China’s space dream legal nightmare Analysis by Foreign Policy

The Foreign Policy magazine has published an article claiming that by building spaceports overseas, Beijing wants to flout the current rules, and write its own. Caliber.Az reprints the article.

In January, Hong Kong Aerospace Technology Group, a Chinese company, signed an agreement with the government of Djibouti to build a rocket launch facility in Obock, a small port town in the country’s north. If completed, it would mark the first instance of a launch facility funded by China or a private Chinese company in foreign territory. Building a spaceport is a difficult endeavor, and building such a facility on foreign soil is even more complicated. While challenges may ultimately stall or scupper the arrangement, the potential site in Obock serves an important case study for how China or other actors could expand their geopolitical playbook to circumvent the international space governance regime.

China regularly exports space-related applications as tools of global influence, and the potential investment in Obock fits into Beijing’s broader efforts to project power on the African continent. The burgeoning space industry there offers huge potential for investment, job creation, and economic growth. However, given the limited strategic utility of a single launch facility in the Horn of Africa, it seems that China may have ulterior motives for its interest in foreign spaceports. Specifically, because Djibouti is a nonparty to the major treaties governing outer space behavior, China may see this new partnership as an opportunity to enable a potentially rogue actor and reshape global expectations of responsible behavior in space. Worryingly, should Beijing follow this model, there’s not much the United States or likeminded states could do to rectify the situation—if not in Djibouti today, then potentially elsewhere in Africa, Central America, South America, and beyond.

Over the past decade, Chinese state-led and commercial demand for access to outer space has surged, but the supply of viable launch facilities hasn’t kept up. Beijing has expanded launch facilities and options at home, and now, commercial entities seek to add foreign nodes to this network.

A spaceport in Obock may be attractive to China because launches close to the equator are more fuel-efficient than those from higher latitudes. Even with this benefit, given the inherent logistical challenges of operating a single commercial space facility on nonallied soil thousands of miles away from mainland China, this investment would be unlikely to provide the obvious strategic value that China’s overseas military bases offer. It would, however, give China a stage to present its alternative interpretations of international space law and create a haven for satellite operators looking to act outside the confines of the existing system.

As a party to most of the major space-relevant international legal instruments, China must abide by certain limitations on its behavior. For example, it is barred from stationing nuclear weapons in space, may not claim sovereignty over celestial bodies like the Moon, and must provide aid to astronauts in distress, among many other obligations. China fulfils these obligations through domestic regulation of private sector space entities, but it is not clear how these rules would apply to or be enforced on Chinese commercial operators overseas. Djibouti’s lack of experience with any form of space law does little to raise hopes for effective oversight of activities originating from its soil.

China may be interested in using a future launch site at Obock, or prospective spaceports in other countries without strong space regulations, to sidestep or outright reject rules it does not want to follow—likely without consequence. For example, under the 1967 Outer Space Treaty (OST), China has a duty to consult with others prior to conducting activities that might “cause potentially harmful interference” with other state parties’ peaceful use of space. Even if a state fails to consult with others prior to potentially harmful activities, states party to the OST must abide by the principle of due regard for others. However, there is no precise global understanding of what “due regard” means in this context. The OST leaves the task of defining the criteria of the obligation to the individual state parties—which creates a convenient opening for states hoping to blur the lines of compliance.

Djibouti, however, is currently unburdened by any of these legal obligations. As it is not a signatory of the OST, there would be no expectation for it to consult with others prior to conducting potentially harmful space activities. Commercial satellite operators launching from Djibouti or a similarly situated country may eschew the duties imposed by the OST and launch satellites that perform close passes, rendezvous maneuvers, or proximity operations without prior consultation with or due regard for others. These behaviors, if not accompanied by efforts to establish a shared understanding of safety, are likely to breed suspicion about the purpose of these missions and reinforce perspectives that these activities are hostile.

