Strengthening Rules-Based Conflict Resolution in the Space Domain

Introduction

A future in which the space domain is weaponized is inching closer. In August of 2021, the People’s Liberation Army of China tested a nuclear-capable hypersonic glide missile (Hille, 2021). The missile orbited the Earth once and landed within 24 miles of its initial target (Hille, 2021).?In October of 2021, China launched the Shijian-21 satellite with the explicit aim of testing space debris mitigation technologies, but with inherent dual-use capabilities (Jones, 2021). In November of 2021, Russia tested an Anti-Satellite (ASAT) missile, creating a debris field in space that forced astronauts on the International Space Station (ISS) to temporarily seek shelter (Forgey, 2021). The U.S. Space Force Force’s Vice Chief of Operations, General David Thompson, reacted to these and similar events, warning of China’s growing military space potential and the dangers of reckless behavior in Earth orbit (Sheehey, 2021). He disclosed that both China and Russia are regularly attacking U.S. satellites with non-kinetic means, including lasers, radio frequency jammers and cyber-attacks (Rogin, 2021). The contestation of the space domain is taking a dangerous turn, both in action and rhetoric, by rivalrous great powers. If international stability in the space domain is to be protected, all stakeholders must take responsibility for the outcome of international behavior therein.

This is not the first time space has reached a boiling point among great powers. The United States and Soviet Union found themselves on the brink of nuclear space armament, with the testing of Tsar Bomba and Starfish Prime in the early 1960’s. Ultimately, thanks to mutual political will and the fear of mutual assured destruction, the great powers signed the Nuclear Weapons Test Ban Treaty in 1963. Afterwards, the international community was able to coalesce under the auspices of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) and form a series of interrelated treaties, starting with the Outer Space Treaty (OST) in 1967. Finally, the Liability Convention, the Rescue and Return Agreement, and the Registration Convention were each formulated on the shoulders of the OST.

Figure 1

SpaceX Crew Dragon capsule approaches the International Space Station for docking. Astronauts aboard the station were forced to temporarily shelter when the spacecraft passed close to a debris field

The United States has been able to lead the space domain uncontested in recent decades due to technical supremacy and the ease at which space actors could avoid other major players in a fledgling domain (Boutwell, 2010). Between 1963 and 2002, there have been seventeen treaties related to nuclear disarmament between the United States and Russia (Arbatov, 2010). Many of these agreements have expired or failed to come into effect (Arbatov, 2010). By allowing much of this legal structure to collapse, in the hope of retaining capabilities to defend against unconventional adversaries, the United States has contributed to a legal environment in which the space domain is considered contested space. This environment has enabled the collective cultivation of distrust and escalation by China, Russia, and the United States. ?

Space domain stakeholders must now choose between the pursuit of supremacy or stability. Supremacy will require consistent technical and procedural innovation at a rate that surpasses competitors, along with strategic cooperation among allies. Stability will require compromise and enhanced rules-based conflict resolution between competitors in the space domain. While a future of coexistence between stability and supremacy in the space domain might not be feasible, in the near-term, nations must also shoulder the responsibility of protecting their space assets from interference. The pursuit of stability and security in the space domain requires a framework that breathes life into the prohibition of arms in space while providing active countermeasures to keep space protected from space debris.

Space as Global Commons

There is an ongoing debate among stakeholders over whether, and to what degree, space should be considered a global commons. The official U.S. stance is clear. “Outer space is a legally and physically unique domain of human activity, and the United States does not view space as a global commons” (Trump, 2020). In 2020, the Trump Administration published an executive order titled, “Encouraging International Support for the Recovery and Use of Space Resources” (Trump, 2020). The stated goal of this executive order is to support American commercial interests in celestial resource exploitation. Afterall, the current international space law regime (apart from the Moon Agreement, which the U.S. does not recognize) fails to explicitly mention celestial resource exploitation or its management. The U.S. does not support any new legal instrument which might restrict the participation of American business in the anticipated arena of space mining. This position is emphasized in the US led coalition built upon the bilaterally signed Artemis Accords (Gan, 2021).

