While the Open Ended Working Group (OEWG) consensus report on ICTs in the context of international security is perhaps a successful compromise, it brought limited novelty in terms of cyber norms. Fifty-five years ago, there was another “space” in need of international regulation as a consequence of technological innovation: outer space, which yielded concrete results in the form of the Outer Space Treaty. In this piece, we identify factors that enabled the needle on outer space diplomacy to move more quickly and decisively than in contemporary cyber-diplomacy, and argue that the latter may have some lessons to learn from the former.
In March, 23 years after a treaty to ban electronic and information weapons was mooted by Russia, members of the United Nations managed to reach consensus on a report dealing with cyberspace in the context of international security. This report was the outcome of two years of deliberations at the Open Ended Working Group (OEWG) on information and telecommunications operating under the auspices of the United Nations General Assembly (UNGA) First Committee.
Achieving consensus in today’s tense geopolitical environment is an outcome worth praising in itself. However, a glance through the substance of the report suggests very little novelty, and a failure to build on the Group of Governmental Experts (GGE) reports previously endorsed by the UNGA. For example, while states agreed that ‘international law’ in general applies to cyberspace, there is little progress on the specifics of this regime. The applicability of self-defence in cyberspace or international humanitarian law (critical to chart out the ‘red lines’ of cyber conflict) continues to be blocked by China, Russia and their Shanghai Cooperation Organisation (SCO) allies. The United States and like-minded partners, on the other hand, insist on the applicability of international law but remain staunchly opposed to a cyber-specific treaty.
Outside the UN, however, threats to cyber stability continue unabated with the multiplication of attacks against healthcare institutions, universities and other research institutions involved in the fight against Covid-19 as well as attacks against local government bodies and critical infrastructure: all of this in a peacetime context. Despite the ubiquitous nature of the threat, political will to invest in binding legal norms or clear accountability measures remains absent. The potentially damaging consequences of cyber-attacks seem insufficient to convince political leaders of the urgency to go beyond very superficial commitments when it comes to responsible state behaviour in cyberspace.
Fifty-five years ago, there was another ‘space’ in need of international regulation as a consequence of technological innovation: outer space. In less than a decade, states managed to agree on its regulation, adopting a set of legally binding obligations that apply to this day – the Outer Space Treaty (OST), which opened for signature in 1966. How did that happen, and why can’t cyberspace be more like outer space?
Outer Space and Political Urgency
The very slow evolution of multilateral cyber-diplomacy at the UN is in stark contrast to the accelerated pace at which the OST came into being at the peak of the Cold War. Discussions on a legal regime governing outer space activities started with the launch of Sputnik I in 1957. Two years later, the Legal Sub-Committee of the UNGA’s Committee on the Peaceful Uses of Outer Space (COPUOS) was established and a new treaty started to be negotiated. Initial progress was slow but steady, culminating in the 1963 Declaration of Legal Principles, which would form the backbone of the OST.
Despite concerns raised by the USSR about the ‘western bias’ in the composition of the COPUOS, this did not pose a political hindrance to substantive progress. Between 1964 and 1965, COPUOS focused on ‘low-hanging fruit’ such as assistance to and return of astronauts, and liability for damages. By 1966, the prospect of human moon landings by the USA and USSR drove home the urgency of a treaty that adequately governed activities in outer space. There was also a widespread recognition of the need to ban nuclear weapons and other weapons of mass destruction from outer space.
On 7 May 1966, US President Lyndon B. Johnson delivered a statement emphasising the urgency to ‘take action now … to ensure that explorations of the moon and other celestial bodies will be for peaceful purposes only’. He proposed a treaty containing, among others, the critical principles of freedom of exploration and no weaponisation. A few weeks later, USSR Minister for Foreign Affairs A.A. Gromyko sent a letter to the UN Secretary General proposing an international agreement with very similar principles. Indeed, a notable feature in outer space diplomacy was the overall agreement between Washington and Moscow, on both the urgency of the treaty and the key principles that would serve as its backbone. On 17 December 1966, the treaty was unanimously adopted by the General Assembly in the form of Resolution 2222 (XXI); it entered into force within ten months, in October 1967 – with the USSR, USA, and UK acting as depositories for signatures.
