“The future of humanity is inextricably tied to our ability to ensure a viable long-term future for space activities. Given the complexities of space and its multi-faceted nature, the existing international regulatory frameworks, whilst important, cannot alone fully address the ever-increasing range of space activities – and the possibilities that still lie ahead.
An appropriate global governance framework must now be developed through the interaction of all stakeholders – governments, industry, lawyers, scientists, entrepreneurs and civil society – working together to develop principles that will best supplement and complement the robust foundational legal principles that underpin how space has ‘worked’. The ultimate goal will be to ensure the safety, security and sustainability of space and space activities for the benefit of not only the current, but also future generations”.
Space is an extraordinary and multi-faceted area, encompassing at the same time issues of a legal, scientific, cultural, strategic, commercial, military, national security, economic, exploratory, social and religious nature, depending on one’s frame of reference. In essence, the future of humanity is inextricably tied to our ability to ensure a viable long-term future for space activities. At a minimum, this requires a holistic approach to the development of the most appropriate governance frameworks to promote the ongoing safety, security and sustainability of space. The existing international regulatory framework, whilst important, cannot alone stand up to the complexities that the ever-increasing range of space activities – and the possibilities that still lie ahead – impose. The opportunity presents for all stakeholders – Governments, industry, lawyers, scientists, entrepreneurs and civil society – to work together to develop appropriate future governance principles that will best supplement and compliment the robust foundational legal principles that underpin how space has ‘worked’. This encompasses several important considerations. How should the societal, community and human impacts of our inexorable march into space be measured? Why has there been relatively little work done so far as regards the human rights aspects of the exploration and use of outer space? What governance structures and frameworks best protect the broader interests of society without unduly restricting the development of appropriate space activities in the future? And, indeed, what are the criteria by which we are to determine the priorities as to what constitutes ‘appropriate’ future space activities? What role does law play in fashioning these choices? As we develop frameworks to address these challenges, we must always remain cognizant of the ‘stewardship’ role we, as human beings, have in the way we manage our ongoing relationship with space. Our responsibilities in this regard extend not just to ourselves, but to future generations. It is incumbent on us, and imperative for the future of humanity, that we do not repeat some of the mistakes we have made on Earth that threaten our ability to coexist here into the very long term. In addition, the principle of humanity must be the bedrock of any successful global space governance model. We must at all times be conscious of, and adhere to, the core principles of ‘humanity’ that underpin our relationship with space, in order to avoid the possibility of scenarios that do not bear contemplation. In this regard, law will therefore continue to play a crucial role. But lawyers certainly cannot do this on their own. They simply do not have the tools to do so. All relevant stakeholders must exchange ideas, knowledge and expertise, and understand how each can contribute to an appropriate future where space continues to play a vital role for all humankind. In the end, only through these inclusive discussions will we create the right global governance model to advance the many exciting innovations and developments for the benefit of us all.
The McGill Global Space Governance study describes the term global space governance, in brief, as the entirety of the agreements, laws, regulations, and other mechanisms in relation to outer space affairs or activities, including processes for their formation, compliance monitoring, and or enforcement by concerned international and or national institutions. However, there is a tension in the literature on global governance between the view that States remain firmly at the helm of global politics and those who argue that other non-state actors are increasingly important for carrying out basic governing functions, as States are losing power. The increasing complexity of global governance arrangements demonstrates that authority is “polycentric”, diffusing across multiple venues and through a variety of actors. As argued by Jessica F. Green, the loci of authority are at once expanding and increasingly overlapping. However, as developing states have entered the global competition alongside private corporations, the argument stands that the privatization of the space race invites a new competitive dynamic between states and corporations with relative parity, rather than classic intrastate competition. From a developing country perspective, in this period of expansion and overlap, it is possibly worrisome that International law has, at this stage, no overarching norms governing participation by non-state actors in international organizations. Particularly as, theoretically, vast participatory rights are possible for non-state actors, including voting, membership in decision-making organs, and budgetary contributions. This may not seem like a problem now, but could be as non-state actor power increases and the forums for engagement diversify. On a positive note, Interactional Law presupposes the participation of all relevant actors in the construction and reconstruction of norms and rules and it is proposed that it is only through this involvement that actors learn to apply rules against the background of shared understandings and reinforce their commitments.