However, legal support for this narrative is highly contested among allies and competitors. In 2020, in response to the Executive Order, more than two dozen experts from around the world attended a workshop on space mining at the University of British Colombia’s Outer Space Institute (Boley, 2020). The workshop resulted in the Vancouver Recommendation on Space mining, which rejects any unilateral approach to the matter, rejects the narrative that space is not a global commons, and lists twenty-five specific recommendations for any space mining legal regime (Boley, 2020).

A commons is a resource that is defined as rivalrous and non-excludable. Orbit trajectories are rivalrous in that no two satellites can occupy the same space at the same time without collision. Celestial objects such as the Moon are also rivalrous as no two objects can occupy the same surface area. Moreover, the Moon is rivalrous in that the over cultivation of Lunar ice will result in the reduction of the total available quantity. More research must be done to determine what percentage of mass the Moon can lose due to celestial resource exploitation before it is no longer tidally locked to the Earth. The space domain is also effectively non-excludable because no nation or group of nations can currently prohibit the launch of space-bound objects everywhere on Earth. Therefore, somewhat like the high seas, breathable air, and Antarctica, the space domain displays the characteristics of a global commons regardless of political narrative. It must be noted that, orbits, celestial objects, LaGrange points, and open space display varying commons properties. There is no ‘one size fits all’.

Figure 2

Lab-test result of an aluminum sphere traveling at nearly 7 kilometers per second impacting a block of aluminum.

Earth orbits are particularly vulnerable to tragedy of the commons. The “over-consumption” of trajectories, and the lack of vigilance against collisions that result in debris, lead to the depletion of access to those trajectories. The Kessler Syndrome describes the potential runaway effect of space debris once the quantity reaches a certain threshold (Corbett, 2021). “Research shows that debris in orbits higher than about 800 km above the Earth’s surface will be up there for decades, above 1,000 km for centuries, and above 1,500 km effectively forever… Space debris moves at an extremely high speed of 27,000 km per hour; even tiny pieces can cause destruction to a satellite” (Su, 2015). Despite considerable research focusing on debris cleanup, there is no active space debris countermeasure being currently employed (David, 2021). To ignore these dangers for commercial gain or to conduct ASAT tests without due regard is dangerous and risks condemning the domain from future use for everyone.

Cause and Effect

After Russia’s co-orbital ASAT test in 1994 which resulted in 27 catalogued pieces of debris, there were eleven years in which no country conducted a known ASAT test (Weeden, 2021). This was also the last known co-orbital ASAT test in recent history (Weeden, 2021). The turn of the century was met with the U.S. withdrawal of the 1972 Anti-Ballistic Missiles Treaty in 2002 (Su, 2015). The Bush Administration envisioned a more robust missile defense program, with the potential placement of defensive weapons in space to defend against unconventional and asymmetric adversaries, and they saw the ABM Treaty as a roadblock to this capability.

In response, China and Russia began a concerted push to ratify an international treaty regarding the Prevention of Arms in Outer Space (PAROS) at the UN Conference on Disarmament (CD) (nit.org, 2021). This resulted in a series of UN PAROS documents and meetings, which suggested confidence-building measures such as information exchanges, consultations, and workshops. In 2005, China and Russia co-authored a resolution which garnered widespread support by the UN Governing Assembly but was objected by the U.S. and abstained by Israel. By 2007, the United States had spent five years refusing to come to the table with Russia and China. ?The first known ASAT test conducted in the new millennia was by China in 2007 which resulted in 3527 pieces of catalogued debris (Weeden, 2021).?This was followed in 2008 by an ASAT test by the United States (Weeden, 2021). In 2008, China and Russia also introduced a draft treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) to the UN CD (nit.org, 2021).

