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As Threat of Militarisation Rises, International Community Races to Set Standards for Responsible Behaviour in Outer Space

Cornelis van Haperen | U. Nottingham School of Law, GB, AUGUST 11, 2022

The past decades have seen a growing interest in, and utilisation of, outer space. Ease of access to space has increased alongside the rise of more affordable and small-scale technologies, and as a consequence space has become a congested and competitive environment. This has resulted in an increase in the number of nations with space ambitions, while the proliferation of commercial space platforms and space exploration has also grown, even leading to Elon Musk’s capabilities to support Ukraine in its defense against Russia’s invasion, and the new phenomenon of space tourism. 

No longer is the space domain reserved for the original space-faring nations — the United States, Russia and the emerging global power China. It is also causing the increased militarisation of space (‘arms race’) with a number nations having formed new military commands and armed forces (e.g. Space Command and Space Force: USA, UK, France) and NATO having declared space a war-fighting domain in 2019. 

The proliferation of space objects and debris is resulting in a growing risk of collision and damage, while the activities of certain nations (Russia, China) [ed note – h ha – why not include USA?]pose increased threats and risks of conflict. Western Allies have realized that they rely more and more on space for all military activities, including collective defence, crisis response, disaster relief, and counterterrorism, and depend on information delivered from and through space. Militarily tensions seem to have been on the rise too. There are real concerns among the international rule-based nations about the challenging behaviours of Russia and China [ ha ha why not include USA?] wreaking real havoc in space which even resulted in serious endangerment of the lives of American and Russian astronauts at the International Space Station. 

This article will shed some legal light on the recent announcement by US Vice-President Kamala Harris that the US would refrain from conducting destructive direct-ascent anti-satellite missile testing (i.e. destroying satellites in space). Whilst this seems to firmly place destructive actions at the centre of recent debates, the growing conduct of non-lethal operations such as jamming and spoofing should not be discarded. This article will therefore concentrate more widely on the international legal framework and military use of space. The main issue that will be addressed is whether the increased militarisation of space requires better norms and rules to ensure the responsible and peaceful use of outer space. There will be a brief reflection on the United Nations organisations that are leading efforts to bring nations together in the development of such norms and rules and where the international community is going next. 

Military Use of Space – the Relevant Law?

It seems inherently contradictory to talk about military and weapons in the same breath as outer space. In December 1963, the UN General Assembly unanimously adopted a resolution recognising the common interest of all mankind in the progress, exploration, and use of outer space for peaceful purposes. These words resembled similar aspirations as defined in the Antarctic Treaty a few years earlier. The main difference was that this Treaty also spelled out the prohibition of military activities whereas resolution 1962 did not. It has therefore been unavoidable that two interpretations of the term peaceful have emerged: one arguing a complete ban of all weapons in space, while the prevailing view does not represent such a prohibition. 

Let’s place the increased militarisation of space in the appropriate context by defining the international legal framework for outer space and reflect on the legal underpinning of military activities within outer space. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Spaceincluding the Moon and Other Celestial Bodies, 1967, better known as the Outer Space Treaty (OST), and four other key treaties, commonly referred to as the outer space legal regime, together provide a legal foundation for ‘the expanding and increasingly complex tasks aimed at the exploration and use of outer space for peaceful purposes.’

In addition, the UN General Assembly has defined several principles as well as adopted various resolutions. Article I of the OST states that exploration and use of outer space, including the moon and other celestial bodies, is to be for the benefit of all mankind. Importantly, Article II clarifies that they shall not be subject to national appropriation and thus there can be no claims of sovereignty. The OST further states that the use of outer space, including the moon and other celestial bodies, shall be undertaken consistent with international law. This includes the UN Charter and is to conform with the UN’s purposes to maintain peace and security and the promotion of international co-operation. ………………………………………..

Preventing Bad Behaviour: Mitigating Risks of Damage and Threats of Escalation

It is often reported that debris in space is growing exponentially. The logical consequence of the increase in space activities is a growing risk of collisions with space objects, i.e. other satellites, and the creation and proliferation of new debris due to ever more launches. However, whilst some of this risk could arguably be mitigated through more cautious behaviour, there has also been a noticeable growth of capabilities to interfere with systems in outer space or even destroy them, and we have seen an upturn in deliberate malicious acts by actors seeking to affect the space activities of other nations. The most destructive forms are those of kinetic or physical counter-space weapons that directly hit satellites. ……………………………………………………

United Nations and National Leadership

The framework for state action in outer space is now far behind the technological possibilities, developments, and commercialisation of space. Nevertheless, the Proposed Prevention of an Arms Race in Space (PAROS) has been on the United Nations’ disarmament agenda for over four decades. Numerous nations have expressed their concerns about the harmful and damaging effects of this competition for space. While the discussions in the international community have intensified over the past decades these have not yet resulted in binding treaties or measures……………………………………………….. more

August 17, 2022 - Posted by | 2 WORLD, space travel

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