The Backbone of Space Governance

· By Montserrat Zeron ·

From the first astronomical observations of ancient times to crewed lunar missions, space has been at the center of the human experience. It has, however, assumed a greater role since spaceflight became possible six decades ago and new technologies and capabilities for other extraterrestrial activities have emerged.

People worldwide today rely on space-based technology in their daily lives, from navigation and telecommunications to financial transactions, weather forecasting and climate monitoring. The interconnectedness will likely only accelerate as the space economy is expected to grow from $630 billion in 2023 to $1.8 trillion by 2035.

The rapid emergence of mega-constellations, dual-use technologies and threats of a weaponized space environment may foster the perception of an orbital “wild west”, but this does not reflect reality. The international framework governing space activities has its foundation in five treaties and a series of norms established in the 1960s and 1970s. Their continued relevance underscores their enduring necessity, but ambiguities, gaps and loopholes in the five foundational space treaties, exacerbated by deepening geopolitical deadlock in multilateral forums, have made updating the current framework an urgent priority and spurred a search for alternative pathways to advance space governance.

Born Amid Conflict

Germany’s V-2, the world’s first long-range guided ballistic missile, ushered in the birth of spaceflight as the Nazis weaponized rockets. Within a mere two decades, the Soviet Union launched the space race by placing Sputnik, the first artificial satellite, in orbit. Continued rapid technological advancement, paired with the novelty of operating in space and the lessons from the Cuban Missile Crisis of 1962, which put the globe on the brink of nuclear war, paved the way for the landmark Test Ban Treaty. The negotiations for that agreement laid the groundwork for the principles that would underpin international space law.

Exploration of the final frontier forced nations to reckon with the need to construct a legal framework for operating there, a process that produced the five legally binding treaties that now govern space activities. These agreements came to fruition under the umbrella of the UN, which had established the ad hoc Committee on the Peaceful Uses of Outer Space (COPUOS). With the initial representation from 18 member states, the committee focused on facilitating international cooperation for the peaceful use and exploration of space, and on creating a framework for legal issues that would inevitably arise. COPUOS became a permanent body in 1959 and oversaw the conclusion of the treaties and set of additional principles for space-related activities. Many of the treaties’ provisions mirror or were influenced by other global accords such as the Antarctic Treaty and the UN Convention on the Law of the Sea.

The Foundational Five

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, colloquially known as the Outer Space Treaty (OST), is the backbone of international space law. Also referred to as the Magna Carta of space, the OST, finalized in 1967, designates outer space as the “province of all mankind”. It prohibits national sovereignty claims and weapons of mass destruction in orbit and asserts that states must bear responsibility for their activities in space. The OST is the most consequential of the five treaties and remains the reference point for international space law nearly 60 years after its adoption. The four other treaties expand on specific provisions in the OST, to which 116 countries, including all major spacefaring nations, are now signatories. 

The OST, however, entered into force at a time before humans even conceptualized many of the ideas now dominating the conversation around space. These include orbital data centers, the Golden Dome missile defense system, commercial space stations, asteroid mining, and lunar bases. The treaty is consequently regularly described as simplistic and outdated. Its ambiguous text has brought calls for its modernization, particularly as issues such as orbital debris proliferate.

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, known as the Rescue and Return Agreement, designates astronauts as “envoys of mankind”, humanity’s representatives in outer space. The 1968 treaty mandates that all states rescue, assist and return astronauts in distress to their countries of origin, regardless of nationality. It also requires states to aid in the recovery and return of any space objects that land within their territory, returning them to the launching state. These provisions are efforts to protect astronauts and space activities from geopolitical tensions on Earth.

While some provisions have functioned well, as demonstrated by the aftermath of the crash of Soviet satellite Kosmos 954 in Canada in 1978, significant gaps remain. They have become increasingly apparent with the rise of commercial activity and space tourism, and include the lack of a clear definition of “astronaut”, the absence of private-sector rescue infrastructure, and unresolved questions of liability for rescue costs.

The Convention on International Liability for Damage Caused by Space Objects, referred to as the Liability Convention, was designed to address gaps in liability for space operations. Building on previous rescue provisions, the treaty holds states responsible for any damage to Earth’s surface or to aircraft caused by their space objects. States also face fault-based liability for damage occurring in outer space. The convention’s provisions outline legal mechanisms to settle claims and determine compensation for damages.

The agreement has been invoked only once, for the Kosmos 954 crash, but it still has significant shortcomings. It holds states liable for their space objects regardless of the controlling entity, a concern exacerbated by the growing threat of satellite hacking and cyberwarfare. Loopholes in damages to third parties, and a misalignment between responsibility and ownership, also warrant revisions.

The Convention on Registration of Objects Launched into Outer Space, known as the Registration Convention, requires states to register launched space objects with the UN and provide orbital parameters, function descriptions and details of ownership. To strengthen efforts of previous treaties, this accord created a UN-maintained registry to ensure open access to information provided by states and intergovernmental organizations. 

These provisions serve as an identification tool to support the Liability Convention, but they have fallen short of the transparency its drafters intended. Deficiencies include the lack of an enforcement mechanism for states that do not submit information about a space object in a timely manner. Some commercial satellites remain unregistered as much as 15 years after launch. Shared information is often overgeneralized; no state has formally disclosed a military object’s functions.

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, referred to as the Moon Agreement, designates Earth’s only natural satellite and other celestial objects as the common heritage of mankind. The 1979 pact mandates peaceful purposes for exploration and prohibits on these bodies the use of force, militarization, and crucially, any resource exploitation for profit unless conducted by an international governing regime. The agreement also stipulates that states notify the UN of the purpose and location of any base established on these bodies.

Its stipulations have proved controversial. Of the five treaties, the Moon Agreement has the fewest signatories. It also lacks ratification by any major space-faring nation, including China, Russia and the United States. The accord aimed to elaborate on many OST provisions, but its restrictions on resource exploitation, including of coveted materials such as Helium-3, are widely seen as incompatible with the rapidly growing space economy. In January 2023, Saudi Arabia notified the UN of its intention to withdraw from the agreement, the first nation to do so.

The shortcomings of the five treaties present a cumulative challenge to the diplomatic, policy and scientific communities working to advance space governance.

The Path Forward

Diverging perspectives on the future of space governance exist. Some see continued use of hard law mechanisms, while others predict soft law instruments such as political commitments, norms and guidelines will become more effective tools in the current geopolitical climate.

Proposals to address space governance include a "Conference of the Parties" (COP), similar to the annual climate COP, to serve as a regular, institutionalized forum in which states discuss the working of the OST and address gaps. Others advocate for bilateral principles such as those embedded in the Artemis Accords.

The rapid proliferation of extraterrestrial activities calls for a novel approach to governance and application, issues that should concern all humankind given its increasing dependence on the sustainability of space. The UN has warned of a “race to save space”, and, for now, imperfect, outdated international governance frameworks provide the only guidelines for activity in the cosmos. They must evolve to meet current challenges. Only through international cooperation that balances diverse interests, embraces commercial opportunity, and enshrines a collective duty to protect space can its future be secured.