Introduction

If talk about the ‘Space Age’, it began when Sputnik 1 was launched in an orbit around the earth by the former USSR, on 4 October 1957. Right from the start, states were worried that the scenes of war which had been ruling the earth since time immemorial would be extrapolated towards that fascinating new area now opening up for humankind to explore[1].

It is in that context that the United Nations, which became involved immediately after that event marking the birth of the “space age”1, has always insisted on the preservation of outer space for “peaceful purposes” and desired to avoid the extension of national rivalries into this new field. This principle of the use of outer space for peaceful purposes has ever since Sputnik been a leading principle that can be found throughout the legal instruments that have been formulated to regulate man’s activities in outer space[2].

It is also in that context that today, with several countries recently having carried out activities whose compliance with this basic principle seems at least debatable; this debate is placed firmly back on the world’s agenda.  

Political background and the distinction between civil and military use of space

As mentioned above, space law-making started in the early sixties, at the height of the Cold War, in an era characterized by mutual mistrust and fear. There were only two states active in this new arena, viz. the former USSR and the USA, the so-called ‘space powers’. Space activities really consisted of a ‘race’; a race to launch the first object into outer space (Sputnik 1 – USSR 1957), the first ‘earthling’ (dog Laika – USSR 1957), the first human (Yuri Gagarin – USSR 1961), the first human on the moon (Neil Armstrong – USA 1969), and so on. There was always this desire to show (military) superiority that boosted governments and scientists to go ever further, and this resulted in the space programmes of both countries reaching magic heights, literally speaking. The achievements in just 50 years of space exploration are immense[3].

One must also not forget that the budget for space activity in most countries was, and in many cases still is, provided by the military; a day-to-day space application like GPS (Global Positioning System)[4] is in fact a US military programme – and may in principle be switched off whenever US national security requires this.

Another feature that is specific for space activity is that many, if not most space applications can have dual uses, i.e. they can serve both military and civil purposes. An example is a so-called remote sensing satellite, which ‘observes’ the earth from outer space, usually from the geostationary orbit at approximately 36.000 km above the earth. Such satellites can observe landslides, deforestation, predict crops, map areas, and a range of other things, but can also spy on enemies, verify technological advances of other states, check out terrorist training facilities, or can even be used as a weapon. Thus it can become difficult to verify that the use fulfils the legal requirements set by law. It also explains the current situation with ITAR’s in the USA,   where regulations governing the international traffic in ‘arms’ are in fact paralyzing the space industry[5].

Main principles of space law

As said before, the drafting of outer space law was initiated immediately after the launch of the first object into outer space, as states were from the start convinced that regulation of man’s activities in outer space was necessary in order to preserve it from the terrestrial scenes of war.

Thus a total of five treaties was concluded under the auspices of the United Nations between the early sixties and the late seventies. They are:

• • The “Outer Space Treaty” of 1967  (also referred to as OST),[6]

• • The “Rescue Agreement” of 1968[7],

• • The “Liability Convention” of 1972[8],

• •  The “Registration Convention” of 1976[9], and

• • The “Moon Agreement” of 1979[10].

In addition to these Treaties, the UN General Assembly has adopted five Resolutions containing sets of ‘Principles’, dealing for instance with the use of Nuclear Power Sources (NPS), direct television broadcasting, or remote sensing. These Resolutions of course do not have the same binding force as a treaty, but since most of them were adopted by unanimity and have given rise to consistent state practice and opinio iuris, at least some of the principles contained therein have become binding at international law as ‘international custom’.

The five treaties mentioned above set the scene for the activities of man in outer space. They have all, except for the Moon Agreement , been ratified by a largenumber of states. The Outer Space Treaty is seen as the Constitution for outer space, its ‘Magna Charta’. The amazing thing about this Treaty is that although it was drafted more than forty years ago, in a field that is subject to technological revolutions so extreme and so fast that they were hard to imagine even for SF writers like Sir Arthur Clarke, its provisions are still relevant today, and are surprisingly broad enough to facilitate the most incredible range of space activities developing today. For instance, even though space activity at the time of drafting was very much a pure state activity, it was already foreseen that one day private entities would carry out space activities.

