Hu Ling | Beijing University Law School
Since the outbreak of the Russian-Ukrainian conflict in 2022, in addition to the game of various countries, the actions of some non-state entities have also aroused concern. For example, due to the war damage to the Ukrainian Internet, the Ukrainian deputy prime minister asked Musk for help, and Musk responded that the "StarLink" deployed by SpaceX has been activated in Ukraine. Some commentators believe that this move is another example of the trend of militarization and commercialization in the space field in recent years.
This article points out that in recent years, there have been frequent activities in the global space field, in addition to major space countries have increased investment in space, private commercial forces actively participate in space activities, and space has become more and more "crowded". For example, in 2021, the SpaceX Starlink satellite was dangerously close to the Chinese space station twice, and for security reasons, the Chinese space station assembly twice implemented emergency collision avoidance of the US Starlink satellite. The authors also point out that the participation of private companies in space exploration still has the shadow of a sovereign state behind it, and it is obviously conducive to the country's related military use. For example, the Starlink program will help enhance the US military's all-weather seamless ground surveillance and reconnaissance and space perception capabilities, and will become the foundation for the construction of the next generation of space attack and defense system. However, the current system of international rules lacks effective governance of "crowded space". Some space-faring countries continue to take advantage of the ambiguity and loopholes in the rule system to rely on scientific and technological strength to open up outer space. This process is highly likely to trigger a new space arms race. For example, in February 2022, the United States, Australia, Canada, France, Germany, New Zealand and the United Kingdom signed the "2031 Joint Space Operations Vision", and the intention of space military confrontation is very obvious. The author believes that in order to solve these new problems in the field of space, countries need to continue to carry out international cooperation, promote the peaceful use of space, and form more fair and clear rules for space activities on the basis of practice.
This article was originally published in the 2nd issue of Culture Magazine in 2022 (April), originally titled "Crowded Space Calls for New Rules", which only represents the author's views and is for the reference of all.
Crowded space calls for new rules
In recent years, there have been frequent activities in the global space field, and major space-faring countries have increased their investment in space activities to enhance their competitiveness, and have made considerable progress in manned spaceflight, military strategy, space economy, outer space exploration and space infrastructure construction. At the same time, private commercial forces continue to participate in space activities and become indispensable participants. With the further development of Mars and Moon exploration activities, human exploration of outer space has taken another step forward. As far as the international rule system is concerned, the major space-faring countries continue to take advantage of the ambiguity and loopholes of the existing system and rely on scientific and technological strength to open up outer space. This process may trigger an arms race, which requires sustained international cooperation to promote the peaceful use of space and form more fair and clear rules for space activities on the basis of practice.
▍ Security: Militarization
Since the beginning of the space age in the middle of the last century, the country's space activities have been full of military overtones. Early satellite launches themselves were based on the need to obtain military intelligence; after entering the 21st century, countries have further intensified the use and investment of satellites in the military field, with the purpose of further integrating space into the overall military strategy and improving space combat capabilities and overall national defense capabilities.
European and American space countries have been regularly releasing space strategies, and have continuously adjusted and transformed along with their own strategic cognition. During its term, the Trump administration issued a number of national documents on space strategy and restarted the National Space Council.
In June 2020, the U.S. Department of Defense first released the Outline of the Defense Space Strategy, which calls for the establishment of the U.S. Space Force as a new armed force, the U.S. Space Command as a unified combatant command, and major space procurement reforms throughout the Department of Defense, to establish a clear strategic path for the United States to expand space power.
In December 2021, the White House released the U.S. Space Priorities Framework, which further discusses how the United States can establish and maintain a stable and responsible space system to strengthen U.S. sustainable development in space. At this point, the space strategy system between the US government and the military has been initially established, with the intention of enhancing the discourse power of international space rule-making through the formulation of domestic policies and strengthening the non-military leadership and national leadership of the United States in the space field.
The European Space Strategy released by the EU in 2016 mainly emphasizes the realization of the EU's strategic objectives in four aspects: space security and autonomy, global competitiveness and leadership, commercial and civilian value, and optimization of the space program management system.