There are other data points to track in the last two decades of international space armament policymaking. In 2008, the European Union also presented a draft Code of Conduct for Outer Space Activities (ICoC) that is still being debated among international and domestic parties. As will be discussed later, even if the ICoC is endorsed by all stakeholders, it is limited in power as it is not legally binding (Zenko, 2011). In 2011, the Obama Administration signed the New Strategic Arms Reduction Treaty (START) with Russia to limit the number of strategic nuclear missile launchers with routine verification protocols (Sonne, 2021). More recently, The Trump Administration pulled out, or threatened to pull out, of eleven international agreements, including the intermediate-range nuclear forces treaty of 1987, the Iran Nuclear Deal, and the 1992 Treaty on Open Skies which allows for unarmed observation flights over State Parties for increased transparency (Wolf, 2019) (Hathaway, 2020). The Trump Administration also established the United States Space Force (USSF) in 2019- a move seen by other states as a signal towards increased space militarization. ?The Biden Administration has attempted to restore alliances and agreements with limited success, including extending the New START treaty until 2026 (Sonne, 2021). However, tension between China and the U.S. has reached new heights in recent years, from trade wars to claims of espionage, from the containment of Chinese expansionism into the South China Sea and beyond to allegations of Chinese genocide (cfr.org, 2021). The ability for competitors to conduct conflict resolution exercises in the space domain continues to face obstacles from all sides.

Integrating Procedural Frameworks

Figure 3

The United Nations Charter Preamble

Embedded within the preamble of the United Nations is a hope that humanity’s highest ideals can be achieved through international cooperation within a rules-based order despite many sovereign national differences. Much of the UN’s focus has been on enabling developing nations to pursue stability during or after conflict. ?The influence of Intergovernmental Organizations (IGO) is often inversely proportional to the size and power of any given nation. This is exemplified by the US support of the International Criminal Court (ICC) and refusal to adhere to their jurisdiction. Therefore, while the UN has developed frameworks such as the peacebuilding cycle for war-torn regions that include reconciliation, conflict resolution, political processes and support of human rights, these frameworks are rarely leveraged in conflict resolution between great powers.

However, some aspects of UN peacebuilding frameworks can apply at more macro levels. One of the most important steps in peacebuilding is reconciliation. Post-conflict reconciliation is a requirement to ensure sustainable peace and preventing conflict recurrence (Rognvik, 2012). At the state level, reconciliation is both a goal and a process (Rognvik, 2012). Key elements to successful reconciliation include inclusive national dialogue, political will, security, freedom to speak and move, and a national vision of a nation’s end state as defined by its citizens (Rognvik, 2012). There are often multiple levels of reconciliation work within a nation (Rognvik, 2012). There are often truth commissions that investigate the full story, as reconciliation is not possible unless all stakeholders arrive at an agreed upon narrative (Rognvik, 2012). Moreover, reconciliation as part of a greater framework has been applied historically to Apartheid South Africa, Northern Ireland, Bosnia and Herzegovina, and many more recent and historical conflicts (un.org, 2021).

This understanding of reconciliation can be built into the negotiation process between rivalrous great powers to facilitate more effective dialogue. Instead of citizens coalescing under the framework to heal communities, nations can operate under the framework to arrive at resolutions beyond disputes. Technology will continue to outpace the laws which govern it. Points of contention between dominant nations will continue to occur. Tailoring reconciliation frameworks to enable dominant nations to resolve disagreements complements the greater legal toolbox.

Adjusting the Narrative

The first step towards reconciliation is to reach an agreed upon narrative by all stakeholders. While this is an important requirement, it is also potentially the hardest. Dr. Eligar Sadeh describes political conflict as “a tension between those seeking to expand participation in a debate and those working to minimize participation” (Sadeh, 2014). Policymakers seek to manipulate the images and narratives that are used to explain their agendas, and the jurisdiction over which the policies are made, to achieve their goals (Sadeh, 2014). “The policy struggle is over both the definition of issues and control over the processes and arenas within which decisions are made” (Sadeh, 2014). The fact that narrative manipulation is the cornerstone in successful policy formation makes arriving at an agreed upon narrative by stakeholders with competing interests difficult, but not impossible.

The different emphases of modern space domain arms control proposals demonstrate both the varying concerns of sponsoring states and their manipulation of narrative to support those concerns. The PPWT seeks to effectively prohibit space-based weapons, including space-to-Earth weapons, space-based ASATs, and space-based missile interceptors. On the other hand, the ICoC seeks to prohibit ground based ASATs. Both concerns are legitimate, although ground based ASATs are the more immediate threat. Neither approach includes prohibition of the other. Neither approach provides effective verification measures; the PPWT lacks the language to support verification measures and the ICoC lacks the capacity for enforcement. Therefore, both approaches are only half measures, inadequate, and ultimately fail their stated goals.

