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Rules-Based Order in Outer Space

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This commentary was first published on the Asialink website. It is part of a series of commentaries curated by the Australian Committee of the Council for Security Cooperation in the Asia Pacific, in collaboration with Asialink (University of Melbourne). Anthony Milner, Visiting Professor at AEI, is Co-Chair of the Australian Committee, together with Ric Smith AO.

While disputes about the Rules-Based Order in long-established areas of policy rage on, Dr. Rajeswari Pillai Rajagopalan argues the proliferation of space technology gives rise to new debates about order, defence, and security.

Concerns and debates about a Rules-Based Order (RBO) show no sign of flagging. Mostly, these debates have come in the context of the changing global balance of power and an increasingly aggressive China that has in both subtle and open ways disregarded the rules of the road that were established by the US and the West in the post-Second World War period. Much of this debate is focused on the Indo-Pacific. With the rise of China, India, and the emergence of a “normal” Japan, the Indo-Pacific region is going through a strategic churn and competition in many areas. The fact that these emerging powers also have a baggage of history and unresolved border and territorial issues make the question of RBOs even more significant.

Proponents of the RBO in the Indo-Pacific worry about the use or threat of force and coercion while dealing with international disputes in the region. The term has gained greater currency in countries like India, Japan and Australia – which have faced the brunt of China’s aggressive tactics, including trade coercion and wolf-warrior diplomacy. For example, in 2016, while leaving for Japan for the annual summit meeting with Prime Ministers Abe, Indian Prime Minister Modi highlighted the India-Japan “commitment to an open, inclusive and rules-based global order.” Similarly, after meeting Singapore Prime Minister Lee Hsien Loong on the sidelines of the 2018 Shangri-La Dialogue, Modi said that India and Singapore remain committed to “a rules-based order for maritime security”.

In the face of a rising China, the US has been at the forefront in promoting the RBO. Former US Defense Secretary Jim Mattis, for example, has characterised the RBO as “the greatest gift of the greatest generation.” There are questions about whether countries pursuing a liberal international order are sufficiently liberal in their own domestic behaviour; also, a major challenge to efforts to promote such an order has come from the failure of some proponent countries to follow these principles themselves in the international sphere. The US, for instance, has not signed the UNCLOS even though it is seeking to promote many of the principles of UNCLOS. While these criticisms may have some intellectual justification, they need to be kept in perspective because they are ultimately less serious than gross violations of even the most basic international norms carried out by others.

The debate of RBO has gained traction because of possible different interpretation of what RBO means from the national perspectives of different countries. Broadly, the understanding of the RBO is of respect for sovereignty and territorial integrity, observance of international law and freedom of navigation and overflight, and peaceful resolution of disputes without resorting to use or threat of force. But China appears to be using very different yardstick when it comes to issues such as sovereignty and territorial integrity or use of force in addressing territorial disputes. The liberal international order, of which RBO is an important part, lays emphasis on human rights and individual freedoms, which are again problematic in China’s conception of RBO. China’s behaviour today is one where it wants to continue reaping benefits from the existing RBO but proposes new, narrower rules and concepts that suit only its interests. China is establishing new institutions at least in the financial sector like the Asian Infrastructure Investment Bank and BRICS Development Bank, which could eventually challenge the global economic and financial institutions such as the World Bank or International Monetary Fund. But China is yet to make any serious dent in the security sector given the yawning gap between what Beijing professes and the reality on the ground.

Apart from dispute in established areas, there are new areas where international rules have to be established. In the case of outer space, some elements of a RBO are already in place. This is not to suggest there are no problems with the outer space regime. In fact, this domain has changed significantly over the last decade or so. It is becoming more crowded and congested with more than 80 active players in the space domain with some engaged in the development of counter-space capabilities – with the potential to disrupt, damage and destroy space assets. Space is no more a safe and secure sanctuary. The task of space governance and maintenance of a rules-based order is extremely challenging. Instances of creating satellite service disruptions have been on the increase – and disruptions from such activities impact across geographical boundaries and sectors, given that dependence on space spans from economic and social sectors to military and security domains.

Space is no more dominated by the rich or great power players. Proliferation of space technology in the last few decades has democratised the space sector such that a large number of developing countries across Asia, Africa and Latin America have woken up to the enormous benefits of space in their daily lives. Countries depend on space for a number of utilities including telecommunications, satellite-based navigation systems, weather forecasting and security needs such as intelligence, reconnaissance and surveillance.