The other treaties more or less elaborate on principles already contained in the Outer Space Treaty. This is not the place to go into a detailed discussion of the treaties, but it is interesting to at least list a few salient features of space law. First, it is essential to know that in outer space, there is no “territorial sovereignty”, unlike on earth or in the airspace above the territory of a state; outer space is in principle “free” for exploration and use and appropriation is forbidden. Thus, the planting of a US flag on the moon by Neil Armstrong and Buzz Aldrin in 1969 did not imply that the moon had become US territory. An important ‘collateral’ of the freedom of use is that it must be carried out “for the benefit and in the interests of all countries”, and shall be the “province of all mankind” .

Interestingly, although airspace and outer space are characterised by diametrically opposed legal regimes (sovereignty in air law and freedom in space law), there is actually no precise boundary between airspace and outer space. The debate about the need for such a boundary has been ongoing within the UN for more than forty years, and a solution is not in sight – although the advent of space tourism might well accelerate the search for a solution.

Another important feature, also in the context of our topic, is that activities must be carried out in accordance with international law, including the UN Charter, in the interest of maintaining international peace and security and promoting international co-operation and understanding[11]. This means that provisions of the Charter such as Article 2.4 and Article 51 on the duty to refrain from the threat or use of force and the inherent right of self-defense are equally applicable to man’s activities in outer space.

The treaties also contain rules concerning responsibility and liability[12]. A state is responsible for ‘national activities’ in space, and a launching state is liable for damage caused by its space object to another state or its natural or juridical persons, whether that damage occurs in space, in the air or on the ground. It must be noted that space law only has a system of state liability, i.e. a private entity or a natural person cannot claim directly under the Treaties but must be represented by its state; this is yet again an important difference with the system of air law, where for instance a passenger who suffered damage on board an aircraft can present a claim for damage directly to the operator of the aircraft.

A system of dual registration has been elaborated, whereby states register an object they launch into outer space both in a national register and in a central UN register, and jurisdiction and control are exercised by the state of registry[13]. The requirements for registration are however not very detailed and there have recently been discussions about the need to improve these. The reason is that identification of defunct objects or parts of such objects could be easier if the details given during registration were more elaborate. This would greatly help in avoiding the growing problem of ‘space debris’, as it would be easier to identify the state which is supposed to ‘control’ the object it launched. Registration is also a subject of interest in terms of military use, because even though it is well known that space activity started out as (and to a large extent still is) a purely military activity, the number of satellites that have actually been registered as a military object is extremely limited if not non-existent. It is obviously much easier to register a remote sensing satellite as a tool for disaster management, rather than to register it as a spying satellite.

Specific provisions regarding the military use of outer space

Two of the space treaties contain specific provisions dealing with military use and use of weapons.

• • Article IV of the Outer Space Treaty states:

“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 maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for 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.”

• • And Article 3 of the Moon Agreement states:

“1. The moon shall be used by all States Parties exclusively for peaceful purposes.

2. Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited. It is likewise prohibited to use the moon in order to commit any such act or to engage in any such threat in relation to the earth, the moon, spacecraft, the personnel of spacecraft or man- made space objects.

3. States Parties shall not place in orbit around or other trajectory to or around the moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the moon.

4. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the moon shall also not be prohibited.”

The above implies that outer space is partially demilitarised; namely, nuclear weapons and other weapons of mass destruction are prohibited always and everywhere, i.e. in orbit, on a celestial body, or in any other way. Of course the problem is that the treaties do not contain any definition of these terms. On the other hand, celestial bodies must be used ‘exclusively for peaceful purposes’; this does not imply a complete ban on military use – although use must of course always be in conformity with the UN Charter, as stated in Article III OST. It raises the question what ‘peaceful’ means. Does it mean non-military? Or non-aggressive? This is yet another question that has given rise to decades of debate with the UNCOPUOS and has to this day not been solved. Basically, the view of the USSR was that ‘exclusively for peaceful purposes’ means ‘non-military’, and the USA rather held the view that it meant ‘non-aggressive’ because, they argued, some military uses of space, like reconnaissance, can actually contribute to peace and should therefore not be forbidden.

