Collective security and Art. 5 in space: Jus gentium, oversight, resilience and the role of NATO

By Dr. Cornelia A. Baciu

At the NATO Engages Conference on the sidelines of the 2019 High-Level Meeting in London, in which I had the opportunity to participate, NATO officially declared space as its fifth operational domain. The overarching theme of the NATO Engages conference was “innovating the alliance”, both at the technological and the political level. As NATO is yet at another important juncture, the conference aimed to define how the organization could contribute to a more secure world. To this end, a reference to space was mentioned in the London declaration: “We have declared space an operational domain for NATO, recognising its importance in keeping us safe and tackling security challenges, while upholding international law.”[i] NATO’s declaration of space as its fifth operational domain did not come as a surprise. Through SATCOM projects, NATO has been in space since 1970 and launched a total of eight of its own satellites.[ii] NATO shifted its satellite communication to commercial providers as well as to SATCOM post-2000 (NSP2K), which was implemented through a capability package provided by three NATO members (France, the UK, and Italy) via a Memorandum of Understanding between 2005 and 2019[iii] that provided satellite capacity to NATO missions, for example, in Afghanistan. In this regard, the utility of a space policy for NATO operations is obvious: it could contribute to re-animating multilateralism and international cooperation. 

This article argues that a resilient NATO strategy needs to be focused on upholding existing international norms (jus gentium) and guaranteeing the continuation of space as a collective good. First, it discusses collective security and self-defence in orbit. Second, the article examines oversight in space. Third, it discusses the Artemis Accords and the US Space Force. Fourth, it gauges the implications of Brexit for space cooperation. Fifth, the article analyses space law and democratic space governance. It concludes with a series of recommendations for NATO, arguing that the Alliance will first need to define its level of ambition in space and to which specific risks it would want to respond.

Collective Security, NATO Art. 5 and Space as a Collective Good

Chapter VII of the UN Charter recognizes states’ right of individual or collective self-defence. The principles of the UN Charter are acknowledged in the 1967 Outer Space Treaty. As per Art. 1 of the Treaty, space is a collective good,[iv] and it must remain so. Collective goods here mean goods that are non-rival and non-exclusive. To meet the attributes of a collective good, space policy needs to ensure that participation in space does not reduce the supply and that participation of some actors does not induce negative marginal costs or exclude the participation of others, i.e., it remains democratic. One normative problem that affects security in space is the issue of congestion. With currently more than 750,000 pieces of in-orbit debris, in-space collisions are increasingly probable (Kessler syndrome). The risk of collision might be mitigated through “debris avoidance manoeuvres”; however, the effectiveness of these manoeuvres might be obstructed by imprecise data tracing and estimations.[v] China’s 2007 in-orbit anti-satellite (ASAT) missile test was the largest space debris creation event ever recorded; the first ASAT test was conducted in 1985 by the US Air Force. According to the UCS database, there are currently 2,787 active satellites[vi] in space—1,425 owned by the US, 282 by China, 172 by Russia, and 808 by other countries[vii]—used for civil, commercial, government, and military purposes. How the implementation of NATO Art. 5 in space would look from the perspective of existing space norms has received surprisingly less analytical attention so far. This paper envisages defining a comprehensive understanding of the functionality of Art. 5 in case of armed aggression in space as well as how it could prevent such an attack. It does so by relating to some key aspects of democratic governance in space and Allies’ recent orbital programmes.     

Oversight Issue: No Compulsory Pre-Launch Notification and Commercialization

There is currently no regulation that mandates that actors make an international pre-launch notification to, for instance, the United Nations Office for Outer Space Affairs (UNOOSA). UNOOSA conducts the Online Index of Objects Launched into Outer Space[viii] and processes registration for objects launched into space. Out of 9,869 objects launched into space since 1967, 1,082 of them (459 from the US, 193 from China, and 30 from Russia/USSR) were not registered with the UN. As building and launching satellites becomes increasing affordable, this revolution in small satellites prompts us to anticipate an increase in the probability of collision and exponential debris growth in the future. Over 107,000 low-orbit satellites are planned to be launched in the next decade,[ix] increasing the need for data transparency and collective repositories. It fundamentally changes states’ and intergovernmental responsibility in this matter.