At the time, diplomats and academics, including NASA lawyers Paul Dembling and Daniel Arons, recognised that the provisions of the treaty would be open to interpretation in the years to come, but all the parties involved would be contractually obligated to comply with legally binding rules in outer space in line with it – a significant upgrade from the non-binding resolutions and declarations that preceded it.
Why Cyber Is Different and What This Means
As the Director of the International Institute for Space Law, Joanne Gabrynowicz, put it on the 50th anniversary of the OST, ‘the world looked over the edge of the abyss and chose a different path.’ When it comes to cyberspace, there doesn’t seem to be such an abyss to peer over. For all of those following the OEWG discussions, there was a recognition of the importance of matters on the table but certainly not a level of urgency that would lead the main actors in the room to compromise on their positions with respect to key issues on the regulation of cyberspace.
There are four reasons why lessons from outer space diplomacy cannot be immediately transplanted onto cyberspace.
First, cyberspace and outer space relate to very different security imaginaries: cyberspace is about the ‘invisible’ that has not materialised in existential threats, whereas outer space is about the ‘whole’, with images from space that were taken in the 1960s showing the smallness of Planet Earth when contrasted with the immensity of the universe. For all the hype, the reality is that cyberspace does not trigger the same fear that outer space did five decades ago. To put it simply, the threat in outer space was perceived as more real, more dangerous and more imminent than cyberspace concerns are today, and world leaders at the time understood the perception.
Second, contemporary geopolitics is different from that of the 1960s. Despite the central role the US and China play in contemporary international relations, and the recurring tensions between NATO and Russia, they do not set the international security agenda the way Washington and Moscow did during large parts of the Cold War. This makes any potential agreement more difficult, and the incentive to do so smaller. If anything, the OEWG has revealed that there are more than two sides to the discussion when it comes to responsible state behaviour in cyberspace – that an emerging but significant group of states have actively voiced opinions on a variety of issues such as cyber capacity building.
Third, when the OST was negotiated, there were only three space-faring nations (USA, USSR and China), which meant that there was limited strategic incentive on part of the other states to advocate for strong positions. On the whole, nations were satisfied to go along with the agenda set by space-faring nations, and avoid calamity in outer space. Cyberspace is used by every nation on earth, and many use it for military purposes. Consequently, they want – particularly in recent years – a firm say in the obligations they subscribe to, and the extent to which it compromises or augments their strategic autonomy. Therefore, discussions on cyberspace are broader and more complex than debates on outer space were in the 1950s and 1960s, in terms of the issues being covered, the nations robustly participating and the consequent disagreements.
Fourth, and related to this, whereas the terms of the object of reference – outer space – in the OST were relatively constant across the period in which negotiations took place, cyberspace is a policy area in constant flux. In the autumn of 2004, when the first cyber GGE met for the first time, Facebook had just been created, 5G was a distant dream, and there were 812 million internet users around the world. Last December there were over 5 billion, the majority of whom were in Asia. These are just some examples of the speed at which cyberspace unfolds, which has no equivalent in outer space discussions. This constantly moving space makes it, one could argue, more difficult for states to discuss and, more importantly, to agree on common rules that go beyond the very generic.
Finally, the idea of an international treaty has become politicised in itself, with Western countries arguing that the current laws and norms are sufficient, whereas countries such as Russia and China would like to see an international treaty clearly setting out the terms of engagement in this area.
Looking Ahead
Even if, many decades later, the OST is no longer in line with the technological advancements and geopolitical realities of its field, the process that led to it remains, in our view, an excellent example of diplomacy at work. When it comes to contemporary cyberspace, political leaders are yet to fully consider the extent of the social, economic and political harm caused by cyber-related attacks globally. Until that realisation dawns on states, and the costs are perceived as sufficiently high, it seems almost inevitable that any advances in the field will continue to come from small steps, such as the renewal of the OEWG or the creation of a Programme of Action as proposed by France and Egypt. In the meantime, cyber-attacks will continue without fostering concrete action or binding obligations.
Future research should focus on the scope for deriving more lessons from outer space and explore avenues to investigate how the factors that made outer space diplomacy a success can be replicated in cyberspace. As the GGE advances towards the business end of its process, and we already prepare for a new OEWG, these lessons could turn out to be crucial.
The authors would like to thank Dr Sarah Lieberman and the anonymous reviewer for their invaluable feedback. The usual disclaimer applies.