In the 63 years since the launch of Спутник 1, space activities have come a long way. Today, the global space economy is estimated at 371 billion US$, of which the downstream sector reaps roughly 60%, whereas 22% stem from institutional budgets. Analysts predict the global space economy to grow to 1 trillion by the year 2040. The days when space activities were motivated primarily by strategic and national prestige reasoning seem long gone by. The increasing involvement of the private sector needs to be taken into account in the continuous shaping of the rules governing the exploration and use of outer space. On the one hand there needs to be sufficient legal certainty to allow for innovative activities to go ahead, on the other hand, the rules and regulations need to strike a balance between the general freedom to explore and use outer space by the current space actors, and the ethical obligation to safeguard those same freedoms to those not yet capable to exercise these legal freedoms, as well as to ensure the manifold benefits of such activities also to future generations. Governance of space activities is multidimensional. In the international sphere, there is a mêlée of on the one hand binding, yet high-level Treaties and Agreements, and, on the other hand, non-binding, yet often very specific technical standards and guidelines. This mixture creates important discretionary prerogatives to the policy- and lawmakers around the globe to respond to different political impulses in shaping their national space legislation, where a tightrope is to be walked between making local conditions appealing enough to attract – or keep – commercial space actors, while on the other hand ensuring that private activities and operations do not expose the State to unreasonable risks. A competition between national legislators might spiral into a regulatory race to the bottom, in which regulatory standards, for example relating to the environment both on Earth and in space, may be up for debate. What is required now is a sincere, intelligent and visionary dialogue between all stakeholders at the appropriate level with a view to allowing the harvesting of the huge benefits of space activities for a sustainable development on Earth while avoiding that outer space falls victim to a tragedy of the commons.
Space-related activities have a global impact on people’s everyday lives. From the Earth’s orbit, it has been possible to interconnect the world. Widespread scientific and economic benefits have been produced by artificial satellites, revolutionizing distinct activities such as agriculture, transportation, urbanization, and environmental protection. The complex phenomenon of globalization, characterized by a constant spread of information, technology, products and jobs across borders and cultures, is highly dependent upon space infrastructure. Indeed, outer space is currently recognized as a strategic asset to the social, political and economic development of every nation. Nevertheless, exploration and use of outer space is still not universal: related costs, although diminishing, remain prohibitive to some developing nations. Additionally, barriers such as limitations of space technology transfer, involving both governmental and non-governmental entities, are commonplace due to its dual-use potential. The everlasting tension between competition and cooperation, a trademark of classic studies of international relation, is certainly evident vis-à-vis space-related activities. Since outer space constitutes a resource domain to which all nations have access but to which none has the right to claim sovereignty, international coordination is necessary, towards common goals and shared interests. Space cooperation has been recognized as an essential tool for capacity building and advancement of sensitive technology, as well as to secure strategic data and services. At the centre of those debates resides the United Nations. Its importance to global space governance is unequivocal. Whether concerning the development of space law, the coordination of multilateral efforts, the dissemination of space data, or the furtherance of diplomatic collaboration, the UN, through its Committee on the Peaceful Uses of Outer Space (COPUOS), remains the space global forum par excellence. It is not, by any means, the only one, as other important multilateral venues and ad hoc arrangements certainly attest. Multilateralism helps States to reduce coordination costs while enjoying further international legitimacy, thus serving as a basis for global governance. Defined in general terms as the coordination of international relations between three or more States in accordance with a shared set of principles, multilateralism operates through many mechanisms, including parliamentary diplomacy. In our complex multipolar world, marked by fluidity in national and international politics, the importance of multilateralism for global space governance must be properly acknowledged, with eyes to the future. In many ways, multilateralism is not a matter of choice, but of necessity, as far as space diplomacy is concerned. That is why global space governance is fundamental to assure that the exploration and use of outer space are conducted in a peaceful and coordinated manner, addressing the concerns of the international community in general, for the benefit of all humankind.
