JOHN M. LOGSDON
Addressing the General Assembly of the United Nations on September 25, 1961, President John F. Kennedy proclaimed that “the new horizons of outer space must not be driven by the old bitter conflicts of imperialism and sovereign claims.” Kennedy announced that the United States would “urge proposals extending the United Nations Charter to the limits of man’s exploration of the universe, reserving outer space for peaceful use, prohibiting weapons of mass destruction in space or on celestial bodies, and opening the mysteries and benefits of space to every nation.”[1] Just over five years later, after several rounds of negotiations carried out primarily with the Soviet Union but within the framework of the UN Committee on the Peaceful Uses of Outer Space (COPUOS), the “Treaty on Principles Governing the Activity of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” was opened for signature on January 27, 1967.[2]
As of February 2021, 111 nation states, including all major space-faring countries, are party to that treaty; another 23 have signed the treaty but not yet ratified it. The principles set out in the 1967 Outer Space Treaty, supplemented over the more than 50 years since 1967 by four implementing treaties and a number of non-binding statements of principles and multilateral agreements, constitute today’s international governance framework for space activities. It was Kennedy’s 1961 speech that started the process of creating that framework. President Joseph Biden has a similar opportunity, 60 years later, to take the lead in updating space governance for the 21st century.
The Need for Modernizing the Space Governance Framework
The current framework has not kept up with actual developments in space. As Kennedy spoke in 1961, only the governments of the United States and the Soviet Union could launch objects into Earth orbit and beyond; today government and privately operated launch capabilities are rapidly proliferating. During the 1960s, there were only a few satellites in orbit; as of January 2021, there were 3,372 operational satellites, with plans over the next decade to launch tens of thousands more. More than half of those satellites belong to the U.S. government and private entities, but 84 countries operate at least one satellite. Some space systems have become critical infrastructure, essential to the operation of modern society and of the global economy. Other space capabilities support national security and enhance military power. There were no private-sector space activities in the 1960s; one 2020 estimate is that the space sector, currently with a $350 billion annual turnover, will grow to over $1 trillion by 2040, with most of that growth coming from commercial activities.
With the growing importance of space activities to life on Earth have come threats to the security and sustainability of those activities. The United States currently tracks over 25,000 pieces of space debris over 10 centimeters long. A collision with one of those pieces (or with another satellite) could disable or destroy a valuable satellite. With the use of space capabilities now central to U.S. plans for future military conflicts, this country’s military, intelligence and dual-use satellites become attractive targets, and potential adversaries such as China, Russia and others are developing a range of “counterspace” capabilities. To date, armed conflict has not spread into outer space, but the most recent U.S. National Space Policy identifies space as a potential “warfighting domain,” and the United States Space Force has been established as a separate military service to prepare for space-based conflicts.[3]
An Opportunity for Leadership
President Biden, with his commitment to re-engaging the United States in global diplomacy, has an excellent opportunity to have the United States take a more forward-leaning, leadership role in the ongoing process of adapting the existing space governance framework to 21st-century realities. That process has gained momentum over the past decade, and the United States has been an active participant in international and multilateral discussions on space sustainability and security. But as one careful observer of these discussions has suggested, progress has been “achingly slow.”[4] The U.S. approach to space diplomacy has for many years been conservative and defensive in character, resisting any proposals that might constrain U.S. freedom of action in space, even if those proposals might benefit the common good and thus, ultimately, this country. For example, the 2017 National Security Strategy stated that “the United States considers unfettered access to and freedom to operate in space a vital national interest.”[5] It is time for the United States to be proactive in supporting proposals that nurture the space domain as an arena for productive and peaceful societal, economic, security, scientific and exploratory activities that, in the words of the Outer Space Treaty, “benefit all peoples.” The Secure World Foundation, a U.S.-based NGO, has recently called for “sustained U.S. international leadership in ensuring the long-term sustainability, safety, and security of the space domain and space activities.”[6] I second that call; a new Outer Space Treaty at this time is politically infeasible, but there are plenty of additional steps short of treaty writing that could be taken.
Norms of Responsible Behavior
There has been some recent progress with respect to space governance within the COPUOS framework. Between 2010 and 2018, a COPUOS expert working group developed 21 non-binding guidelines for “long-term space sustainability.” Those guidelines are aimed at mitigating “the risks associated with the conduct of outer space activities so that present benefits can be sustained and future opportunities realized.” The guidelines address “the policy, regulatory, operational, safety, scientific, technical, international cooperation and capacity-building aspects of space activities.”[7] The hope is that they can form the basis for establishing best practices on the part of both governments and private space operators, leading to internationally accepted norms of responsible behavior in space activities. Since COPUOS operates on a consensus basis, giving each of its now-95 member states essentially a veto over its recommendations, achieving agreement on these meaningful guidelines was a significant diplomatic success.
