International space law and military uses of space Professor Melissa De Zwart

INTERNATIONAL SPACE LAW AND MILITARY USES OF OUTER SPACE

PROFESSOR MELISSA DE ZWART, DEAN OF LAW, UNIVERSITY OF ADELAIDE

Space 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 scientifi c 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 signifi cant 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 domain 6

and France’s creation of a space defence command. 7

Such developments have led to a concern regarding space being normalised as a “warfi ghting domain”. At the same time, the Indian space program, operated through the Indian Space Research Organisation (ISRO)

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 fi elds 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 bushfi res. 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 Offi cial 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 Confi dence 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 offi cial State objection to India’s actions. This lack of offi cial state response remains the grey area of space law, meaning there is little state practice to fi ll 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 benefi t and in the interests of all countries, irrespective of their degree of economic or scientifi c 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

Left: India's Mission Shakti was an anti-satellite missile test that successfully destroyed one of India's own satellites.

celestial bodies is forbidden, but the use of military personnel for scientific research and other peaceful purposes is permitted. This reference to “peaceful purposes” is reflected in two other places in the preamble to the OST, referring to the “common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes” and the “exploration and use of outer space for peaceful purposes”. Yet there is no clear consensus of what this means and how it may be implemented in practice.

In the absence of clear legal rules regarding permitted uses of outer space in a time of rising tension, various “soft law” instruments have been proposed to articulate acceptable practices. Yet these

soft law proposals reflect different political and technological philosophies and may not have the neutral application that they claim. The Prevention of an Arms Race in Outer Space (PAROS) has been a standing agenda item in the Conference on Disarmament (CD) since 1982. 14

An ad hoc committee of the CD was formed to specifically address matters relevant to this topic between 1985 and 1994, however no progress was made in that committee nor generally by the CD with respect to the matter of space-related security. 15

A revived PAROS process in 2018-2019 appears equally to have finished without clear outcomes. Other initiatives include: the UN Group of Governmental Experts (GGE) formed by UNGA Resolution

65/68 in 2011 to study transparency and confidence-building measures (‘TCBM’) for outer space activities with a mandate “to conduct a study ... on outer space transparency and confidence-building measures”, 16

an annual resolution on the “[p]revention of an arms race in outer space” submitted by Egypt and Sri Lanka at the CD for over 30 years, 17

Russia’s annual (since 2014) resolution on “[n]o first placement of weapons in space”, 18

the European Union draft Code of Conduct for Activities in Outer Space first released as a draft in October, 2010 and a revised version in 2014, 19

and the Russia and China sponsored draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against

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Defense Satellite Communication System satellites. (U.S. Air Force illustration)

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None of these initiatives have attracted universal acceptance and the gaps remain.

Thus, despite the long history of space law and the attention devoted to issues of military and non-military uses of outer space, there is a lack of clarity surrounding these uses. It seems likely that in a time of increased use of outer space by commercial providers, as the space domain itself becomes both more valuable and more congested, that the answers to these questions will become more vital. It is hoped that an increased attention to the importance of international and domestic space law will lead to a more certain understanding. Certainly, it appears that whilst there is little international appetite for a new multilateral treaty, there is a corresponding discord surrounding the soft law instruments. B

Endnotes 1 Neil De Grasse Tyson and Avis Lang, Accessory to War: The Unspoken Alliance Between Astrophysics and the Military, WM Norton & Company Inc, New York, 2018. 2 Ibid, 379. 3 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27 1967, 18 U.S.T. 2410, 610 U.N.T.S 205 (entered into force 10 October 1967) (the ‘Outer Space Treaty’). 4 Rescue and Return Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, 672 UNTS 119 entered into force 3 December 1968); Liability Convention (Convention on the International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961 UNTS 187, entered into force 1 September 1972); the Registration Convention

(Convention on Registration of Objects Launched into Outer Space, opened for signature 14 January 1975 entered into force 15 September 1976) and the Moon Agreement (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, 1363 UNTS 3 entered into force 11 July 1984). 5 Marina Koren ‘The U.S. Space Force Is Not a