Military personnel and equipment may be used for peaceful exploration, which again seems to denounce a complete ban on military use of space in the treaties. Interestingly, Article 3 of the Moon Agreement reiterates Article 2.4 of the UN Charter in its paragraph 2, and extends that prohibition to the ‘use’ of the moon to commit or threaten to use force in relation to the earth or to a celestial body or an object or person in space.

 Of course the above is not an exhaustive enumeration of all relevant instruments, but it is intended to give an illustration of what rules apply to military uses of space.

Application in practice and recent developments

Even though a certain limit on the military use of space is contained in the space treaties, we must observe that this principle is continuously challenged in practice. Who does not recall President Reagan’s 1986 plans for a Strategic Defense Initiative (SDI), also known as ‘Star Wars’?  Can that qualify as ‘peaceful use of space’? It does not involve a nuclear weapon or a weapon of mass destruction, although one might argue that a laser beam can cause mass destruction.

Among the more recent examples, we can refer to the 2007 shootdown of an old weather satellite by China, and the 2008 shootdown by the USA of one of its own satellites which carried a hazardous gas that would not burn up on re-entry and thus pose a threat to health. There has been much debate about whether these were the true reasons behind the shootdown, or whether it was a testing of military capacity to shoot down an object far away in space. Possibly the truth lies somewhere in the middle, as if often the case[14].

Conclusion

It is undisputable that satellites are essential for nowadays’ military operations (Iraq, Afghanistan, etc.). Space has been, is, and will always remain, an area with so much military interest and involvement that it seems impossible to demilitarise outer space entirely. Efforts to do so are doomed to fail, and have done so until now. And perhaps there is some truth in the peace-keeping capability of some ‘military’ space activities.

 But Mankind must refrain from destroying the vulnerable balance of peaceful coexistence on earth and in space. It can do so by ensuring the creation of and adherence to adequate legal rules to govern its activities. Space holds so many wonders yet to discover, let us hope that we will be wise enough to do that in a spirit of cooperation and for the benefit of all mankind. Even though the current political climate as described in the preceding lines does not seem to justify such a positive thought, I insist in sharing it with you. Please pass the message!

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[1]   http://www.space.com/news/080221-asat-aftermath.html

[2]   http://www.space.com/news/070202_china_spacedebris.html

[3]   http://www.esa.int/SPECIALS/Space_Year_2007/SEMANZP11ZE_0.html

[4]    http://www.gps.gov/

[5]“ITAR’s failure” by T. Dinerman (17 March 2008 Article at http://www.thespacereview.com/article/1086/1

[6]   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 on 27 January1967, entered into force on 10 October 1967

[7]   Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature on 22 April 1968, entered into force on 3 December 1968

[8]   Convention on International Liability for Damage Caused by Space Objects, opened for signature on 29 March 1972, entered into force on 1 September 1972.

[9]   Convention on Registration of Objects Launched into Outer Space, opened for signature on 14 January 1975, entered into force on 15 September 1976

[10]   Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature on 18 December 1979, entered into force on 11 July 1984. See for thetext of all these treaties the website of the UN Office for Outer Space Affairs, at http://www.unoosa.org/oosa/en/SpaceLaw/treaties.html.

[11]   Article III OST

[12]   Article VI and VII OST. Liability is further elaborated in the Liability Convention

[13]   Article VIII OST. Registration is further elaborated in the Registration Convention.

[14]   Sense, nonsense, and pretense about the destruction of USA 193” by J. Oberg, March 2008, at http://www.thespacereview.com/article/1073/1