Integrating a reconciliation framework into these negotiations would result in a narrative that acknowledges and unifies the valid concerns from both the Western and Eastern spheres of influence. ?Based on current and foreseeable technical capabilities, the space domain offers mutual vulnerability to stakeholders, despite intentions to the contrary. The U.S. is currently the most dominant stakeholder and risks the most in space. However, if China surpasses the U.S. in space usage, it will be their turn to shoulder most of the risk. In fact, all current and future stakeholders stand to lose human and satellite access to Earth orbits if they are not used sustainably and protected from debris creation.

For reconciliation purposes, an agreed upon narrative in the space domain will require all stakeholders to take documentable ownership of the role they have played in stabilizing and destabilizing the domain. It will need to acknowledge all human-caused risks to the domain. It will need to aggregate the vision each stakeholder has for the domain and the benefits they hope to gain by participating in it. Nations must be willing to have frank discussions, accept limited constructive criticism, and approach the discussions with the honest intention of cooperation. This narrative is conceptually partitioned from any legal obligation. It must also be constrained by evidence and protected from undue influence from political agenda. Transitioning from a narrative of zero-sum gains between rivals to a narrative of mutual vulnerability between cohabitants could give stakeholders the room to holistically address all concerns and mitigate them in a new comprehensive legal instrument proposal.

International Legal Instruments

There is a multitude of international legal instruments that can be brought to bear to increase stability in the space domain. Some instruments provide a greater degree of efficacy than others. The goals of the chosen instrument should include the protection of space from new arms races and specific assurances on the sustainable use of space. Therefore, the chosen legal instrument must be legally binding. The instrument must include explicit measures of verification and transparency. Moreover, the lack of clarity in the current space law regime has been exposed by various interpretive manipulations, including the adherence to the OST’s mandate of space use being strictly for peaceful purposes. When the Trump Administration established the US Space Force, it utilized the narrative of “peace through military might” (Hoffmann, 2020). Any new legal instrument must provide clear definitions that build upon, and clarify, the existing legal infrastructure.

In 2008, the European Union proposed an International Code of Conduct on Space Activities, which was later revised and endorsed by the United States in 2012. Codes of conduct, recommendations, and declarations are considered “soft law” as they are non-legally binding, politically binding instruments that can be drafted to clarify existing conventions or set the tone for future conventions. Due to the lack of legal obligation, these instruments lack verification measures. The ICoC does not limit the research, development, testing, deployment, or use of weapons in space that target objects on Earth such as space based Ballistic Missile Defence (BMD) systems (Su, 2017). Furthermore, there are caveats for allowing the use of weapons in space under the authorization of the US Security Council.

In 2004, Russia made a legally binding unilateral commitment to the UN to refrain from being the first nation to deploy weapons in outer space, known as the “no first deployment of weapons in outer space” policy, and urged other stakeholders to do the same (Su, 2017). In 2014, Russia submitted a draft resolution to the UN General Assembly of the same title and purpose, and the only four nations that voted against it was Georgia, Ukraine, Israel, and the United States (Su, 2017). Legally binding unilateral commitments, based on the customary principle of pacta sunt servanda, is based on good faith and contains no inherent verification measures (Su, 2017).

While the 2014 revision of the PPWT clarifies some linguistic ambiguities, it still fails to adequately define “weapons in outer space” and the “placement” thereof (Su, 2017). It also fails to account for the ability to mask dual-use technology with military intentions under commercial disguise (Su, 2017). Ground-based ASATs are also not explicitly addressed (Su, 2017). The US remains a vocal opponent. “Like the 2008 version, remains fundamentally flawed and provides no basis for the United States to support establishing an ad hoc committee to negotiate any such Treaty at the Conference on Disarmament or in any other forum” (Su, 2017).

