n.d.). The COPUOS falls under the Fourth Committee of the UN General Assembly and is the primary point of contact for international cooperation in the peaceful uses of outer space. UN Office of Outer Space Affairs (UN OOSA) provides secretarial support for the functioning of the Committee.
Work of the COPUOS is undertaken by two sub-committees, the Scientific and Technical Subcommittee and the Legal Subcommittee. Starting with the work toward the formulation of the OST, the Legal Sub-committee of the UN has remained critical in developing the international treaty mechanisms governing outer space activities. Similarly, the Space Debris Mitigation Guidelines of the COPUOS, especially of its Scientific and Technical Sub-Committee, is significant in tackling the threat of space debris (UN Office of Outer Space Affairs, 2010). In addition, there is the Long-term Sustainability of Outer Space Activities (LTSSA) Working Group established under the Scientific and Technical Subcommittee, which explores ways to maintaining a safe and secure outer space. Decision-making within COPUOS and its sub-committees is done on the principle of consensus.
While the different committees and the COPUOS itself have undertaken commendable tasks in dealing with some of the pertinent threats in outer space, there are critics who argue that these guidelines are just recommendations and do not have a binding effect on states to implement them. Also, the COPUOS’ mandate is limited only to peaceful and civilian uses of outer space, thus leaving out an entire array of activities that relate to military operations outside the ambit of the COPUOS. However, this logic is beginning to undergo a slow change with the COPUOS taking a leading role in dealing with the threat of space debris, which is not purely a subject that falls under the COPUOS mandate.
UN Office of Outer Space Affairs (UN OOSA)
UN Office of Outer Space Affairs in its current form came into being in the United Nations Office in Vienna only in 1993. The OOSA began as a small expert unit with UN Secretariat in New York to aid the work of the Ad Hoc Committee on the Peaceful Uses of Outer Space. OOSA works with all other sections within the UN that have responsibilities for space, but it remains the nodal office for outer space affairs within the UN. The OOSA maintains the Register of Space Objects as per the Registration Convention. The OOSA database contains information on all space matters, services the UN system and UN member states, and is accessible to the public at large. OOSA on its own as well as in partnership with other governments and academic institutions has the responsibility for carrying out training modules and seminars aimed at dissemination of expertise and knowledge (Lyall & Larsen, 2009, p. 17).
Primarily, the UN OOSA is responsible for assisting UN member states in establishing legal and regulatory frameworks governing outer space activities. OOSA is also mandated to implement decisions taken by the UN General Assembly and the UN COPUOS. Its mandate has been tweaked several times to accommodate these growing roles, from implementing the UN Programme on Space Applications to the UN SPIDER Programme for disaster risk management and emergency response. OOSA has also been key in extending assistance to poor countries that might need help in in dealing with climate change-related challenges by providing free access to satellite imagery.
Conference on Disarmament (CD)
The Conference on Disarmament (CD) is a dedicated forum, established to debate and negotiate arms control and disarmament agreements. CD was originally established as the Committee on Disarmament in 1979 and was renamed as Conference on Disarmament in 1984. The CD currently has 65 member states (CD invites other UN member states who have expressed a desire to participate in substantive discussions to take part in the debates as non-member states) and successfully negotiated the Treaty on the Non-Proliferation of Nuclear Weapons, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and the Comprehensive Test Ban Treaty (CTBT). CD is not formally a UN organization, but it is connected to the UN through a personal representative of the UN Secretary General. The Director General of the UN Office at Geneva is also the Secretary General of the CD as well as the Personal Representative of the UN Secretary General to the CD. The CD adopts its own Rules of Procedure and its own agenda, considering recommendations of the General Assembly as well as proposals from its Members. The CD works on the principle of consensus. (CD invites other UN member states who have expressed a desire to participate in substantive discussions to take part in the debates as non-member states).
While the CD has a fairly comprehensive mandate to cover, It has been paralyzed due to disagreements between member-states for over two decades, and no substantive discussions have taken place in this forum. It is mandated to discuss and negotiate on “cessation of the nuclear arms race and nuclear disarmament; prevention of nuclear war, including all related matters; prevention of an arms race in outer space; effective international arrangements to assure non-nuclear weapon States against the use or threat of use of nuclear weapons; new types of weapons of mass destruction and new systems of such weapons including radiological weapons; comprehensive programme of disarmament and transparency in armaments” (United Nations Office at Geneva, n.d.). The CD is currently debating a Fissile Material Cut-off Treaty (FMCT), Prevention of Arms Race in Outer Space (PAROS) and nuclear disarmament. With a special mandate from the UN General Assembly, the CD has also to discuss the 2017 Treaty on the Prohibition of Nuclear Weapons.