Thus, a new NATO space strategy could envisage contributing to one of the existing activities of the UNOOSA. Since most NATO nations are also EU members, NATO could also seek to identify the potential for cooperation on the future space activities emphasized in the 2016 EU Space Strategy and with the European Space Agency, which is also working on an automated space collision prevention system. As per the July 2020 preliminary figures, the EU Council proposed 13.2 billion for the European Space Programme.[x] Cooperation with the European Space Agency could pertain to joint projects within the framework of Galileo, ENOS, Space and Situational Awareness (SSA), Governmental Satellite Communication (GOVSATCOM), or Copernicus.[xi] The latter provides free and open Earth observation programmes, which is within the boundaries of a space policy that treats space as a public good.  

Another dimension that yields urgent reflection concerning oversight in space is the unfolding commercialization trend. Security and defence are two areas in which states have traditionally retained their sovereignty. While the delegation of authority to supranational organizations, e.g., to the EU or NATO, in these areas is possible, this first requires consensus among national leaders, thus guaranteed accountability and oversight. One development observed in the last years, especially with the rise of quantum computing, artificial intelligence, and autonomous systems, is that nation states are beginning to lose their authority in the development of cutting-edge technology, including in sovereign domains such as security and defence, to the commercial sector. This development can also be observed in the space domain. Commercial companies, such as SpaceX, Blue Origin, or Bigellow as well as a series of emerging small rocket-producing private firms, have spearheaded private-public partnerships in space. In the low Earth Orbit (LEO), commercialization has become standard. For example, commercial vehicles are used to resupply the International Space Station (ISS). As a customer operating in LEO, NASA, for example, aims to expand this paradigm for deep-space and moon projects. As NASA Administrator Jim Bridenstine recently put it: “we are making an effort to commercialize all these effort so that companies can capitalize.”[xii] As the number of commercial operators increases, and they become highly specialized, national departments of defence, intelligence communities, and even NATO could also become customers for space programmes, given the high demand for defence innovation. The implications for collective security in space and democratic space governance need to be closely scrutinized. This could involve a review of the oversight structure in the 2015 Commercial Space Launch Competitiveness Act and similar pieces of legislation adopted by Luxembourg, the UK, UAE, and other countries. First, what are the implications of the commercialization of space, and could the commercialization of space, especially in the defence domain, lead to the increased militarization of space? Second, current business trends need to be assessed from an international law perspective. For example, is the commercialization of space and the oversight vacuum infringing on existing international space treaties and other legally binding governing principles in space? Art. VII of the Outer Space Treaty stipulates that states need to maintain jurisdiction and control over the objects launched in space; therefore, an inquiry into the implications of private-public partnerships should be a de jure condition before any such partnership is launched.       

US Space Force and the Artemis Accords

The 2020 US Space Strategy stresses four lines of action: “(1) build a comprehensive military advantage in space;  (2)  integrate  space  into  national,  joint,  and  combined  operations;  (3)  shape  the  strategic  environment;  and  (4)  cooperate  with  allies, partners, industry, and other U.S. Government  departments and agencies”.[xiii] Whether or not ‘building a comprehensive military advantage’ also includes deploying military equipment in space is not mentioned in the strategy outline; however, US President Donald Trump stated that “space is the world’s newest warfighting domain” and in 2019 established the US Space Force, demanding “American dominance in space”.[xiv] While the Pentagon reportedly works on developing hypersonic weapons, there are yet no concrete timeframes for extra-terrestrial military deployments. NATO has clearly stated that it will not deploy weapons in space. In the current outline, the scope of the Alliance’s space policy encompasses situational awareness and reliable access to space, with the background goal of optimising success of its missions and operations. In October 2020, NATO announced plans to establish a coordination cell in the framework of the US military base Ramstein in Germany, with the aim of enhancing NATO missions with communication and satellite data as well as exchanging information about possible risks for space satellites.[xv] A NATO Centre of Excellence for Space is planned to be launched, and will most likely be based in France or in Germany. While it is unlikely that any European company will mirror SpaceX operations anytime soon, a notable contribution has already come from the Federation of German Industries that proposed to build a mobile micro-launch platform in the North Sea.[xvi]

