The crisis in space governance has not escaped the notice of the space community. The 2014 Manfred Lachs International Conference, organized by the McGill University Institute of Air and Space Law and held in Montreal, was devoted to this issue, under the general theme of Global Space Governance. The conference culminated with the Montreal Declaration, which noted that “the current global space governance system that was created during the 1960s and 1970s has not been comprehensively examined by the international community since . . . [although] numerous developments have occurred . . . with serious implications.” The Declaration further asserted that “the time has come to . . . propose an appropriate global space governance system.” The Institute subsequently launched an international study, the outcomes of which were published and presented at various international fora. The study explores the existing mechanisms of global governance, regional and national perspectives, and around twenty specific issue-areas (e.g., satellite telecommunications, remote sensing and Earth observation, global space security, Global Navigation Satellite Systems (GPS and others).
“A crisis is a terrible thing to waste” said Nobel Laureate, Paul Romer (economic sciences, 2018). The crisis that space governance is experiencing led to a study in search of innovative governance models. The Montreal Declaration asserted that “the time has come to . . . propose an appropriate global space governance system”. The underlying causes of the current crisis in global space governance are not limited to this area. Across various issue-areas of global governance the problem is the same: centralized systems of global governance fail to produce adequate results or even any at all. For instance, all attempts in the United Nations General Assembly(UNGA) to make Antarctica a United Nations responsibility have failed. Yet another attempt at centralized governance has failed. The results of the study presented herein may therefore be useful to other issue-areas in global affairs.
E. Progress through Decentralization: The Current State of Space Governance
Over the years, many space-related forums have emerged, in addition to UN-COPUOS. These include: multilateral and regional forums – UN-SPIDER, UNRCSSTE, GEO, IDAC, ICG, and APSCO, NGOs such as the Secure World Foundation and the International Association for the Advancement of Space Safety (IAASS); the institutes of (air and) space law in several universities across the world (Cologne, McGill, Leiden, Beijing Institute of Technology, Harbin Institute of Technology), the European Space Policy Institute(ESPI), and the European Centre for Space Law (ECSL). The space community in general, and the space policy and law community in particular, is an epistemic community—”a network of professionals with recognized expertise and authoritative claims to policy-relevant knowledge in a particular issue area” which, like many epistemic communities, is international in its membership. Not all of these forums are decision-making centres, but they each influence space governance to a certain extent.
The above is not a comprehensive taxonomy of space-related forums, but it is sufficient to demonstrate the variety of space governance centres. While UN-COPUOS is the most important forum, there is no hierarchy between the various governance centres. Nevertheless, they are not at par with each other. The various governance centres are neither of equal legal status nor of equal power or influence. They diverge from formal institutions to voluntary groupings and epistemic communities, and they diverge in the degree of their influence on actors’ behaviour. In other words, instead of hierarchy there is heterarchy, where no one governance center dominates the rest, and authority is distributed, bringing about a flexible network of interdependent and interacting governance centres. Space governance, as presented herein, is dispersed to numerous, independent or semi-independent governance centres operating in heterarchy.
With the cessation of the rule making capability of UN-COPUOS, the twenty-first century has seen a gradual, yet steady emergence of smaller, issue-specific forums, often led by experts and stakeholders, that introduce various types of instruments: ‘guidelines,’ ‘building blocks,’ ‘manual,’ etc. As partial and scattered as they are, they update and spread the coverage of space governance. The following sections review several sub-issues and various efforts outside UN-COPUOS to regulate them, with varying degrees of success.
The first issue-area of note is the allocation of slots in orbit around Earth and of radio frequencies. Radio frequencies are used for various purposes on Earth as well as to communicate with, and command satellites. This is an issue of critical importance, as the lack of a comprehensive, detailed system, that is followed by all actors, will lead to disruptions in communication and the placement of satellites. Perhaps this is the reason why this issue has the best governance system of all space issues, with a powerful intergovernmental institution, the International Telecommunication Union (ITU) and a multilateral, legally binding, comprehensive and elaborate treaty system, at the top of which is the Constitution and Convention of the International Telecommunication Union (ITU). Practically all States are members of the International Telecommunication Union (ITU), parties to the treaty systems and follow the rules it provides. Industry representatives also participate in various International Telecommunication Union (ITU) meetings and decision-making processes. It is, indeed, the best regulated issue-area in space activities and an excellent example of a well-functioning issue-area-specific governance center.