Global Space Governance (Governance) is the framework by which space activities are (or are not) managed. Governance is the set of boundaries for acceptable and unacceptable behaviours in space that includes both formal rules and informal norms, not unlike the way management of human activities on Earth. In the case of Governance, it formed officially and unofficially, sometimes through explicit agreements, and sometimes through repeated actions that become norms over time. A myriad of stakeholders give shape to Governance, including governments, private companies and even users. The most explicit pillars of Governance are the five major United Nations treaties on outer space. These agreements were negotiated by Member States, contain obligations and benefits, and can be enforced if States so choose. Here, the major stakeholders involved in the deliberations were governments, each seeking to ensure their own national interests while striking a balance with the interests of others. This fundamental tenet of international relations has existed for centuries and is now applied to human activities in outer space.
Global Space Governance (Governance) is the framework by which space activities are (or are not) managed. Governance is the set of boundaries for acceptable and unacceptable behaviours in space that includes both formal rules and informal norms, not unlike the way management of human activities on Earth. In the case of Governance, it formed officially and unofficially, sometimes through explicit agreements, and sometimes through repeated actions that become norms over time. A myriad of stakeholders give shape to Governance, including governments, private companies and even users. The most explicit pillars of Governance are the five major United Nations treaties on outer space. These agreements were negotiated by Member States, contain obligations and benefits, and can be enforced if States so choose. Here, the major stakeholders involved in the deliberations were governments, each seeking to ensure their own national interests while striking a balance with the interests of others. This fundamental tenet of international relations has existed for centuries and is now applied to human activities in outer space. The United Nations is the main institution in which States can discuss cross-cutting challenges and work out multilateral solutions. The United Nations General Assembly (UNGA) is composed of 193 Member States (as of 2012). Six permanent committees help the UNGA manage its work on global issues; for space matters, two committees are especially important. The First Committee deals with disarmament and security matters and the Fourth Committee focuses on special political matters, including outer space. The Committee on the Peaceful Uses of Outer Space (COPUOS) is the UN body responsible for developing policies related to outer space on behalf of the UN Member States. It does not deal with military space issues. COPUOS reports each year to the UNGA via the Fourth Committee. The Office of Outer Space Affairs (OOSA) is the secretariat for COPUOS and carries out COPUOS policies as part of the larger UN Secretariat. The Conference on Disarmament (CD), which is not a UN organization but works under the UN auspices, is the international forum for work on disarmament, and therefore the body responsible for matters related to weapons in space and other space security issues. The CD reports its annual findings to the UNGA via the First Committee.
In addition to international agreements, individual countries must also pass national/domestic rules and regulations to govern the activities of their nationals, and to implement the obligations found in the outer space treaties. In recent years, private actors emerged as the predominant source of space activities, so national regulations and procedures are needed for activities such as launch services, on-orbit operations and end-of-life disposal. Private actors – including commercial entities, academic institutions and even individuals – also play a unique role in the development of a Governance. Many international and national institutions (including the UN, the International Telecommunications Union and many national regulators) have processes by which private actors can provide input into the form of regulations and policies. Private actors also seek ways to regulate themselves, creating associations and forums where best-practices and standards of behaviour can be agreed upon by actors themselves. This bottom-up approach can circumscribe the need for government oversight, creating an alternative method for developing and influencing the Governance framework.