The need for a new legally binding international treaty is clear. Space domain stakeholders could coalesce under the auspices of COPUOS and establish a treaty that bans technology based in the air, land, sea, or space that includes any trajectory at or above 100 km above sea level with the intention of acting against any other stakeholder or technology or humans that fall under the jurisdiction of any stakeholder. The treaty could also include a prohibition on all parties specified above in intentionally conducting activities that result in the creation of space debris. An International Space Tribunal can be established to enforce this regime and to provide deterrence for violations. Stakeholders in the space domain under this agreement can include any entity with the capacity to ensure liability for its activities in space and which has registered with the appropriate national and IGO agencies. If the dual-use property of cutting-edge technology makes it impossible to conduct verification measures of the technology itself, the law must address and deter the intentions and outcomes of actions, procedures, and processes in the space domain. Legal precedence for this has already been established at local and Federal levels regarding premeditation, negligence, and other legal definitions that seek to deter criminal intent.

The Threat of Rogue Actors

As the international rules-based order evolves and matures, the threat of rogue actors that seek to operate outside of the order persists. Moreover, as the cost of participation decreases, the ability for terrorist cells, lone actors, space pirates, and other nefarious entities to conduct illegal operations in the space becomes more feasible. However, this is a separate legal subject that must be explored and should not be leveraged to undermine the progress in prohibiting space armament and space debris creation.

Possible Areas of Cooperation

All stakeholders in the space domain stand to benefit from increased cooperation and reconciliation between the Western and the Eastern spheres of influence. Increased stability results in a more positive perception of future international economic prosperity and stimulates confidence to support greater national and commercial investment in the domain. Stability also diminishes the fear and paranoia that incentivizes escalated tensions. In a more stable space, great powers can develop more cooperative programs with their peers. Two areas of significant cooperative capacity are space rescue and active space debris mitigation, as these are topics that affect all stakeholders. The positive potential of global efforts in these endeavors outweighs the individual potential of any single stakeholder or exclusive group of stakeholders.

Conclusion

As this narrative has demonstrated, space continues to become increasingly congested, contested, and competitive. Diplomatic and strategic challenges that have existed in the air, on land, in sea, and in cyberspace, have permeated beyond the mesosphere. At face value, many of these challenges seem to require a military answer, from the surge of bilateral agreements in the space domain to the legal protection of space based ballistic defense weapon systems. ?The United States continues to operate from the assumption that if it defines the space domain on its terms, enough allies will follow its lead to provide overwhelming momentum against the narratives and agendas of great power rivals. ?This assumption, and the assumption that the United States will continue to maintain an overwhelming technical capability lead over rivals can lead to dangerous outcomes. This trajectory will not effectively curb an arms race in space, nor will it incentivize stakeholders to refrain from increasing space debris in Earth orbits.

A UN-led reconciliation framework is the key to pursuing stability in the space domain and overcoming key challenges. It will require all stakeholders to come to the table to arrive at a holistic, agreed upon narrative based on facts and not solely political agenda. Only after this has been achieved, can a new COPUOS treaty be formed to address current challenges in space weaponization and the sustainable use of space. This is not an easy or quick solution. This process could take years and after UN adoption, it could face significant opposition from domestic governance entities. However, there may be few alternatives that will result in peaceful and stable outcomes for the future of humans in space.

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References

Arbatov Alekse? Georgievich., and Vladimir Dvorkin. Outer Space: Weapons, Diplomacy, and Security. KW Publishers, 2014.

Boley, Aaron. “Re: US Executive Order on Recovery and Use of Space Resources.” https://doi.org/https://www.outerspaceinstitute.ca/docs/Vancouver_Recommendations_on_Space_Mining.pdf.

Boutwell, Jeffrey, et al. “Enhancing Space Security by Improving Stakeholder Cooperation.”?Astropolitics, vol. 2, no. 2, 2004, pp. 99–106., https://doi.org/10.1080/14777620490493584.

Cheng-Hopkins, Judy. “UN Peacebuilding: an Orientation.” https://www.un.org/peacebuilding/sites/www.un.org.peacebuilding/files/documents/peacebuilding_orientation.pdf.

