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A Critical Study of the Drawbacks in Contemporary International Laws disabling Space Weaponization

By

Siddhartha Mitra, IV year of B.B.A.,LL.B., Symbiosis Law School, Hyderabad




Introduction

Space is a contested, congested, and competitive domain. Each year the international community relies ever more on space-based technology for defence, civil, and commercial purposes. Accordingly, the weaponization of space has increasingly become an issue of concern. Space is an international common and is thus easier to protect through international cooperation. Since the beginnings of humanity’s venture into space, the international community has made attempts to define and regulate the placement and use of weapons there, but with only limited success.

The international community has a great interest in maintaining space as a peaceful arena and a secure place to conduct the international activity. This has been recognized in treaties and policy statements involving almost all countries with an interest in space. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the Outer Space Treaty) sets forth as its opening statement, “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”[i]

Such interest in peaceful uses of space is understandable; it is a fragile environment. Physics dictates that satellite orbits and space launches are easy to observe and understand. Like sandcastles, spacecraft are difficult to build but easy to destroy. Yet much of the world increasingly relies on space for such peaceful purposes as communications (cell phones, satellite television and radio, banking transactions), transportation (GPS and air traffic control), environmental management, observations relating to resources, weather analysis and predictions, climate change, surveillance of natural disasters, and minimally invasive verification of international treaties. Space is a congested and contested domain. If we do not establish order there, the struggle for the availability of limited assets may render it a cause for Earth-bound conflicts. For these and other reasons, the international community has been attempting to regulate the use of space, and specifically to define and regulate the weaponization of space.


Despite such variegated interests, the United States, on 20th December 2019 established the Space Force for “..organizing, training, and equipping space forces in order to protect U.S. and allied interests in space and to provide space capabilities to the joint force.”[ii]This paper would thus analyse the existing international treaties affecting weaponization of space with a view to highlighting the loopholes and offering recommendations to mend the same.

Existing Treaties on Space Weaponization

The Outer Space Treaty of 1967

Article I, Article II and Article IV of the Outer Space Treaty of 1967 directly act against the weaponization of Space. However, it’s wording has innate flaws. To understand the same, it is necessary to take a look at the articles themselves.


Article I states that “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and per international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.”[iii]

Article II further substantiates Article I by stating, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, utilizing use or occupation, or by any other means.”[iv]

Finally, Article IV states that “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”[v]

A reading of these three articles effectively makes the problem clear. While the Outer Space Treaty does talk about the weaponization of space, it only limits itself to nuclear weapons or weapons of mass destruction. It is true that given the era, that was the only sort of space weaponization imaginable, but while the treaty should have been updated with the change of times, such actions never saw the light of day.

Further, though Article VI of the Outer Space Treaty speaks about nations bearing international responsibility for any damage caused by their space objects, the details as to the extent of liability is not mentioned under the Treaty.

This is how the Outer Space Treaty, though advocating against space weaponization falls short of preventing such weaponization in the modern era.

Convention for International Liability for Damage Caused by Space Objects, 1971

The Convention for International Liability for Damage Caused by Space Objects which was signed in 1971 is the only treaty accepted by all nations that provide any mechanism for redressal of damages caused by one nation’s space object or space weapons to another. This interpretation can easily be made based on a liberal interpretation of Article I (d) and Article II of the Convention.

Article I(d) states that “The term space object includes component parts of a space object as well as its launch vehicle and parts thereof.”[vi]

Article II states that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.”[vii]

As the space object definition incorporates everything which was launched, it can be liberally construed to include damage caused by firing weapons from space as well. The problem with this treaty is that though it deals with liability in case of actual damage caused, no wording in this treaty can be interpreted to prevent the hoarding of weapons in space.

International Attempts Made at Preventing Space Weaponization

Prevention of the Placement of Weapons in Outer Space and the Threat or Use of Force against Outer Space Objects

In February 2008, China and Russia jointly submitted to the UN Conference on Disarmament a draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT). This proposal was the first such proposal which defined the term “weapons in space

Article I of the draft treaty states that “The term “weapons in outer space” means any device placed in outer space, based on any physical principle, specially produced or converted to eliminate, damage or disrupt the normal function of objects in outer space, on the Earth or in its air, as well as to eliminate population, components of biosphere critical to human existence or inflict damage to them;

d) a weapon will be considered as “placed” in outer space if it orbits the Earth at least once, or follows a section of such an orbit before leaving this orbit, or is stationed on a permanent basis somewhere in outer space;”[viii]

Further, Article 2 of the Treaty also laid down that –

“States Parties undertake not to place in orbit around the Earth any objects carrying any kind of weapons, not to install such weapons on celestial bodies, and not to station such weapons in outer space in any other manner; not to resort to the threat or use of force against outer space objects; not to assist or encourage other states, groups of states or international organizations to participate in activities prohibited by the Treaty.”

Thus, the PPWT was a treaty which was the first of its kind concerning the specific manner in which it tried to curb a global arms race in space. However, with the United States not signing the treaty, it could not come into force. China and Russia continue to make amends and propose this treaty to this day but with the United States declaring its space force as a military wing; its ratification seems more remote than ever.