The global space governance comprises the extant set of regimes that govern the interaction among space actors and around which the expectations of behavior of these actors converge. Space governance structures are based on a combination of principles, norms, rules and enforcement tools that are formally or informally shared by the actors to either avoid a mutually undesirable outcome or ensure a mutually desirable outcome in the conduct of their space activities. The most striking observation about the current space governance is how resilient its principles, norms and rules continue to be. This is despite having mostly been formulated several decades ago, when all the activities flourishing today did barely exist. From a neo-realist perspective, this resilience can be primarily explained with the fact that, unlike other global governance’s issue-areas, strategic interaction in outer space has been traditionally very limited. This is an occurrence that has not inhibited states, and now private actors, from pursuing their objectives. Indeed, most issues associated with space have entailed situations where different actors could do as they pleased without harming others. In those few areas where unrestrained activities could cause collective problems, such as the use of the radio-spectrum, issues have been solved through relatively simple coordination regimes. But even where visible restrictions have been accepted, these have not, to date, imposed real constraints upon the actors (for instance, the denial of sovereignty claims over celestial bodies or the ban on placing WMD have been costless concessions given the state of technologies). This situation, however, is nowadays changing considerably. The entry of many new actors with far-reaching undertakings (e.g., the mega-constellations), the advent of new enabling technologies and new uses of space – coupled with the critical dependence modern society has on space assets and the unravelling of the post-cold-war order – are all transformations strongly impacting strategic interaction and creating a clear progression towards typical dilemmas of common interest, for which only cooperation mechanism could guarantee stability. Constructing regimes to solve cooperation problems is, however, notoriously challenging because cooperation regimes, unlike coordination ones, require not only convergence around a set of rules that all actors share, but also mechanisms for verifying and enforcing these rules. The greatest challenge confronting the current global space governance is that more and more space issues are moving towards cooperation problems. More elaborated governance structures with proper mechanisms of verification, adjudication and enforcement will hence be needed for actors’ behaviour to converge and ensure that conditions in outer space will remain suitable for continued use.
Since the dawn of space related activities in the fifties and sixties of the last century, instruments and mechanisms have been needed and developed to avoid a clash of interests in the exploration and utilisation of outer space. The development of such tools took place hand in hand with the evolution of socio-political and technological challenges. From the times of the Cold War and the division of power between the USSR and the USA to a multifold scene of (powerful) space faring nations like China, India and Brazil and the engagement of many other nations (the development led to the establishment of 70 and more governmental space agencies all around the world). From mainly governmentally driven activities and governmental organisations to a broad private sector which is engaged in space related activities and commercialization. From “massive” satellites, limited in number, to CubeSats (small satellites) and the instalment of mega constellations. From more or less a limited benefit of satellites to the fact that satellite application devices used by more than 200 states around the world as means of satellite communication, navigation, climate monitoring, weather forecasting, or remote sensing etc. became essential tools. From astronauts/cosmonauts/taikonauts to space tourists. From the adoption of hard law regulations to the steering of human behaviour by soft law regulations and other forms of non-binding activities (“norms of behaviour”) like nudging. From the space-race of states to a broad cooperation in the field of space related activities. The instruments to govern the activities were more or less exclusively oriented towards overcoming respective individual and specific problems. On the contrary, global space governance is a comprehensive concept. The overarching (achievement) goal is laid down in Art I, paragraph 1 OST: The exploration and use of outer space shall be carried out for the benefit and in the interest of all countries. The (performance) goal is the long-term sustainability of outer space activities. This sustainability is defined as the ability to maintain the conduct of space activities indefinitely into the future in a manner that realizes the objectives of equitable access to the benefits of the exploration and use of outer space for peaceful purposes, in order to meet the needs of the present generations, while preserving the outer space environment for future generations (UNCOPUOS Guidelines for the Long-term Sustainability of Outer Space Activities). Exploration and utilisation of space are seen as drivers of the socio-economic development with regard to the 17 UN Sustainable Development Goals to Transform our World (see the document “Transforming our World: The 2030 Agenda for Sustainable Development”.) This is concretised in the Space2030 Agenda with its four pillars, space economy, space society, space accessibility and space diplomacy. In a Memorandum of Understanding, signed in May 2019, UNOOSA and ESA announced to develop a new Space Solution Compendium. As a conclusion, space governance is an important tool to ensure sustainability.