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Implementing the new guidelines needs to be monitored; and additional guidelines considered.
But there is plenty of unfinished business for COPUOS to tackle. Implementing the new guidelines needs to be monitored; and additional guidelines considered. For example, there is a growing need for principles to underpin some form of international space traffic management agreement or structure, perhaps akin to international air-traffic control, to facilitate safety in the increasingly crowded orbital environment. Also, the 21 existing guidelines apply only to activities within “the Earth’s orbital space environment.” As attention in the space community shifts to both public and private efforts in deep space and on the surface of the Moon, Mars and near-Earth asteroids, responsible behavior in those domains needs to be defined. A particularly contentious issue here is the conditions governing the extraction and use of extraterrestrial resources.
Hoping, among other reasons, to jump-start the process of developing guidelines for operations on the surface of the Moon and in cislunar space (the space between Earth orbit and the Moon), the United States, acting through the National Aeronautics and Space Administration (NASA), has initiated negotiations with countries planning to participate in Project Artemis, NASA’s effort to return humans to the Moon in the next decade. NASA in May 2020 set out what it characterized as the “Artemis Accords,” a set of 10 principles for “cooperation in the civil exploration and use of the Moon, Mars, comets, and asteroids for peaceful purposes.”[8] Most of these principles are not controversial, but the Accords include an interpretation of the permissibility of extracting resources from the surface or subsurface of the Moon that some governments and space law experts dispute.
So far eight countries in addition to the United States have acceded to the Accords – Australia, Canada, Italy, Japan, Luxembourg, United Arab Emirates, Ukraine and the United Kingdom. Missing so far are China and traditional U.S. human spaceflight partners Germany, France and Russia. The absence of China is not surprising, given the lack of any meaningful cooperation between the U.S. and Chinese space programs. Russia may not follow its participation in the International Space Station with engagement in Artemis, given the overall state of U.S.-Russian relations. Germany, in particular, seems to be resisting U.S. leadership in space diplomacy, a carryover from the Donald Trump Administration’s posture toward trans-Atlantic relations. The United States is talking to several other countries about acceding to the Artemis Accords.
There has been criticism of the U.S. decision to put forward the guidelines embodied in the Artemis Accords outside of the traditional UN framework for developing international space governance principles, but that decision can be defended as following the precedent of the long-running multilateral partnership in the International Space Station and as a proactive exercise of U.S. leadership. There was also some urgency in setting up these norms, given the number of countries and private actors planning lunar missions during the coming years. The hope “is to use their [the signatories] experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to the extraction and utilization of space resources, including through the ongoing efforts of the COPUOS.” The United States in January 2021 sent the Accords to the UN for discussion at COPUOS. The Biden administration, already committed to continuing Project Artemis, will have to decide how to move forward with harmonizing the U.S. initiative specific to Artemis with the nascent process in COPUOS with respect to establishing guidelines for responsible behavior beyond Earth’s orbit.
Military Space Activities
Other than the prohibition in the 1967 Outer Space Treaty against the stationing of weapons of mass destruction in outer space or on the surface of a celestial body, there are no international norms or agreements dealing directly with military activities in space. Developing such space security principles has been the responsibility of the UN Conference on Disarmament, since COPUOS is limited to dealing only with non-military space efforts. But the Conference, which is in essence a continuing UN committee dealing with a variety of security-related and arms control topics, has been deadlocked for years with respect to discussing military activities in space. That deadlock is a result of repeated efforts by China and Russia to begin discussions on a treaty prohibiting the placement of weapons in outer space and U.S. and other countries’ opposition to those discussions. Therefore, there has been no progress in developing space security guidelines in parallel to the space sustainability guidelines emerging from COPUOS.
Hoping to break this deadlock on UN discussions of space security, the United Kingdom, supported by 21 other countries including the United States, last fall bypassed the Conference on Disarmament and sponsored a UN General Assembly resolution that invited each UN member state to prepare a report specifying “existing and potential threats and security risks” to their space systems and characterizing “actions and activities that could be considered responsible, irresponsible or threatening.” This report would also include “ideas on . . . norms, rules and principles of responsible behavior” for security-related space activities.[9] The resolution passed on December 7, 2020, with 164 positive votes, 12 negative votes and six abstentions. Russia and China were among those opposing the resolution. The views of the member states will be submitted to the UN Secretary General this spring and summarized in a report to the General Assembly, with individual countries’ views attached, for discussion beginning in Fall 2021.