Through the Artemis Accords, mandated by Trump’s Space Policy Directive 1, new space exploration goals include a new manned moon landing by 2024 and from there, on to Mars. To ensure the continuity of space programmes and enhance US strategic advantage in space, the Artemis program foresees greater cooperation with private business and aerospace companies for hardware development and potentially launching a ‘lunar economy’.[xvii] Although there is not yet a clear roadmap showing the concrete steps to reach Mars by 2035, the NASA Authorization Act could establish the framework for reaching this objective. One of the goals of the Artemis programme is the extraction of resources from the moon. This is legally controversial, as it might constitute an infringement on Art. 2 of the Outer Space Treaty[xviii] and of the Moon Treaty in 1979, the latter of which encompasses only 18 parties as of 2019. So far, 61 nations have joined the Artemis Accords, which from a legal point of view could constitute a source of customary law. One caveat remains, however: the Artemis agreements are not part of a collective multilateral arrangement as was the case of ISS but are made on a bilateral basis with the US, which leads the programme. The bilateral basis has deterred Russia from joining, while the US Congress has banned China from space partnerships.

European Space Capabilities, the UK and Brexit

On the one side, NATO-owned satellites would ease the Alliance’s reliance on national or commercial capabilities. On the other side, further technological specialization and continuing to buy its space capacities from member nations, as it was the case with the NSP2K, can increase the systemic efficiency of NATO outputs.  In Europe, only France, the UK, Germany, Italy, and Spain have notable space programmes with the potential for producing overcapacity, while Austria, Belgium, Luxembourg, Poland, Portugal, Romania, and Sweden also contribute to some multinational space capabilities. For this reason, the effects of Brexit need also be considered. The UK has signalled its intentions to create its own tracking system or to partner with Australia, one of NATO’s partners across the globe; however, as the future of EU-UK relations are yet to be ascertained, the future participation of the UK in Galileo cannot be completely ruled out. In its 2012–2016 Space Strategy, the UK envisions seizing 10% of the global space market by 2030—although in view of the impact of Brexit and COVID-19, this might be too ambitious. Nonetheless, these long-term visions could ultimately incentivize the British to envisage providing national overcapacity to the Alliance and eagerly contribute to NATO’s space programmes in the future.

Space Law and Democratic Space Governance: The Absence of an Arms Control Treaty for Space

How to ensure that states do not attack the assets of other states or use space assets for destabilising activities (i.e., cyber attacks, interferences, espionage, financial crime) as well as how the implementation of NATO Art. 5 in space—and whether Art. 5 would apply to the low Earth orbit and beyond—would look must be the subject of future NATO-EU-UN-US complementarity and diplomatic talks in order to establish a consensual vision for democratic space governance. This will involve establishing institutional liaisons at the relevant space agencies, e.g., with the UNOOSA and ESA, as well as intra-coordination with NATO structures, including the Defence Policy and Planning Division, Joint Air Power Competence Centre, Allied Command Transformation, NATO Centres of Excellence, and SHAPE. 

The Outer Space Treaty bans the deployment of nuclear weapons in space, but there is currently no binding treaty explicitly prohibiting weapons in space,[xix] non-kinetic space warfare, or terrestrial-based ASATs. There is no evidence of arms in space; however, this year, the US and the UK provided evidence that Russia tested an in-orbit anti-satellite that could target space satellites.[xx]