In January 2022, NATO issued the Overarching Space Policy, which sets out the importance of the space domain to maintaining NATO's security and prosperity, analyzes the threat environment associated with space activities, and argues that potential adversaries are developing, testing, and operating complex anti-space technologies that could threaten NATO's ability to enter space and operate freely. The document argued that, given the advantages offered by space systems in conflict and the dependence of allies on space systems, the development of allies' space capabilities should be a high priority objective, while promoting consensus among allies on the role of space systems in crises or conflicts.
Other space countries have also formulated space strategies based on their own interests, and formed relevant executive agencies, organizational systems and functional systems to improve the leadership and organizational management system of space strategies. A considerable number of countries have also formed specialized space combat units, opening up a new form of arms race.
The 1967 Outer Space Treaty and the 1979 Moon Agreement provided broad guidelines for the space activities of sovereign States, but due to the technological capabilities and horizons of the time, they did not provide more detailed and binding rules for the current expansion of States in space. Specifically, first, the Outer Space Treaty guarantees the freedom of all humankind to explore and use space and requires that the moon and other celestial bodies must be used exclusively for peaceful purposes. However, the exploration of other types of space entities (such as asteroids) is not included and, in the event of controversy, can only be vaguely covered by an interpretation of purpose in the preamble to the treaty, for example, to see whether the act is for peaceful purposes to advance space exploration and utilization and can increase the common interests therein. Second, the treaty requires that subjects operating in space must take due account of the corresponding interests of all other States parties to the treaty, but this requirement is also vague. The vague military restrictions in the treaty have left room for interpretation for countries to strengthen disorderly military competition in space and even conflict. In view of the current lack of a comprehensive legal framework to govern the space conduct of sovereign States, the relevant issues could only be discussed on the basis of the principles of general international law.
Although a considerable number of space-faring countries have emphasized ensuring freedom of action in space and the security of space development in their rhetoric when formulating space strategies, they have actually added factors of instability. For example, on February 22, 2022, the United States, Australia, Canada, France, Germany, New Zealand and the United Kingdom signed the Joint Space Operations Vision 2031, which calls for enhanced cooperation to prevent space conflicts, believes that partner countries as responsible actors need to lead national security space operations, and seek and prepare to protect and defend themselves in accordance with applicable international law in the event of hostile space activities. It can be seen that the intention of these countries to use the space field for military confrontation between countries is very obvious. In addition, the legal subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space has been unable to effectively implement existing international treaties, which further exacerbates the lack of synergy and uniformity of relevant international rules.
▍ Economic basis: commercial use of space
The widespread development of space has brought more and more economic and commercial opportunities, and the need for civilian and commercial space has become more prominent. Euroconsult estimates that the global space economy will reach $370 billion in 2021, including government space investment and commercial space revenues. The gradual outsourcing of different aspects of space activities (launch, delivery, recycling, and operation control) by governments to private space companies will undoubtedly promote competition and gradually reduce costs and prices, and ultimately promote the entry of related technologies into the civilian field. Three companies, Virgin Galactic, Blue Origin and SpaceX in the United States, have entered the space tourism market, and their offers have also leveraged a wide range of market demands.
In the process of space exploration in recent years, the power of private companies is growing, and they have cooperated closely with countries to become an important driver of the expansion of space activities. In May 2020, SpaceX successfully sent two astronauts to the International Space Station using a manned Dragon spacecraft and a Falcon-9 rocket. This is the first flight of commercial manned spaceflight in the United States, and it is also the second time that the United States has independently sent astronauts into space since the retirement of the space shuttle in 2011, and SpaceX has become the world's first commercial company with independent manned space capabilities. In 2021, SpaceX will rapidly promote the development and testing of the "Starship" system, mainly for high-altitude flight tests.
The participation of private entities in space exploration is not just a purely civilian activity, there is still the shadow of a sovereign state behind it, and its practice is obviously conducive to the country's relevant military use. A more obvious example is the launch and formation of small satellite constellations in low orbit. In January 2015, Musk proposed the "Starlink" plan, which intends to launch 12,000 satellites into low Earth orbit between 2019 and 2024, build a giant three-layer satellite network, and eventually connect all satellites into a huge "constellation" to provide high-speed and low-cost satellite Internet for the entire earth (including the north and south poles) around the clock.