In contrast, the governance of natural space resources demonstrates a weak system of regulation and forums. The ex-traction and exploitation of natural space resources, i.e., by mining near-Earth asteroids for titanium or the Moon for water and helium 3, has little multilateral regulation. The Outer Space Treaty 1967 (OST) is vague about such operations, no rule was subsequently agreed upon, and even the right to mine is contested. Outer Space Treaty 1967 (OST) Article I provides that “[o]uter space, including the moon and
other celestial bodies, shall be free for exploration and use. . .”, and therefore arguably allows mining as “use” of celestial bodies. However, the (intentionally) vague wording left room for debate which started almost immediately after the adoption of the Outer Space Treaty 1967 (OST). After thirty years of debates, the United Nations General Assembly(UNGA) adopted a declaration in 1996 that seemingly elaborated on the Outer Space Treaty 1967 (OST) provisions, but ultimately did not decide nor end the debate. The less regulation, the more legal literature there is on the subject. The Leiden Institute of Air and Space Law is leading an independent research group, with membership spanning academics, government and the relevant industry, that has developed voluntary “building blocks” for the governance of natural space resources. While the multilateral framework for the governance of natural space resources is weak and hardly existent, national action and legislation is occupying an important role. The United States, Luxembourg, and the UAE have launched space mining projects. In 2015, the United States adopted a law recognizing the right of U.S. citizens (and companies) to mine natural space resources and their right over the natural space resources they extract. Luxembourg has introduced a national law that follows the U.S. model, and the UAE intends to do the same. It is likely that other States that may eventually seek to mine natural space resources will too adopt this model as it provides incentives and rewards for those who mine the resources, but does not include the distribution of those benefits with the States that do not pursue mining. If, indeed, more States follow this model, it may lead to the consolidation of a norm. The sub-issue-area of space natural resources is a governance center in evolution. An epistemic community is emerging with professionals who create and accumulate knowledge on the issue in various disciplines, e.g., engineering, economics, legal studies, and policy studies. A forum was established, and additional forums may soon evolve, e.g., a forum for industry standards. With time, and in the aggregate, the governance of natural space resources will evolve to become more comprehensive and updated.
Between both extremes of governance centres, there are other sub-issue-areas which arguably have their own semi-developed governance centres. The issue of military uses of outer space has multiple, partial, and scattered regulation and fora. Article III of the Outer Space Treaty 1967 (OST) applied international law to the activities of States in outer space, i.e., public international law’s “laws of war.” The 1963 Partial Test Ban Treaty (PTBT) provides for a ban on nuclear weapons tests in outer space, and the 1977 Environmental Modification Convention (ENMOD) prohibits the “hostile use of environmental modification techniques having widespread, long-lasting or severe effects” on the environment, specifically applying to the environment of outer space. In terms of fora, the United Nations’ First Committee and Security Council, the CD, UNIDIR and UNODA all have mandates on this issue. Space specific provisions are included in the Outer Space Treaty 1967 (OST), Article IV of which prohibits the placement of weapons of mass destruction in orbit around Earth and the establishment of military bases on celestial bodies. Yet, “[t]he principles of space law and current proposals to address the challenges of space security do not currently provide an effective normative framework to address the initiation and possible conduct of hostilities.” There is an ongoing international project to identify all the rules of international law applicable to military uses of outer space, and organize them in a single manual (MILAMOS). Additionally, an epistemic community in this area is already vibrant.
The issue of space debris is arguably already an established governance center. The Inter-Agency Space Debris Co-ordination Committee established, in 1993, non-legally binding ‘guidelines’: the Space Debris Mitigation Guidelines. These were adopted by UN-COPUOS in 2007. Here the forum has no universal participation, and instead it is led by the major users or stakeholders. However, as noted before, the quantity of space debris has sky-rocketed after the adoption of the guidelines, thus questioning the effectiveness of this governance center to date.
Financing is another issue with growing importance, considering the rapid increase of the commercial space sector. The need to finance mobile equipment such as aircrafts, trains, and spacecrafts, including satellites, meets a difficulty to register a lien on them, given their mobility across borders, and in the case of space assets, also beyond any national jurisdiction. UNIDROIT developed the Cape Town Convention on International Interests in Mobile Equipment and later four protocols that address specific types of equipment, one of them is the space assets protocol.
Finally, there is the issue of space traffic control, i.e., preventing collisions between space crafts and between a spacecraft and space debris. It is an issue of growing importance, and an emerging, if not an established, governance center. The need for space traffic control was demonstrated by the 2009 collision between a commercial U.S. satellite and a Russian deactivated satellite and the 2013 collision of Ecuador’s first satellite with space debris. There are discussions on whether the International Civil Aviation Organization (ICAO) should have mandate on the issue, and the ICAO has already started working in this direction. However, it is the United States that leads the efforts of avoiding collision with space debris. The United States manages a space situational awareness (SSA) system that tracks all objects larger than a softball and alerts all actors in space for possible collisions.
The issue of space traffic control demonstrates that a single user can dominate a governance center, or part thereof. In this case, the U.S. dominance stems from the fact that it is the sole provider of space situational awareness (SSA) information. The United States is gathering and disseminating the information and therefore determines the standards for space situational awareness (SSA). The European Space Agency(ESA) is working on its own space situational awareness (SSA) system, and when it becomes functional, it might require change in the governance structure. In June 2018, the U.S. President signed Space Policy Directive-3, adopting a National Space Traffic Management Policy (“National STM Policy,” 2018), that will determine the character of space traffic control at least as much, if not more, than any multilateral forum and instrument.
Thus, the initial monocentric, hierarchic structure of space governance is experiencing a slow-motion big bang, by which the basic, early building blocks remain, but subsequent expansion and evolution of space governance is decentralized through the work of various governance centres, with various participants introducing various outputs in distinct sub-issue-areas. Considering this inevitable decentralization, we can expect the continuation, and possible acceleration of, the emergence of issue-specific governance centres and new regimes. This bottom-up evolution of a polycentric governance system is a kind of ‘spontaneous order’, the emergence of order as a result of the voluntary activities of individual actors with no single guiding hand. Nevertheless, UN-COPUOS is still the most important forum, and the UNOOSA the most important agency. UNOOSA already works and assists all actors in space governance and therefore serves in practice as coordinator, bringing the accumulated knowledge and practices to each new actor.
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