Was the Indian ASAT Test Legal? What about the 2007 Chinese ASAT test?

Was it legal for India to conduct an ASAT test which created hundreds of detectable fragments of debris at a 250 km orbit, some of which may remain in orbit for up to a year? Of course it was. Just like the US test in 2008 was legal (which was also at around 250 km). UN Debris Guideline #4 provides cover for low-altitude ASAT tests by only asking countries to avoid against “harmful activities that generate long-lived debris.”

What is today accepted as “short-lived debris” may nevertheless pose a risk to satellites.  Explosions at 250 km will inevitably shoot some debris into higher orbits and this may be too close for comfort.  Remote sensing satellites (which have flown in orbits as low as 150 km in order to get closer to their subjects) face even greater risks from low-altitude ASAT debris.  In light of this, the international community must continue to strengthen the rules around even these low-altitude ASAT tests. 

But now let’s move on to a far more important question: Was the 2007 Chinese ASAT (at 865 km) test legal? A spokesman for Prime Minister Tony Blair made the clearest statement on the legality of the Chinese test just days after the test: “We believe this [test] does not contravene international law.”

Despite the consensus that the test was legal, I disagree. Article IX of the OST requires that parties to the treaty conduct all of their space activities “with due regard for the corresponding interests of all other States Parties to the Treaty.”  How could polluting LEO with thousands of destructive pieces of debris for hundreds of years possibly qualify as operating “with due regard”?   

There are other arguments that such ASAT tests violate existing international law.  Here is a quote from Prof. Aoki Setsuko:

“ASAT attacks producing significant amounts of space debris that may affect the orbital environment for decades could be classified as a prohibited method or means of armed conflict under Art. 35(3) of [the Additional Protocol I to the Geneva Conventions of 1949] depending on the definition of the “natural environment.” (Routledge Handbook of Space Law p. 223)

Here is the law referred to by Prof. Aoki:

“It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”

There are certainly other arguments, such as those based purely on international environmental law.  Please share those arguments in the comments below. I am very interested in your thoughts.  It’s time to move this conversation forward.

Mark J. Sundahl

9 thoughts on “Was the Indian ASAT Test Legal? What about the 2007 Chinese ASAT test?”

  1. So here is the relevant actual text from Article IX:
    “If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.”

    Right away, this is clearly inconsistent with States using ASATs against each other’s satellites. But that’s not happened yet.

    As regards testing, in the Soviet coorbital tests there was no reason to expect these to cause harmful interference with any other nation’s satellites. Therefore no implication, let alone “an unwritten, legally-binding practice that national security activities are exempt from Article IX” can be taken from the fact that consultations were not called for. In the case of the 1985 US test, there would likewise be no implication unless some nation’s satellite was specifically imperiled by the test.

    This provision of the Treaty not having had the occasion to be activated until now does not prove the existence of Judge Listner’s “exemption.” The hazards created by ASAT testing have become more salient as the number of satellites and nations that own them have increased and it is absurd to argue that a law which has not been put into effect yet cannot be now that the need is becoming more clear.

  2. A very informative post, indeed. Art. IX also asks States to engage in prior consultations if the activity is potentially harmful to other states. Some commentators have also cited the preamble and articles I and III of the OST while arguing against the legality of ASAT missile testing . But the OST in practice is a weak document to deter space powers to pay heed to its stipulations.

    1. Very true. I’m trying to get a clear grasp on the relationship between the duty of “due regard” and the consultation requirement. Any thoughts?

    2. The underlying assumption is the OST holds an answer to this question when it doesn’t. The two States in the driver’s seat when the OST was being negotiated was the U.S. and the Soviet Union; everyone else was along for the ride. During the negotiations for the OST, the U.S. put the issue of “space weapons” on the table to ban them outright in the OST; the Soviet Union refused because they wanted to use subsequent arms control agreements. Indeed, subsequent administrations dealt with the Soviets on the issue of space weapons and ASATs, including the Carter and Reagan Administrations but nothing ever became of the efforts. I have my opinions as the motivations around the Soviet desire to use arms control agreements instead of the OST, but the bottom line is the OST does not have the basis either in its words or negotiations to be utilized to deal with the ASATs.

