Examining Space Law & its Implications
Wg Cdr KK NairWg Cdr KK Nair
Examining Space Law Abundance of resources in space & also
potential for competition, rivalries, conflicts etc.
Hence, legislation regulating OSA initiated. Initial efforts at space law used historical legal
analogies of Air, Sea and Antarctic treaty. Air & Sea analogies implied treating space as
open to mil activity accepted under international law, while Antarctic implied treating space as “off-limits” for all military activity.
Environment of space unique, hence though fundamentals of space law draw on all 3 analogies, it maintains a distinct character.
Space Law an amalgamation of many fields of law like int law, law of torts, contracts, property etc & primarily a derivative of various treaties and conventions, customary int law & principles.
Described by the UN as ‘the body of law applicable to and governing space related activities’.
Primary goals of space law are ‘to ensure a rational, responsible approach to the exploration & use of outer space for the benefit and in the interests of all humankind.’
Two areas of space law.
International & Domestic Space Law
International: Governs the activities of states and international, intergovernmental orgs.
Domestic: Governs activities of individual countries and their nationals.
DSL are national efforts and hence have clearly defined enforcement mechanisms, penalties etc. ISL provides commonly accepted rules &guidelines for nations to deal with each other, hence it is determined by willingness of nations to cooperate.
Hence 4 basic premises guide application of ISL;
Arms control treaties bind only those who agree to them.
Activities not expressly prohibited by treaty or agreement are assumed to be permitted.
Treaty provisions are often subject to self serving interpretations.
States may withdraw from a treaty in accordance with the treaty’s provisions for doing so or as necessary to defend itself during hostilities, unless the treaty specifically requires otherwise.
Treaties Principles
OST-1967.Rescue Agreement -1968.Liability Convention-1972.Registration Convention-1975.Moon Treaty-1979
Governing activities of states in exploration and use of outer space – 1963.Governing use by states of artificial earth satellites for indirect TV broadcast -1982.Relating to remote sensing -1986.Relevant to use of Nuclear power sources -1992Int cooperation in exploration and Use of space.
Agreements1963 NTB - Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water.1974 BRS - Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite.1971 ITSO - Agreement Relating to the International Telecommunications Satellite Organization (ITSO).1971 INTR - Agreement on the Establishment of the INTERSPUTNIK International System and Organization of Space Communications.1975 ESA - Convention for the Establishment of a European Space Agency (ESA).1976 ARB - Agreement of the Arab Corporation for Space Communications (ARABSAT).1976 INTC - Agreement on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes (INTERCOSMOS).1976 IMSO - Convention on the International Mobile Satellite Organization.1982 EUTL - Convention Establishing the European Telecommunications Satellite Organization (EUTELSAT).1983 EUM - Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT).1992 ITU - International Telecommunication Constitution and Convention.
Primary Constituents of International Space LawPrimary Constituents of International Space Law
Space Legislation Regulating Military Activities
Articles 2 & 51 of UN Charter. LTBT-1963. OST-1967.→Art-1: OS, Moon & others free for use by all.
→Art-2: Above not subject to national appropriation.
→Art-3: All space activities under ISL+UN Charter.
→Art-4: Not to place in Earth orbit objs carrying ‘N’ wpns or WMD, install same on celestial bodies or station such wpns in OS in any other manner..
→→Art-7: States are internationally liable to another state for damage caused by its space objects.
→Art-9: Consult before conducting potentially harmful interference activities.
→Art-12: Space vehicles, equipment etc open to inspection on basis of reciprocity.
Registration Convention. Astronaut Rescue Agreement. EnMod Treaty.
The Law & its Implications
Art-2 (UN Charter): Unlawful to interfere in hostile manner with OS assets of others.
→Art-51allows use of ‘military force’ to defend against hostile action.
Art-4 (OST): Not to place in ORBIT objects carrying ‘N’ wpns or WMD…..
→Implies: objects carrying same can freely transit OS, Non ‘N’/WLD wpns may be placed in orbit to
attack tgts in space or Earth. Hence KEW, DEW, armed aerospace vehicles etc permitted.
→ Implies No direct ban on non-nuclear ASATs or anti-missile weapons, whether space or Earth based.
Establishment of military bases, installations, fortifications… prohibited on the Moon & celestial..
→ Implies same permitted in OS, hence orbiting platforms like the ISS can have military bases, fortifications etc. Satellites to perform all manner of military functions like ISR, communication, navigation etc legal.
→ Implies No direct ban on testing of conventional military weapons in space.
Legislation Principle/ Constraint Remarks
UN CHARTER (1947)
* Article 2(4) of the U.N. Charter prohibits the threat or use of force in international relations.
* Article 51 codifies the right of self-defence in cases of aggression involving the illegal use of force by another state(s).
LTBT (1963) * Bans nuclear testing and nuclear explosions (both peaceful & otherwise) in space.
Contains no verification provision
OST (1967) * Bans deployment of nuclear weapons & WMD in space. Allows deployment of non-nuclear, non-WMD, conventional & other weapons including non- nuclear ASAT’s and other satellites performing passive military functions like ISR, communication, navigation etc.
-do- * Bans creation of military bases, installations and fortifications on celestial bodies.
Permits creation of military bases like space-stations in orbit.
