TWAIL & CAIL: Decolonising Global Space Governance to Empower Global South in New Space 

By: Sathesh Raj

By rethinking the origin story of international law, one which does not exclude the Global South, scholars of the Third World Approaches to International Law (TWAIL) aim to restructure the existing framework of Global Space Governance. 

In addition, the Cosmopolitan Approaches to International Law (CAIL) was suggested to work hand-in-hand with the development of TWAIL in space and its governance. 

The authors of Inspired by Africa: A New Approach for Global Space Governance Dr. Timiebi Aganaba and Cristian van Eijk, whose work was published in the New Space Journal, discuss space governance through the lenses of TWAIL and CAIL. The duo also attempt to unearth existing approaches that have been silenced, either deliberately or inadvertently, which limit the Global South from the framework of space governance.

Note that the phrase “Global South” is a broad term used to identify countries in the regions of Latin America, Asia, Africa, and Oceania. According to Dados & Connell (2012), “It is one of a family of terms, including “Third World” and “Periphery,” that denote regions outside Europe and North America, mostly (though not all) low-income and often politically or culturally marginalized”. 

First, below are five quick narratives from Dr. Timiebi and Cris about TWAIL & CAIL to help you get acquainted with TWAIL and CAIL. 

TWAIL

1. Space law began as (formal) colonialism ended – the world population has significantly increased since the launch of Sputnik I in 1957 and the creation of the Outer Space Treaty (OST) in 1966, a multilateral treaty which serves as a foundation for international space law.
2. Colonial attitudes didn’t vanish, and are still present in the law today.
3. Decolonising international law starts by remembering histories we erased.
4. There is a need to amplify voices we previously silenced, especially in decision-making processes. That’s especially important in space, where decisions impact many people.
5. Inclusion isn’t enough. To decolonise international law, we have to make room for the Third World to impact and disrupt our priorities and plans. 

CAIL

1. Developing states are unfairly disadvantaged in terms of disproportionate accrual of benefits. Those capable of meeting common benefit obligations appear to view it as a soft norm and express sentiments of good intention. We should ask ourselves, “What can proportionality look like?”
2. Benefit-sharing is focused on allocation, monitoring, enforcement, and accountability mechanisms. However, there appears to be a visceral reaction to benefit-sharing in the space context. So benefit-spreading is identified  and it is not about how to distribute a given pool of resources or how to improve a distribution as it is classically understood, but on how to choose or design the ground rules that regulate the promotion of cooperation and exchange and thereby condition products and distribution.  
3. Fairness should be at the heart of international law.
   The legitimacy and fairness of international law will be judged in two ways. First, by the degree to which the rules satisfy the participants’ expectations of justifiable distribution of costs and benefits Secondly, by the extent to which the rules are made and applied in accordance with what the participants perceive as the right process. 
4. Renegotiation of the evolving global space governance. This is important as we assess and renegotiate the evolving global space governance framework, in light of the perceived failure of the Moon Agreement, whose main purpose was to propose the negotiation of an international regime to regulate space exploitation.
5. Agreeing on a set of minimal assumptions that a legal system can be constructed upon is fundamental. These assumptions begin with a clarification of the historical modes of understanding of the seminal principle of space law that underpins the Outer Space Legal regime: Article 1 of the OST. 

Question & Answer

Dr. Timiebi is a space governance expert with 15 years of interdisciplinary experience across academia, government, non profit, think tank, law firm, and consulting industries gained in five countries. Cris is an international lawyer trained at Leiden University and University of Cambridge, and is currently Legal Advisor at Jus ad Astra. 

Both of their work on Inspired by Africa: A New Approach for Global Space Governance is predominantly focused on Article 1 of the OST and they provide further insights on it and to the questions below.   

• What is global space governance and the current state of it?

Dr. Timiebi: It’s not just the laws, agreements, policies, and guidelines that apply to space activity, which may be what first comes to mind; it’s also about the stakeholder relations and interactions. 

As space is diversifying, a myriad of issues arise around how we govern these different actors and activities. The question today is, “Is the existing framework adequate to address these issues through interpretation or do we need to start afresh?” 

