The fact is that these treaties and agreements were put in place in a very different security environment, and they are not sufficient in dealing with current and emerging threats in space. Treaty-making was also relatively easier when it was essentially building consensus among a handful of countries. Developing a common shared approach and forging agreement among a large number of space players has proven to be the biggest challenge in shaping the outer-space regime.
Transparency and confidence-building measures vs legal rules
That there is no meeting point or a possible compromise between the proponents of TCBMs and legal measures in the global governance arena continues to be a problem. Legally binding treaty measures are the ideal solution, but trying to achieve comprehensive governance should not get in the way of acknowledging and aiming for what is feasible and realistic. A few parallel steps could be taken which might gradually evolve into an effective legal regime in space.
First, efforts focused on developing norms of responsible behavior could be a good start. Norms have no binding effect but the recent erosion of several norms of responsible behavior in outer space that have prevailed for decades is a destabilizing trend that needs to be halted. Over the past decade, the norm to not interfere in each other’s peaceful activities in space has been broken by increasing incidents of cyber and electronic warfare. The norm to not conduct ASAT tests has similarly been violated for 15 years.
If appropriate steps are not taken to preserve norms, the slippery slope of violations could rapidly turn outer space into an active warzone. Norms can take many forms. For instance, the very norms that have been broken can be taken up as unilateral pledges by countries, or they can be introduced in bilateral or regional security arrangements as political agreements. Countries could reaffirm their positions and commitment to safe, secure and sustainable use of outer space through voluntary, non-binding measures that can gradually build up the required confidence to move towards binding legal rules.
Second, a compromise measure between TCBMs and legal instruments could be pursued in the form of legal TCBMs. These may be a feasible halfway approach that could satisfy both sides. Legally binding TCBMs may be developed through UN Security Council resolutions or a UN Group of Governmental Experts (GGE). Another option is for a group of states, including the key space-faring nations, to develop a code of conduct (CoC) that would list good practices and codify the behavior expected of a responsible space player.
The usual argument against a CoC is that it is completely voluntary. Yet, it is possible to build in national legal obligations even if the code itself consists of voluntary and political measures. For example, even though India objected to the manner in which the UN Security Council “legislated” non-proliferation of weapons of mass destruction (WMD) through a resolution unanimously adopted in 2004, India nevertheless passed a domestic WMD law a year later to comply with the international commitments.
A third option is to take some baby steps towards developing legal measures by kick-starting discussions on the serious dangers facing space security. These deliberations would involve developing shared understanding and definitions of the threats, as well as compliance and verification measures.
For progress, a pragmatic approach
These talks would be time consuming and so a good approach would be to pursue the three process alternatives simultaneously. Progress made in the first two could be enormously helpful in making it easier to have the deeper discussions on dangers to space security.
None of the three processes identified above is going to be without difficulty. The last GGE on the Prevention of an Arms Race in Outer Space in 2018-2019 is a testament to the differences among major space powers. That the GGE did not produce a consensus report at the end of its deliberations reflects the difficult challenges posed in the pursuit of global governance of outer space.