Corbett, Judy. “Micrometeoroids and Orbital Debris (MMOD).”?NASA, NASA, 17 Sept. 2015, https://www.nasa.gov/centers/wstf/site_tour/remote_hypervelocity_test_laboratory/micrometeoroid_and_orbital_debris.html.

David, Leonard. “Space Junk Removal Is Not Going Smoothly.”?Scientific American, Scientific American, 14 Apr. 2021, https://www.scientificamerican.com/article/space-junk-removal-is-not-going-smoothly/.

Forgey, Quint. “'Irresponsible Act': U.S. Raps Russia after Missile Strike on Its Own Satellite.”?POLITICO, POLITICO, 15 Nov. 2021, https://www.politico.com/news/2021/11/15/us-space-debris-russia-satellites-522406.

Gan, Nectar. “US-China Rivalry Is Extending from Earth into Space. That Poses a Challenge to American Dominance.”?CNN, Cable News Network, 21 June 2021, https://edition.cnn.com/2021/06/21/china/china-us-space-race-mic-intl-hnk/index.html.

Hathaway, Oona. “Reengaging on Treaties and Other International Agreements (Part I): President Donald Trump's Rejection of International Law.”?Just Security, 27 July 2021, https://www.justsecurity.org/72656/reengaging-on-treaties-and-other-international-agreements-part-i-president-donald-trumps-rejection-of-international-law/.

Hille, Kathrin. “China Tests New Space Capability with Hypersonic Missile.”?Subscribe to Read | Financial Times, Financial Times, 16 Oct. 2021, https://www.ft.com/content/ba0a3cde-719b-4040-93cb-a486e1f843fb.

Hoffmann, Andrew. “A New Era in the Weaponization of Space: The U.S. Space Force & An Update to the Outer Space Treaty.”?Transnational Law & Contemporary Problems?, 22 Mar. 2020, pp. 327–352., https://www.proquest.com/scholarly-journals/new-era-weaponization-space-u-s-force-amp-update/docview/2492714562/se-2?accountid=8289.

“PAROS Treaty.”?The Nuclear Threat Initiative, 27 Sept. 2021, https://www.nti.org/education-center/treaties-and-regimes/proposed-prevention-arms-race-space-paros-treaty/.

Rognvik, Sylvia. “Building Just Societies: Reconciliation in Transitional Settings.”?United Nations, 6 June 2012, https://www.un.org/peacebuilding/sites/www.un.org.peacebuilding/files/documents/12-58492_feb13.pdf.

Sadeh, Eligar. Space Politics and Policy an Evolutionary Perspective. Kluwer Academic Publishers, 2016.

Sheehey, Maeve. “U.S. Space Force General Warns of China's Growing Military Space Potential.”?POLITICO, POLITICO, 5 Dec. 2021, https://www.politico.com/news/2021/12/05/space-force-china-military-523769.

Su, Jinyuan. “Space Arms Control:Lex Lata and Currently Active Proposals.”?Asian Journal of International Law, vol. 7, no. 1, 2015, pp. 61–93., https://doi.org/10.1017/s2044251315000223.

“Timeline: U.S. Relations With China 1949–2021.”?Council on Foreign Relations, Council on Foreign Relations, https://www.cfr.org/timeline/us-relations-china.

Trump, Donald. “Encouraging International Support for the Recovery and Use of Space Resources.”?The White House, https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/04/Fact-Sheet-on-EO-Encouraging-International-Support-for-the-Recovery-and-Use-of-Space-Resources.pdf.

Weeden, Brian. “SWF Releases Updated Compilation of Anti-Satellite Testing in Space.”?SWF Releases Updated Compilation of Anti-Satellite Testing in Space | Secure World, https://swfound.org/news/all-news/2020/06/swf-releases-updated-compilation-of-anti-satellite-testing-in-space/.

Wolf, Zachary B. “Here Are All the Treaties and Agreements Trump Has Abandoned.”?CNN, Cable News Network, 1 Feb. 2019, https://edition.cnn.com/2019/02/01/politics/nuclear-treaty-trump/index.html.

Zenko, Micah. “A Code of Conduct for Outer Space.”?Council on Foreign Relations, Council on Foreign Relations, https://www.cfr.org/report/code-conduct-outer-space.