The People’s Republic of China has gained much acclaim for its accomplishments in outer space. In the past six months alone, China has returned lunar samples to Earth, placed a spacecraft in Mars orbit, deployed the first segment of its indigenous space station and placed a rover on Mars. These feats cement China as a principal player in outer space activities and its momentum places it in a position to potentially influence the rules that will come into play in outer space in the decades to come.
Outer space is often analogized as the Wild West, but this is misleading as outer space has underpinnings in both customary law and treaty law. However, the pace of outer space activities is expanding beyond these foundations and brings into question whether the current body of space law is sufficient to address the growing issues that are presented not only by national security and civil space activities but nongovernmental activities as well. This raises the understandable question of how to address the burgeoning need for outer space governance.
A rift exists between two camps as to how governance of outer space should be developed with the question of whether customary international law should be the legal mechanism to further international space law or the creation of a new international treaty. The latest entrant supporting the treaty approach is found in a strategy paper issued by the Atlantic Council’s Scowcroft Center for Strategy and Security on April 11, 2021, entitled “The Future of Security in Space: A Thirty-Year U.S. Strategy.” The 100-page strategy paper provides a series of recommendations to address outer space development and security, including a series of steps over the next several decades that would lead to a new treaty to supplant the Outer Space Treaty. The question moving forward: is a new treaty for outer space the suitable means to address outer space governance in light of China’s pace of activities in terrestrial domains as well as outer space?
Treaties are the most recognizable means of creating international law, but for all their solemnity they are fundamentally contracts between sovereign states. Treaties have the reputation of being immutable and a sense of reverence permeates their existence; however, they are not law in of themselves but rather receive their legal authority through the power of sovereign states who agreed to become legally bound. Nonetheless, because treaties are contracts, they are not necessarily entered into for common good but rather serve the national interests of the states that enter into them.
Even though the terms of treaties will be negotiated and agreed upon, it does not necessarily mean the terms are black letter law. Treaties are subject to rules of interpretation found in customary law and also codified by treaty, but terms of a treaty are more often than not interpreted by a state to fit its national interests. In other words, how treaties are interpreted and put into state practice is reliant on whether it is in the interest of a state to interpret a treaty consistent with international law or go outside the rules of interpretation and create a new interpretation through state practice and customary international law. This is noteworthy in light of China’s “interpretation” of the United Nations Conference on the Law of the Sea (UNCLOS) relating to the so-called “nine-dash line” in the greater South China area. China’s claims contravene UNCLOS, but its national interests in the disputed area have led to claims justified by unsubstantiated “traditional sovereign territorial rights,” that do not conform to rules of interpretation in any fashion.
Given this backdrop of treaties in general, is a new treaty for outer space a desirable goal even in the long term given the current state of geopolitics finds itself in the midst of a great power competition? China for its part is engaging in lawfare in terrestrial domains with the goal of advancing its own world view, and its rising presence and influence in outer space heralds that worldview to extend to outer space. Therefore, is it pragmatic to have a treaty as an end-goal in mind for outer space governance when it isn’t yet clear how the geopolitical landscape and with it the rule of law will evolve? This concern is alluded to in the report from the Office of the Director of National Intelligence, Global Trends 2040 where it states:
“The United States and China will have the greatest influence on global dynamics, supporting competing visions of the international system and governance that reflect their core interests and ideologies. This rivalry will affect most domains, straining and in some cases reshaping existing alliances, international organizations, and the norms and rules that have underpinned the international order.”
The challenge implicit in this assessment is fundamental norms and the rule of law itself will be in flux for the foreseeable future with the worldview of the U.S. and its allies competing with that of China and its client states. Presently, the most notable example is found in the maritime domain in the aforementioned South China Sea area and the “nine-dash line” where China has made sovereign claims outside of established international treaty law and norms based on historical narratives of prior occupation.
Likewise with outer space, China is positioning itself to be a pacesetter through its steady progress in achieving national goals and a long-term strategy that is not only enhancing its geopolitical standing but also setting the stage to reshape the foundation of international space law to make it consistent with its worldview. The precursors for establishing this new order for outer space can be seen through China’s lunar activities, including the descent module of the Chang’e 5 raising a national flag and plans with the Russian Federation for a lunar research station at the moon’s south pole. This is exacerbated by the political uncertainty with the U.S. space program and strategy going forward and whether the U.S. can maintain a consistent policy to timely establish a permanent presence on the moon to preserve the current archetype of international law in outer space and pave the way for further development of outer space governance. Indeed, whether the U.S. can challenge and offset China’s lawfare challenges to outer space depends on the U.S. promoting and executing activities in outer space and on the moon that will support customary international law fostered by measures like the Artemis Accords and successor agreements. Without this activity, the Artemis Accords and the rules and norms for outer space it stands to promote will be mere lip service that could be overrun by a surging PRC activity in outer space.
It is in this context of uncertainty entertaining the idea of creating a new treaty would be a precarious exercise that could provide China sufficient soft-power to leverage its worldview and engage its soft-power capital to execute a geo-legal bait and switch to reshape international rules and norms in outer space to reflect its worldview in the same manner it is redefining international law in the maritime and other terrestrial domains. The better approach is for the U.S. to avoid even the pretense of a new treaty for outer space on the horizon and vigorously promote and expand its civil, national security and nongovernmental outer space activities so it can effectively create customary international law through activities supported by mechanisms like the Artemis Accords and future agreements based on that measure to build upon the current legal framework. This would permit the U.S. to sculpt a workable legal structure for outer space that meets the state interests of the U.S. and its allies, sidesteps the uncertainties of a formal treaty and keeps China’s efforts to mold outer space to its worldview in check.
This is not to say a new treaty for outer space should be casually dismissed; however, the creation of a treaty should not be the endgame of creating a new legal structure for outer space activities, but enthusiasm for the possibility of a new treaty must tempered with realpolitik of state interests, especially with China emerging as a vibrant competitor in outer space. This means a new treaty for outer space is better considered an unspoken option and not an expressed necessity for future outer space governance, and any decision to enter into negotiations should be tempered with the reality of the global dynamics with relation to China and its activities in the geopolitical and geo-legal playing field.
Any decision by the U.S. to pursue a new treaty for outer space in the coming decades should take into account whether the worldview espoused by the U.S. and its allies is solidified in customary international law and has the political will to prevail over attempts by China and its client states to overcome or subvert an enacted treaty. Otherwise, entering into negotiations for and enacting a new treaty for outer space without a solid legal foundation and staunch political support will open a door for China to superimpose its idea of rule of law in outer space while confining the U.S. and its allies in a treaty that becomes a geopolitical and geo-legal trap as opposed to an instrument that preserves free access to and the peaceful use of outer space.
Michael J. Listner is an attorney and the founder and principal of Space Law and Policy Solutions and the author and editor of the space law and policy briefing letter The Précis.