In many respects, the Chinese company’s memorandum with the Djiboutian government can be interpreted not only as an opportunity to evade current rules, but as a hedge against future ones. Since many core aspects of the foundational agreements, such as due regard, are still up for interpretation, states like China are free to promote their own understanding of what compliance looks like. A spaceport in nonparty territory would provide foreign operators with a stage and a functional mechanism to push back against disfavored legal norms.

The consequences of enabling a potentially rogue actor could snowball out of control. Under its original memorandum, the Hong Kong Aerospace Technology Group indicated it would wholly transfer the Obock spaceport to the Djiboutian government after 30 years of jointly managing the facility. This handover would exacerbate concerns about the potential for misconduct in orbit. Since Djibouti is not bound by Article VI of the OST, the state would bear no legal responsibility to authorize and supervise space activities in its territory. Though it would be exceedingly difficult for Djibouti to develop advanced space capabilities without an enormous amount of aid, at that point, any domestic satellite industry that has accumulated in the country would have nearly free rein to conduct its preferred behaviors in space outside the purview of international space law. Such a situation would attract satellite operators seeking limited oversight of their activities, and Chinese companies would naturally have an advantage in getting access to this spaceport of convenience.

This potential is especially concerning given Beijing’s history of absorbing capabilities developed by its commercial and civil industries into its military. Spaceports in places like Obock would offer a permissive regulatory environment in which to test advanced concepts and technologies with potential military applications beyond the reach of the law. Beijing may be more willing to support these activities due to the added layer of plausible deniability afforded by the launch site’s foreign location.

If Hong Kong Aerospace Technology Group’s approach succeeds, Beijing may seek to expand its network of spaceports in other countries with similarly attractive geographies and limited political obligations. Based on these characteristics, a few places could be next. Tanzania’s coastline is enticing for efficient access to space, and politically the nation has yet to ratify the OST, although it has made progress by signing the Convention on the International Liability for Damage Caused by Space Objects. In Central America, Costa Rica is in a similar position both geographically and politically. Meanwhile, in South America, Suriname offers access to nearly equatorial latitudes and is also unbound by any of the major space agreements.

Building any spaceport takes time; Hong Kong Aerospace Technology Group estimated that a site in Obock would take five years to construct. Yet even with ample time for concerned parties to roll out competitive strategies, there are few prospects for near-term solutions should Chinese companies continue down this path. States opposing this behavior could launch an all-out effort to entice host countries to ratify space law treaties, but there is no guarantee that a state like Djibouti would bite, even on the most convincing diplomatic campaign, because of how much it stands to profit from Chinese investment.

Some argue that because so many states have already ratified major space treaties, certain principles from the OST and other international space law conventions already apply globally, even to those states that have not ratified them. Even Djibouti would have to ensure that its Chinese tenants comply with these norms. However, this view is not yet established by case law, and any attempt to codify it would require a significant amount of time and diplomatic capital that many states may be unwilling to spend.

Unfortunately, both these approaches likely fall short of effecting meaningful change. Simply ratifying a handful of treaties is unlikely to bring about the types of improvements necessary to allay concerns about misperception and misinterpretation. Further, the obligations of treaty compliance would impose significant technical challenges on countries such as Djibouti that have limited space expertise.

Though China’s realpolitik approach is understandable, undermining the space governance regime carries grave risks. Legal instruments—such as the OST—exist for a reason, and the rules and standards they set are essential for basic safety as well as long-term sustained human activities in space. Rejecting, undermining, and hedging against these norms will affect not only Beijing’s adversaries in space, but could also backfire on China itself. Satellites launched without adequate oversight could create debris in valuable orbits, raising the risk of collision with current and future Chinese missions. More broadly, without a demonstrated commitment to common guidelines, these actions will breed uncertainty among the spacefaring community and create opportunity for misinterpretation and mistrust, which could escalate to crises or outright conflict between states. Access to a spaceport near the equator is valuable, but opening Pandora’s launchpad is not worth the risk.