The sector is focused primarily on a “balancing” act with the divergent and competing interests, but we need to answer the question of how we are going to significantly increase our space activities while minimizing the negative impacts and externalities while ensuring everyone continues to benefit for the long term.

• In the editorial it was mentioned that “colonial and imperial relationships between Global North and Global South have caused and affected law’s structure and substance,” and that has led to the study of how “international law replicates these power dynamics to the Global South’s continued disadvantage.” Could you: 
• provide examples of the colonial and imperial relationships that have affected the law

Cris: We can look at the colonial influence on space law through a few different lenses (Procedural, Substantive & Interpretive). 

First, Procedural. 

Who was invited to the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) to make the law? In theory, that decision was based on “geographical equity”, but in practice, scientific and legal capacity played a big part. A key part of imperialism was keeping legal and scientific education out of the colonies. 

From the ad hoc COPUOS in 1958 to its first official expansion in 1961, Africa doubled in size – it had the most states of any continent. But the United Arab Republic (Egypt) was the only African state invited in that time, and though Chad, Morocco, and Sierra Leone joined in 1961, they’re virtually silent in the record. That’s reprehensible in itself, but also impacted the law. A significant portion of the world’s experts on the topic of “commons” are African, and have millennia of communal land management and sustainable use to show for it. 

As COPUOS became more inclusive, space law became less binding – just as the international community gave the Global South the mic, they muted it.

In this history, like in many decolonial histories, two things are simultaneously true. The Global South was excluded from a lot of crucial processes that created space law as we know it – but also, they played a significant role nonetheless. 

Dr. Timiebi: The point about the “silencing” does not take away from the view that developing countries did in fact play a significant role in the development of the law. For example, Jakhu and Huang posit that as developing countries actively participated in the development of space law they secured legal protections and necessary safeguards for their interests in the exploration and utilization of outer space. 

Also, Jasentuliyana highlights that the main contributions of developing countries included ensuring absolute liability for damage caused by states which launch objects into space, introducing the concept of the Common Heritage of Mankind into space law, and attempting to ensure that the benefits of space exploration would be distributed equitably through international cooperation. 

Cris: Also, the clause: “Irrespective of their degree of economic or scientific development” in Article I of the OST was written by Brazil, and fundamentally changed both the treaty itself, and the negotiations that led to it. 

It’s also worth mentioning that the Non-Aligned Movement (NAM) discussed space at its 1964 Cairo Summit, albeit as a denuclearization issue, and that’s just one example of the Global South’s solidarity at the time, which in turn helped ensure their values were considered and included in space law as we know it.

Dr. Timiebi: Today, there are over 20 African countries that are members of COPUOS but the system of consensus decision making tends to support the actions of the developed space faring countries, because they can maintain hegemonic leadership. Many developing countries are often unable to realistically support their negotiation with technical expertise and not enough staff to populate all the committees – this of course is not unique to space diplomacy, it is prevalent in other contentious areas like the climate change sphere.

According to the History & Evolution of NAM, by the Ministry of External Affairs, India, NAM was founded at the height of the Cold War, with the fall of the colonial system and the battle for independence of peoples in Africa, Asia, Latin America, and other parts of the world. The Movement’s early operations were essential in the decolonization process, which led to the liberation and independence of many countries and peoples, as well as the establishment of tens of new sovereign States. The Movement of Non-Aligned Countries has played a critical role in maintaining world peace and security throughout its history.

• provide examples of the colonial and imperial relationships that have affected the law (continued)

Cris: Next, through the Substantive lens.

Environmental protection of space was really important to a number of former colonies; they well knew the cost of reckless extraction for colonial gain. Throughout the Space Age, India insisted on binding rules to protect the Earth and space environments, at the UN and in national media. 

The Space Powers had different goals, and the result we got was the heavily diluted Article IX. We seem to have forgotten space law’s environmental past – in fact, even India’s forgotten, as its 2019 ASAT Test shows. An anti-satellite weapon, or ASAT, is anything that destroys or physically damages a satellite. 

