Governance of outer space

By Ved Shinde

Outer Space Treaty of 1967, Law outpaced by technology?

The initial treaties which regulated the use of outer space were formed in the heydays of the 1960s-1970s space contestation during the Cold War, in a different geostrategic and technological context. The space governance framework was built around the Outer Space Treaty, 1967 (OST) and its four legal instruments. The Rescue Agreement of 1968, Space Liability Convention of 1972, Registration Convention of 1976 and the Moon Agreement of 1979. These additional instruments were created to supplement the gaps in the original OST, but have been marred by inadequate support and failure in mitigating the deficiencies of their predecessors.[1] International bodies like UN Committee on Peaceful Uses of Outer Space (COPUOS) and UN Office for Outer Space Affairs (UNOOSA) have also not proved effective due to limited authority, political logjam and slow action.[2]

The problem with the OST arises when states foist expansive legal interpretations on these treaties to suit their national interests.[3] Such exercises prevent OST from inhibiting the rapid weaponization of outer space. These agreements are also vulnerable to new facts on the ground created by the early movers.[4] Also, definitions and phrases of the OST were written before space technologies advanced. Definitions of terms like “peaceful,” “defensive,” or “space weapon” have all considerably evolved since then.

The current governance regime is threatened by rapid technological change, proliferation of public and private space actors and the securitization of the outer space domain.[5] This has generated the imperative for space faring nations to create a new governance regime for outer space which reflect contemporary technological, military and political realities.  

Prospects for new rule making?

The primary step for creating an overarching global governance framework for outer space along with enforcement mechanisms and dispute resolution procedures rests on consensus in acknowledging and accepting that space is a great commons.[6]

However, the current political environment has stalled any new overarching rule making process based on consensus. Some analysts argue that legally binding treaties like the OST should be considered the end goal. Diplomatic energy should, for now, be channelised towards building legally binding Transparency and Confidence Building Measures (TCBMs) that envisage a new outer space code of conduct.[7] These should be seen as gradual, pragmatic steps aimed at building trust among countries.

Broader negotiations for a reviewing and modernising the OST, to sync it with contemporary technological realities should be kickstarted by revitalising the Geneva based Conference on Disarmament through its principle of consensus rule for decision making. This includes refining and conspicuously defining ambiguous phrases which are threatened by expansive interpretations. These steps should be complemented by expanding Article IV of the OST to include conventional weapons and other non-WMD technologies including anti-satellite weapons and counter-space weapons. Experience with the EU Code of Conduct for Outer Space Activities[8] also illustrates the importance of nurturing inclusive rulemaking forums. Only inclusivity in rule shaping will lead to wider acceptability, strengthening legitimacy and ensuring compliance.[9]

States could also, alternatively, pursue innovative multilateralism[10] through smaller, technical arrangements aimed at specific threats rather than blanket treaties which are vulnerable to diplomatic and political breakdown. Starting areas for cooperation in this regard could be Space Situational Awareness (SSA), Space Traffic Management (STM) and space debris mitigation.

However, even these measures have their limits, as Chinese and Russian outlook towards the Artemis Accords has shown. Some have even argued for functionally specific and effective bilateral arrangements between like-minded partners and allies, noting that historically; bilateral agreements between leading countries have shaped broader global governance regimes.[11]

The Moon Agreement of 1979

The Moon agreement, 1979 is a supplement legal instrument to the Outer Space Treaty which is aimed at de-militarisation of the Moon and other celestial bodies.[12] The Moon treaty says that the natural resources of the moon are the “common heritage of mankind” and resource exploitation on the moon is forbidden. The primary problem with the treaty is that the United States, Russia and China have neither signed, acceded, nor ratified the Moon Treaty. This makes it a failure from the standpoint of international law.[13]

China, like the US, disregards the Moon Treaty and has its own ambitions for setting up an Earth-Moon Special Economic Zone.[14] Both the Americans and the Chinese have plans for accruing economic benefits from lunar exploration, potential exploitation, through Artemis Accords and Earth-Moon Special Economic Zone respectively.[15] Some experts have called for India to recognise its interests in space and announce its withdrawal from the Moon treaty, junking its fascination with normative concepts like “common heritage of humankind.”[16] Arguments for India to forge pragmatic collaborations and space partnerships with Europe, Japan, Russia and the United States have also gathered steam.

United States led Artemis Accords

Artemis Accords is an, United States led, agreement for lunar exploration and beyond, with the participation of both international partners and commercial players. As of March 2022, it has 18 signatories, mostly like-minded partners and allies.[17] It is in the context of the decaying nature of the OST regime that the Artemis Accords are gaining shape. it aims at promoting transparency, interoperability, emergency assistance and peaceful international cooperation.[18]

However, in principle, the Artemis Accords are compliant with OST obligations and further reinforce the existing space regime.[19] The benefit of this arrangement lies in its usefulness to have great powers agree upon and comply with a common set of principles, guidelines, best practices to ensure better compliance with the established governance treaties. On the other hand, some analysts suggest that the US is planning an international coalition, in the form of Artemis Accords, to extract natural resources from the moon.[20]

