The Limits of Space Warfare
To boldly go where no litigant has gone before...
The 1991 Gulf War was considered the first space war, with US troops achieving victory by leveraging satellite technology which enhanced navigation and communication, and guided them through battlefields. [1] However, the military potential of outer space goes beyond supporting ground based military operations. Recent technological developments have created concerns for the risk such developments could pose to global peace, particularly in light of the inadequacy of international law as it stands to curb these worries.
Nature of Space Weaponry
Space weaponry refers to space-based weapons intended to attack space or ground-based targets, or anti-satellite (‘ASAT’) weaponry intending to damage satellites. [2] Space weapons include kinetic energy weapons that disintegrate their target, as well as directed energy weapons that disable or degrade their target using lasers, radiofrequency, or particle beams. [3] Ground-based military operations rely on satellites which also have peaceful purposes. The main legal issues concern the inadequate scope of current legislation which focuses on nuclear weapons or weapons of mass destruction (‘WMD’) rather than other forms of militarisation, such as conventional weapons. [4]
Legislation is needed to address the evolution of space warfare. Many countries have created national space military programs; including the United States Space Force, and those created as a response including Australia’s Defence Space Command. [5] These programs aim to protect the nation’s interests in space and signal greater interest in space’s military capacity , with Australia creating resilient mission systems to mitigate risks of attack. [6] Further, legislative instruments must address the rapid technical development of space weapons, as demonstrated by China, Russia, the US and India, which have all tested ASAT weapons by destroying their own satellites. [7] These tests have not only demonstrated these weapons’ capability, but also significantly damaged the space environment by creating debris. For instance, Chinese ASAT testing increased lower earth orbit debris by 20% and predicted collisions by 37%. [8]
Issues with The Current Legal Framework
The main legislative instrument governing space activity is the Outer Space Treaty (‘OST’), which has been ratified by 110 countries. It encourages peaceful use of space by establishing basic principles for space use. Article IV addresses this directly, prohibiting militaristic use of the moon and celestial bodies. [9] However, this does not promote complete demilitarisation, only prohibiting state parties from placing nuclear weapons and WMD in outer space. This requirement also excludes other parts of outer space. [10] States can still place conventional bombs in Earth’s orbit or use conventional weapons for ASAT purposes. Article II and V are more thorough regarding their specific issues, however, their scope is too narrow to significantly encourage space demilitarisation. Article V requires that states assist astronauts in case of ‘accident, distress, or emergency landing’, [11] meaning they cannot be held as prisoners of war. Article II targets potential space conquest by disallowing national appropriation of outer space. [12]
Other instruments supplement the OST and address space conflict through the context of their primary issues. This includes the Moon Agreement, promoting demilitarisation of the moon, [13] and the Rescue Agreement, building on Article V of the OST. [14] The Liability Convention elaborates on Art VII of the OST and requires State Parties to pay compensation if their space objects cause damage on Earth or to aircrafts. [15] Also, the principles of international humanitarian law (‘IHL’) apply to outer space, namely humanity, distinction, proportionality and necessity, requiring weapons to be used accordingly during wartime. [16] The IHL prevents space conflicts, but does not completely ban them. The distinction principle prohibits indiscriminate acts, banning attacks creating space debris due to its impact on civilian satellites. Regardless, disabling weapons can still be used. [17] The IHL’s main weakness is only providing protection within armed conflict. [18] The Environmental Modification Convention (‘ENMOD’) prevents military or hostile environmental modification that create widespread, long-lasting or severe environmental effects. [19] This only prevents some weapons, including those that create space debris. Similarly, the Partial Nuclear Test Ban Treaty (‘PTBT’) prohibits testing nuclear weaponry in space. [20] The PTBT is also not a comprehensive solution, only concerning nuclear weaponry. It does not regulate states placing or using outer space weapons. [21] As the law stands, it does not address the ambiguity of dual use satellites and whether they can be disabled for legitimate militaristic purposes. [22]
Future of Space Law
This growing threat has led to more nations preparing for potential conflict but has also encouraged more initiatives to control this issue. For example, Kamala Harris prohibited the US from conducting ASAT testing in 2022. [23] International cooperation to prevent further weaponization of space is evident, with the UN General Assembly adopting a resolution in 2020 focused on reducing space threats and preventing an arms race in outer space. [24] Though the future is unclear, actions are being taken in the right direction to protect global peace.
[1] Larry Greenemeier, GPS and the World’s First “Space War” (News Article, 8 February 2016) <https://www.scientificamerican.com/article/gps-and-the-world-s-first-space-war/>.
[2] Allan Rosas, ‘The Militarization of Space and International Law’ (1983) 20(4) Journal of Peace Research 357.
[3] Pope (n 2) 266.
[4] Ibid 285.
[5] Parliamentary Library, ‘The Ongoing Militarisation of Space’ (Research Paper, Parliamentary Library, Parliament of Australia).
[6] Shan Arachi Galappatthy, A year on for Defence Space Command (News Article, 3 March 2023) <https://www.defence.gov.au/news-events/news/2023-03-03/year-defence-space-command>.
[7] Michael Peterson, Anti-satellite weapons: the US has sworn off tests, and Australia should follow suit (News Article, April 21 2022) <https://theconversation.com/anti-satellite-weapons-the-us-has-sworn-off-tests-and-australia-should-follow-suit-181613>.
[8] Pope (n 2) 265.
[9] 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 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) art IV (‘Outer Space Treaty’).
[10] OST (n 9) art IV.
[11] Ibid art V.
[12] Ibid art II.
[13] The 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] (‘Moon Agreement’).
[14] The 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] (‘Rescue Agreement’).
[15] The Convention on International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961 UNTS 187 [entered into force 1 September 1972] (‘Liability Convention’).
[16] Pope (n 2) 277.
[17] Ibid 287.
[18] Ibid 284.
[19] The Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, opened for signature 4 October 1978, 1108 UNTS 151 [entered into force 5 October 1978] (‘ENMOD’).
[20] The Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, opened for signature 5 August 1963, 480 UNTS 43 [entered into force 10 October 1963] (‘PTBT’)
[21] Rosas (n 3).
[22] Pope (n 2) 281.
[23] Peterson (n 7).
[24] Prevention of an arms race in outer space: prevention of an arms race in outer space, GA Res 75/36, UN Doc A/RES/75/36 (7 December 2020, adopted 16 December 2020).