With humanity reaching outer space in the 20th century, international law had to adapt to address new activities. In December 1958, just one year after the launch of the first artificial satellite, the United Nations General Assembly decided to establish a formal body—the Committee on the Peaceful Uses of Outer Space (COPUOS)—to regulate and manage outer space activities and promote international cooperation in this field through binding legal instruments governing outer space activities.
However, the geopolitical context has evolved, with the rise of multipolarity in the international system and the involvement of diverse actors, including states, intergovernmental organizations, and non-governmental organizations. This has shifted the balance of power that existed in the past century. As a result, some countries advocate for the concept of “soft law” to build shared visions guiding emerging space activities without imposing strict legal obligations, thus maintaining a degree of flexibility to adapt to future developments. Conversely, other countries prefer binding legal instruments, such as treaties and agreements, to hold spacefaring nations accountable in case of violations.
In this context, a research paper published in September 2023 by Leticia Cesari for the French Institute of International Relations (Ifri) discusses the new needs for regulating space activities, the various regulatory mechanisms applied to the emergence of new space practices, their ethical considerations, and changes in the geopolitical landscape of the international system. The paper then addresses the role of soft law in regulating space activities globally, with a particular focus on the international level.
The Outer Space Treaty and Changing Contexts
Shortly after the launch of the satellite “Sputnik-1” in October 1957, the United Nations General Assembly adopted its first space-related resolution in 1963, which included basic legal principles for this new realm of activity. This served as the first normative framework for space activities, paving the way for negotiating treaties and other binding mechanisms based on a shared vision.
The legal framework governing outer space was built around the principle of “peaceful purposes,” which was essential at the time. The 1960s and 1970s were marked by tensions between the Eastern and Western blocs during the Cold War, a period of diplomatic upheaval. The need to ease tensions related to nuclear escalation, in particular, was crucial to preventing the spread of both nuclear and non-nuclear weapons from spiraling out of control.
As a result, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies—commonly known as the Outer Space Treaty—was adopted in 1967. This treaty established binding legal provisions for states and outlined fundamental principles regarding the peaceful use of outer space. These principles include that space exploration and use should benefit all countries, that national appropriation of the Moon and other celestial bodies is not permitted, and that states are responsible for damages caused by their space activities, along with prohibiting the use of weapons in space, among other principles.
With the growing number of actors—both governmental and non-governmental—as well as new technologies like public-private partnerships affecting the nature of space activities, there has been a recent need for new mechanisms and non-binding legal instruments to regulate the activities of new actors in space. Binding legal instruments like treaties and international agreements are no longer sufficient to keep up with the current developments in outer space.
Thus, the use of soft law offers the possibility of adapting the legal framework applicable to space operations and outlining the necessary framework for expanding outer space exploration activities. Countries can choose whether or not to comply with these norms, which are often based on ethical considerations and take the form of declarations, resolutions, or recommendations on how to regulate space activities.
COPUOS has worked to develop these norms in anticipation of situations that might cause tensions or create inequalities. For example, in the late 2000s, the committee developed guidelines for space debris mitigation. These guidelines allow states to identify best practices to minimize the risk of collision in orbit and harmful activities in general. These guidelines have particularly helped national regulatory bodies coordinate their practices when issuing licenses for space activities.
Debate Over Space Exploration Regulations
In recent years, the outer space sector has undergone numerous transformations, highlighting the need for governance that extends beyond traditional legislative and political systems primarily applied to states, giving greater importance to the private sector. This framework could consist of a set of shared standards and rules that incorporate societal consideration of ethical values. In the context of space exploration, by adopting common standards and guidelines, state authorities rely on non-binding legal tools to coordinate their practices without being excessively constrained by restrictive mechanisms.
For some countries, strict law represents the best way to manage space, particularly regarding the security of objects in orbit. The proposed Sino-Russian treaty, for instance, aims to ban the deployment of weapons in space and prevent the use of force against space objects. As a legally binding instrument, it also seeks to prevent the militarization of space, thereby ensuring space security.
However, some countries, particularly Western powers, oppose translating certain concepts or legal principles into rigid legal instruments. Critics view such treaties as overly stringent, unable to keep pace with technological advancements and the emergence of new relationships between states. Nevertheless, the goal of states remains the safety of their space activities and the protection of their systems and technologies. Yet, the growing multipolarity tends to complicate international cooperation.
In this context, the rules governing space exploration in general, and activities related to space resources in particular, have been a major point of debate since the second half of the 20th century. In 1979, a convention was adopted to limit the exploitation of space resources and encourage states to establish an international system that includes strict procedures to govern such activities. This was based on the desire of some countries to ensure a certain level of fairness between nations and prevent any expansionist ambitions by force.