Once completed, StarLink will help greatly enhance the US military's broadband communication and precision navigation capabilities, help the United States seize limited low-orbit orbit and spectrum resources, enhance its all-weather seamless ground surveillance and reconnaissance and space perception capabilities, and will also become the foundation for the construction of the next-generation space attack and defense system.
It needs to be seen that the current degree and vision of space exploration in various countries put forward higher requirements for the innovative development of space technology, the industrial chain needs to be continuously upgraded, and more socialized capital needs to be introduced to jointly develop and even explore ways in addition to national finance. Similar to information technology and its industry, the application of aerospace technology will eventually be deeply integrated with different scenario practices, making the aerospace industry itself a basic industry at the bottom and accommodating more applications in other industries, which also provides broad prospects for absorbing social capital.
▍ Infrastructure: Space station construction
For the effective exploration of outer space, a relatively stable infrastructure is indispensable. From the time humanity began to explore and compete in space, the importance of the International Space Station was recognized. As a fixed aircraft operating in orbit for a long time, the International Space Station can meet the long-term life and work of astronauts in orbit, and also provide a basis for continuous scientific experiments and research in space. According to the Announcement of the National Aeronautics and Space Administration (NASA) on December 31, 2021, the International Space Station will be officially retired in 2031 due to the aging system. Russia initially actively carried out life extension research on the "International Space Station", but after the air leakage incident in the Zvezda service module in 2019, Russia proposed that in view of the aging of the module, it plans to build an independent Russian orbital service station from 2025 and further deploy new modules on the basis of the existing modules to enhance the application capabilities of the International Space Station.
After the decommissioning of the International Space Station, the Tiangong space station under construction on the mainland will become the only fully functional space station in orbit. The space station project will produce huge economic and social benefits. China adopted a "three-step" implementation strategy: the first step was the manned spacecraft stage, during which the development of the manned spacecraft was completed, and the goals of astronauts' round-trip between space and space were realized; the second step was the space laboratory stage, in which the mainland not only mastered the technology of leaving the capsule and rendezvous and docking, successfully verified the astronauts' medium-term residence in space, but also successfully verified the propellant replenishment technology in orbit, and completed the task of transporting cargo supplies; the third step was the space station construction stage that is still in progress. The continent will build long-term, cared for space stations.
▍ Spatial governance: capabilities and rules
Since the signing of the Outer Space Treaty, international law has begun to extend to new issues of how to exercise State sovereignty in outer space. In the context of the space competition between the United States and the Soviet Union in the 20th century, the United Nations successively issued the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement. The five conventions have established a basic normative system for the current conduct of States in outer space. With the continuous emergence of various types of actors, the behavior involving outer space has become more and more complex, and more norms with different sources and lower binding force have emerged. For example, NASA released the Artemis Agreement in May 2020 to refine and supplement the above five convention regimes, which have been signed by 15 countries. Judging from the evolution of the rule system of international law, space and space rules have been extended to more than a dozen sub-fields, and considerable practice has been accumulated and generated many controversies. At present, the two key areas are space situation awareness and traffic management, and the other is the acquisition and utilization of space resources.
In terms of the first area, space situational awareness, space traffic management and space debris mitigation are three interrelated issues. Similar to the state's coding and certification of social subjects and various types of objects in physical space, situational awareness refers to the system and ability to track and identify various types of space objects, which is the basis of the latter two and other space governance work. Once a country has this capacity, it can have a stronger and more flexible degree of freedom of movement in space and establish a set of rules and orders for coding and behavior.
As the number of satellites and other aircraft in extraterrestrial orbit continues to increase, traffic management between satellites becomes increasingly important. On September 2, 2019, the European Space Agency's Earth observation satellite Fengshen and SpaceX's Starchain 44 satellite were operating in low Earth orbit at the same time, almost colliding. Eventually, The Wind God moved away from its original orbit and successfully avoided a collision. At the end of 2021, the Chinese Ministry of Foreign Affairs informed the United Nations in accordance with Article 5 of the Outer Space Treaty that the SpaceX Satellite twice approached the Chinese space station dangerously, threatening the lives and health of astronauts. For safety reasons, the space station assembly has twice implemented preventive collision avoidance control for the US Starlink satellite, that is, emergency collision avoidance. Obviously, in the future, countries need to further coordinate the operation of satellites and clarify the rules of rail transit.