There have been a series of initiatives to regulate and control weapons in space, but there is currently no international treaty on space arms control. Hitherto, there have been at least five prominent space arms control initiatives. First, in 2008, China and Russia submitted a Draft Treaty on the Prevention of Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) at the Conference on Disarmament, a major multilateral disarmament forum encompassing 65 members. The 2014 version of the PPWT acknowledges the right to individual or collective self-defence, guaranteed under Art. 51 of the UN Charter. The provisions of the UN Charter are recognized in the 1967 Outer Space Treaty. A second instrument is the EU’s proposal for a Code of Conduct for Outer Space Activities, but this is a non-binding instrument.[xxi] Third, in 2004 Russia pledged unilateral commitments of “no first deployment of weapons in outer space”, which precipitated pledges from a few other countries. In 2014 Russia submitted a draft resolution on the placement of weapons in outer space at the First Committee of the UN General Assembly. Another specific step came from Canada, who in 2009 proposed “1) not to test or use a weapon against any satellite so as to damage or destroy it; 2) not to place any weapon in outer space; and 3) not to use a satellite itself as a weapon”. However, this pledge was not followed up robustly by subsequent Canadian governments and so far has remained vague.[xxii] Fifth, several UN resolutions on the Prevention of an Arms Race in Outer Space were adopted in 1981, 2009, and 2014,[xxiii] and in 2019 the First Committee approved four draft resolutions aimed at preventing the ‘militarization of the outer space’.[xxiv] One major weakness of the existing initiatives pertains to the definition of ‘space weapons’ and other terms, how an eventual prohibition would be linked to the right to collective security and defence as stated in the UN Charter, the regulation of dual-use technologies, and the lack of support from the US.

Recommendations for NATO

NATO will first need to define its level of ambition and strategic objectives in space and to which risks it would want to respond. This involves an assessment of the security environment. Operationalising its space strategy would de facto commence with setting the strategic objectives that NATO wants to achieve through its space policy: i.e., will the strategy be directed to deterrence (ballistic missile defence), peace missions, countering great power competition, establishing an arms control regime for space, the ability to implement collective defence (Article 5),[xxv] and protecting Allies’ assets in outer space, or all of the above? Taking into account the ambition for resilience in global peace as well as the changing geopolitical environment, future reflections on NATO’s ambitions in space will also depend on the strategy and actions of the major space powers: the US, China, and Russia.

Regulatory governance of space endeavours becomes sine qua non, especially in the context of high-stakes commercialization, space traffic congestion, and urgent need for great power cooperation. Early warnings of security risks, cyber threats, natural disasters, and other security challenges constitute additional areas in which the Alliance could look for cooperative potential with the UN, EU, and the US as well as the UK, France, South Korea, Japan, and other nations that are working on developing military space programmes. Multilateral cooperation should pertain to the following key domains:

▪       Defining and establishing a set of norms in space, i.e., prohibiting the deployment of military weapons in space, terrestrial-based ASATs systems, including their testing, and the use of space by state and non-state actors for destabilising activities, which would infringe on the definition of space as a collective good, including the misuse of GPS tracking systems by terrorist organizations to plan attacks.

▪       Establishing an investigative commission for tracking the means and purpose of actors’ activities in space.

▪       Working with the International Court of Justice and relevant bodies on the criminalization and punishment of activities infringing on existing conventions, including the 1967 Outer Space Treaty, the Space Liability Convention, the Convention on Registration of Objects Launched into Outer Space, and other space laws and principles.[xxvi]

▪       Initiate and set up an international regime defining the conditions for democratic oversight in space.

▪       Together with Allies and partners, initiate a space arms control treaty based on current space arms control initiatives.

▪       Building incentives for multi-stakeholder cooperation and advancing diplomacy to ensure peaceful ends, build trust pertaining to dual-use technologies, and guarantee the continuation of space as a collective good.

About the Author

Dr. Cornelia A. Baciu is postdoctoral researcher in political science and international relations, with a specialisation in international organisations (NATO, EU, UN), civil-military relations, strategic foresight, US and EU foreign policy, and comparative peace strategy. She was 2019-2020 DAAD-Postdoctoral Fellow in the research cluster “United States, Europe and World Order” at the School of Advanced International Studies, Johns Hopkins University in Washington, DC. Dr. Baciu is the author of Civil-Military Relations and Global Security Governance: Strategy, Hybrid Orders and the Case of Pakistan (Routledge, 2020) and co-editor (with John Doyle) of the book Peace, Security and Defence Cooperation in Post-Brexit Europe. Risks and Opportunities (Springer, 2019). She completed her PhD (summa cum laude) at the School of Law and Government, Dublin City University and was a visiting fellow at the Centre for War Studies, University of Southern Denmark. Dr. Baciu completed extensive multi-national field research and is the Director of the Research Network “European Security and Strategy”. She can be contacted via https://corneliaadriana-baciu.vpweb.de/ or cornelia.baciu@uni-konstanz.de.