The Biden administration should take full advantage of the process begun by the U.K. resolution, which is not subject to the consensus rule constraining COPUOS and the Conference on Disarmament, to take a leadership role in these General Assembly discussions. This opportunity could open the path to developing a comprehensive set of guidelines for military and security-related space activities during both peacetime and future conflicts, enhancing “crisis stability and deterrence by creating rules of the road and thresholds that would be clear warnings of hostile intent.”[10] It is even conceivable that this process could even identify areas of international agreement broad enough to lead sooner rather than later to legally binding agreements to, for example, ban testing of those counterspace capabilities that create new space debris such as “kinetic kill” anti-satellite weapons.
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President Biden has the opportunity, echoing John Kennedy 60 years ago, to take the lead role in developing a modern international governance regime
Conclusion
The initial statement of the Biden Administration’s national security strategy, issued on March 3, 2021, calls for the United States to “move swiftly to earn back our position of leadership in international institutions,” and to “lead in promoting shared norms and . . . new agreements on emerging technologies” such as space.[11] This statement recognizes that President Biden has the opportunity, echoing John Kennedy 60 years ago, to take the lead role in developing a modern international governance regime facilitating all that is likely in coming years to happen in Earth’s orbit and especially beyond. It will take diplomatic skill supported by technological sophistication for success in achieving that objective.
[1] The text of Kennedy’s speech is at https://2009-2017.state.gov/p/io/po- tusunga/207241.htm. Accessed February 12, 2021.
[2] The text of the treaty is at https://www.unoosa.org/oosa/en/ourwork/ spacelaw/treaties/outerspacetreaty.html. Accessed February 25, 2021.
[3] The White House, “The National Space Policy of the United States of America,” December 9, 2020. https://aerospace.org/sites/default/files/2021-1/ National%20Space%20Policy%209Dec20%20Fed%20Register.pdf. Accessed February 27, 2021
[4] Theresa Hitchens, “Forwarding Multilateral Space Governance: Next Steps for the International Community,” Center for International & Security Studies, University of Maryland, August 2018, 15. https://cissm.umd. edu/research-impact/publications/forwarding-multilateral-space-governance-next-steps-international. Accessed February 27, 2021. This paper is an excellent summary of the various efforts up to mid-2018 to adapt the space governance framework to new realities and challenges.
[5] The White House, National Security Strategy of the United States of America, December 2017, 31. https://trumpwhitehouse.archives.gov/wp-con- tent/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf. Accessed March 4, 2021.
[6] Secure World Foundation, “Space Policy and Sustainability: Issue Briefing for the Biden Administration,” December 2020, iv. https://swfound.org/ media/207084/swf_space_policy_issue_briefing_2020_web.pdf. Accessed February 25, 2021.
[7] The CUPUOS guidelines were published, over Russia’s objections, as Annex II to the 2019 “Report of the Committee on the Peaceful Uses of Outer Space,” A/74/20. https://www.unoosa.org/oosa/en/oosadoc/data/documents/2019/a/a7420_0.html. Accessed February 28, 2021. Russia tried late in the COPUOS Working Group process to add seven additional guidelines. That initiative was not accepted by the Working Group, leading to the Russian objection.
[8] NASA, Artemis Accords, https://www.nasa.gov/specials/artemis-accords/ index.html. Accessed February 28, 2021.
[9] UN General Assembly Resolution A/RES/75/36, “Reducing space threats through norms, rules and principles of responsible behaviours,” December 7, 2020, https://undocs.org/en/A/RES/75/36. Accessed March 1, 2021.
[10] Stephen Flanagan and Bruce McClintock, “How Joe Biden Can Galvanize Space Diplomacy,” Politico, January 15, 2012. https://www.politico.com/ news/2021/01/15/how-joe-biden-can-galvanize-space-diplomacy-459331. Accessed February 15, 2021.
[11] The White House, “Interim National Security Strategic Guidance,” March 2021, 11, 20. https://www.whitehouse.gov/wp-content/uploads/2021/03/NSC1v2.pdf. Accessed March 4, 2021.
JOHN M. LOGSDON is founder and former director (1987-2008) of the Space Policy Institute at the Elliott School of International Affairs, The George Washington University, Washington, DC, where he is Professor Emeritus.