1. Space Security: The role of law
Theresa Hitchens
Emerging Technologies and Global Security: An Agenda for the 21st Center
PIR Center, Moscow – Sept. 29, 2016

2. Challenges to Space Governance
Increased use of space for military, civil and commercial purposes – more actors, more critical to society
New technologies increasing access, potential benefits
Cubesats, constellations (internet access/remote sensing, etc.), asteroid mining, tourism
Benefits come with risks – competition/conflict
Technology outstripping governance, both national and international
International law/fora designed during Cold War era, out of date; irrational re separation of peaceful/military use

3. Governance & Law
Space governance enacted at two basic levels: national, and international
National = law and regulatory policies
International = hard law (treaties) and soft law (norms and practice)
Disconnect between established space-faring nations and emerging space actors/developing nations in establishing governance/role of law, and compliance with international law

4. Space Security, Safety and Sustainability
Security, safety, sustainability interconnected
Safety of operations foundation for sustainability and security
Debris mitigation/remediation and collision avoidance paramount
Security required for sustainability of space benefits, and vice versa
Governance and law have places in all, but different means and application

5. Role of International Law
Hard law = 5 UN treaties on space, ITU; soft law = UN principles, UN voluntary agreements, standards, practice
UN Treaties
1967 OST: “Magna Carta” of space
Exploration/use “for the benefit and in the interest of all countries, and shall be the province of all mankind”
Bans nukes in space (not conventional weapons)
Prohibits “national appropriation” of space/celestial bodies
1968 Rescue Agreement: astronauts and space objects
1972 Liability Convention: “absolute liability” for re-entry damage; “fault based” liability for orbital damage

6. UN Treaties, cont’d 1976 Registration Convention
States/international organizations required to establish own registries, transfer information for inclusion in UN Register
Requires basic orbital parameters, general function, date/location of launch
92% of all sats registered, but major space actors play fast and loose on national security sats
1984 Moon Convention: no major space actor has ratified, thus not effective

7. ITU
ITU, a specialized UN agency, governs access to RF usage/orbital slots in GEO
Treaty based: ITU Convention and Constitution/Radio Regulations
Purpose: to promote efficient and equitable use of RF/orbits
Prohibits deliberate and illegal interference

8. International Soft Law
5 UN Principles, politically but not legally binding
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963
Free exploration/use by all, ban on sovereignty, “benefit and interests of all mankind”
Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcast, 1982
Non-intervention, equal rights and benefits, peaceful dispute resolution, state responsibility for activities

9. UN Principles, cont’d
Principles Relating to Remote Sensing of the Earth from Outer Space, 1986
Requires international cooperation, technical assistance
Encourages data sharing
Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 1992
Seeks to minimize radioactivity in space, limits nuke power sources to uses that cannot otherwise be done, safety requirements, re-entry notification

10. UN Principles, cont’d
Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking Into Particular Account the Needs of Developing Countries, 1996
Promotes international cooperation, especially with developing states, capacity-building, tech transfer

11. Soft Law: UN Voluntary Agreements
COPUOS, STSC 2007 Debris Mitigation Guidelines
Based on technical standards developed by IADC
Primarily aimed at safety
Article 4 addresses security by pledging States not to deliberately create “long-lived” debris, which could be seen as limiting KE-ASAT test/use
COPUOS Long Term Sustainability Working Group
12 guidelines for best practices approved June 2016
Primarily aimed at safety but also space environment
Working on more guidelines through 2018

12. UN Voluntary Agreements, cont’d
UN GGE on Transparency and Confidence-Building Measures in Outer Space Activities
Report issued in 2013
Under UN First Committee, thus aimed squarely at space security and reducing risks of conflict

13. Soft Law: Standards and Practices
ISO: sets technical standards for some space operations, generally followed by operators
IADC: group of national space agencies, practical technical guidelines for reducing debris creation
May take up debris remediation/removal
Standards and practices, especially by national space operators and agencies, can become “soft law”

14. Role of National Law/Regulatory Policy
National licensing of sat operations a primary instrument for legally implementing international law and national regulatory policy
US licenses all satellite operators: commercial (FAA/FCC), military (DoD) and civil (NASA)
1967 OST mandates States as responsible for oversight of space activities
National responsibility to ensure: safety, compliance
Does NOT mandate how to implement; in US primarily through licensing and regulatory rules
ITU Constitution and Convention/Radio Regulations mandate national legislation to implement provisions re frequency allocation/orbital slots – in US through State and Commerce Depts

15. Role of National Law/Regulatory Policy, cont’d
1976 Registration Convention requires establishment of national satellite registry, provision of basic orbital data to UN Register
Enforcement of compliance is State responsibility
In US done through State Department
States differ on approach to space safety (launch, operations, re-entry)
E.g.: some States incorporate voluntary UN COPUOS/IADC Debris Mitigation Guidelines into national regulations

16. Gaps in Int’l Law re Safety, Sustainability and Security
No treaty or law to outlaw conventional weapons placement or use in space
Russia and China 2008 proposed to CD, 2014 updated PPWT
Supported by many nations, only treaty proposal
Opposed by U.S. for focus on space-based weapons
No treaty or law demands debris mitigation
Emerging space actors leery of economic demands
No treaty or law governing resource extraction
Legal disputes about what is allowed
ITU has no enforcement power to stop illegal interference

17. Opportunities? Codification of application of LoAC to space activities
LoAC suggests restraints on weapons use via distinction, proportionality, collateral damage
McGill University, Canada, project: “Manual of International Law Applicable to Military Uses of Outer Space” – mimics other such manuals (cyber, air, etc.)
Provides possible starting place for future treaties
Ban on debris creating ASATs testing/use – agreement re concerns
Tech tested/desired?
Missile defense complicates
Legal disagreement re military debris creation under LoAC

18. Opportunities? cont’d
Codification of ITU rules to link prohibition on illegal interference to access to frequency/slots
Could be done by amendment via WRC
National/regional codification of debris mitigation guidelines
National/regional/multilateral legal application of GGE TCBM recommendations
Treaty enforcement, improved notifications (maneuvers), consultations, space object data sharing

19. Conclusions
New space arms control treaties unlikely in foreseeable future, due to high threat perceptions/mistrust
Can continued TCBM work reduce threat perception?
Concerns about debris nearly unanimous – can we leverage?
National law can ‘enforce’ international soft law
Some hard law solutions (ASATs/interference/LoAC) may be possible
CONTINUED COMMITMENT TO DIPLOMACY REQUIRED!

20. Questions? Theresa Hitchens Senior Research Scholar
Center for International and Security Studies at Maryland (CISSM)
University of Maryland