China and Russia are not keen to join the Accords and have alternate proposals to build an International Lunar Research Station (ILRS). This endeavour has been initiated by Russia’s Roscosmos and China’s National Space Administration. They have invited partners and international organisations to join them, however international reception to the idea remains to be seen. Development of the ILRS makes matters complicated for India, given its contemporary geopolitical challenges and world view.[21] 

India and changing global space governance

India’s space programme began with its origins in a normative approach, adhering to a self-imposed strict compliance with international law. The entire approach was driven by the idea that space technology should largely facilitate welfare objectives on earth. Therefore, militarisation and weaponization didn’t assume a significant role in ISRO’s space calculations. This idealistic interpretation of international law left India behind the trends of securitization of space and space exploration for resource mining. India also played catch-up and relied on foreign vendors for space-based communication and defence assets.[22]

Recent years have also seen a concerted push by India to open space sector to wider private participation, opening up India’s space economy for commercial utilisation along with framing potential domestic laws ISRO’s Space Activities Bill which clearly signify a break from the normative considerations of the past.[23]

India has taken multiple strides in the last few years with regards to development of military capabilities for outer space. Learning from its mistakes in the nuclear arena of not having the requisite capabilities to become a rule shaper, India has initiated a course correction and understands that global space governance norms are set by early movers who possess a clear technological and strategic edge. In order for it to secure a seat at the global space governance rule making, India should develop national capabilities which demonstrate that leaving it out will adversely impact the legitimacy and credibility of such norm framing efforts.

References:

[1] The Global Legal Landscape of Space: Who writes the rules on the Final Frontier, Wilson Centre https://www.wilsoncenter.org/article/global-legal-landscape-space-who-writes-rules-final-frontier

[2] The Global Legal Landscape of Space: Who writes the rules on the Final Frontier, Wilson Centre

[3] Rajeswari Rajagopalan, The Outer Space Treaty, CFR, https://www.cfr.org/report/outer-space-treaty

[4] Raja Mohan, India and the Geopolitics of Moon, IE, https://indianexpress.com/article/opinion/columns/china-space-mission-moon-quad-meet-isro-india-7552149/

[5] Pablo Santa-Barbara Vozmediano, Geopolitics of the Moon, The Dawn of a new space era, https://www.ieee.es/Galerias/fichero/docs_opinion/2021/DIEEEO17_2021_PABSAN_GeopoliticaLuna_ENG.pdf

[6] Benjamin Silverstein, Ankit Panda, Space is a Great Commons, Carnegie Endowment for International Peace, https://carnegieendowment.org/2021/03/09/space-is-great-commons.-it-s-time-to-treat-it-as-such-pub-84018

[7] Rajeswari Rajagopalan, The Outer Space Treaty, CFR

[8] Rajeswari Rajagopalan, The Space Code of Conduct Debate, Strategic Studies Quarterly, https://www.airuniversity.af.edu/Portals/10/SSQ/documents/Volume-06_Issue-1/Rajagopalan.pdf

[9] Rajeswari Rajagopalan, The Outer Space Treaty, CFR

[10] Rajeswari Rajagopalan, The Outer Space Treaty, CFR

[11] The Global Legal Landscape of Space: Who writes the rules on the Final Frontier, Wilson Centre

[12] Moon Agreement, NTI, https://www.nti.org/education-center/treaties-and-regimes/agreement-governing-activities-states-moon-and-other-celestial-bodies-moon-agreement/

[13] Michael Listner, The Moon Treaty: Failed international law or waiting in the shadows, The Space Review, https://www.thespacereview.com/article/1954/1

[14] Ajay Lele, China’s Earth-Moon Space Economic Zone Venture, The Space Review https://www.thespacereview.com/article/3828/1

[15] Chaitanya Giri, Artemis Accords propel India’s space ambitions, Gateway House https://www.gatewayhouse.in/indias-artemis-moon/

[16] Chaitanya Giri, Artemis Accords propel India’s space ambitions, Gateway House

[17] https://www.state.gov/republic-of-singapore-signs-the-artemis-accords/#:~:text=Singapore%20is%20the%2018th%20country,Kingdom%2C%20and%20the%20United%20States.

[18] Raja Mohan, India and the Geopolitics of Moon, IE

[19] Rossana Deplano, The Artemis Accords: Evolution or Revolution in International Space Law, Cambridge University Press, https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/artemis-accords-evolution-or-revolution-in-international-space-law/DC08E6D42F7D5A971067E6A1BA442DF1

[20] Chaitanya Giri, Artemis Accords propel India’s space ambitions, Gateway House https://www.gatewayhouse.in/indias-artemis-moon/

[21] Rajeswari Rajagopalan, The Artemis Accords and Global Lunar Governance, ORF, https://www.orfonline.org/research/the-artemis-accords-and-global-lunar-governance/

[22] Ashok GV, Changing Indian Space Policy Landscape, ORF, https://www.orfonline.org/expert-speak/changing-indian-space-policy-landscape/

[23] Udayvir Ahuja, India’s Space Revolution, ORF, https://www.orfonline.org/expert-speak/indias-space-revolution/