From “Space Law” to “Space Governance”: A Policy-Oriented Perspective on International Law and Outer Space Activities
By Dr. Gershon Hasin
Developing activities in outer space, many driven by private actors, coincide with the resurgence of competing systems of world public order. An authoritarian bloc, led by China and Russia, promotes a competing world order based on values, including authoritarian capitalism, that differ greatly from the liberal rules-based public order led by the United States. In the space arena, interactions are complicated by two changing circumstances: the divergence between two frameworks, the U.S.-led Artemis program and the Chinese-Russian program; and the obsolescing of applicable norms due to technological innovation, changing participants, and increasing disputes. These developments require reevaluating paths toward securing minimum and optimum orders in space.
Predominant legal scholarship for space, however, has approached emerging claims and negative externalities in space from the perspective of “law,” as a body of rules, rather than as a field of “governance.” Such an approach fails to appreciate the international lawmaking process and overestimates the authority, control, and endurance of applicable norms. This article proposes that under modern circumstances, it is preferable to detach from “space law” for a “space governance” mode of thinking based on policy-oriented jurisprudence. The article outlines six analytical components of the proposed space governance framework which is geared toward a contextual appreciation of interactions between various participants. It then utilizes the approach to confront two urgent aspects of space governance. First, it proposes a regime of coordination between the two systems of world public order which may alleviate conflicts in lunar operations. Second, it demonstrates that the correlating interests of the competing blocs generate incentives for installing a cooperation regime of non-proliferation and testing prohibition for anti-satellite weapons.