The EU’s (limited) push toward the strengthening of International Space Law

International Space Law has long suffered from a deficit in global regulatory action. Like many other areas of international law, international space law is behind with what is needed to solve current problems, including: low-earth orbit pollution (or even potential un-useability if orbital debris reaches a severity flashpoint), light pollution (from satellites), the weaponization of space (including anti-satellite weapons), and many other legal issues threaten the sustainability of future extra-terrestrial expansion, with seemingly no solution on the horizon just yet.

Upcoming (legislative) initiatives in the EU, however, seemingly offer some hope to a more orderly and sustainable international space law framework. After the successful adoption of Regulation 2021/696 that created the European Agency for the Space Programme (EUSPA), the European institutions have released several communications that indicate a significant upcoming legislative push, and an expansion of international actions, in the field of space regulation: the ‘EU Space Strategy on Defence and Security’ (released 10 March 2023, henceforth the ‘Space Strategy’), the ‘EU Approach for Space Traffic Management’ (released 15 February 2022, ‘STM Communication’), and the very recent ‘Draft Council conclusions on ‘Fair and sustainable use of space” (released 5 May 2023, ‘Sustainability Communication’). They all amount to (albeit rough) statements of intent on the part of the EU with regard to future legislative and other activities with respect to space.

This post takes a brief analytical glance at these upcoming legislative initiatives, their contents, and how may contribute to the much needed furtherment of international space law, in which Europe may play a pivotal role.

How we got here 

Internationally, and similarly to other areas especially concerned with sustainability, there has been a slow but growing recognition of the need for greater regulation in international law regarding space affairs.

The EU is the primary operational partner and financer of (world-leading) space systems such as the Galileo & Copernicus systems, and it has legislated in some areas falling under a broader umbrella of ‘space law’, such as the regulation of frequency bands for satellite telecommunications (for example through Decision 2007/98/EC), and the export of dual-use (often including space) components (for example through Regulation 2021/821) Further, it has made some expressions of its space (related) policy, though often focusing overwhelmingly on its internal affairs.

However, it has scarcely acted in the field of space affairs directly, and its contribution to international space law has been minimal. The best example it could cite in the Communications was that the EU and all its member states supported a General Assembly Resolution – on conducting destructive, direct-ascent Anti Satellite missile testing – approved at the 77th session of the UN General Assembly in October 2022 (Space Strategy, p15). This is partially because such external competences have historically been kept close to the chests of the EU member states – and also because the EU is not a state, with a lesser ability to effect change in such international fora.

However, an upheaval of the geopolitical landscape – including the invasion of Ukraine (during which satellite-based data has been a ‘game-changer’(also Space Strategy, p11)), and the perceived threat of a rising China; the increasingly dangerous state of the space environment; as well as the recognition of space and space-based infrastructure as crucial to the EU’s own ‘strategic autonomy’ (Space Strategy, page 6) – all means that there is far more political will for more concrete action. As a result, the last couple of years have marked a dramatic expansion of EU action in space affairs – also alongside an expansion of its security focus. Regulation 2021/696 established EUSPA, and consolidated existing operations into a single framework – but did not provide all necessary regulatory answers. This was already a large step: but the aforementioned communications from the EU institutions will take EU space activities much further, and make it near-certain that further legislation is on the horizon – there is even talk of a comprehensive ‘EU Space Law’ (Space Strategy, page 3).

Where we’re going: the communications’ contents

While the communications’ contents show potential harmonisation within the EU of many regulatory areas relevant to space affairs – I shall focus here upon the many suggestions of future action at the international level.

At the regional level, the Communications suggest that the EU will attempt to further consolidate regional coherence in the areas of security as wide as NATO (p4 space strategy) and the US (p15 Space Strategy); which have had rocky periods in the past. In terms of regulation and norm-building, the push so far seemingly only includes Europe (p14 STM). Furthermore, the EU will strengthen its technological sovereignty by reducing strategic dependencies on third countries’ (Space Strategy, page 5)

More pertinently, at the global level, it appears that the EU is ready to engage with international space law beyond the relatively minimal contribution it has so far made. Though it has expressed its view of space as a ‘global commons’ (also Space Strategy, p1) for a while now, the communications reveal more concrete action will be taken in future; with recognition that its ‘main challenge’ is to ‘convince the vast majority of UN member countries of the relevance of a normative approach’ (Space Strategy, p15) – with its main priorities being to avoid an arms race in outer space (Space Strategy, p14), and to mitigate and prevent space debris (STM, p1)

The EU asserts that ‘The 1967 Outer Space Treaty and the principles developed in the United Nations (UN) framework are the cornerstone of the global governance of outer space […]” (Space Strategy, p14). This is the first time that the EU has recognised and specifically referenced the Outer Space Treaty, and is, thus far, the most explicit endorsement of adherence to the principles of international space law laid down in the UN framework. To this end, both the (later published) Space Traffic Management (p13) and Space Sustainability (paragraph 13) communications make explicit assertions for the adoption and adherence to three of the five primary UN space treaties: the Rescue Agreement, the Liability Convention and the Registration Convention –  while also ‘safeguarding the specific interests of the Union’. This is despite many commentators, including on this very blog, doubting these treaties’ contemporarily relevance. Of course, the EU cannot explicitly ratify them – as it’s not a state – but it can still adhere to their standards; and use them as a basis for normative development. This indicates a distinctly normative and standards-building approach adopted by the EU vis-à-vis space regulation – something repeatedly stressed in all three Communications.

Furthermore, it states that ‘a non-legally binding, transparency and confidence-building instrument would be an effective tool’ (Space Strategy, page 14), though it is not clear exactly what form such an instrument may take, it does not go far as pushing for a binding new international treaty. Instead, for now at least, it appears that the EU is being more cautious than simply charging toward what would be highly contentious international regulation. It’s approach is rather to consolidate a rules-based order first:

“The EU approach on STM will favour a multilateral STM approach in the framework of the UN. […] the Union will seek to foster the discussion on STM in the relevant UN fora in particular the Committee on the Peaceful Use of Outer Space (COPUOS), but also in the Conference of Disarmament with the objective to table a discussion at the UN General Assembly. The EU will identify and engage with the relevant UN bodies, which could support or contribute to such activities… [such as] the International Telecommunications Union [and] International Civil Aviation Organisation” (STM p13).

Final remarks

The Space Communications make clear that Europe has finally woken up to, and is ready to contribute to, the need for greater regulatory development regarding space affairs – both within its own legal system, and within international law. It has an express desire to keep space as with a fundamentally civilian character, and wishes to address globally, rather than through an individualist state approach. Those these developments are perhaps not as far reaching as many might have hoped, they represent an important first step in the right direction.

The EU will seemingly become far more active than it so-far has been in international space law in the years to come. It is clear that the EU, unlike many other new-space actors, recognises that greater regulation in some form is not only desirable, but necessary. As especially the STM Communication notes, (p10) the EU’s significant regulatory reach in areas related means that it is in an excellent position to contribute to fostering standards-setting; harmonisation, and other methods that may constitute the basis of future international regulation. Work has already begun in this regard. Not to detract from the significance of these initiatives, it is worth nothing that despite the united front presented, this is not always the case. Voting records vis-à-vis UNGA initiatives indicate several abstentions and ‘against’ votes from EU countries that indicate some kind of incoherence.

Regardless, it’s clear that the EU has a mammoth task in coordinating its interests both at home and abroad, both civilian and military, and both remaining internationally competitive but environmentally conscious.