By Naman Singla (III Year, Rajiv Gandhi National University of Law, Patiala)
Introduction
Public International law (“PIL”) in the recent times is spreading its arms to new arenas to regulate the conduct of the state actors beyond territorial boundaries. Space law is one such subset of PIL which regulates the state activities beyond the Earth’s Atmosphere. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including Moon and Other Celestial Bodies (Outer Space Treaty) signed in the year 1967 with currently 113 parties, forms the foundation for the space law and seeks to regulate and control the outer space activities conducted by states. At the start of the space era, only USA and USSR were active players, but now newly aspiring space faring nations have jumped on the bandwagon. Increase in the number of space faring nations led to an inadvertent increase in the number of problems. As the new space race accelerates, nations rely heavily on the outer space making it even more strategic where nations are battling to dominate their positions militarily. While this is achieved through a plethora of ways, one hostile approach adopted by nations is the launch of military satellites with specialised weapons in guise of civilian use, threatening the very basis of treating space as a ‘common heritage.’ As John F. Kennedy wrote, “The Deadly arms race, and the huge resources it absorbs, have too long overshadowed all else we must do. We must prevent that arms race from spreading to new nations, to new nuclear powers and to the reaches of the outer space.” Through this piece, author tries to extrapolate on the threat of space war using latest technologies with a special focus on laser satellites which if not regulated would have devastating effects on the whole humanity. Author tries to find the inadequate legal provisions in the outer space law and suggest some measures to make the use of outer space peaceful and beneficial for all.
Laser Enabled Satellites: The Emerging Threat
Space is internationally identified as a ‘Province of all mankind’ wherein, each state has equal right of exploration and freedom by ensuring the principles of ‘common good’ and ‘equity.’ The deployment of satellites by various nations is an expression of this freedom to explore and harness the potential of outer space. However, there is a concerning trend in recent times, whereby states are pursuing the development and deployment of weaponized satellites in outer space. Among these developments, the preparation and deployment of laser-enabled satellites stand out as a particularly disconcerting development. One noteworthy instance of this trend is the recent endeavor by the United States Air Force to develop a novel laser-enabled space weapon, which is designed to incapacitate adversary satellites by emitting laser beams capable of dazzling, blinding, and rendering them inoperative. Regrettably, this technological pursuit is not confined to the United States alone; other major spacefaring powers such as Russia and China are also advancing similar capabilities, launching satellites equipped with laser systems.
The complexity of this issue intensifies when these satellites are imbued with dual-use capabilities. The term "Dual-Use satellites" characterizes a unique category of spacecraft with the inherent capacity to serve both military and civilian functions. These versatile platforms are engineered to fulfill a spectrum of roles, encompassing not only military reconnaissance and surveillance but also civilian applications, such as remote sensing and the provision of global internet connectivity.
The danger posed by these dual use satellites needs to be combated by the international community. A significant proportion of Communication Satellites, which have a role to relay communication signals between different points on Earth and do not typically have military functionalities, are strategically positioned in the Lower Earth Orbit (LEO), which is located at an approximate altitude of 1200 miles above the Earth's surface. It is worth noting that dual-use laser satellites are also often placed in the LEO. States potentially can classify these satellites for satellite communication purposes, and the choice of positioning them in the LEO provides them with a distinct advantage. This advantageous placement in the LEO will grant dual-use satellites a comparative edge in their capacity to engage in offensive actions, such as targeting and potentially destroying other satellites stationed in this orbit. The ramifications of such a scenario becoming a reality are profoundly concerning. Even a single incident involving the blinding of a vital satellite by a laser beam emitted from another satellite could disrupt the essential services provided by that satellite to Earth. This disruption could inadvertently lead to a situation resembling the "Tragedy of the Commons," wherein each state actor, in pursuit of its freedom and strategic advantage, may resort to measures that harm other nations, ultimately undermining the principle of peaceful use in outer space[1]. For instance, if State X deploys a laser-enabled satellite for its military communications, with the dual capability of satellite-to-satellite laser emissions, State Y might feel compelled to respond by placing a similar dual-use satellite in outer space, either for defensive or preemptive purposes. This tit-for-tat escalation could erode the peaceful nature of outer space and contribute to a growing arms race in this critical domain.
