Insight - Socialization and Implementation of the UN COPUOS Space Sustainability Guidelines

Friday, October 5, 2018

By Peter Martinez, Executive Director

For nearly a decade now, Secure World Foundation has been dedicated to ensuring the long-term sustainability of space activities so that space capabilities can continue to contribute to sustainable development, peace, and socioeconomic stability on Earth. We have worked tirelessly with government, academia, and industry to facilitate discussions and promote cooperative solutions for space governance.

A key part of our work has been our engagement with the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), which is the leading international forum for discussion among States regarding cooperation in space activities and for the progressive development and codification of international space law and norms for behavior. Over the years, COPUOS has considered different aspects of the long-term sustainability of outer space activities from various perspectives. Building on those previous efforts and other relevant related efforts, in 2010 COPUOS established a Working Group on the Long-term Sustainability of Outer Space Activities (LTS). The LTS Working Group was tasked to develop a set of voluntary, non-binding guidelines for space sustainability. In June 2018, the working group concluded its work with 21 agreed guidelines and a politically significant context-setting preambular text that includes COPUOS’ definition of space sustainability. These 21 guidelines are the product of consensus of the 87 member States of COPUOS and represent the first fruits of international multilateral dialogue on space sustainability.

The agreed guidelines comprise a collection of internationally recognized measures for ensuring the long-term sustainability of outer space activities and for enhancing the safety of space operations. They address the policy, regulatory, operational, safety, scientific, technical, international cooperation, and capacity-building aspects of space activities. They are based on a substantial body of knowledge, as well as the experiences of States, international intergovernmental organizations and relevant national and international non-governmental entities. Therefore, the guidelines are relevant to both governmental and non-governmental entities. They are also relevant to all space activities, whether planned or ongoing, as practicable, and to all phases of a space mission, including launch, operation, and end-of-life disposal.

SWF and its staff played an active role throughout the LTS process. As part of the official process, the LTS Working Group established four Expert Groups that began the discussion on ideas and concepts that eventually led to the final guidelines. SWF was proud to have four of its staff, spanning our technical, legal, and policy expertise, selected as members of those Expert Groups. SWF has also organized multiple side events, such as our 2015 workshop in Costa Rica, that helped governments and industry better understand the value of space sustainability and formulate their positions in the discussion. We also worked with the U.S. Department of State to hold an event in November 2016 that discussed the interim progress of the LTS Working Group and encouraged its completion.

Reaching consensus on the LTS guidelines was a significant milestone for the space community and the space sustainability effort. A key driver of the space sustainability discussions in COPUOS was the mounting concern among spacecraft operators over the continued safety of space operations. Doubtless, several important issues pertaining to the safety of space operations are not touched on in the guidelines, but it is important to acknowledge that these LTS guidelines represent the agreement of 87 UN Member States on a variety of important aspects of space sustainability. This is the first time that the international community has been able to reach an agreement on space sustainability issues on such a scale. This in itself is significant because it underscores the growing appreciation of the international community that ensuring the sustainability of outer space activities is a global concern, and not just the concern of a few developed spacefaring nations. Although States have not always been able to agree on elements of some of the guidelines, the completeness of the agreed guidelines, or the modality of the discussions going forward, their engagement in these discussions in COPUOS and the agreements reached to date on a significant body of material signifies a common belief in the importance of ensuring a sustainable future for space activities and that such a future is achievable only though international dialogue and cooperation. In this regard, the increased number of States aware of, and knowledgeable about, these issues is a net positive outcome of the space sustainability discussions in COPUOS, apart from the 21 guidelines agreed to date.

Although these guidelines are based on international space law, they are voluntary and non-binding. That is, they do not have the force of international law. Because of this, some would argue that voluntary, non-binding guidelines are too fragile an instrument to address the pressing challenge of space sustainability effectively. This view would hold that the most effective types of commitments to address global challenges are those which are legally binding. However, given the urgency of addressing the challenges of space sustainability, and given the lack of appetite in COPUOS to negotiate new legally binding instruments, the development of voluntary, non-binding soft-law instruments is a pragmatic way forward. Though legally non-binding, the agreements reached in COPUOS are politically binding on States that join consensus in COPUOS.

Moreover, “non-binding” does not mean “non-legal,” in the sense that some States may choose to implement aspects of these guidelines in their national regulatory frameworks for space activities, as has been the case with the UN Space Debris Mitigation Guidelines adopted by COPUOS in 2007, where some of the guidelines have essentially found expression in national space law and regulations of several UN member States.

However, this does not mean the problem is solved or that our work is finished. States and international intergovernmental organizations are encouraged to implement these guidelines to the greatest extent feasible and practicable, through applicable national mechanisms, and in accordance with their respective needs, conditions, and capabilities, and with their existing obligations under applicable international law. Indeed, in order to have the intended effect, these space sustainability guidelines should be implemented as widely as possible. Hence the importance of promoting broad awareness of these guidelines and their voluntary implementation by the largest possible number of space actors.

When it comes to implementation of the guidelines, not all States are in the same position to begin implementation. Several spacefaring States have indicated that they are already implementing a number of the guidelines, and they are considering how to implement the remainder. Certainly, it would be very helpful for States to share their implementation practices and implementation experiences in COPUOS. This kind of information sharing would also provide opportunities to identify and address barriers to implementation, and also to identify amendments to the current guidelines or topics for future guidelines.

The drafters of the guidelines recognized that some States already have significant experience in the safe conduct of space activities and they encouraged those States to share their experience as a way of supporting other countries to develop their national capacities for the implementation of these guidelines. They also recommended that the greater the technical and other relevant capabilities at the disposal of a particular State, the greater the emphasis that State should place on implementing the guidelines to the extent feasible and practicable. States without such capabilities are encouraged to take steps to develop their own capacity to implement the guidelines.

There are a number of practical steps that all States, regardless of their level of space capabilities, could take to implement these guidelines at a national level and to promote their implementation by other States. For example, at the national level, States could promote awareness of the guidelines to their national space community and express commitment to the implementation of guidelines at national level. Within government, regulators could include guideline implementation in their considerations and processes concerned with the authorization and ongoing supervision of national space activities under the jurisdiction and/or control of that State. At the international level, States could use guideline implementation and the sharing of implementation experiences as tools to socialize the implementation of the guidelines in the international space community.

The guidelines are deliberately imprecise when it comes to the specifics of implementation at the national level. The drafters of the guidelines encouraged States to implement them to the greatest extent practicable, but they left the specific modality of implementation up to each State to decide. This inherent flexibility allows for States with very different national mechanisms for the authorization and ongoing supervision of space activities to decide on how best to implement these guidelines within their national jurisdictions, but this flexibility can also lead to different implementation practices that may result in “regulation shopping” by space actors. For this reason, opportunities for improving dialogue among regulators should be encouraged.

Improved dialogue among regulators would also promote improved consistency of guideline implementation across different jurisdictions. This is important, because if different countries have different understandings and different implementation practices for these guidelines, how can we be sure that the collective efforts of all nations will have the desired effect to improve space safety and sustainability? This points to the need for developing some types of agreed metrics to assess the effectiveness of the implementation of the guidelines, and perhaps some sort of a summary index derived from such metrics that could be used to measure multiple dimensions of space sustainability and, over time, the collective effect of guideline implementation on the space environment.

We at SWF will also do our part to encourage the implementation of the LTS guidelines. We will also continue working on other issues and challenges related to space sustainability. These include a range of initiatives that help encourage and facilitate industry to develop best practices and engage with governments on policy and regulatory issues related to space safety and sustainability, such as our CONFERS project on satellite servicing.