  3. There are several problems in terms of arms control. First, there is the lack an adequate definition of what constitutes a space weapon. Second, it makes no sense to ban space-based weapons while allowing surface-based antisatellite weapons, as the Sino-Russian draft Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT) does, and which therefore the United States will never agree to. Third, an adequate compliance verification regime would require international onsite inspection of every space launch payload and every warhead on missiles capable of reaching orbital altitudes.

    1. Thomas — I happen to have a student who is researching whether ASATs might be under any circumstances a WMD. So that is one good faith argument against their legality. Although since they are not stationed in orbit, Art. IV won’t prohibit them outright. Nevertheless, there are other laws of war regulating WMDs.

      BTW — I just asked our library to add your book to our space law collection.

  4. It isn’t as simple as whether it’s legal or not; it’s whether an ASAT test or other national security activities trip the Article IX consultation requirement. The answer to that is probably not. The U.S. and Soviet Union tested ASATs during the Cold War, including the U.S. testing its operational nuclear-based system, Program 435 (minus the warfead), the Soviets testing the Istribel Sputnik co-orbital system in the 60’s and 70s and the U.S. test of the ASM-135 on SolWind P-781 in October 1985. During this period of ASAT testing, no other States complained about the Soviet Union and the U.S. not following the duty to consult nor did any State use the right to request consultation in Article IX. Thus, because Article IX is vague (intentionally) about specifically what type of activities require a consultation and custom has essentially filled the gap and created an unwritten, legally-binding practice that national security activities are exempt from Article IX. It’s ironic, because Project West Ford, which was a military project that dispersed a cloud of iron dipoles in orbit, was the impetus for the Article IX consultation requirement. The real politik is States are reluctant to use either the consultation requirement or the right to a consultation because it could create a precedent that geopolitical competitors could use as a geopolitical wedge. Thus, China and now India has followed the path laid out by the Soviet Union and the United States, which doesn’t actually permit ASAT testing but doesn’t forbid it either nor does it require an Article IX consultation. It’s notable that before the intercept of USA-193, which was not an ASAT test despite the media brandishing it as such (this is a debate for another time), Dr. Nick Johnson went to COPUOS to brief on the intercept, but the U.S. did not invoke the consultation requirement, which means this was not an Article IX exercise. All this goes back to international law does not create sovereign law but rather creates a legal fog that States agree to conform to based on their own interpretations.

    1. Michael — What, in your opinion, is the relationship between the duty to operate with “due regard” to the interests of others and the duty to consult in the event of potential “harmful interference”? What if the consultations do not result in agreement? Thanks for chiming in so eloquently!

      1. The way I see it, that is a political calculation more than a legal determination as what constitutes due regard depends on what the States with the prestige, i.e. the juice to influence international law through custom (the shadowy third-prong for the test for customary international law) decide what is due regard and manifest through practice. This all gets back to the Article IX conundrum in that until a State with the juice actually invokes the consultation process, it will remain dormant. This relates to your other question about disagreement to the extent since Article IX’s vagueness leaves a lot of open territory that could be exploited to the geopolitical advantage in terms of lawfare against another State. In other words, the potential of disagreement over a consultation is likely one of the factors the States with the juice take into consideration when it comes to the Article IX consultation requirement. As a footnote, Japan tried to invoke the right to request a consultation in Article IX after the 2007 ASAT test. Two problems is the right to seek a consultation must occur before the activity in question. Moreover, at the time, Japan didn’t really have the juice at the time (I would argue they might now) to make their invocation stick. I apologize if I’m not answering your questions in the way you’re framing them Mark, but I think we’re looking it this from different perspectives.

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