Insight – Developing Norms of Behavior for Space

Wednesday, February 5, 2020

By Space Law Advisor, Chris Johnson

It’s widely accepted that the current state of norms of behavior governing space activities is struggling to keep pace with the increasingly rapid innovation and diversification of space activities. The space law treaties from the 1960s and ‘70s contain basic principles, yet don’t provide adequate guidance for many current and proposed activities. National space legislation implements most of a state’s obligations and responsibilities, yet needs continual updating. In recent years, the lack of government direction has resulted in the private sector taking the lead in developing standards for activities such as orbital data sharing and satellite servicing. In light of this rapidly expanding and diversifying field, and the reality that some space activities are already interfering with other space activities, the entire space community should be reflecting on how norms for space activities should be developed and implemented. 

Top-Down and Bottom-Up Approaches to Norm Development

A number of options present themselves. One approach is for the international community to develop new international norms through institutions such as the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). Indeed, the recent finalization of the Guidelines on the Long-Term Sustainability of Outer Space Activities is an example of codifying existing best practices for space. But in order to foster sustainability in new space activities, such as satellite servicing, space debris removal, space traffic management, asteroid threat awareness and response, and space resource utilization, should new norms be developed in the same ’top-down’ multilateral, state-driven fashion? A top-down approach offers a chance for global consistency in rights and obligations, and therefore offers clarity and harmonization between states. However, such top-down approaches are lengthy, and the process of their development is fraught with uncertain outcomes for all involved.

A bottom-up process utilizing national space legislation can be quicker, and each state can develop a regime that best suits their national interest. A national approach is both more flexible and more easily developed than international agreement. However, such unilateral approaches might fragment the consistency of an international regime, including with different national interpretations of international law. Additionally, the spectre of ‘flags of convenience’ and a ‘race to the bottom’ with overly permissive regulation means that national approaches might not be best-suited for activities beyond state territory. This might be the case for space, where states are directly responsible and liable for all its national activities, including non-governmental (private) space activity.

A truly ‘bottom-up’ approach would leave the development of new norms of behavior to the actors themselves. This approach focuses on the concerns of the actual actors. Norms developed this way can be quickly updated. However, just as ‘the butcher does not license himself,’ there can be problems with allowing actors to develop their own rules when others, such as states, are inherently liable for the consequences. Risks include transparency issues, misallocation of risks and rewards, and other unconsidered externalities. Problems faced by national legislative approaches also exist at this level. 

Preserving the Commons and Fostering Global Public Goods

In December 2019, the Secure World Foundation and the Open Lunar Foundation hosted a one-day invite-only workshop to explore norm development from another perspective. The purpose of the workshop was to first explore the concepts of the global commons and global public goods, rationales behind norms and norm creation and adherence, avenues for norm development, and the life cycle of norms — all with a special emphasis on norms for outer space.

The commons is a term of art used by economists and other social scientists to refer to areas which: a) other actors cannot be excluded from using (‘non-excludability’); and where b) one’s use prevents another’s use (‘rivalrous’). Examples of the global commons include the international climate system, the ozone layer, and other international and/or transboundary zones. To be clear, the commons is not a legal term, yet can be used to meaningfully discuss the governance of these areas. 

A related but distinct concept is public goods. Public goods share with the commons the element of non-excludability, but public goods are not rivalrous;the consumption or enjoyment of a public good by one does not reduce its availability to others. Examples of global public goods include a stable climate system, an unpolluted atmosphere, healthy oceans, and responses to international problems such as the eradication of smallpox or control over outbreaks of infectious diseases. Other examples of global public goods include the conservation of biological diversity, the stability of the international financial system, and the creation and maintenance of space-based position-navigation and timing (PNT) systems like GPS and Galileo. 

Norms are one of several crucial criteria for effective management of the commons and in fostering the development and maintenance of public goods. However, they are not widely understood. Norms are a standard of behavior that actors are held to, and have an ‘oughtness’ to them. Norms serve as a “principle of right action binding upon the members of a group and serving to guide, control, or regulate proper and acceptable behavior.” A social norm is defined as “the expected behavior in a specific situation.” However, just because a behavior is common or prevalent (‘normal’), its regular occurrence does not make it a norm. This confusion may exist because of the similarity between the word ‘norm’ as a shortened version of ‘normal’ — rather than ‘normative’, which is an evaluative standard. Additionally, there are repercussions for the non-observance or violation of a norm. These include accusations of violation and the stigmatization of violators. Violators of a norm also routinely seek to justify their actions, usually by claiming that while the norm exists, they are not in violation of it or that circumstances permit a suspension of the norm, rather than assertions that the norm doesn’t exist. Thus, even violations of a norm entrench the norm’s existence.

Gauging Priorities for Space Sustainability

The norms workshop’s final session was a participatory exercise focused on the formulation and ordering of priorities for future analysis and action. Participants were asked to write, in one sentence, what they viewed as the most important task for space-focused civil society to focus on in the next calendar year. Their statements were then circulated anonymously among participants and given numerical rankings, with 1 for least important and 7 for most important. The suggestions were then listed from the highest score (most important) downwards. 

The top four recommendations for civil society to focus on in space activities are:

1. Pressure for the adoption of guidelines to prevent the generation of new debris. 
2. Encourage the development of on-orbit servicing and rendezvous technologies to support responsible space operations.
3. The US government needs to designate who will exercise Outer Space Treaty Art. VI authority.
4. Non-traditional space voices and ideas must be included in planning for the future.

Next Steps for Emerging Governance Challenges

Pressing and emerging issues for a multitude of space activities invite investigations along the conceptual frameworks laid out above. The first task includes characterizing the various space environments as global commons and characterizing subject areas and concerns as global public goods. This involves a clear and concise statement of a sustainable lower Earth orbit environment, a sustainable geosynchronous orbit environment, or a sustainable lunar and cislunar environment as a global public good to be fostered and maintained, along with an articulation of why a community interest exists for the development and maintenance of these public goods.

The next task will be to assess what norms are applicable for each situation, and where these norms are within the ‘life cycle’ of norms. For example, there may be norms addressing space debris, but those norms are not sufficiently adhered to - having not been widely socialised, or internalized as standard and expected practices. 

At this point, it will be time to re-engage with the issues of ‘top-down’ and ‘bottom-up’ approaches, as well as seeing what lessons and insights can be gleaned from other areas of governance. The Secure World Foundation is committed to the idea that space sustainability is dependent on norms, and will continue exploring these issues and socializing its findings and recommendations. 

For more information, please refer to the event page here.