Joke: It’s not all President Trump promised, but it exists now’ The Atlantic (online) 15 January 2020, https://www.theatlantic.com/science/ archive/2020/01/space-force-trump/604951/ . 6 Daniel Boffey ‘Nato leader identifi es space as the next ‘operational domain’’ The Guardian (online) 21 November 2019, https://www.theguardian. com/world/2019/nov/20/nato-identifi es-spaceas-next-operational-domain. 7 BBC News, ‘France to create new space defence command in September’, 13 July 2019, https:// www.bbc.com/news/world-europe-48976271. 8 George Dvorsky ‘India declares itself a “Space Power” After Shooting Down its Own Satellite’ Gizmodo, 28 March 2019, https://gizmodo.com/ india-declares-itself-a-space-power-after-shootingdo-1833605002 9 https://www.planet.com/disaster/fi res-inaustralia-2019-11-06/ . 10 Eric Berger, ‘India shoots down a weather satellite, declares itself a “space power”’ Ars Technica, 28 March 2019, https://arstechnica.com/science/2019/03/indiashoots-down-a-weather-satellite-declares-itself-aspace-power/; Narendra Modi, Twitter, 27 March 2019: ‘#MissionShakti is special for 2 reasons: (1) India is only the 4th country to acquire such a specialised & modern capability. (2) Entire effort is indigenous. India stands tall as a space power! It will make India stronger, even more secure and will further peace and harmony.’ https://twitter.com/narendramodi/ status/1110801488559759360. 11 Ministry of External Affairs, Government of India, Frequently Asked Questions on Mission Shakti, India’s Anti-Satellite Missile test conducted on 27 March, 2019, 27 March 2019, https://mea.gov.in/pressreleases.htm?dtl/31179/Frequently+ Asked+Questions+on+Mission+Shakti+Indias +AntiSatellite+Missile+test+conducted+on+ 27+March+2019. 12 India has ratifi ed the Outer Space Treaty, the

Rescue and Return Agreement, the Liability Convention, the Registration Convention, and is a signatory to the Moon Agreement, Committee on the Peaceful Uses of Outer Space Legal Subcommittee Fifty-eighth session, Vienna, 1–12 April 2019, Status of International Agreements relating to activities in outer space as at 1 January 2019, A/ AC.105/C.2/2019/CRP.3. 13 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27 1967, 18 U.S.T. 2410, 610 U.N.T.S 205 (entered into force 10 October 1967) (the ‘Outer Space Treaty’). 14 Paul Meyer, ‘Dark Forces Awaken: The Prospects for Cooperative Space Security’ (2016) 23 (3–4) Nonproliferation Review 495, 496. 15 Ibid. 16 Transparency and Confi dence-Building Measures in Outer Space Activities, GA Res 65/68, 65th sess, Agenda Item 97(y), UN Doc A/RES/65/68 (11 January 2011) 2 para 2, Transparency and Confi dence-Building Measures in Outer Space Activities, GA Res 68/50, 68th sess, Agenda Item 99(c), UN Doc A/Res/68/50 (10 December 2013) (‘Resolution 68/50’); Report of the Group of Governmental Experts on Transparency and Confi dence-Building Measures in Outer Space Activities, UN Doc A/68/189 (29 July 2013). 17 Final Record of the One Thousand Three

Hundred and Sixth Plenary Meeting, UN Doc CD/PV.1306 (18 February 2014) 6. 18 No First Placement of Weapons in Outer Space, GA Res 69/32, 69th sess, Agenda Item 94(b), UN Doc A/RES/69/32 (11 December 2014). 19 Council of the European Union, Council

Conclusions on the Draft Code of Conduct for Outer Space Activities, Doc No 17175/08 (17 December 2008) annex I; Council of the European Union, Council Conclusions of 27 September 2010 on the revised draft Code of Conduct for Outer Space Activities, Doc No 14455/10 (11 October 2010); International Code of Conduct for Outer Space Activities: Version 31 March 2014, Draft (31 March 2014) <https:// eeas.europa.eu/sites/eeas/fi les/space_code_ conduct_draft_vers_31-march-2014_en.pdf>, archived at https://perma.cc/7XZC-MK94. 20 Conference on Disarmament, Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, UN Doc CD/1985 (12 June 2014).