SPACE LAW
INTERNATIONAL SPACE LAW AND MILITARY USES OF OUTER SPACE PROFESSOR MELISSA DE ZWART, DEAN OF LAW, UNIVERSITY OF ADELAIDE
S
pace is an inherently dual use domain. Much of the technology we take for granted on a daily basis, including the now ubiquitous GPS tools used to navigate around town or record our running or cycling activity, is supported either wholly or in part by military technology and hardware. As we all know from popular culture, many of the early astronauts and cosmonauts were drawn from the ranks of their respective nation’s military, and this is still predominantly the case. Renowned US astrophysicist Neil de Grasse Tyson recently published an entire book devoted to the “unspoken alliance between astrophysics and the military’”, noting the many scientific and technological leaps forward that resulted from military science.1 De Grasse Tyson observes: “What propelled America to the Moon was not science or exploration, but fear and competition with the Soviet Union.”2 This same rivalry, and fear of its catastrophic potential, also led to the creation of international space law in the Outer Space Treaty.3 Despite this international treaty, and the four other space treaties that succeeded it,4 there remains significant confusion in the public mind regarding claims about the increasing “militarisation” of space and claims that such developments are inconsistent with international space law. Recent months have witnessed President Trump’s creation of a US Space Force in December, 2019,5 NATO’s characterisation of space as an operational domain6 and France’s creation of a space defence command.7 Such developments have led to a concern regarding space being normalised as a “warfighting domain”. At the same time, the Indian space program, operated through the Indian Space Research Organisation (ISRO)
10 THE BULLETIN March 2020
which had previously publicly declared that it was not involved in any military space activity, proclaimed in March, 2019 the arrival of India as a “space power” after the destruction of its own satellite in a project known as “Mission Shakti”.8 This test, which involved the deliberate destruction of its own fridge sized satellite in Low Earth Orbit (LEO) with a kinetic weapon, created dangerous fields of debris, posing hazards for the International Space Station and commercial users of space, such as Planet, whose high resolution satellite imagery has recently captured the devastation of the Australian bushfires.9 In a carefully managed propaganda statement, India’s Prime Minister Modi declared this test a success of the Indian space programme, one which “will make India stronger, even more secure and will further peace and harmony”.10 This discourse tracks the ambivalence of India’s assertion of space as a peaceful domain, through the celebration of a destructive event. The Official FAQ released by the Indian Foreign Ministry focused on the allegedly responsible manner in which the test had been conducted rather than the destructive nature of the test itself.11 That FAQ noted that “India has no intention of entering into an arms race in outer space. We have always maintained that space must be used only for peaceful purposes. We are against the weaponization of Outer Space and support international efforts to reinforce the safety and security of space based assets.” Further, it reiterated that India is a party to “all the major international treaties relating to Outer Space” and “already implements a number of Transparency and Confidence Building Measures (TCBMs)”.12 These developments highlight the
fragile nature of space as well as the lack of clarity provided by international space law regarding the legality of such actions. Whilst India’s actions were condemned by many, including NASA Administrator Jim Bridenstine and acting US defense secretary, Patrick Shanahan, there was no official State objection to India’s actions. This lack of official state response remains the grey area of space law, meaning there is little state practice to fill in the apparent gaps in the UN Space Treaties. The Outer Space Treaty provides very little clarity regarding where a line may be drawn between military and weaponised uses of outer space.13 Article 1 of the OST provides (inter alia): 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. Art III requires that all activities in the exploration and use of outer space are undertaken “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” Art IV prohibits the placement of nuclear weapons or other weapons of mass destruction in orbit around the Earth, on celestial bodies and in outer space. Further it states that 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, weapons testing and conduct of military manoeuvres on