There remains disagreement over whether flexible law is sufficient to address today’s most pressing challenges, such as the issue of space debris. Flexible law has also proven insufficient to limit state-led anti-satellite missile testing in space. For example, the adoption of the UN General Assembly’s 2007 guidelines for debris mitigation did not prevent the U.S., India, and Russia from proceeding with the deliberate destruction of space objects in orbit.
Nevertheless, fifteen years later, a UN resolution in October 2022 encouraged all states to commit to refraining from conducting direct-ascent anti-satellite missile tests. This commitment was publicly declared by a small number of states seeking to “elevate responsible behavior as the norm.” In cases where topics require a general and permanent framework, developing a strict legal instrument could lead to peaceful relations, as recommended by some countries. Treaties are distinguished by being a shared reference point that states can rely on in cases of dispute. However, there is currently no common ethical foundation upon which countries can build these standards.
Faced with growing multipolarity, space powers must assert their priorities, determine which nations will follow them in their commitments, and make strategic decisions for the future use and exploration of space. For this reason, drafting recommendations, guidelines, and other flexible legal instruments seems to be the most suitable approach for certain issues, such as transparency measures or identifying irresponsible behavior by states. Thus, certain rules are established without resorting to strict law, while still considering some key provisions of the Outer Space Treaty, such as principles of international cooperation, responsibilities, and limiting potentially harmful interference in the activities of other states.
The International Organization for Space Activities
Despite the limited support received by the 1979 Moon Agreement, some space powers are striving to develop a governance system to regulate space exploration. Several countries have also adopted national laws and policies to provide a stable legal framework for companies planning to exploit space resources and engage in space exploration activities. Internationally, many initiatives have been undertaken. On one hand, the United States launched the Artemis Accords, aiming to return humans to the moon by 2025, with signatory governments working to promote responsible behavior in outer space, intending to expand space exploration. These new mechanisms, envisioned by NASA, aim to serve as models of transparency and coordination.
Parallel to the American initiative, Russia and China launched a joint project in 2021 aimed at establishing a lunar base, the International Lunar Research Station. The two nations are collaborating on manned missions that could be sent to the moon before 2030 to expand the countries’ orbital space stations. In contrast to the Artemis Accords, both nations are developing their future activities based on an invitation to collaborate with other countries, which would have the ability to participate in selecting crew members for future missions.
Two years after the launch of this partnership, several other countries have shown interest in cooperation through letters of intent, including Argentina, Pakistan, and Brazil. Similarly, the Asia-Pacific Space Cooperation Organization (APSCO), which includes China, Bangladesh, Iran, Mongolia, Pakistan, Peru, and Thailand, signed a joint declaration regarding the International Lunar Research Station.
China currently enjoys a strong economy and a prominent status as a major economic partner for numerous countries. Additionally, its technical and scientific capabilities enable it to collaborate with other space powers. It also supports certain governments in their space ambitions, particularly in Africa, alongside its growing influence on the international stage, especially in the space sector. However, the country faces a significant challenge: its inability to collaborate with the United States on projects conducted by NASA or the Office of Science and Technology Policy.
Russian scientists are making progress aboard the International Space Station (ISS) alongside other participants and have joined China’s space lab and lunar base projects. Russia also has launch capabilities that give it significant standing as a space power, both in the civilian and military spheres. The same can be said for India and the European Union, which are both major space powers with significant diplomatic roles.
Emerging space powers, whose national strategies in the current context of international tensions are sometimes ambiguous, add to this dynamic. This ambiguity may weaken international relations. Alliances formed on Earth extend to space cooperation, creating an unstable negotiating environment that affects ongoing space projects. Non-binding legal instruments serve as a reference point for many nations, particularly emerging space powers. These instruments complement binding rules and sometimes act as benchmarks for developing governance systems, especially for supervising emerging operations like future lunar missions. However, implementing these projects faces a complex geopolitical landscape.
In conclusion, based on recognized principles of public international law, the legal instruments adopted in the 20th century remain a reference for countries in the context of their space activities. Nevertheless, their interpretation depends on state practices and official declarations on specific topics, often based on ethical considerations. With the emergence of new space projects in the future and the diversification of stakeholders in space activities, both governmental and non-governmental, the legal framework developed over the past century will undoubtedly benefit from the addition of new rules. These rules would reduce tensions between powers and promote the sustainability of the space environment for long-term viable operations. In today’s multipolar system, countries must consider the security and safety of space as issues that transcend existing rivalries, to prevent terrestrial conflicts from extending into space.
Source: Laetitia Cesari, « Éthique et responsabilité dans l’exploration spatiale: l’essor de la soft Law pour encadrer les nouvelles pratiques », Ifri, septembre 2023.