Space is also no more a domain exclusive to state players. The sector has a sizeable number of private sector players of varying sizes and capacities. Traditionally, private sector participation was mostly in the context of the West but over the last few years, there are several start-ups as well as medium-size enterprises coming from China and India, as well as Australia. While this new phenomenon brings many benefits, including making access to space cheaper, it also makes the need for new rules and regulations more acute. Without appropriate regulatory mechanisms both at the domestic and global context, the commercial actors cannot play an effective role despite being competent stakeholders.

The presence of these actors also adds complications. Many private sector players such as SpaceX plan to launch thousands of satellites to cater to growing broadband needs. Outer space is also crowded with a significant amount of space junk. According to NASA, there are more than 23,000 orbital debris larger than 10 cm and an estimated number of approximately 500,000 particles between 1 and 10 cm in diameter. The number of debris pieces larger than 1 mm is in excess of 100 million. Such congestion is likely to increase strongly as private sector actors join more players from developing countries.

Unless there are effective rules of the road governing outer space activities, sustainable use of space is in serious danger. Outer space activities today are governed by a few legal instruments including the foundational treaty mechanism, the Outer Space Treaty (OST) of 1967. But this treaty and other associated agreements — such as the Registration Convention, the Liability Convention and the Rescue Agreement — were introduced in the 1960s and 1970s when the threats and challenges were significantly different. Many of these treaties suffer from loopholes and are interpreted in particular ways by one state or another to accommodate their narrow interests.

For example, Russia’s April 2020 ASAT test resulted in massive war of words between Russia and the US. Similarly, the Russia’s test of a space-based ASAT weapon in July 2020 (wherein Russia released a new object into orbit from Cosmos 2543) invited sharp criticism from the US. The US cited the Russian test as “further proof of Russia’s hypocritical advocacy of outer space arms control proposals designed to restrict the capabilities of the United States while clearly having no intention of halting their counterspace weapons programs.” On the other hand, the Russian Defence Ministry was categorical that the inspector-satellite (of July 2020) was only to “monitor the condition of Russian satellites.” Russian state daily, Rossiiskaya Gazeta added that the satellite could also be used for “get[ting] information from somebody else’s satellites.”

There have also been differences in how states have interpreted key space security concepts during debates to formulate new rules of the road. For instance, the Outer Space Treaty’s prohibition of weapons of mass destruction (WMD) has been interpreted by some of the major spacefaring powers as not denying the use of conventional weapons in space. Also efforts to strengthen certain norms as part of the RBO as it applies to space are faced with challenges. In the current context of growing security competition driven by balance of power dynamics, new players are seen to be diluting some of the prevalent norms in the space domain. The norm that prevailed for two decades to not conduct an ASAT test was broken in 2007 by China, followed by India in 2019. Similarly, the increasing use of electronic and cyber warfare means in outer space is violating norms like non-interference in each other’s satellite operations. Therefore, on the one hand, certain norms are being diluted and on the other, efforts to create new ones, either in the form of legal measures or political instruments, have not gone very far, putting safe, secure and sustainable use of outer space in serious risks.

For instance, the OST prohibits the placement of weapons of mass destruction (WMD) in space - but it makes no mention of conventional weapons, which is a serious lacunae. Today, the threats are more in the conventional weapons domain, which suggest that we need to change the existing rules and norms or develop new ones. The growth of newer counter-space capabilities, such as cyber and electronic warfare in space, in addition to anti-satellite weapons, also poses significant challenges. The existing rules do not have any restriction on these developments. Unless effective measures are brought out in a timely manner, proliferation and testing of these weapons cannot be ruled out.

The early trends towards space weaponisation and space debris challenges point to the urgent need to develop new norms and rules. This can be done by modifying existing mechanisms and by creating new ones. Both these routes appear problematic in today’s increasingly fraught international political climate. But if one has to be able to have safe and secure access to outer space, we need multilateral negotiations where all Member States can agree on a fresh RBO for outer space, a set of rules and regulations to guide outer space activities.

Dr. Rajeswari Pillai Rajagopalan is Distinguished Fellow & Head of the Nuclear and Space Policy Initiative, at Observer Research Foundation, one of India’s leading think tanks. Previously, she held stints at the National Security Council Secretariat, where she was an assistant director, and the Institute of Defence Studies and Analyses New Delhi, where she was a research officer.

Last Updated: 23/02/2021