The impasse at the CD is an enormous problem, but member-states are unwilling to attempt other alternatives, such as discussing arms control measures outside of the CD. Many of the UN member states are insistent that the CD is the venue to discuss all arms control and disarmament-related issues; therefore, breaking the stalemate in the CD is critical.
International Telecommunications Union (ITU)
International Telecommunications Union (ITU) is the UN agency meant for information and communication technologies, including space. The ITU’s role in allocating global radio spectrum and managing satellite orbital frequencies is critical. The Space Services Department within the ITU has the responsibility for coordinating and recording procedures for space systems and earth stations. The Department maintains and examines the frequency assignment notices submitted by administrations for recording in the Master International Frequency Register.
ITU was originally established as the International Telegraph Convention in Paris in 1865, making it the oldest intergovernmental organization in the world. After going through a couple more changes in its identity, the ITU became a UN specialized agency in 1947, with the objective of “fostering international cooperation for the improvement and rational use of telecommunications” (Graham & Jordan, 1980, p. 105). It has 193 member-states, including all UN member states except the Republic of Palau, and around 800 private sector entities and academic institutions. Republic of China or Taiwan is not a member however Taipei being a major producer of telecommunications equipment, it has been issued a country code and is listed as Taiwan, China (International Telecommunications Union, 2007). Palestine has been admitted as an observer since 2010 (International Telecommunications Union, 2010). In addition to member states of the UN, ITU membership is open to private organizations like telecom carriers, equipment manufacturers, research and development organizations, and international and regional telecommunication organizations, as non-voting Sector Members (International Telecommunications Union, n.d.).
Outer space environment has changed quite significantly since the turn of the century. There is a renewed competition, particularly visible in the Asian region. The number and types of space actors have gone up, and the role of commercial actors has become more considerable. Nevertheless, it must be added that commercial players and privatization of space ventures is primarily a Western phenomena, although this will happen in other parts of the world as well. Meanwhile, challenges to space and sustainability and access to space are growing from a number of natural and man-made threats.
As far as technological competencies are concerned, there are no revolutionary changes though there are new actors who have gained access to these technologies. Another important contextualizing factor is the changing balance of power equations at the global level which has cast its shadow in many other regions as well. Also, proliferation of space technology across a number of new actors is making the process of writing new rules of the road extremely challenging. Treaty-making exercise was far easier in the 1960s and 1970s, when technology was in the hands of two or three states, and they had an inherent interest in controlling the spread of technology. On the other hand, today, technology is in the hands of several dozens of countries and developing consensus among the large pool of states has become extremely challenging.
While legally binding and verifiable measures are ideal, they are almost impossible in the current international political context. Hence, states should focus on norm creation, approaching space from a more pragmatic perspective to start with the least common denominator in the form of voluntary, non-legal measures that could enable better understanding, potentially reduce wariness, competition and rivalry between states. States must also contemplate steps that could alleviate some of the challenges and build greater cooperation. These include, first, expanding and strengthening Space Situational Awareness (SSA) cooperation, to include more players. Major spacefaring powers must make efforts to establish a global initiative, possibly under the UN COPUOS. Second, better space traffic management measures must be initiated to take care of the expansion of outer space activities in terms of more players, activities, and capabilities. The growing density in the outer space environment calls for better traffic management practices and regulations.
Last, there are several challenges facing the global governance of space, but the critical one is the lack of consensus among major spacefaring powers and the crisis in decision-making, which has paralyzed the process of developing an effective outer space regime. Though there are a few legal instruments in place, they have been proven to be increasingly ineffective. This means old rules have to be reviewed or new rules of engagement need to be developed. There are new actors including non-state actors, newer challenges including space debris, over-populated orbits, radio frequency interferences and issues of spectrum allocation, development of counter-space capabilities including anti-satellite weapons, and access to space for new entrants. Given that political hurdles have come in the way of developing new rules of engagement, efforts must be made to strengthen dialogues to encourage openness, greater transparency and information-sharing.
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