The Prevention of an Arms Race in Outer Space (PAROS)

The Prevention of an Arms Race in Outer Space is a UN resolution seeking a ban on the weaponization of space. It was originally proposed in the 1980s from an ad hoc committee of the Conference on Disarmament. The proposal was reintroduced in recent years and is voted on annually, with the United States being the only country to oppose it.9 European Union Policy Proposal.

Space Code of Conduct

The Space Code of Conduct was a voluntary set of rules regarding matters such as space debris and operation of crafts or satellites in space which was introduced by the European Union in 2008. It was rejected by most significant space nations including the United States, China, Russia, and India.

Conclusion

Having analysed all the laws in force or proposed to deal with the problem of space weaponization, it becomes pretty clear that while using a weapon from space or launching a weapon of mass destruction into space has repercussions, launching conventional weapons into space is still legal. This is mostly because the United States of America, the most advanced nation in warfare has refused to be a signatory of any such anti-weaponization treaties or protocols. Keeping this in mind, there are a few practical recommendations which could be materialized to prevent space weaponization, all of which are listed below.

Recommendations


1. Instrumental Description of “ SpaceWeapons” instead of Physical Description

If the international community were to rely solely on the definition of “weapon” as outlined in the Chinese and Russian proposal, other means of destruction could still be used. We cannot outlaw cricket bats because they could be used as a blunt instrument to kill, nor can we prevent killing by outlawing guns because those bent on killing will still have cricket bats. Thus, any definition of what constitutes a weapon in outer space must be driven in terms of what the object is used to do rather than its physical properties.


According to John Pike, “The profession of arms remains the old art of killing people and breaking their things.”[ix] With the commons of space, we have no international “police force” armed with a means to enforce. We need to define and protect the interests to be achieved and the behaviour that is considered unacceptable. Once interests and behaviours are defined, there must be a mechanism to identify who is responsible when poor behaviour is observed, and a tribunal or adjudicator to provide professionalism, credibility, and equity to disputes relating to responsibility. Finally, there must be a means of enforcement; if there is no consequence once responsibility for violations is fixed, the behaviour of states will not be moulded to foster the cooperation and protection desired.

2. Monitoring, Adjudication, and Enforcement

According to a distinguished speaker on a space law panel, “International disputes on space matters have most often been settled through diplomatic channels rather than by court decisions. Therefore, judicially determined resolutions to many matters of space law have yet to be developed.”


The World Trade Organization is probably one of the more successful of the United Nations organizations due to its expertise and ability to enforce its rules on member nations. An international organization with similar expertise and credibility in outer space issues could serve a similar role and go a long way toward helping regulate the behaviour of states and non-state actors in space. The most logical organization to take on this mission is the United Nations, with a standing committee under the Convention on Disarmament, driven by the legal subcommittee of the UN Committee on Peaceful Uses of Outer Space.

As noted by Frans von der Dunk, “Despite its shortcomings, [the United Nations] still presents us with the only more or less global organization having considerable experience in such issues.”[x] The UN Committee on the Peaceful Uses of Outer Space has 69 members, and all UN nations can join. However, their authorities and responsibilities would need to be bolstered and resourced, and a more concrete means of enforcement would need to be in place.


The Convention on International Liability already provides a basic framework for filing and adjudicating claims for damages caused by objects launched into space. The weakness in this system is enforcement. Currently, a state might refuse to recognize any claim or engage in the UN claims adjudication process. Even if a state agrees to adjudicate a claim for damages, forcing it to pay still rests in diplomatic channels. The more challenging or expensive the issue, the less likely it is that a state will be willing to diplomatically agree to payment and will use politics and arguments of unrelated inequities to justify its non-payment.


It is for this reason and the fact that damages are paid by economic and monetary means, that a solution might be to invoke the enforcement power of the WTO as a last resort forum if valid adjudicated claims go unpaid and diplomatic avenues fail. As all space-capable countries are reliant on world trade to support their economies, and as much of the space arena is morphing into commercial and commercial-like transactions, the WTO would be a familiar forum for imposing measurable economic trade sanctions to punish the liable state, and in part would compensate the damaged state. Enforcement under these conditions is not reliant on voluntary payment, but the sum can be extracted by the international community.

[i]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” opened for signature January 27, 1967

[ii]https://www.spaceforce.mil/About-Us/About-Space-Force,(last visited on June, 19, 2020)

[iii]Article I of the Outer Space Treaty (signed on 1967)

[iv]Article II of the Outer Space Treaty (signed on 1967)

[v]Article IV of the Outer Space Treaty (signed on 1967)

[vi]Article I(d) of the Convention for International Liability for Damage Caused by Space Objects, (signed on 1971)

[vii]Article II of the Convention for International Liability for Damage Caused by Space Objects, (signed on 1971)

[viii]Articles 1 (c) to (d) of the draft treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects jointly submitted by Russia and China to UN conference on disarmament in February 2008

[ix]John Pike, the founder and director of GlobalSecurity.org

[x]Winner of the Distinguished Service Award from the International Institute of Space Law


Author Bio

Siddhartha Mitra is a 4th year law student from Symbiosis Law School, Hyderabad who has been blogging continuously for various websites around 2 years. Apart from being the founder of Legalguruexpert.in, he also blogs as a personal blogger and in his spare time, freelances by writing articles and research papers for prominent legal websites and journals.

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