There is a dire need to revisit treaties governing our space to protect our extra-terrestrial security interests and scale down militarisation

by Raghav Pandey 

On May 23 this year, the United States (US) successfully launched 60 of its Starlink internet satellites. Starlink is one of the most ambitious projects of Space X, the private rocket company of high-tech entrepreneur, Elon Musk. The aim of the firm is to launch as many as 2,000 satellites per year, with the ultimate objective of placing up to 12,000 of such satellites into the orbit. Space today has been a witness to numerous projects that are funded by both Governments and private, commercial entities. In the present era of boundless technological capabilities, the use of the outer space for military purposes has become a cause of concern.

“It is not enough to have an American presence in space, we must have American dominance in space,” US President Donald Trump said, adding that he didn’t want to see “China and other countries leading us.” With this aim, the Trump administration is in the process of creating a US Space Force, the sixth branch of the US military service, which will undertake missions and operations in the rapidly evolving space domain.

With a global quest for military supremacy and dominance, other space-faring countries have not remained mute spectators. Take the example of India, which recently launched an anti-satellite (ASAT) weapon on March 27. Indian military scientists successfully destroyed a low-Earth orbit satellite in space by using a missile which covered a distance of 300 km to engage the target. In a televised address, Prime Minister Narendra Modi said, “India has entered its name as an elite ‘space power’. An anti-satellite weapon, ASAT, successfully targeted a live satellite on a low-Earth orbit.”

ASAT weapons can be used in warfare as they have the capability to incapacitate or destroy enemy satellites for strategic military purposes. With the recent accomplishment, India became the fourth country to possess such a weapon alongside the US, Russia and China.

Given the increased militarisation of space and the immense threat it poses to nations across the world, it is essential to take a look at the laws which govern the military use of space. The use of space is governed by five space-related international treaties of the United Nations. One of them, the Outer Space Treaty, came into effect in 1967 and was signed by most nations on the globe. It has been signed and made official, or has been ratified, by 105 countries across the world. With regard to the use of space, the treaty prohibits military manoeuvres, weapon testing, establishment of military bases, installations and fortification on celestial bodies. Moreover, objects carrying nuclear weapons or any other kind of weapons of mass destruction is forbidden in the orbit.

However, the use of military personnel — any equipment or facility on the celestial bodies — is not forbidden unless used for peaceful purposes. So far, the treaty has worked well but lacks clarity on several issues, which has left plenty of wiggle room.

Questions have been raised as to what constitutes “mass destruction”; whether the outer space can be used for exploration of resources to be used in military machinery; if weapons of mass destruction can be placed in space without fully achieving orbit; and what about weapons that would not cause mass destruction? The treaty remains ambiguous in some crucial aspects about the use of the space.

Another issue that has attracted much debate in the arena of public international law is “peaceful purposes.” According to the treaty, the outer space is a “common heritage of mankind” and is to be used exclusively for “peaceful purposes.” However, the term, “peaceful purposes” lacks clarity of definition. There has been a plethora of debates to decide whether the term is supposed to adopt the ideology of being “non-aggressive” or “non-military.” Majority view it as “non-military” but the same has not been substantiated upon any of the space treaties.

Another treaty, commonly known as the ‘Moon Treaty’, falls within the overarching ‘Outer Space Treaty’. The ‘Moon Treaty’ specifically is applicable to the Moon and other celestial bodies in the solar system excluding planet Earth. It explains that these bodies should be used exclusively for peaceful purposes; that their environments should not be disrupted; and that the UN should be informed of the location and purpose of any station established on those bodies. It also plugs a loophole in the Outer Space Treaty by banning ownership of any extra-terrestrial property by any organisation or private person, unless that body is international or Governmental.

However, the most controversial part of the ‘Moon Treaty’ pertains to the natural resources on the Moon. It provides that the Moon and its natural resources are the common heritage of mankind and harvesting of these riches is prohibited except by way of an international regime established to govern the exploitation of such capital. The exact nature of this regime is not detailed, nor the term “resources” is defined.

It becomes a cause of concern for the international community when the ‘Moon Treaty’ is neither signed, acceded to, nor ratified by any of the space-faring nations. Also, the ambiguity of the provisions of the treaties can leave the nations to interpret the provisions in a way that complements their self-interest in the issue.

Take the example of the US’ National Space Policy. On the one hand, it emphasises the country’s commitment to the exploration and use of outer space by all nations for peaceful purposes but at the same time, it declares US’ defence and intelligence-related activities in pursuit of national interests to be consistent with “peaceful purposes”.

Ever since the treaties were formulated in the 1960s, there was a limited view of the potential of utilisation of the outer space. But with rapid advancements in the use of technology and intelligence in the space, there is a dire need that the laws governing the use of space be revisited so as to address some important space issues of the 21st century like that of mining, space tourism, Artificial Intelligence and intellectual property of space resources among other things. Meanwhile, the international community can only live in the hope that the world does not see warfare and attack missions in space.

The creation of an international regime, much like the World Trade Organisation, is the need of the hour. An international platform needs to be set up wherein deliberations on peaceful use of space can be taken up through negotiations. Since only four countries officially have the ASAT technology, negotiations must start among them.

It is highly possible that an Non-proliferation Treaty (NPT)-type of regime may be established, wherein ASAT’s powers are recognised and further militarisation of the space may be scaled down. India needs to exercise its diplomatic heft to materialise the same because then the country’s strategic and security interests will also be secured while discouraging further space militarisation.

Raghav Pandey is an Assistant Professor and Anoushka Mehta is a student at Maharashtra National Law University, Mumbai