Notes

[i] See the London Declaration 2019: https://www.nato.int/cps/en/natohq/official_texts_171584.htm, accessed 23 November 2020.

[ii] These are currently derelict. They can be tracked in real time here: https://www.n2yo.com/satellites/?c=NATO&t=country, accessed 10 October 2020.

[iii] ESPI, “Europe, Space and Defence From ‘Space for Defence’ to ‘Defence of Space’, ESPI Report 72, February 2020. 

[iv] See Art. 1 of the Outer Space Treaty: “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries.”

[v] Nayef Al-Rodhan, “Space traffic control: technological means and governance implications”, The Space Review, 16 April 2018.

[vi] This figure differs from the numbers provided by UNOOSA, which might be explained by whether nano-satellites are included in the database or not.

[vii] UCS, “UCS Satellite Database”, last modified 1 August 2020, https://www.ucsusa.org/resources/satellite-database.

[viii] UNOOSA, “Online Index of Objects Launched into Outer Space”, accessed 13 November 2020, https://www.unoosa.org/oosa/osoindex/search-ng.jspx?lf_id=.

[ix] Ashley Strickland, “Bright satellites in the thousands could impact future space discoveries”, CNN, 28 August 2020.

[x] European Parliament, “Draft European Council conclusions of 10 July 2020”, Committee on Budget, 14 July 2020.

[xi] European Parliament, “Legislative Train Schedule”, accessed 13 November 2020, https://www.europarl.europa.eu/legislative-train/theme-new-boost-for-job....

[xii] Wilson Center, “Seeking Strategic Advantage: How Geopolitical Competition and Cooperation are Playing Out in Space”, 6 October 2020.

[xiii] Department of Defense, “Defence Space Strategy Summary”, June 2020.

[xiv] The White House, “The Trump Administration Is Establishing the United States Space Command to Advance American Interests and Defend Our Nation”, issued 29 August 2019, https://www.whitehouse.gov/briefings-statements/trump-administration-est....

[xv] DW, “NATO plans new space center in Ramstein, Germany”, 19 October 2020.

[xvi] Sebastian Sprenger, “German industry pushes for space launch site in the North Sea”, Defense News, 8 October 2020.

[xvii] Adam Mann, “NASA's Artemis Program”, 3 July 2019, https://www.space.com/artemis-program.html.

[xviii] Fans von der Dunk, “The Artemis Accords and the law: Is the Moon ‘back in business’?” The University of Auckland, 2 June 2020.

[xix] Art. IV of the 1967 Outer Space Treaty prohibits military equipment and manoeuvres on celestial bodies. It allows the use of military personnel for scientific research and “[t]he use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies”.

[xx] Jonathan Marcus, “UK and US say Russia fired a satellite weapon in space”, BBC News, 23 July 2020.

[xxi] Jinyuan Su, “Space Arms Control: Lex Lata and Currently Active Proposals,” Asian Journal of International Law 7, no. 1 (January 2017): 61–93.

[xxii] Paul Meyer, “The Judgment of PAROS: How Best to Prevent an Arms Race in Outer Space”, Simons Working Paper Series in Security and Development 19, 2012.

[xxiii] NTI, Proposed Prevention of an Arms Race in Space (PAROS) Treaty, last modified 23 April 2020, https://www.nti.org/learn/treaties-and-regimes/proposed-prevention-arms-....

[xxiv] United Nations, “First Committee Approves 11 Drafts Covering Control over Conventional Arms, Outer Space Security, as United States Withdraws Text on Transparency”, 5 November 2019, https://www.un.org/press/en/2019/gadis3642.doc.htm.

[xxv] Which might be premised by a change in Art. 6 of the NATO Charter. 

[xxvi] German Federal Foreign Office, “Space Law”, 31 August 2018, https://www.auswaertiges-amt.de/en/aussenpolitik/themen/internatrecht/ei....

Image Credit: https://www.nato.int/cps/us/natohq/declassified_138278.htm