-do- * Bans testing of N/WMD weapons on celestial bodies. Permits testing of conventional weapons in space.
-do- * Directs states to conduct international consultations before proceeding with activities that would cause potentially harmful interference with activities of other parties.
Effectively contains peace time jamming, spoofing, disruption etc. However, ‘harmful interference’ not defined.
-do- * Bans apportioning of space or celestial bodies. Ban on space resources is ambiguous since spatial locations, frequency spectrum, solar power etc are already in military use.
Registration convention.
* Ban on launching space objects without notifying the UN. Countries like Israel have not ratified it.
EnMod * Bans engagement in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party
Non- military EnMod activities could be as damaging as military EnMod activities.
ITU Civil Sats protected from intereference. Mil use of civil sats rampant.
→ Space perceived as high ground for delivery of Ordnance and Observation. (Sputnik)
Initial Perceptions on Utility of Space
Military Perceptions Across the Globe Regarding Utility of Space
Role Typical Airpower mission Percieved Space missions
Control of environment Counter Air missions Counter Space missions
Applying combat power Air-based force application Space-based force application
Multiplying combat power Airborne combat support Space based terrestrial combat support or Force enhancement
Sustaining combat force Support operations Space support operations
→ Above precepts, drive militarisation & weaponisation of space.
→ Above also not recent phenomena, going by historical and empirical evidence.
Satellite Number of Satellites-Year wise First Soviet launch date.
1958 1959 1960 1961 Total
US USSR US USSR US USSR US USSR US USSR
Comm 01 00 00 00 02 00 00 00 03 00 1964
Nav 00 00 01 00 01 00 03 00 05 00 1967
Photo-Reccee
00 00 06 00 06 00 13 01 25 01 1962
Early Warning
00 00 00 00 02 00 03 00 05 00 1971
Met 00 00 00 00 02 00 01 00 03 00 1963• Within first few years, most possible space based military missions of ordnance delivery (BM/FA), dedicated mil sats for FE, & battles for control of space (ASATs) already in place.
• Vide Project Argus (1958), US detonated ‘N’ devices in space to disrupt enemy ICBMs. By 1962 Soviets also detonated 03 devices.
•By 1967, both had successfully conducted ASAt experiments.
•Thus, OST & other treaties built upon prevailing Status Quo in space & hence military allowances.
Prevailing RealitiesPrevailing Realities Military allowances made by OST exploited by
nations since the dawn of space age. The number of nations exploiting likewise has
increased as never before. Semantic Confusion on terms & definitions
prevails. Military, civil & commercial Space activities
strongly intertwined (sats, SLVs, LR); multi role, multination etc. Discrimination extremely difficult.
Legal lacunae being exploited variously & vigorously.
Revival of Interest in ASATs
54 ASAT tests during ‘Cold War’. Last in 1985
Negotiations on legal instrument for banning weapons in space at CD deadlocked since 1998.
22 year Moratorium on destructive ASAT tests broken by China in 2007
The US took it a step further in 08. Comparing the Chinese & US test.
The Final Straw Comparing the Chinese & US test.
Hence, ‘to close existing gaps in the legal frame work, China & Russia submitted draft PPWT treaty’.
Terms Chinese Test (Jan 07) US Test (Feb 08)
Semantic “Experiment” “Engagement”
Legal Abrogated Art-IX of OST Adhered to Art-IX of OST
Tech & Mil
Crude ASAT Test Precise ASAT Test
Diplomatic
International Uproar International Silence, Approval, Mild disapproval.
Physical Debris Littered No lasting debris due altitude.
OST (Article-IV) PPWT (Article-II)
“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”.
“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.”
•
PPWT defines Weapon as “Any device placed in outer space, based on
any physical principle, specially produced or converted to eliminate, damage or disrupt 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.”
Only covers placement of Weapons in OS, not Only covers placement of Weapons in OS, not Weapons (ASATs) targeting space objects from Weapons (ASATs) targeting space objects from Air, land, sea.Air, land, sea.
Also does not cover manouevering objects Also does not cover manouevering objects which escape and re-enter space orbit. (CAV)which escape and re-enter space orbit. (CAV)
Expect treaty prohibiting R&D on ASATs.Expect treaty prohibiting R&D on ASATs.
The Bottom Line Last significant treaty constraining military
activities negotiated 40 years ago. With 02 States, it took 10 yrs to arrive at
OST, with over 100 state & non-state stakeholders, how many years would it take?
The issue is lack of political will & not the absence of legal options.
The OST-67 can be changed (reviewed, amended etc) to accommodate anything that is not illegal at international law.
Need for Unity of Thought.
Country International Space Treaties Significant International Agreements
OST ARRA LIAB REG MOON NTB BRS ITSO IMSO ITU
USA R R R R - R R R R R
RUS R R R R - R R R R R
CHN R R R R - R - R R R
JPN R R R R - R - R R R
IND R R R R S R - R R R
ISRL R R R - - R S R R R
ESA - D D D - - - - - -
International Space Law in the Indian ContextInternational Space Law in the Indian Context
→International Space Law does not constrain us at present or even in the near future & nothing stops us from “peaceful uses” which apply to everybody else.
““Thank You for Allowing me Thank You for Allowing me to Share my Ignorance”to Share my Ignorance”