Space debris mainly stems from conventional space activities and accidental collisions of aircraft, and also poses considerable risks to the normal development of space activities. In response to the debris threat, major space-faring countries and private companies have developed a variety of clearance techniques, including flynet capture, harpoon capture, tow sail off orbit, high-energy laser burn," and "space fence" tracking. In January 2021, the White House released the National Orbital Debris Research and Development Program, which supports three main aspects of work: limiting debris generation through design, tracking and characterizing debris, and recovering or reusing debris, and emphasizing global partnership building. It has been theorized that debris from satellites or other space objects can deter or prevent violations of international norms and attacks on space objects, increasing the cost to space invaders; while removing debris will weaken this constraint and increase the probability of anti-satellite tests and space hostilities.
In the second area, under the provisions of the Outer Space Treaty, no State could claim sovereignty over the moon, asteroids or other celestial bodies, and outer space was open to all States that explored it. But the system of space law that developed in the mid-20th century was state-centric and did not apply to the prospects of commercial development, nor could it constrain the space exploration and acquisition of space resources by private entities, so that traditional legal and economic theories that established the legitimacy of private property rights are now popular in space. During his term of office, Trump signed the Executive Order on International Support and Guarantee for the Exploitation and Use of Space Resources, which aims to strengthen the right of AMERICAN enterprises and individuals to exploit and utilize space resources, and instructed the US State Department and other executive departments to start the international negotiation process as soon as possible and win the recognition and support of international allies for US space policy by signing bilateral or multilateral agreements. At the same time, the United States believes that outer space is not the common property of all states and that there is no need for a broad international agreement to do so, but only cooperation agreements with allies in exchange for their support for their positions and proposals.
▍ Space cooperation between countries
Since the last century, more and more countries have joined the space launch activities, and have continuously opened up space for inter-national space cooperation, such as launching satellites into space orbit has become a relatively mature industry in the world. However, there are still destabilizing factors in such cooperation between States. For example, Russia has been a major service provider for space launches by various countries, but Russia's "special military operation" against Ukraine in February 2022 has interrupted cooperation among the relevant entities. Russian space company subsidiaries that produce Soyuz launch vehicles have been added to the EU's list of sanctioned entities; in response, The Russian Space Agency said that the Russian Space Agency would suspend the launch of soyuz rockets from the Kourou launch site in French Guiana. In connection with this, other Euro-Russian space exploration activities have also been suspended, and Russia has also announced a moratorium on the delivery of rocket engines to the United States.
The international legal framework that began in the last century cannot provide stable expectations for current international cooperation. In this context, in May 2020, NASA released the Artemis Agreement based on the intergovernmental agreement on the International Space Station, hoping to create a "safe, peaceful and prosperous" space under the leadership of the United States, requiring countries participating in the "Artemis" lunar exploration program to follow a series of principles and reach a variety of bilateral agreements. The Artemis Agreement sets out ten principles, including peaceful purposes, transparency, interoperability, emergency assistance, registration of space objects, dissemination of scientific data, protection of outer space heritage, space resources, conflict resolution of space activities and orbital debris. Relevant international law studies have also gradually been carried out around these major topics.
The process of exploration and development of outer space by mankind is very similar to the development and construction process of the current cyberspace: around how to reshape and define "space", there needs to be a global infrastructure (such as the domain name system and its neutral operators), and each sovereign country delineates its sovereign scope and actual control capabilities by virtue of its technical strength; on this basis, social capital is introduced, spatial rights and interests based on value-added services are generated, innovation is promoted, and detailed market rules such as property rights and competition rules are further created and extensive international cooperation to connect spaces and promote the free flow of resources based on protocols that ensure security. We are likely to witness this similar process re-enacted in outer space in the second half of the 21st century. However, since the issue of aviation is naturally closely integrated with national interests and military strategies, how to promote the cooperation between the state and the state and the state and between the state and private subjects on the basis of transcending pure national interests will determine the success or failure of the future human aviation industry.
This article was originally published in Culture Magazine, No. 2, 2022, originally titled "Crowded Space Calls for New Rules". Welcome to share personally, media reprint please contact the copyright owner.