The Laws of Space Warfare: A Tale of Non-Binding International Agreements

Eytan Tepper

This Article presents the in-progress development of the laws of space warfare as a case of non-binding international lawmaking and connects it to recent scholarship on non-binding international agreements and to Elinor Ostrom’s Nobel Prize winning theory of polycentric governance. A rapid escalatory cycle—from NATO’s December 2019 declaration of space as a warfighting domain and the subsequent establishment of the U.S. Space Force to Russia’s successful test of a killer satellite capable of destroying spacecrafts, culminating in the first space-cyber war in Ukraine—turned a domain once reserved for peaceful purposes to a war zone. Yet, these laws of war are the least developed compared to the other war domains (land, sea, and air). The under-supply of rules meets a multilateral system almost incapable of adopting new legally binding instruments. Is space on its way to becoming a lawless war arena? This Article suggests otherwise. With no new treaty expected in the foreseeable future, the laws of space warfare are incrementally developed by multiple off-UN forums that introduce non-binding instruments and agreements. While the lack of a comprehensive approach and legally binding status may cause concern, this Article suggests that this is the best course of action to develop the corpus juris of space warfare under the conditions of modern global affairs, based on empirically backed principles of polycentric governance. In terms of policy recommendations, this Article suggests policymakers embrace a polycentric approach and divert governance-building efforts to support initiatives to introduce non-binding rules and agreements. These may complement binding law and create, in the aggregate, a more comprehensive array of rules for space warfare. The Article further suggests membership and compliance as more suitable tests for international agreements than bindingness and proposes that, because non-binding international agreements complement legally binding treaties, they are within the compound of international law.