Dr. Timiebi: It is interesting to note that a fundamental provision proposed by a group of developing States during the development of the Space Benefits Declaration disappeared from the final draft. It is worth stating in full for emphasis: 

1. All States should pursue their activities in Outer Space with due regard to the need to preserve Outer Space, in such a way as not to hinder its continued utilization and exploration. 
2. States should pay attention to all aspects related to the protection and preservation of the Outer Space environment, especially those potentially affecting the Earth’s  environment. 
3. States with relevant space capabilities and with programmes for the utilization and exploration of outer space should share with developing countries on an equitable basis the scientific and technological knowledge necessary for the proper development of programmes oriented to the more rational utilization and exploration of Outer Space.

Paragraph three here is critical and truly revealing when read in the light of the analysis of some Western scholars. According to them the provision takes up the problem of space debris, “which might endanger future space utilization to a significant extent”. However, the desire of developing nations to be informed of debris prevention techniques, as expressed in paragraph three above, is legitimate but actually does not require the mentioning, because these technological developments are discussed and documented to the maximum extent possible in the public sphere. ” 

Cris: Finally, through the Interpretive lens. 

Benefit-sharing was crucial for the Global South during the OST negotiations. “Benefits” meant different things – Egypt wanted to share scientific knowledge, arguing that the Space Age was made possible by scientific and material resources originally from Africa. Argentina and Brazil wanted to distribute the profits and costs of space activities, so that space would be a global project. 

But the U.S. didn’t want to give these states a “free ride”. Congress insisted that OST Article I was “non-self-executing”, and had no practical effect. Then it declared that the US would share benefits as it saw fit. Now, both had a shaky international legal basis; the declaration wasn’t a reservation that could modify American treaty obligations, and while sometimes US courts rule a treaty non-self-executing, that’s a domestic doctrine that doesn’t make a treaty less binding. But 54 years later, that American interpretation of OST Article I has become the global standard. 

All these show how the colonial and imperial relationships have greatly impacted the law.

• share more on how the power dynamics work to keep the Global South at a disadvantaged position

Dr. Timiebi: Many of the developed countries have signed cooperation agreements to help them enter the space industry that really did not benefit them fully because of the asymmetric information paradox (whereby the customer needs to understand the technology before purchasing. Recipient states do not know what information they need or are lacking and easily receive less than they need.

According to Buhl et al., the business model of many of the Know-How Technology Transfer (KHTT) programs does not support training success as the hosts only have a business case during the training program.

• How can the Global South be empowered to own their stories in space and what would the role of the current and next generation of space leaders be to allow for those stories to be captured as they are told and not heard?

Cris: The Global South is more than Third World governments – it’s civil society, Indigenous peoples, and populations. The problem isn’t the storytellers; it’s the audience. We need to start taking the Global South seriously as actors with agency and meaningful contributions to offer for space governance. 

Indigenous peoples were the first environmentalists; Global South communal resource management and collective rights are concepts the ‘international community’ is only now realising are critical. I’m not about to tell anyone how to internalise or enact their histories, but I feel it’s my personal responsibility to include those histories within my ‘international law canon’, and to do what I can to make space for those people, too. 

And as a fantasy and science fiction nerd, I know the power of the possible – space isn’t about any one person’s wish fulfillment. It’s so important to allow not only a wide range of people, but also a wide range of histories AND futures in space.

Dr. Timiebi: There are many young people that are showing an interest in space and starting to see that there could be a path someday, but it is not easy and they need to be supported. It is only because people believed in me over the past 15 years of my career that I have been able to get here today and I am always going back to lift others up. There are some great storytellers out there from Africa that we need to give more of a platform to.

Cris: I’d also like to shout out Timiebi here, for creating a journal issue that consciously amplified young African people who are thinking about space in unconventional ways. The history of space is marked by exclusionary ideas about who was smart enough, scientifically advanced enough, and rich enough to act. It’s not a small thing to help ensure that space can become a place where all of us can speak, listen, and have an opinion.

On what needs to be overcome for the space community to be able to embrace these approaches, Cris said, “Remembering our history. My favourite thing about the space community is how much we care about the future – there’s this sense of aspiration, of utopianism, that’s really unique, especially in international law. But we’ll never get there by forgetting the past.” 

Dr. Timiebi further added, “By being steeped in the past and in our history, we can be an active participant in making the future, based on our increased ability at creating scenarios.”