THE DIPLOMAT

APLN member Rajeswari Pillai Rajagopalan writes for the Diplomat on the need for a consequence-based approach for addressing space security threats. Read the original article here.

While consensus on legal measures remains elusive, a behavior-based approach is a good first step. A consequence-based approach to dealing with interference in space is a step further.

Developing space security norms has been debated for the past decade with no concrete outcome. There have been several proposals addressing various aspects of the growing insecurities in outer space. The continuing growth of counter-space technologies, as well as states finding more disruptive ways of using space technologies, is leading to potentially dangerous and unstable conditions. These trends point to the urgent need to establish more effective rules of the road, whether they are legal or political instruments.

While legal instruments are ideal, the practicality of developing the much-needed consensus for legal, treaty-based rules is a significant challenge. This lack of consensus was demonstrated most recently at the “Open-ended Working Group (OEWG) on reducing space threats through norms, rules and principles of responsible behaviors,” which concluded its final session in the beginning of September. Driven by geopolitical factors, a handful of countries including Venezuela, Iran, and China, went along with the Russian position, which was in favor of legally binding mechanisms rather than simply responsible behavior as a foundation for development of norms that will moderate and regulate activities in outer space.

This highlights a key divide on this issue. The global debate on space norms and rules has been stuck between two distinct schools of thought with no middle ground. One camp argues that legal measures are the only effective means to regulate space activities whereas the other has made case for a political approach based on norms of behavior, primarily because of the difficulties in building an agreement on legal measures. These difficulties are a function of the changing balance of power dynamics. There is also little optimism about any middle path, at least in the immediate future.

Nevertheless, challenges in space are becoming more acute and the continuing lack of agreement makes outer space extremely fragile. In the worst case, it could even threaten access to outer space.

Global debates about solutions have been stuck for a number of reasons. Even as stakeholders continue making efforts to develop practical guidelines, norms, and maybe some technical agreements, there is a need for definitional clarity with regard to a number of key terms. For instance, how does one define “space weapon,” or “weaponization of space” and “peaceful uses of space”? Without gaining clarity on these terms, it is difficult to build an agreement addressing space weaponization or related space security issues.

Existing outer space regimes, including the Outer Space Treaty of 1967, have proved futile in addressing the current and evolving counter-space threats. The Outer Space Treaty, for instance, only prohibits weapons of mass destruction (WMD), and the treaty is silent on conventional weapons or any non-WMD weapons. This lacuna has to be addressed as a priority because more and more states are developing the entire range of counter-space capabilities, including cyber and electronic warfare in addition to kinetic anti-satellite (ASAT) weapons. Given the dual-use nature of space assets, states can literally use any technology and capability in a nefarious manner, causing temporary disruptions as well as permanent damages to space assets.

Also adding to the complexity are the increasing cases of “intermingling of civil and military uses of satellite assets,” which again complicates dispute resolution mechanism if there has been interference by another nation. Along with civil-military intermingling, there is an additional complication from mixed payloads being carried on a single rocket, in case it becomes a target. The dual-use aspects and dual-purpose uses of space assets are particularly challenging in defining what a space weapon is. It is critical that states and other stakeholders develop a commonly shared understanding and interpretation of space activities that could be considered as responsible and those not.

With these factors in mind, there has been an effort to focus on behavior rather than capabilities as states debate global governance measures. Many countries that were part of the 2018-19 United Nations Group of Governmental Experts (GGE) were supportive of this approach. States on other occasions have also expressed their support for a behavior-based approach.

The European Union, for instance, while voting at the U.N. General Assembly 1st Committee proposals on “Prevention of an Arms Race in Outer Space” and “No First Placement of Weapons in Outer Space” in November last year stated that “the EU and its Member States believe that an approach based on behaviors is the most pragmatic and immediate way forward to improve space security today.”

Similarly, Japanese Ambassador and Permanent Representative of Japan to the Conference on Disarmament Ogasawara Ichiro, while speaking at the Conference on Disarmament Plenary Meeting of the Conference on Disarmament on March 30, 2023 made a case for a behavior-based approach, saying that it “will contribute to enhancing security in outer space, by mitigating threats including those occurring from misunderstanding and miscalculation which could entail increasing tension and conflict.”

Ogasawara added that the complexity that comes from the “dual-use nature or dual-purpose use of space objects” in “defining a weapon in outer space” exacerbates the problems of “identifying space threats through focusing solely on objects or technological capabilities.” He went on to add that given these complexities, “behaviors-based approach presents great merit, since behaviors can be more easily observed even in outer space. While it is quite challenging to make a common understanding on the legality of each behavior, we believe that it is attainable and valuable to agree on patterns of behaviors that can be deemed as responsible in outer space.”

A behavior-based, rather than capability-based, approach is a step forward, but it still has issues when dealing with complaints of interference. A behavior-based approach can be considered as the first step, but it can be taken a further step forward through a consequence-based approach, which would prohibit an action based on its likely consequences. For instance, when dealing with an case of cyber interference in the functioning of a satellite, a consequence-based approach may be more effective in determining the effect and what is needed to be done. While not interfering in the functioning of another party’s satellite should be pursued as a good behavior, the consequence of that action can be used to determine the level of counteraction and response.

In a consequence-based approach, interference and the disruption caused are looked at irrespective of the tools used. At the same time, this provides an avenue for adjudicating complaints about electronic or cyber attacks on space assets.

These are difficult issues to traverse because typically it is easier to determine responses when there is physical destruction of satellites or there is a fatality. But making a case and bringing evidence where a state or a private entity has used cyber and electronic warfare means to interfere or steal military communication data is much harder. Nevertheless, highlighting the consequences in terms of loss of data or loss of communication with a satellite can still be useful in establishing a case against the perpetrator. Interference in other’s normal satellite functioning can be considered a crime, but it is not clear if it makes a case for global action in response. A consequence-based approach can make it easier for parties to arrive at an agreement if there has been an attack and what needs to be done about it – based on the consequences of the interference. Developing agreements on an approach that is based on evidence and consequences may be relatively easier in these geopolitically turbulent times.

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