The pressing question that arises is whether there exist legal provisions to address and prevent such situations, preserving outer space as a realm of cooperation rather than confrontation. The challenges posed indeed prompted international efforts to establish legal frameworks and agreements, that is discussed in the following section.
Legal Provisions
Article 1 OST makes the use of Outer Space free for all nation as a Province of all mankind. To safeguard this principle, it was pertinent to ensure that no state transgress its limit and dominates the outer space. To affix the liability on the states, in case of a breach of the principle, easy identification of space objects was mooted through the Registration Convention, which made it mandatory for all states to register all the satellites launched into outer space, wherein the purpose of the satellite is scrutinized, classified, and registered. The extended object of the Registration Convention is to furnish international cooperation, which aids in building Transparency and Confidence Building Measures (TCBMs) between nations. However, contemporary challenges have arisen with the emergence of dual-use satellites. This dual-purpose nature of the satellite, as discussed above, complicates satellite classification, sometimes leading to the launch of military satellites disguised as civilian ones. The drafters of the Registration Convention in 1962 did not foresee this innovation, and this gap holds immense potential to be misused by the states. These dual use satellites get placed in the orbit with the intent of military advantage and capability of destroying other satellites.
In order to prevent the destruction, OST sets out obligations upon states for peaceful use of the outer space, observing the principle of non-militarization of the common heritage. This principle enunciates from the Article IV OST which reads as:
“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 manoeuvres 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.”
Article IV of the Outer Space Treaty (OST) indeed prohibits the placement of "nuclear weapons or any other kinds of weapons of mass destruction" in outer space. However, the term "Weapons of Mass Destruction" (WMD) lacks a universally agreed-upon legal definition in international law. Weapons are considered to be WMD if they inflict damage similar or equivalent to a nuclear attack in space or have long term consequences. Thus, considering the existing scenario where space weapons are being developed to inflict considerable damage to specific target, the vacuum as to legal uncertainty on WMDs leaves immense scope for potential misuse by the states. The issue escalates further upon a careful examination of Article IV(2) of the Outer Space Treaty (OST), which notably excludes the phrase "outer space" and instead mentions "celestial bodies." This omission raises concerns, as it could be interpreted to imply that the placement of laser-enabled weapon satellites in outer space may not directly contravene the prohibition stipulated in Article IV of the OST. This needs to be combated through appropriate international consensus and reformative steps. Given the evolving nature of space technology and the increasing militarization of outer space, it is imperative for the international community to engage in discussions and negotiations aimed at clarifying and strengthening the legal framework governing outer space activities.
Suggestions and Conclusions
Weighing on the potential threat of these technological advancements, there is a dire need to regulate the states’ conduct when it comes to situation of international importance. The commendable step in this regard was the 13th May 2022 meeting of the Open-Ended Working Group on Reducing Space Threats (OEWG) by the UN, which aimed to regulate threat by states to space systems including the prevention of an arms race to the outer space. This was a step further from previous discussions, however, there is long road to be covered. Vagueness in the drafting of the OST and the void gap between inadequate prohibitions and dynamic technology should be resolved through an international consensus in banning space weapons, co-orbital technologies (like laser) and come up with verification mechanism to ensure the due compliance. This verification should include space governance by space faring nations to ensure that no private entity produces space weapons, impose self-bans on production of laser satellites, verifying the purpose of dual use satellites appropriately to the UN registry. The opened pathway through the discussions held earlier should be put to use in formulating a binding treaty and resolve the disputes concerning the armed attacks, legality of dual use satellites and in this regard and the momentum created should be utilised to make outer space less competitive and more beneficial for all humankind.
Endnotes
[1] Kelly A. Gable, Rules Regarding Space Debris: Preventing A Tragedy of The Commons, G. Hardin, The Tragedy of The Commons: The Population Problem Has No Technical Solution; It Requires A Fundamental Extension In Morality, 162 Science J. (1968).